C AL E D i s c u s s i o n Pa p e r N o . 4
M a y, 2 0 1 0

ADMINISTRATIVE DIVISION COURT
IN VIETNAM:
MODEL, JURISDICTION AND
LESSONS FROM FOREIGN EXPERIENCES
Dr. Pham Hong Quang

Nagoya University
C e n t e r f o r A s i a n L e g a l Ex c h a n g e

ADMINISTRATIVE DIVISION COURT
IN VIETNAM
MODEL, JURISDICTION AND
LESSONS FROM FOREIGN EXPERIENCES

Dr. Pham Hong Quang
Hanoi Law University, Vietnam

NAGOYA UNIVERSITYGRADUATE SCHOOLGRADUATE SCHOOL OF LAWADMINISTRATIVE DIVISION COURT
IN VIETNAM
MODEL, JURISDICTION AND
LESSONS FROM FOREIGN EXPERIENCESSUBMITED BY:

PHAM HONG QUANG

LL.B, HANOI LAW UNIVERSITY (1995)
LL.M, NAGOYA UNIVERSITY (2002)

COURSE：

LL.D COMPARATIVE PROGRAME IN LAW AND POLITICAL SCIENCESTUDENT ID: 430604114

A THESIS SUBMITTED IN TOTAL FULFILMENT OF THE REQUIREMENTS
FOR THE DEGREE OF DOCTOR OF LAW

ACADEMIC SUPERVISOR:

Prof. AIKYO MASANORISUB-ACADEMIC SUPERVISORS:

Prof. KAMINO KENJI
Prof. ICHIHASHI KATSUYANAGOYA, 2008

DEDICATIONIn Memory of My Sister Pham Bich Van,
A Forever Young 10 Year-Old Girl, died in Hai Phong City before Vietnamese War End,To My Dearest Daughters (TAKARAMONO), Linh Chi (霊芝) & Linh Dan (SONY),
And All My Beloved!

ACKNOWLEDGMENTS
The deepest gratitude particularly goes to my Academic Supervisor, Prof. Aikyo Masanori, whoreceived me as a Master Student in 2000, and with whom I have studied as a Doctoral Student since 2005. I
thank Prof. Aikyo for his time and patience, spending a great deal of time supervising me on my research
topic, providing valuable advice and the opportunity to further my research through the participation inInternational and Domestic Symposia, overseas study-trips and collaboration in activities of the Center for
Asian Legal Exchange (CALE) regarding FLA Projects.
I am deeply grateful also to Prof. Kamino Kenji and Prof. Ichihashi Katsuya who also supervised
me since 2000, providing me with valuable critical comments relative to my research topic, and allowing
me to participate in Japanese Seminars which enabled me to improve my knowledge in Contemporary
Administrative Law Theory by analyzing case-studies and judgments. My Professors continued toencourage me to pursue this research topic since my Master’s degree and granted me an opportunity toreturn to Japan at the end of 2002 to participate in the 5th East Asian Administrative Law Association
Symposium held in Kyoto and Nagoya.
I would like to express my sincere thanks to Prof. Matsuura Yoshiharu, who accepted me as his
teaching assistant of the Academic Writing in Course (2007). My deep thanks also to Prof. Sugiura
Kazutaka, who allowed me to join the Cooperative Research Group C1 of CALE and publish my paper on
Legal Education and Legal Profession Training in Vietnam in Vol.7 of Research Result Report (2007).
I also wish to express my deep appreciation to the Critical Discussion Section (CDS) convened
by Prof. Frank Bennett from 2006 which provided me with the opportunity to present my research topic to
GSL’s graduate students on several occasions and receive very useful comments. A special thanks also to
Okuda Saori Sensei- the very kind and warm hearted foreign student advisor of the School of Law, as wellas, Masaki Nakamura and Hiroyuki Seto who are my best tutors and Senpai. My thanks are extended to the
Nagoya University Library, CALE and the Graduate School of Law Office Staff, my best friends Matsuda,
Kasaya, Makino and all my colleagues and friends for providing me with the relevant materials, data
relative to research topic and taking my survey questions. I also wish to express my sincere appreciation to
the Legal Department of Toyoda Gosei Co.Ltd, particularly Mr.Kani Masayasu as the Chief, who acceptedme as intern in September, 2006 and helped me to improve my practical knowledge regarding the transfer
technology, intellectual property, which are known as new administrative lawsuits in Vietnam.
I owe a great deal of thanks for the support of the Nagoya University Research Fund, Prof.
Kurumisawa (Waseda University), Prof. Rolf Knieper (Bremen University, Germany), Japanisch Deutsches Zentrum Berlin (JDZB) who gave me a wonderful opportunity to present at an International
Symposium on “The Roles of Law and Legal Assistance in Constructing a Mature Civil Society” in Berlin(Germany) on March 12-13, 2009. As a Monbukagakusho scholarship student, I owe much thanks to theJapanese Government, Japan’s Ministry of Education, Culture, Sports, Science and Technology (MEXT),

and Vietnam’s Ministry of Education and Training (MOET) and Ministry of Justice (MOJ) who funded andallowed me to study overseas for nearly six years. My special thanks also to Prof. Hoang Van Sao, who
studied in Humboldt University (Germany) in the 1970s, launched a new subject of Administrative
Litigation Law in Vietnam in 1994 and recommended me to take this subject in 1995; to the Rector and theBoard of HLU and all of my colleagues for warmly encouraging me to follow an academic career.
Last but not least, I deeply indebted to my Parents from both sides, my wife Pham Lan Phuong,
two my dearest daughters, my lovely family in Hai Phong and Dien Bien, particularly my unhealthy sister
Pham Bich Phuong, for not taking care of them for a long period of time.
Pham Hong Quang (範紅光)SOME AUTHOR’S PAPERS INITIATED TO THIS DOCTORAL DISSERTATION

Pham Hong Quang et al, Khoa hoc Luat To tung Hanh chinh va Luat To tung Hanh chinh Vietnam, [Administrative
Litigation Law as A Legal Science and An Independent Law Branch in Vietnam], in Hoang Van Sao ed, Giao trinh Luat
To tung Hanh chinh Vietnam, [Textbook of Vietnamese Administrative Litigation Law], Nha Xuat ban Cong An Nhandan (People Police Publisher), 2007.

Pham Hong Quang, The Current Legal Education and Legal Profession Training in Vietnam, [ベトナムの法学教育及び法律専門職養成の現在], in K. Sugiura ed, Foreign Legal Assistance and Judicial Reform [法整備支援と司法改革], Vol 7 研究成果報告書, Center For Asian Law Exchange (CALE- Nagoya University), March, 2007.

Pham Hong Quang, Luat Kien tung hanh chinh Nhat Ban va Mot so van de can sua doi, [Administrative Case Litigation
Law of Japan and Some Necessities of Amendment], 3 Tap chi Luat Hoc (Jurisprudence Review), 2005.

Pham Hong Quang, Tai phan Hanh chinh theo Quan niem cua Mot So Nuoc tren The gioi, [Some Views on
Administrative Jurisdiction in Some Countries in the World], 1 Tap chi Luat Hoc (Jurisprudence Review), 2005.

Pham Hong Quang, Mot vai Kinh nghiem Giai quyet tranh chap Hanh chinh o Nhat Ban, [Some Experiences on
Settlement of Administrative Disputes in Japan], 4 Tap chi Luat Hoc (Jurisprudence Review), 2003.

Pham Hong Quang, Overview of Settlement of Administrative Lawsuits in Vietnam, in the Summary Record ofInternational Symposium titled “The Development of Administrative Law in East Asia” (The Vth East Asia
Administrative Law Association) held in Kyoto & Nagoya on November, 22-27 (2002).

Pham Hong Quang, Improving Mechanism for Settlement of Administrative Disputes: An Important Contribution to
Public Administration Reform in Vietnam today, Master Thesis of Graduate School of Law, Nagoya University(September, 2002).

Pham Hong Quang, Some Considerations of Legal Assistance Regarding Administrative Law Review Conducted by
Japan and Germany in Vietnam, in the Summary Record of International Symposium on“The Roles of Law and Legal Assistance in Constructing a Mature Civil Society in Berlin (Germany) on
March, 12-13 (2009)
9. Pham Hong Quang, The Improvement of Vietnamese Administrative Law Review in the Intergration andDevelopment Process: Some Experiences from the Continental Law System, Japan and China, in Vietnamese Law in
the Intergration Process and Sustainable Development, People Police Publisher (2009)CALE Discussion Paper No.4

ADMINISTRATIVE DIVISION COURT IN VIETNAM
MODEL, JURISDICTION AND LESSONS FROM FOREIGN EXPERIENCESACRONYMS AND ABBREVIATIONS.........................................................................................................viii
ABSTRACT........................................................................................................................................................ ix
INTRODUCTION .............................................................................................................................................. x

1. Background ............................................................................................................................. x
2. Purposes, Previous Research & Current Research Questions .......................................... xii
3. Main Contents ...................................................................................................................... xiv
4. Methodology ........................................................................................................................ xvii
5. Materials ............................................................................................................................. xviii

CHAPTER I : ADMINISTRATIVE DIVISION COURT MODEL: THE START OF
THEORETICAL CONTROVERSY..................................................................................... 1
Introduction................................................................................................................................... 1
I. Overview of Administrative Disputes Resolution in Vietnam Prior to 1996 ................................ 2
1. Under Development of Vietnamese Administrative Law Regarding Judicial Review...... 2
1.1. Outlook of Comparative Studies of Administrative Law ............................................. 2
1.2. Some Analyses on the Under Development of Vietnamese Administrative Law ............ 5
2. Administrative Disputes Resolution Prior to 1996: Main Characteristics and Criticisms .... 10
2.1. Main Characteristics ..............................................................................................102.2. Criticisms .............................................................................................................122.2.1. Lack of Judicial Review ............................................................................................................... 122.2.2. Imperfection of Legal Norms....................................................................................................... 13
2.2.3. Defect of Settlement Proceedings and Failure of Implementation............................................. 14
2.2.4. Capacity Limitation of State Officials and People’s Legal Awareness ........................................ 15

II. New Perception to Judicial Review of Administrative Action in Vietnam ................................. 16
1. Whether Judicial Review of Administrative Action Existed Historically in Vietnam..... 16
1.1. Trace back to Vietnamese Feudalism Regarding Settlement of People’s Claims ........... 16
1.2. Court Jurisdiction over Administrative Cases Prior to 1975........................................ 20
2. Looking for Model of Law-Based State and of Judicial Review of Administrative Action.... 23
2.1. From Socialist Legality to Socialist Law-Based State................................................ 23
2.2. Indispensable Need for Judicial Review of Administrative Action .............................. 25
2.2.1. Political and Democratic Aspects............................................................................................... 25ii

2.2.2. Economic and Administrative Management Aspects ................................................................ 26
2.2.3. Legal and International Integration Aspects............................................................................. 27

2.3. Legal Perception to Judicial Review of Administrative Action ................................... 28
III. The Birth of Model of Administrative Division Courts: Interim or Eternal Solution ................. 31
1. Proposed Models and Analyses: Theoretical Conflict and Divergence ............................ 31
1.1. Model of Independent Administrative Court Formed by National Assembly ................................ 31
1.2. Model of Administrative Court as Independent System Attached to Government ........................... 32
1.3. Model of Semi-Independence Administrative Court ............................................................. 33
1.4. Model of Administrative Division within People’s Courts (ADCs) ............................................ 34

2. Choice of ADCs Model.......................................................................................................... 34
2.1. Rationale .................................................................................................................34
2.1.1. Issue of Constitutionality................................................................................................................ 34
2.1.2. Issues of Feasibility ........................................................................................................................ 35
2.2. Its Foundation and Operation (since July, 1st 1996)............................................................... 36
2.2.1. Legal Basics .................................................................................................................................... 36
2.2.2. Court Organization......................................................................................................................... 37
2.2.3. Trial Panel and Participation of Procurators ................................................................................ 39

3. Theoretical Conflict and Controversy................................................................................. 42
3.1. Model of ADCs: Interim or External?............................................................................... 42
3.2. Taxonomy of Controversy Regarding Court’s Models ........................................................... 45

Concluding Remarks................................................................................................................... 47

CHAPTER II : JURISDICTION OF ADMINISTRATIVE DIVISION COURTS:
CONSTANT CONTROVERSY AND PRACTICAL REMAINS..................................... 48
Introduction................................................................................................................................. 48
I. Administrative Division Court’s Jurisdiction: Its Enlargement and Debates ............................... 49
1. Legal Concept........................................................................................................................ 49
2. Grounds for Jurisdiction over Administrative Litigation ................................................. 53
2.1. Principle of Legal Examination: Legality or Rationality......................................................... 53
2.1.1. Examination on Substantive Requirements ................................................................................... 55
2.1.2. Examination of Procedural Requirements..................................................................................... 58
2.2. Non-Power of Inquiry in to Legal Norms .......................................................................... 60

3. Objects to Judicial Review ................................................................................................... 62
3.1. Individual Administrative Decisions ................................................................................ 63
3.2. Job Dismissal Disciplinary Decisions ............................................................................... 65
3.3. Administrative Actions ................................................................................................ 66

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4. Court’s Jurisdiction: Classification and Analyses.............................................................. 66
4.1. Jurisdiction over Territorial Units.................................................................................... 66
4.1.1. Supreme People Court .................................................................................................................... 66
4.1.2. Local Courts.................................................................................................................................... 67
4.1.3. Delimitation of Court’s Jurisdiction............................................................................................... 68
4.2. Jurisdiction over Enumerated Administrative Matters ........................................................... 69
4.3. Jurisdiction over Trial Proceedings .................................................................................. 73
4.3.1. Examining the Standing ................................................................................................................. 73
4.3.2 On Evidences ................................................................................................................................... 73
4.3.3. On Damage Compensation............................................................................................................. 75
4.4. Judgment and Interim Relief ......................................................................................... 76
4.4.1. Administrative Judgment – A Legislative Vacancy......................................................................... 76
4.4.2. Temporary Suspension and Suspension of Settlement of Administrative Cases ........................... 78
4.4.3. Temporary Urgent Measures .......................................................................................................... 78
4.5. Jurisdiction over Appeal and Supervisory, Review Trial ......................................................... 79

II. Vietnamese Case-Study Analyses: Current Controversies and Mistakes of Judgments ............... 80
1. Whether Courts Can Review at Any Period of Administrative Complaints ................... 80
1.1. Issue of Compulsory Pre-Litigation and Its Obstacles ........................................................... 80
1.2. Revocation of Judgment Regarding Land Dispute in Dong Nai Province (1999) ........................... 83
1.3. Lawsuit Regarding Final Reconsideration Decision in Can Tho Province (2006) ........................... 84

2. Whether Court Can Apply Retroactive Principle .............................................................. 86
2.1. Issue of Error of Law .................................................................................................. 86
2.2. A Case of Personal Income Tax Decision to Mr.K.S (Japanese) in Hanoi (1998) ........................... 89

3. Whether Court Can Encroach upon Administration ........................................................ 92
3.1. Issue of Judgment’s Defect and Discretionary Judgment ........................................................ 92
3.2. Annulment of Discretionary Judgment on Land in Thai Binh Province (1999) .............................. 95
3.3. Annulment of Illegal Judgments Regarding Tax Sanction in Hai Phong (2000) ............................. 97

4.Whether Scope of Accepting Cases Can Be Extended At Maximum ................................ 98
4.1. Issue of Scope of Judicial Review ................................................................................... 98
4.2. Dismissal of Petition Regarding Land Recovery in Hanoi (2004) ........................................... 100

5. Whether Sanction Decision Violated Time Limit Can Be Wholly Quashed .................. 102
5.1. Issue of Time Effect .................................................................................................. 102
5.2. Lawsuit Regarding Sanction on Intellectual Property in HCM City (2005) ................................ 103

6. Overview of ADCs’s Adjudication Over Past Ten Years and Judgment’s Mistakes ..... 105
6.1. Statistical Data and Analyses ....................................................................................... 105
6.2. Some Main Mistakes of Judgments ............................................................................... 108

iv

Concluding Remarks................................................................................................................. 109

CHAPTER III : LESSONS FROM FOREIGN EXPERIENCES REGARDING
ADMINISTRATIVE COURT MODEL AND JURISDICTION..................................... 111
Introduction............................................................................................................................... 111
I. Motivations to Administrative Law Reform and Impacts of Foreign Experiences ..................... 112
1. Legal Transplant: Impacts of Foreign Experiences By Means of Foreign Legal
Assistance................................................................................................................................. 112
2. Motivations to Reform of Vietnamese Administrative Law ............................................ 116
2.1. Self-Identity ........................................................................................................... 117
2.2. Necessity of International Integration and Saving Time ....................................................... 119

II. Lessons from Oversea Experiences .................................................................................... 121
1. Learning French Experiences ............................................................................................ 122
1.1. Structure of French Administrative Court System .............................................................. 122
1.1.1. Conseil d’Etat ............................................................................................................................... 122
1.1.2. Tribunaux Administratifs and Cours Administratives D’Appel .................................................. 124
1.2. Some Experiences on Court’s Jurisdiction ....................................................................... 125
1.2.1. Objects subject to Judicial Review................................................................................................ 125
1.2.2. Grounds for Judicial Review ........................................................................................................ 127
1.2.3. Judgments, Decisions and Effects of Annulment of Administrative Acts.................................... 129
1.3. Introduction to French Sikh Schoolboys Lose Turban Case (2005).......................................... 131

2. Learning from Chinese Experiences ................................................................................. 133
2.1. Establishment of ADCs and an Administrative Litigation System ........................................... 133
2.1.1. Constitutional Background: From Rule by Man to Socialist Rule of Law State ........................ 133
2.1.2. Administrative Litigation System and Model of ADCs ................................................................ 135
2.2. Some Experiences Regarding Jurisdiction of Administrative Division Court .............................. 137
2.2.1. Principle of Legal Inquiry and Scope of Accepting Cases........................................................... 137
2.2.2. No Compulsory Requirement of Administrative Reconsideration............................................... 141
2.2.3. Judgment and Performance ......................................................................................................... 141
2.3. Introduction to Some Administrative Lawsuits in China....................................................... 143
2.3.1. Hepatitis B Carriers Case (2003) ................................................................................................. 143
2.3.2. Qiao Zhangxiang vs. Ministry of Railways Case (2001) ............................................................. 144

3. Learning from Japanese Experiences ............................................................................... 146
3.1. Change from Model of Administrative Court to Ordinary Court ............................................. 146
3.1.1. Meiji Constitution and Model of Continental Administrative Court........................................... 146
3.1.2. Japanese Constitution (1947) and Changes to Model of Ordinary Court................................... 150v

CALE Discussion Paper No.4

3.2. Some Experiences on Jurisdiction over Settlement of Administrative Cases ............................... 153
3.2.1. Scope of Judicial Review .............................................................................................................. 153
3.2.2. No Compulsory Administrative Reconsideration......................................................................... 158
3.2.3. Categories of Administrative Litigation ....................................................................................... 158
3.2.4. Interim Relief, Judgment and Implementation............................................................................ 162
3.3. Introduction to Some Administrative Lawsuits in Japan ....................................................... 163
3.3.1. Revocation of Approval Disposition on Constructing Odakyu Line (2005) ................................ 163
3.3.2. Confirmation of Invalid Permission in Monju Case (2003)........................................................ 166

III. Necessity of Foreign Legal Assistance Regarding ALRS ..................................................... 168
1. Administrative Law Review System: A Difficult but Potential Field ............................. 168
1.1. Limitation of FLA Projects ......................................................................................... 168
1.2. Potential Development .............................................................................................. 171

2. Recommendations ............................................................................................................... 173
2.1. Support for Improving Legal Framework ........................................................................ 173
2.2. Support for Constructing Institutions ............................................................................. 176
2.3. Support for Legal Training and Exchange of Legal Information ............................................. 178

Concluding Remarks................................................................................................................. 180

CHAPTER IV : NEW CHALLENGES TO EXISTENCE OF CURRENT ADCs IN
VIETNAM............................................................................................................................182
Introduction............................................................................................................................... 182
I. Contemporary Legal Debates on Setting up Models Other than the Existing Model.................. 183
1. Transplanting Rule of Law and Judicial Reform Regarding the Administrative Court
Model ....................................................................................................................................... 183
1.1. Informal Institutional Approach to Rule of Law ................................................................ 183
1.2. Judicial Reform and Vietnamese Communist Party’s Points of View........................................ 186

2. Constant Debate on Looking for the Best Model ............................................................. 190
2.1. Whether to Form an Administrative Jurisdiction Body Attached to Government ......................... 190
2.2. Whether to Set Up Administrative Court Model like Current Military Courts ............................. 194
2.3. Whether to Establish a Model of Regional Administrative Courts ........................................... 195
2.4. Whether to Introduce a Model of Administrative Tribunals ................................................... 197

II. Theoretical Implications and Recommendations .................................................................. 202
1. Theoretical Implication for Future Development of Vietnamese Administrative Law. 202
2. Recommendations on Improving the Court Model and Jurisdiction in Vietnam ......... 204
2.1. The Ruling Party’s Role and the State Mechanism ............................................................. 204
2.2. Legal Framework and Expansion of Jurisdiction ............................................................... 206vi

2.3. Court Model and Institutions ....................................................................................... 210
2.3.1. AJB attached to Government and New Appellate System............................................................ 210
2.3.2. ADCs and Judicial Review System ............................................................................................... 212
2.4. Legal Human Resources ............................................................................................ 215
2.4.1. Appointment and Training Administrative Judges ...................................................................... 215
2.4.2. Other Legal Posts.......................................................................................................................... 226

Concluding Remarks................................................................................................................. 228
CONCLUSION .................................................................................................................................................... i
SURVEY QUESTIONS & RESULT ...............................................................................................................vii

APPENDIX.................................................................................................................................................. xi
BIBLIOGRAPHY.................................................................................................................................... xviii

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CALE Discussion Paper No.4

ACRONYMS AND ABBREVIATIONSACLL

Administrative Case Litigation Law (Japan)

ADB

Asian Development Bank

ADC(s)

Administrative Division Court(s)AJB

Administrative Jurisdiction Body

AJI

Administrative Jurisdiction Institute (Vien Tai Phan Hanh Chinh)ALL

Administrative Litigation Law (China)

ALRS

Administrative Law Review System

APL

Administrative Procedural Law

BTA(Vietnam-America) Bilateral Trade Agreement

CALE

Center for Asian Law Exchange

CCP

Chinese Communist Party

CPV

Communist Party of Vietnam

DRV

Democratic Republic of Vietnam

FLA

Foreign Legal Assistance

IMF

International Monetary Fund

JICA

Japanese International Cooperation Agency

JRAA

Judicial Review of Administrative Action

LDM

Law and Development Movement

LOCD

Law on Complaints and Denunciations

LOPC

Law on Organization of People’s Court

MOJ

Ministry of JusticeNGOs

Non-Government Organizations

OPHIT

Ordinance on Personal High Income Tax

OPJA

Ordinance on People’s Judges and Assessors

ORAV

Ordinance on Resolving Administrative Violation

OSAC

Ordinance on Settlement of Administrative Cases (Vietnam)

OSCCD

Ordinance on Settlement of Citizen’s Complaints and Denunciation (1991)

PRC

People Republic of China

ROL

Rule of Law

SIDA

Swedish International Corporation Development Agency

UN

United Nation

UNDP

United Nation Development Program

USAID

United State Agency for International Development

WB

World Bank

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ABSTRACTThe Model and Jurisdiction of Administrative Division Courts (ADCs) in Vietnam over the
past ten years have revealed many defects that fail to fulfill the requirements of the Rule Of Law(ROL) and Judicial Independence as well as performed Judicial Reform Strategy up to 2020 aspromoted by CPV (2005). Along with the requirements for implementing the Vietnam-America BTA
and WTO’s regulations (2006), particularly with the vigorous support for current prevailed models,the ADCs Model has faced great challenge for its existence. This dissertation explores why the ADCs
Model and Jurisdiction have been harshly criticized and what are the components that need to bereformed? by addressing four research questions in four subsequent Chapters.
The author argues that the existing ADCs Model is not an ideal model for protecting
individuals and entities including foreign partners from malpractices of administration. It is only aninterim solution in the transitive period and no longer appropriates in the context of post-WTO
Accession and the ROL Era. The author supports the establishing of an AJB attached to Government(appellate system) in parallel with Regional Administrative Courts (judicial review system) to ensure
its independence from Governing Agencies and Ruling CPV. In addition, the author recommends thenecessity of training legal human resources, including professional administrative judges as a key
factor. The author concludes that the reform of ADCs Model today needs to be conductedconcurrently with the transplanting of an Informal Institution of ROL, in line with civil law thinking,to achieve the harmonization and democratic values set forth by State governed by ROL of Vietnam.
To reform the administrative law system by means of Foreign Legal Assistance (FLA), it isnecessary to approach the basic theory and paradigm, particularly those relative to the mechanism ofinstitutional change under the view of economic study. This reform should be gradualist and acontinuous learning processix

CALE Discussion Paper No.4

INTRODUCTION“The character of an administrative law system varies according to the generalcharacter of the legal system of the country that forms its foundation…The fundamental
difference between the main administrative law systems in the world may be said to lie in
their respective mechanisms for the review of administrative acts”1.
(Itsuo Sonobe – Justice, Supreme Court of Japan, 1983)“Step-by step reforming Model of People’s Courts at all levels and preparing
conditions for establishing Regional Courts for settlement of administrative cases;
Enlarging the adjudicative jurisdiction of the court in handling administrative lawsuits”2.
(Resolution No 49 NQ/TW (2005) on Judicial Reform Strategy up to 2020
by the Politburo of Vietnamese Communist Party)

1. Background
The foundation and inauguration of the Administrative Division Courts within People’s
Court System (hereinafter as referred to ADCs) over past ten years marked an epoch-making step
toward the improvement of the Administrative Law Review System (hereinafter as referred to
ALRS) in Vietnam. This achievement undeniably resulted from a wide range of Legal and Judicial
Reforms in the push towards democratic values, Nha nuoc Phap quyen (Law-Based State) and theprotection of people’s legal rights and interests. However, as some foreign scholars comment:“Vietnamese ALRS needs to be much more independent from the Government and the Ruling
Communist Party in order to have credibility and legitimacy”3.
ALRS in Vietnam functions differently to that which is rooted in Western countries and ispossibly criticized for ineffective protection to the citizen’s rights due to its inheritance of socialist
law traditions, which can be characterized by a system of State Power Concentration and One Party
Rule4. It is too simplistic and subjective to make a judgment in terms of success or failure on theeffectiveness of a system that differs from a Western democratic model without taking in to accountthe historical background of the country, the legal traditions, as well as the domestic complexities of
1

See John Owen Haley & Hiroshi Hokama eds, 19 Law in Japan, An Annual (1986). Kevin Hansen translated from I Gendai
Gyoseiho Taikei (The System of Modern Administrative Law, Volume 1), I.Ogawa, H.Shiono, I.Sonobe eds, pp.121-146 (1983)
2

Resolution No 49 NQ/TW dated on June, 2nd 2005 by Politburo of CPV on Judicial Reform Strategy up to 2020 in Ho Chi Minh
National Political Institute, Official Documents of Party and State on Reform of State Apparatus, 15 (2005)

3
See Law Professor John Reitz advising Vietnam on reforming its court system in University of Iowa News Release, available at
http://news-releases.uiowa.edu/2007/november/110207reitz_reform.html
4This can share the common with Chinese ALRS. See Yong Zhang, Comparative Studies of Judicial Review System in East andSoutheast Asia, Preface XXI, (1997)x

transitional country such as Vietnam. Criticism leveled at Vietnam on its ADCs Model has recently
increased, along with requirements for implementing the Vietnam-America BTA and the WTO
regulations, particularly in regards to the strong support for the model of Administrative Jurisdiction
Body attached to Government (AJB) or Administrative Tribunals. In the time being, very existenceof the ADCs Model has met great challenges.
From a theoretical perspective, Judicial Review of Administrative Action (JRAA) known
as an expanding body of administrative law is currently being developed throughout the world.
Vietnamese administrative law, for a quite a long period of time, was criticized for its slow
development, largely due to the absence of an impartial judicial body protecting the people from themalpractices of a powerful administration. Even now, it still lacks a modern theory relative to thecourt’s model and jurisdiction for JRAA, a theory of active and adjudicative administration and soon. Like any other law field in the transitional period, contemporary Vietnamese administrative law
has been constructed by means of legal transplantation, historically derived from China, France, andthe former Soviet Union and more recently East Asia and Western countries.
Regarding legal scholars known as effective transferors of foreign laws and theories into
their own transitional country, Vietnam still lacks quality administrative law scholars, with the ability
to learn the theory arrived at by Western learning and successfully “absorb that total personality
make-up that gives birth to those conclusions”5, a lesson learnt through the experiences Japanesescholars in studying foreign laws. An outstanding issue in over the past ten years is the gradualchange of legal perception towards the JRAA among Vietnamese scholars, historically influenced by
Soviet legal thinking and those recently absorbed in legal thought from the West and East Asia. Oneof the most difficult tasks of Vietnamese scholars is how to consult with the Government to achieve
the best court model and jurisdiction for JRAA and how to avoid constructing this model from amishmash of borrowed models and theories.
Such implications, as well as the fact that each legal system in the world can not be
successfully developed in total isolation both from legal development elsewhere and traditional
values domestically, make a doctoral dissertation entitled “Administrative Division Court in
Vietnam: Model, Jurisdiction and Lessons from Foreign Experiences” an important contribution oncontemporary ALRS for the emerging market economy of Vietnam. In addition, as a respected
Japanese legal assistance specialist predicted: “the need for clearer philosophy of legal assistance”
and “the need to further clarify the purpose of legal assistance” have been seen as “a new trend ofthoughts emerging inside Japan”6, this dissertation will attempt to consult with foreign sponsors the5
See Prof. Y.Yanase, Gakkai Tembo “Gyoseiho” (Academic Prospective “Administrative Law”), Public Law No 7, 130 (1951). It iscited by Itsuo Sonobe, Comparative Administrative Law: Trends and Features in Administrative Law Studies (Japan). See supra note
1, at 57
6

Aikyo Masanori, Human Rights and Democracy in Vietnam: Some Thoughts on the Philosophy of Legal Assistance, in
Y.Matsuura ed, The Role of Law in Development: Past, Present and Future, pp.78-79 (2005).

xi

CALE Discussion Paper No.4

promotion of Foreign Legal Assistance (FLA) Projects toward ALRS – a potential field for legal
assistance, but one that has not been included in many projects to date.

2. Purposes, Previous Research & Current Research Questions
2.1. Purpose and Attraction
Vietnamese law identity, as described by foreign scholars, is a traditional legal system with
Confucian-inspired and Chinese legalism7. This research is based on the main idea that all legal
traditions characterized by the mixture of Confucian heritage, French-inspired civil origin andprevious Soviet influences, should not be simply wiped clean and new Western models and theories
carelessly imported without considering its harmonization.
Given the background of the research topic selection, this dissertation serves three major
purposes described below:

The first purpose is to explore and analyze the theoretical and historical aspects of ALRSin Vietnam in general and of the model of ADCs in particular. This disertation focuses on exploring
why the existing ADCs model has been strongly criticized, how its jurisdiction has been improved
over the past ten years, and what challenges its existence faces in the future.
The second purpose is to study foreign administrative law theory regarding the court’s
models and jurisdiction over settlement of administrative lawsuits, known as a very important andexpanding body of administrative law in the new era of the ROL. Although this dissertation does nottake on the ambitious task of conducting a comparative study of ALRS around the world, it poursmuch effort into the drawing together of some worthy experiences from three selected countries:
France, China and Japan.
The third and ultimate purpose of this dissertation is to contribute an academic view to thecontroversial issues regarding the existing ADCs Model, and to a certain extent, act as a legaltransferor for improving modern administrative law studies in Vietnam. Some recommendations on
the court’s model and jurisdiction as well as the projects of FLA thereof will also be put forward inthis dissertation.
Three main attractions of study:Firstly, it concerns the controversial character of the existing ADCs Model. Anywhere, it
is common that when a resolution is finally chosen by authority or lottery, it may be either supported
and praised or protested and criticized. The choice of the model of ADCs in Vietnam may fall into
the latter. It should be emphasized that the final choice of the ADCs Model among four proposedmodels (1996) did not complete the legal debates among scholars, but also started a controversy that
continues today.

7

See Pip Nicholson, Roots and Routes: Comparative Law in Post-Modern World, Asian Law Centre’s Brown Bag Lunch Seminar,
2001

xii

Secondly, this research topic is attractive due to its theoretical and historical perspective.
The introduction of the ADCs Model entailed not merely the issue of finding a practical resolution
for protecting people’s legal rights from maladministration, but also the issue of theoretical conflict
between the former Soviet influences and newly Western impacts. In addition, Vietnam has quite acomplex history of legal transplantation and a strong sense of contributing its own theory. For suchreason, Vietnamese administrative law theory needs to further catch up with the mainstream of the
ROL today.
Finally, the practical and applicable aspects also draw on this research. David Nelken
suggests that: “Borrowing other people’s law is seen as just a method of speeding up the process offinding legal solutions to similar problems”8. It will be true in case of a correct choice; however, insome cases it may not speed up this process but by contrast hold back social development. Like any
Vietnamese legal research taken recently, what this research concluded is hopefully applicable and inaccordance with the current context.

2.2. Previous Research
At the time of completion of this dissertation, there was only one published doctoral
dissertation entitled: “The Court’s Jurisdiction over Settlement of Administrative Cases – Guaranteeof Justice in the Relationship between State and Citizen” (2004) by Prof. Nguyen Thanh Binh, Chiefof Lawyer Training, Department of Judicial Academy.
In a Master’s thesis entitled: “Improving Mechanism for Settlement of Administrative
Disputes: An Important Contribution to Public Administration Reform in Vietnam Today” (PhamHong Quang, GSL, Nagoya University, 2002), the author poses the main research question “whydoes the former have a reciprocal relation with the latter and how does it impact on the latter?” forconfirmation of the “continuous learning process” of the contemporary administrative and judicial
reforms in Vietnam including the reform of ALRS.

2.3. Current Research Questions & Hypothesis
This Doctoral Dissertation continues following the mainstream of reforming ALRS in thecontext of decisively carrying out the Judicial Reform Strategy promoted by CPV (2005). The coreresearch question of this dissertation however is “why has the existing ADCs model and its
jurisdiction over the past ten years been greatly controversial and why does it need to be supersededby other better model? This dissertation more deeply investigates the theoretical issues ofadministrative law regarding the administrative court model, grounds and scope for judicial review,the judgment’s effect, the theory of adjudicating and the governing function within the

8David Nelken, Legal Transplants and Beyond: Of Disciplines and Metaphors, in Andrew Harding & Esin Orucu eds, Comparative
Law in 21st Century, pp. 26-27 (2002)

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CALE Discussion Paper No.4

administration. In order to investigate the experiences of other nations, three main countries havebeen selected for case study - France, China and Japan.
This is the first dissertation that directly discusses the ADCs Model as well as its
Jurisdiction in Vietnam since the revised LOCD (2005) and OSAC (2006) were implemented, so as
to fulfill the requirements for WTO Accession (November, 2006). This dissertation also contributes
to academic argument on developing the legal concept of Jurisdiction over settlement ofadministrative lawsuits in Vietnam. Furthermore, this study involves the analyzing of a considerable
number of Vietnamese case-studies (including the latest published SPC’s Supervisory Judgments,2008) and also foreign experiences to support for the debatable issues. This study is particularly
closely attached to the requirements of FLA Projects and of the transplantation of the ROL in
Vietnam today. (Originality)
While carrying out the research, the below four main research questions were considered,each addressed in following chapters:

Firstly, why was the ADCs model finally chosen by Vietnamese leadership(December,1995) even though its choice has been strongly criticized?
Secondly, why has the Jurisdiction of ADCs continued to be strictly criticized for the lackof credibility and legitimacy even though it was enlarged incrementally over the past ten years?
Thirdly, why does the reform of Vietnamese ADCs Model and Jurisdiction need to learn
from foreign experiences and receive the FLA Projects thereof?
Finally, can the existing ADCs Model survive the strong criticism and equally strong
supports other models?
Hypothesis:
If (1) Existing ADCs Model is replaced by aBe (1) Guarantee its independence status frombetter one; (2) Court’s Jurisdiction is enlarged

CPV & Government; (2) Protect effectively

at maximum & well guaranteed; (3) Studyallvaluable foreign experience & receive FLA

Achieve

Project thereof(Gradualism)

individual’s legal rights and interests; (3)
the

core

elements

of

ROL

3. Main Contents
To serve the above four questions, this dissertation groups all analyses and arguments infour Chapters as follows:
Chapter I explores the first question why was the ADCs Model finally chosen by

Vietnamese leadership (December,1995) even though its choice has been strongly criticized?
Firstly, this chapter analyzes the gradual change of legal perception towards JRAA among

Vietnamese scholars, that was historically influenced from Soviet legal thinking and then more
recently influenced by and legal thinking absorbed that from the West and East Asia. It leads to thexivappearance of four proposed court models (before July, 1996), known as 1) the Model of
Administrative Court as an Independent System formed by National Assembly; 2) the Model of
Administrative Court as an Independent System attached to Government; 3) the Model of a
Semi-Independence Administrative Court; and 4) the ADCs Model.
Secondly, this chapter argues that, although the ADCs Model was finally approved by

National Assembly due to its Constitutionality and Feasibility, it is regarded as an interim solution or
the compromise in the transitive period. It is strongly criticized among scholars and people due tothe following reasons:(1) It fails to fulfill the requirement of a clear distinction between adjudicative andgoverning functions within the administration, between the administrative jurisdiction and judicial
jurisdiction as well as the appellate system and judicial review system recognized in contemporary
administrative law theory.
(2) It does not guarantee the requirement of Judicial Independence, known as one of thecore ROL elements, as it makes the local ADCs considerably dependent on local governments aswell as CPV Executive Committees at the same level.
(3) It does not meet the demands of Judicial Reform Strategy promoted by CPV recently,
such as the requirement of international integration after Vietnam’s Accession to the WTO, or of theVietnam-America BTA that requires an independent model for JRAA with the transparent andimpartial proceedings.
The main argument reveals that the ADCs Model is “not really an ideal model”9 asfrankly admitted by Ex-General State Inspector, Quach Le Thanh (1997) and needs to be reformed inaccordance with the current context.
Finally, it points out the taxonomy of controversial models in the present time, raisingquestions such as whether Vietnam should (i) change to a completely new model with some relevant
amendment of the Constitution; (ii) maintain the existing model with some appropriate changes(structural reform, jurisdiction); (iii) reconstruct the existing model (for judicial review) and create
new quasi-judicial AJB (for appellate system) with improvement of jurisdiction, training
professional judges.
Chapter II addresses the second research question why has the Jurisdiction of ADCs

continued to be strictly criticized for the lack of credibility and legitimacy even though it was
enlarged incrementally over the past ten years?
Firstly, this chapter argues with the concept of Jurisdiction given by Prof. Nguyen Thanh
10

Binh

(2004) that aims to contribute an academic view to build up a contemporary administrative

9
See Thanh tra Nha nuoc, De tai nghien cuu khoa hoc cap Nha nuoc: Toa Hanh chinh-Van de Ly luan va Thuc tien, [National
Research Project: Administrative Court-Theory and Practice], 25 (1997)10
So far, there is only a published doctoral dissertation in Vietnamese language titled: “The Court’s Jurisdiction over Settlement of
Administrative Cases – Guarantee of Justice in the Relationship between State and Citizen” (2004) by Prof. Nguyen Thanh Binh,

xv

CALE Discussion Paper No.4

law concept in Vietnam.
Secondly, it analyzes the characteristics of the jurisdiction of ADCs and its gradualenlargement over the past ten years11. Such enlargement is still limited and fails to fulfill therequirement of ALRS reform.
Finally, it focuses on analyzing the criticism and controversy on the jurisdiction of ADCs.

It is strongly criticized largely due to the below reasons:(1) People cannot take any administrative matter to the ADCs, except those enumerated in
Article 11 of OSAC (2006). The standby provision that allows people to take other lawsuits provided
by laws and treaties is considered as a threat to Judicial Independence since in many practical cases,
the National Assembly’s Standing Committee or Government can decide what kinds ofadministrative matters may be handled out by courts.
(2) People are not allowed to sue an illegal, even unconstitutional norm or regulation. In
fact, there are numerous against people’s legal rights and interests12. Besides this, public interest
lawsuits are also unfamiliar and always out of court’s jurisdiction.
(3) To be resolved by ADCs, the claims must experience the compulsory pre-litigation
period taken by the original agency or authority, which creates obstacles for accessing a lawsuit. The
latest revised OSAC 2006 once again narrows the way of initiating a lawsuit by providing more
exceptional cases that the first time settlement decision must be submitted. Thus, it is regarded lessprogressive, even “a back step” compared with the revised OSAC 1998.
(4) Many errors of law, such as contradiction, overlapping, lack of clear provisions, andthe slow issuance of guidance regulations by Ministries13 are two of the main factors infringing
people’s legal rights and interests.
(5) Due to the lack of concrete provisions regarding the content of judgment, the local
ADCs often make mistakes in issuance of extreme discretionary judgments. In some cases, it also
encroaches upon the administration and makes damages for people concerned.
To support more evidences and analyze the change of legal thinking of Vietnamese judges,
this Chapter pours much effort into introducing some case-studies, particularly some SPC’s
Supervisory Judgments newly published under the help of JICA and the STAR-Vietnam Project.

Chief of Lawyer Training Department of Judicial Academy
11
Such as, the scope of accepting cases increases from 7 (1996) to 9 (1998) and up to 21 (2006) with a standby provision statingthat “other lawsuits as prescribed by Vietnamese law or treaties” (OSAC, Art 11); the revised OSAC (1998, 2006) allows people totake a lawsuit to court in case of receiving no reply from the administrative agency for reconsideration (Art 2, 30)
12Such as, those prohibiting students from Music School to perform in Pub or Discotheque, banning each person to register nomore than one motorbike、prohibiting people whose height under 145cm, weight under 40kg, are not allowed to drive motorbikes,
banning the three-wheel motorbike as a mean of transportation and so on. Some of mentioned regulations have just been abandoned.
According to statistic by Department of Checking Legal Norms of MOJ, about 6.300 Legal Documents were illegal. See Gan 6.900
Van ban trai Phap luat da duoc ban hanh, [About 6.900 Illegal Norms or Regulations were enacted],
http://vnexpress.net/GL/Phap-luat/2008/11/3BA08CB1/
13

See A Case Regarding Personal Income Tax Decision to Mr.K.S (Japanese) in Hanoi (1998) in Chapter II, II.2.2

xviChapter III satisfies the third question: why does the reform of Vietnamese ADCs Model

and Jurisdiction need to learn from foreign experiences and receive the FLA Projects thereof?,
particularly why three countries as France, China and Japan are chosen for this study.
Firstly, it analyzes the self-identity of Vietnamese administrative law regarding JRAA andthe motivations to its current reform.
Secondly, for each of the above three countries, this Chapter explores the main

characteristics of court’s models and jurisdiction, and discusses what Vietnam should learn. Somecase-studies are also analyzed for further understanding of these ALRS. Among them, (1) France
shares some common areas, since French administrative law theory and Conseil d’Etat Model used
to appear in Vietnam (due to nearly one-century colony) and in the South Republic of Vietnam(before 1975); (2) Chinese ALRS characterized by the existence of ADCs (since 1989) with limited
jurisdiction shares many common debates with Vietnam; (3) Japanese experiences on Justice Reform
since 2001, and Amendments of ACLL (2004) are very useful for Vietnam in its future codificationof this law.
Finally, it identifies the difficulty, but potentiality of FLA Projects toward the reform of

ADCs Model and Jurisdiction in Vietnam and makes some recommendations for future
development.
Chapter IV summarizes and addresses the last research question: can the existing ADCs

Model survive the strong criticism and equally strong supports other models?
Firstly, this chapter gives a brief introduction to the current transplantation efforts of ROL

as well as Judicial Reform Strategy up until 2020.
Secondly, it analyzes some contemporary models strongly supported by Vietnamese

scholars and foreign sponsors, particularly the Model of AJB attached to Government, the Model ofRegional Administrative Courts, Administrative Tribunals and so on.
Finally, it concludes the necessity of replacing the current ADCs Model, and recommends

some solutions for establishing the new model with enlarged jurisdiction to better protect people’s
legal rights and interests. It strongly supports the setting up of the AJB attached to Government andthe reforming of the current ADCs Model in line with the foundation of Regional People Courts.
In addition, the necessity of training human resources, including administrative judges
with high-quality and professional skills rather than political requirements, as well as improving thelegal framework regarding ALRS in the post-WTO Accession will be focused on forrecommendation.

4. Methodology
This dissertation uses four major research methods, namely the Analytical, theComparative, the Synthetic and the Descriptive.

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CALE Discussion Paper No.4

Comparative and Analytical methods are mostly used as a complementarily to one anotherin this study, where both the theoretical and historical aspects of the Vietnamese ADCs Models andJurisdiction are explored from Chapter I to Chapter IV. In particular, they are mainly used in Chapter
III to explore the court’s model and its jurisdiction of the three main countries- France, China andJapan.
Descriptive and Synthetic methods are also used extensively in Chapter I and Chapter II tobriefly introduce the defect of ALRS before 1996, discuss the settlement of administrative lawsuits
over past ten years and to describe the grounds, the scope of the judicial review, the court’s
jurisdiction over the administrative matters, territorial units, and adjudicative levels (fromfirst-instance, appeal, supervisory or review trials).
Analytical and Synthetic methods are implemented in Chapter IV to support the originalityof this study as well as to propose the relevant solutions for the reform of existing ADCs Model.
These methods are also used in Chapter III to summarize the urgent need for conducting FLA
Projects regarding ALRS in Vietnam.

5. Materials
The primary and most important sources of material used for this study are the publishedbooks, monographs and scholarly articles mostly in English and Vietnamese. Some Japanese werealso used when necessary to access original Japanese sources related to the topics at hand. A variety
of materials available on the internet websites from a range of providers also served as indispensable
sources.
Other important sources include overseas and domestic legal documents related to theresearch topic. A considerable number of the domestic case studies, administrative judgments(including SPC’s Supervisory Judgments recently published) as well as Annual Reports by the
Vietnamese SPC or other state agencies regarding the discussed issues were also accessed for the
purpose of this study. In addition, some relevant case-studies and judgments of France, China andJapan are collected and contributed for discussion.
Finally, the this investigator carried out primary research through a series of interviews
with relevant legal scholars, lawyers, the responses which provided some very useful insight,
assisting to achieve the goals set forth by the research.

xviii

CHAPTER IADMINISTRATIVE DIVISION COURT MODEL:THE START OF THEORETICAL CONTROVERSY

Introduction“Judicial Review System has been recently introduced by a number ofdeveloping countries in East and Southeast Asia. Although the political systems or
government structures differ among those countries, a judicial review system has become
an essential system for those countries which are modernizing their economy and joining
international society”14.
(M.Scheltema, Comparative Studies on Judicial Review System
in East and Southeast Asia, 1997)“The choice of Administrative Division Court Model (ADCs) may be relevant in
the current context of political, legal and social economic conditions in Vietnam, but it was
not really an ideal model”15.
(Quach Le Thanh - Ex-General State Inspector of Vietnam, 1997)

Chapter I addresses the first research question why was the ADCs Model finally approved
by National Assembly (Dec,1995), even though its choice hascontinued to face strong criticism. It
first explores the under development of Vietnamese administrative law regarding Judicial Review
over the past 50 years, characterized by the existence of a “minister-judge” mechanism, and analyzes
the change of legal perception toward JRAA between scholars who were previously influenced fromthe Soviet legal system and those who have recently absorbed Western laws and ideology. It mainly
argues that the choice of the ADCs Model was only an interim solution or a compromise in thetransitional period due to its lack of a mature theory, judicial independence as well as its failure in
the performing of Judicial Reform Strategy promoted recently by CPV.

14
M.Scheltema, Some Introductory Remarks, Judicial Review: The Need for International Cooperation, in Yong Zhang ed,
Comparative Studies on Judicial Review System in East and Southeast Asia, 1 (1997)15
Quach Le Thanh, Bao cao Tong thuat De tai nghien cuu khoa hoc cap Nha nuoc: Toa Hanh chinh-Van de Ly luan va Thuc tien,[General Report of National Research Project: Administrative Court-Theory and Practice], 25 (1997)

1

CALE Discussion Paper No.4

I. Overview of Administrative Disputes Resolution in Vietnam Prior to 1996
1. Under Development of Vietnamese Administrative Law Regarding Judicial Review
The concept of Administrative Law that involves only the study of “how the system ofgovernments which is neither legislatures nor courts make decisions”16 seems not to be accurate in
the modern sense, since the growth of domestic judicial review in the end of the 20th century, as Tom
Ginsburg comments, has shown “an expanding body of administrative law”17. Regardless of the roleof administrative courts in the continental legal system, courts in the UK, the US and many othercommon law countries have a “growing activism in checking the government”18, especially since the1980s. JRAA is known as the main part of administrative law, aiming to undertake “the prime
purpose”19 of protecting citizens against the malpractices of administration.
Based on a definition such as that above, Vietnamese administrative law and its studies
may be criticized for being under development, especially for not effectively protecting people’s
rights and interests provided by law. 20 All administrative disputes were resolved within theadministrative system or by the system of Inspectorates until the birth of ADCs in July, 1996.
To fully understand the development of ALRS in Vietnam, this section first gives an
outlook of comparative studies of administrative law around the world, since comparing public law
becomes a “joint venture” project and a central subject of study for the 21st century, particularly forSoutheast Asia known as “a region with an abundance of legal traditions”21. As a result, Vietnam
has been able to gain valuable overseas experiences and readily join the mainstream of suchdevelopments. The next section will focus on analyzing the under development of Vietnamese
administrative law due to its considerably long history of lacking a judicial review system.
1.1. Outlook of Comparative Studies of Administrative Law
Administrative law is concerned with how the state machinery operates from a legal
standpoint and is therefore by definition a part of public law. Public law serves both, to define andcontrol power in the hands of government. It is concerned with the relationships within government
and those between government and individuals. In civil law countries, separate administrative courts
adjudicate claims and disputes between the various government branches and citizens, and many16

See J.Beatson & M.H.Mattews, Administrative Law: Cases and Materials, 3 (1989)

17

Tom Ginsburg, Judicial Review in New Democracies, 4 (2003)

18

Ibid

19

Mark Aronson & Bruce Dyer, Judicial Review of Administrative Action, 2 (2000)

20
See Nguyen Duy Gia, Thiet lap Tai phan Hanh chinh o nuoc ta, [Establishment of Administrative Jurisdiction in Vietnam], 137(1995)
21
Andrew Harding, Comparative Public Law: Some lessons from South East Asia, in A.Harding & E.Orucu, Comparative Law inthe 21st century, 249 (2002)2

civil lawyers specialize in public law. Conversely, in Great Britain and the US, public law is notquite as clearly demarcated. Under the common law approach, the same courts handle public andprivate litigation. As mentioned above, the development of administrative law is a comparatively
recent occurrence in common law countries, also in former Socialist and transitional countries. It is a
result of modern manifestations, such as the impact of legal transplantation, the media, law firms,
and the fact that people and activities are not confined to national boundaries.
Zweigert and Kotz – the famous German comparatists – emphasize the legal mechanisms
and the way of legal thinking to achieve them (the norms, concepts and institutions) are the mostimportant features of difference between legal systems in the world. By citing Gustav Radbruch’s
words “sciences which have to busy themselves with their own methodology are sick science”, theyargue and find the comparative law as a new method “preeminently adapted to putting legal scienceon a sure and realistic basic” 22 . The comparative study of administrative law, known as afundamental legal science, can be examined briefly in the common law, civil law system and in theprevious Marxist world as below:
In the common law system, the earliest definition of administrative law was that of theJurist Austin, to whom constitutional law merely determined what person or classes of person bore
the sovereign power, while administrative law determined the modes to and in which the sovereign
powers were exercised23. However, Dicey in his book “Law of Constitution” (1885) completelydenied the existence of English administrative law24, due to his “dislike” of the French Droit
Administratif that creates Conseil d’Etat and separates administrative courts from ordinary courts. In
addition, he supported the unity in the administration in private and public sector as the prime virtueof the English system, which for him was most compatible with the notion of the ROL. The
recognition of administrative law was made by Professor Wade H.W.R, who argued that the main
defect of English administrative law was its failure to recognize its own potentiality, and the pitch ofadministrative law proper is “how far can the law control the innumerable discretionary powers
which Parliament has conferred on the various authorities”25.
In England, adjudication on administrative matters is, generally speaking, in the hands ofthe ordinary court, it being a unitary system of judicature, which knows of no clear-cut distinction in
the administration of private and public law. Since the Second War World, the introduction of newsocial services, such as national insurance, town planning, housing, transport and so on has involved
both delegated legislation and administrative justice. Since then, many new developments have taken

22

K.Zweigert & H.Kotz, An Introduction to Comparative Law, 33 (1998)

23

Z.M.Nedjati & J.E.Trice, English and Continental System of Administrative Law, 2 (1978)

24

Dicey asserted that the words of “administrative law” are unknown to English judges and counsels and in England, “the system ofadministrative law and the very principles on which it rests are in truth unknown”. See Ibid, at 425

Z.M.Nedjati (1978), at 1.

3

CALE Discussion Paper No.4

place in the field of administrative law. In 1969, the Law Commission submitted the “Report on
Remedies in Administrative Law” to the Lord Chancellor , which emphasized the need for theformulation of a systematic and comprehensive body governing the proper exercise of administrative
power. The need to reform English administrative law has been made urgent by Britain’s entry in to
European Council (EC), which is bound to bring continental institutions into a more visible
juxtaposition with English institutions. Up to now, many common law countries have already set up
special administrative divisions for resolving administrative lawsuits and brought their systems
closer to the system of continental law.
In the continental law system, French Droit Administratif has become perhaps the mostimportant model for administrative jurisprudence in the modern world. In late 1799, Napoleon
created the Council of State (Conseil d’Etat) which was patterned somewhat on Council of King(Conseil du Roi) of pre-revolutionary times to serve an advisory role and also in resolving
difficulties arising in the court of administration that was eventually to become the most importantarea of administrative law. There are two remarkable points: (1) The jurisdiction of theadministrative courts culminating in the Conseil d’Etat started to be developed primarily bycase-law and proceeded to evolve by means of a combination of jurisprudence and statutory
provision; (2) The leading case known as the Cadot (1889), in which the Conceil d’Etat decided thata plaintiff no longer had to take his case first to the ministries, and then, if dissatisfied, to the Council,
rather, he could go directly to the Council for justice. James Garner in his early work namely“French Administrative Law” (1924) confirmed that the existence of a body of administrative law inFrance that separates the public law and private law, the administrative courts and civil courts,
distinguishes fundamentally the legal system of France from that of the Anglo-Saxon system.
Continental countries, such as Belgium, Holland, Germany, Italy, Greece, and Turkey, allhave separate systems of administrative courts. However, there are also some significant differences
between particular national systems. For instance, (1) Unlike the French Conseil d’Etat, the Germanadministrative court is purely a court with administrative jurisdiction and is not concerned withadvisory matters; (2) The administrative courts in France not only have jurisdiction to annul anadministrative act but also to give other relief, such as the award of damages as a consequence of an
unlawful administrative act. The courts in Belgium, Germany and Italy on the other hand are limited
to annulment suits.The proceedings against the administration for damages are reserved to ordinary
courts.
In the previous Marxist world, some outstanding features of administrative law can be

seen:Firstly, elsewhere in the Soviet world, the earlier pre-Marxist administrative law patterns

are more pointedly continental law in character. Soviet law theory originated from Tsarist Russia
before 1917, and date back to French and German influences during the conquest of Napoleon in4Europe during the first half of the 19th century. In Yugoslavia, the earlier regime closely paralleled
the French system while in Czechoslovakia and Poland, the systems were inspired by theAustro-Hungarian pattern which bore a resemblance to the French system. Romania, through its
independent history tended to follow the Belgian tradition in which administrative litigation fell tothe lot of regular courts26.
Secondly, the key elements in its system are either structural in character or akin to civilrights. These include the equality of citizens under the law, the idea of socialist legality, public
participation in the administration of state activities, democratic centralism, collective conduct ofstate administration, socialist planning and the leadership of state administrative organizations.
Thirdly, regarding the protection of individuals’ rights, while not totally lacking, it is notnearly evident. Such remedies are most notable in the procedures for administrative complaints.
There exist numbers of specialized administrative courts or commissions, which have jurisdiction ina few categories of disputes. Particularly important among these is the system known as Arbitrazh(State Arbitration).
Finally, an interesting and unique means of resolution of disputes is via general supervisionby the Procuracy, including the process of bringing a violation of one’s legal rights to its attention.
It should be noted that in societies which emphasize statism such as China and Vietnam,
the scope of administrative legal control is even more extensive. Before joining the Marxist orbit, thetwo countries also adopted a system of civil law, but it is not clear that administrative law played an
appreciable part. Since they are now in a transitional period, both countries have their own
development policies. However, they cannot avoid reciprocal impacts of the remaining Marxist
features, the influence of civil law as well as the national traditions. The following section will
centrally analyze the under development of Vietnamese administrative law over the past 50 years.
1.2. Some Analyses on the Under Development of Vietnamese Administrative Law
Looking back at its historical development, the following outstanding remarks ofVietnamese administrative law can be drawn:
Firstly, modern history has witnessed the foundation of DRV (1945) which ended nearly acentury of French colonization. Vietnam then experienced thirty years of suffering from fierce wars
to liberate the country. Consequently, Vietnamese administrative law during this period was strongly
influenced by wars and primarily aimed to serve revolutionary tasks. Administrative law was
adopted as an effective instrument in the hands of the government, to contribute to land andagricultural reforms during 1953-1954, trade and industrial reforms, nationalization of ownership, in
which individuals were prohibited from owning means of production, land, and all private

26

See H.B.Jacobini, An Introduction to Comparative Administrative Law, 145 (1991)

5

CALE Discussion Paper No.4

management27. It should be noted that French influences remained in administrative law in the earlyyears of the DRV’s foundation in legal ideology, concepts, terminology and studies. After the victoryof French War in 1954 and the Northern Vietnam push towards socialism, administrative law wasstrongly influenced by CCP ideology and law until the end of 1950s. From 1960, it followed
completely the Soviet Union and Socialist Block. During this time, people were not necessarily
satisfied with government‘s decisions, nor did the government completely ignore the will of thepeople. In fact, the Inspectorates was set up and inaugurated in 1945 to deal with the complaints ofthe people, however due to reasons laid down by wars and the revolutionary legacies of these laws,
such disputes seemed less developed and thus, administrative law lacked grounds for reviewing
them.
Secondly, Vietnamese administrative law, after the liberation of the country (1975), can bedivided into two stages, the first is up until the end of the 1980s and second is from the early 1990s
up until present.
Administrative law in the former, particularly under the Constitution 1980, fully copied

Soviet ideology and institutions that aimed to contribute to the socialist regime in which collectivism
was highly concentrated. Since administration had played an important role in ruling the country
through the five-year state plans , many legal norms were issued but not treated as laws, because
they did not provide for satisfactory methods of enforcement and only imposed one-sided duties onenterprises and citizens. Disputes between people and the state did not draw much attention, while
those among enterprises were resolved under the form of arbitration described as being “just liketaking money from one pocket and putting it in to another pocket, both pockets belonging to thestate”28. All administrative disputes were resolved by the original or upper level agencies, or thesystem of Inspectorates that formed a so-called “minister-judge” mechanism.
Administrative law in the latter, particularly since the first half of 1990s until present, hasdeveloped incrementally in both the aspect of governing and protecting people’s rights andlegitimate interests. This demonstrates a “catching up” with the full meaning of administrative lawthat was marked by the perception to JRAA, resulted in the creation of the ADCs in 1996, making agreat contribution to set up “Nha nuoc Phap quyen ”(Legal Based State) in Vietnam.
In short, regarding the protection to individual rights, Vietnamese administrative law isblamed for less development. The theory of active and adjudicating administration as well as thenecessity of courts reviewing administrative activities was unfamiliar to Vietnamese governors andscholars due to the deep influences by Socialist legality and Soviet law, particularly in Stalinist
period.
To explain the less development of Vietnamese administrative law and its critiques, three27

See Vu Dinh Hoe, Lich su Nha nuoc va Phap luat Vietnam, [The History of State and Law of Vietnam], 156 (1967)

28

Michael Bogdan, Comparative Law, 204 (1994)

6

main points could be analyzed as below:
Firstly, like any other branch of law, Vietnamese administrative law before Doimoi (1986)

was a tool of class struggle and served for revolutionary tasks.
Vietnamese law students, historically, were solely taught Marxist-Leninist philosophy andMarxist theory of state and law. The doctrine of “withering away of law”, the concept and functionof law in which the idea that law is an instrument for class rule is known as one of the biggest
contentious themes. Marxists defined law as a form of regulation and consolidation of production
relationships and also of other social relationships of class society. Law depends on the apparatus ofstate power of the ruling class, and reflects its interests. Thus, this definition stresses the class natureof law: every law is the law of the ruling class. Based on Marxism, Lenin developed
Marixist-Leninism in which the core ideological feature is, the belief in the necessity of a violent
overthrow of capitalism through communist revolution, to be followed by a dictatorship of theproletariat as the first stage of moving towards communism, and the need for a vanguard party tolead the proletariat in this effort.
Marxist-Leninism ideology was transplanted into Vietnam by Nguyen Ai Quoc,
Communist International after the death of Lenin (1924). Vietnam followed the Soviet model in theearly 1930s when the model was set up in some middle provinces. However, the August Revolutionof 1945 did not form a State of proletariat dictatorship but a Democratic Republic with theparticipants of a number of non-communist groups. It is easy to identify that laws in Vietnam(including administrative law) since the birth of DRV all served the revolutionary work during eachperiod. When an early revolutionary state was born and faced the complicated “three-front battle”
and other obstacles internally, particularly the prolonged war against the French imperialists, the1946 Constitution was regarded as the most effective tool for gathering all of society’s classes. Law
on land reforms in the first half of the 1950s and collectivism, although involving some mistakes andcriticisms, was really a product of class struggle between the peasants and landlords that, to someextent, resulted in “peasants having farms” and also the whole revolutionary victory. In the period ofbuilding socialism in the North after 1954, particularly in the transition to socialism after 1975, law
was in hands of the proletariats so as to carry out collectivism, a planned central economy, thebuilding up of asocialist culture and morality, the protecting of people’s legal rights and thepunishing of treasons, counter-reactionary crimes and so forth.
Secondly, Vietnamese administrative law, since the 1960s, had totally developed in linewith the family of socialist administrative law, and served for state policy and a centrally planned
economy.
After 1954, particularly at the end of the 1950s, the Chinese influence greatly declined due
mainly to reasons including the failure of the reunification of Vietnam by the Geneva Agreement of1954, which consequently lead Hanoi to become more independent of both China and Russia; the7

CALE Discussion Paper No.4

convulsion and chaos in China created by the “Chinese Cultural Revolution”; the Sino-Soviet, whichconflict altered the world Communist movement; and China’s refusal of the Soviet proposal for a
United Communist effort against the US in Vietnam. Since the 1960s, the Soviet Union replaced
China in actively influencing Vietnamese laws and society. Administrative law and its study can befound in many Soviet sources and Vietnamese writings in this period and its development
completely follows the line of socialist administrative law. Great numbers of Vietnamese students
were sent to study the socialist law in the Soviet Union and Socialist Eastern Europe, and theRussian language became a compulsory subject at all Vietnamese schools and universities. 78.7% ofSoviet writings and publications on the legal universe of Northern Vietnam is accounted for by the
decade between 1955-196529.
The Vietnamese Constitution of 1959, although not identical, was heavily influenced by
the Soviet model with the birth of the Procuracy system, courts and local organs. This can be seen incomments by Shchetini B.V, a Soviet writer: “Despite differences in name, local organs of rule in all
countries of people’s democracy are Socialist in type and in this respect are related to the localorgans of State rule in the USSR even thought they differ in political form and level development30”.
In the Constitution of 1980, Vietnam fully copied the Soviet model and applied the “dictatorship of
the proletariat”, a dominant socialist state model. In the post Stalin epoch, the concept of “manyroads to socialism” acquired doctrinal respectability, academic exploration of the distinctive
attributes of socialist experimentation became safe and fashionable in the Soviet Block and heavily
impacted Vietnamese law studies.
It can thus be concluded that Vietnamese administrative law served the building ofsocialism in different stages that for the most part lacked a main forum for protecting individual
rights and interests. Two fierce wars lasting thirty years made the “individual” or “personal” (Caitoi) become insignificant in the nation’s identity and benefits. The trespass of the administration in
the centrally planned economy and the lack of judicial review also made legal scholars, who were
influenced by Soviet ideology, embarrassed in their studies and and their search for a modern law
theory in accordance with Vietnamese development in thr transitional period.
Finally, Vietnamese administrative law left a vacancy in the theory of distinction between

active and adjudicating administration of JRAA, which was known as an expanding body ofadministrative law.
As mentioned above, Vietnamese administrative law, like its Soviet mentor, was always areflection of “the cultural ethos of the polity in which it develops”, and tended to emphasize the29
See George Ginsburgs, Soviet Sources on the Law of North Vietnam, Asian Survey, Vol.13, No.7, 660 (1973), available at
http://www.jstor.org/pss/2642704
30
See B.V.Shchetini, Some Questions of the Work of Local Organs of State Power in Countries of People Democracy, 215 (1961).
Cited by George Ginsburgs, Administration and Local Government in Northern Vietnam 1945-1954, 10 The China Quarterly, 204(1962)

8

“governing” function rather than the “adjudicating” function. In Vietnam, until July 1996, there wasno administrative cases taken to courts. As inspired by the traditional socialist legal theorist that “theinterest of the governors and the governed in socialist society were almost the same”, therefore“there would be no conflicts of interests between them”, Vietnam refused to create an external bodyfor resolving administrative disputes. All disputes between the governors and the governed had been
settled through the “administrative level”.
It is worth noting that Vietnamese administrative law, with nearly a century of Frenchcolonial influence, was inevitably shaped by French legal thinking. For this reason, while seeking a
way for developing administrative law theory since the collapse of Soviet Union and Socialist
Eastern Europe, Vietnam has apparently turned back the civil law tradition. The fundamental
principle of French administrative law shows that the administration itself includes two co-existingsides: “active administration” and “adjudicating administration”31. Neville Brown affirms that the“judicial functions are distinct and will always remain separate from administrative function”32. Neil
Hawke also argues that there should remain a clear distinction between those administrative agencies
responsible for the “initiation of governmental or other administrative action”33and those which are“adjudicative agencies” responsible for the adjudication or resolution of disputes arising fromadministrative actions. A study of French Administrative Law shows that, its development has
consisted principally of the working out of remedies for the protection of the private individual
against the arbitrary and illegal conduct of administrative authorities, and of the extension of thecontrol of administrative courts over authoritative acts. Thus, French administrative law, as James
Garner comments, is a separate and distinct body from the civil law, “together with a separate anddistinct body of tribunals charged with deciding controversies between administration and private
persons and of resolving conflicts of competence between the administrative and civil courts”34.
In order to improve ALRS in the early 1990s, the study of the French law theory andadministrative court model seemed to be very much an area of concern by Vietnamese scholars.
Since 1996, some limited administrative lawsuits resolved by ADCs in parallel with those settled byadministrative agencies remarked the new perception of the JRAA that had never been known in
Vietnam.

31

See Neil Hawke, An Introduction to Administrative Law, 142 (1989)

32

See L.Neville Brown & John S. Bell, French Administrative Law, 46 (1998)

33

Neil Hawkw (1989), p.19

34

Jame W.Garner, French Administrative Law, 6 The Yale Law Journal, Vol.33, 597 (1924)

9

CALE Discussion Paper No.4

2. Administrative Disputes Resolution Prior to 1996: Main Characteristics and Criticisms
2.1. Main Characteristics
Since the birth of DRV (1945), the Ruling Party and Government have paid attention to
the rights of people to make complaints and denunciations toward all state management activities.
This was clearly provided for through four Vietnamese Constitutions (1946, 1959, 1980 and 1992).
Accordingly, Vietnamese citizens have the right to make complaints against administrative decisions
or actions made by state agencies or authorities that might be considered illegal, irrational andinfringing on their legitimate rights.
The main characteristics of the previous ALRS will be described next:
Firstly, people are able to make complaints and denunciations in all fields ofadministrative management activities. The term “administration” in Vietnamese refers to the“implementation of law”, the governing of the state administrative apparatus, but not the legislative
body nor people’s court. According to this, “state administrative management” includes a variety offields in society, such as land, culture, customs, tax, foreign affair, public transportation, populationand labor, science, technology. During the performing of public functions in such a field, stateauthorities may render a certain illegal, irrational decision or action that is objected to by the people
concerned.
Secondly, agencies that first rendered the disputed administrative decisions or actions or

the upper-level agencies are empowered to settle these complaints. This mechanism is known as the“minister-judge” mechanism that lacked an independent judicial organ to deal with these disputes
objectively and impartially. State Inspectorates attached to Government are defined as state agencies
empowered to settle complaints, but their competence was still limited.
Thirdly, citizens, at the same time, are allowed to make complaints to various kinds ofstate agencies. These complaints are then forwarded to a certain competent agency. It takes muchtime to receive a reply. Five types of administrative agencies are vested with powers for reaching a
final review in decisions.35 Meanwhile agencies that are in fact held responsible are not clearly
defined.
Finally, the process in the settlement is not announced in public, citizens do not know

which agencies are presently competent to deal with their complaints.
Some main types of administrative disputes are shown below36:

35

See OSCCD 1991, Art 10-17

36

See Report on Implementation of OSCCD 1991 by State Inspectorate (January, 3rd 1998), pp 8-13.

10

Chart 1: Type of Administrative Disputes
Types of Administrative Disputes
Land

4%
20%

45%

10%

Forciblere quisition &o thers
So cialP olicy
Tax

10%
11%

Complaints concerning land management were presented at most localities and accounted
for 45% of the total number of petitions. Among these, the disputes are listed as farm land disputes
arising since the “land reform” policy in 1954-1956 in North of Vietnam and in 1976 in the South;
forest land disputes arising between people and state-managed farms or army units; ancestor’s
inherited land; the land of pagodas, temples and the others that constituted around 30% of total land
disputes. The remaining 15% of disputes are those related to claims for state compensation for
dispossessed land-use rights for public purposes. The complaints relating to forcible requisitions,purchases or confiscation of urban housing involved in the socialist transformation policy, people’
property that was appropriated by the State through two wars, claims for granting permissions ofbuilding, and repairing urban houses make up about 11% of the total petitions. Complaints involvingsocial policies, such as the war-disabled soldiers and martyr’s policy, Vietnamese heroic mothers
policy, retirement petitions, state bank loans to very poor farmer families and claims for tax
collection policy equally counted for 10% of the total petitions. Complaints concerning
responsibility of other state agencies, such as the procutorates, court, police and political-socialorganizations that were sent to administrative agencies, made up 20.36% of total petitions. The
remaining 3.64% is placed under the “other disputes”.
From 1986 to 1990, the total numbers of petitions sent to various administrative
agencies were over 700,000 in which 58% were resolved. In 1990, the number of petitions was about
80,000, but the nature of complaints seemed more complicated and serious. Below is a table showing
settlement of administrative complaints from 1991 to 1996:

11

CALE Discussion Paper No.4

Table 1: Settlement of Administrative Complaints from 1991 - 1996
Year

Total petitions

Resolved

Percentage

1991

62.16140.40565%

1992

95.73771.324

74.5%

1993

105.761

86.512

81.8%

1994

98.18683.54685.08%

1995

88.17373.25083.08%

1996

106.263

87.66782.5%

2.2. Criticisms
2.2.1. Lack of Judicial Review
The previous so-called “minister-judge” mechanism was influenced by the Soviet Union,
in which the administrative agencies were handed over the competencies of both giving
administrative decisions while performing the pubic power, and also making final judgments thereof.
Under the regulation of OSCCD (1991), from articles 10-17, administrative agencies
vested in settlement of disputes consisted of agencies that first rendered an administrative decision(original agencies), the upper-level agencies, and the system of State Inspectorate at all levels. The
settlement of administrative disputes is conducted by both administrative agencies and State
Inspectorates and is regarded as a “three-level system” for review as follows:
In the first level, the original agency would be in charge of reconsideration when certain

complaints appeared.
In the second level, if the original agency is the People’s Committee, the Chief Inspector at

the immediate-higher level would be vested in the settlement. If the original agency is the agency
belonging to People’s Committee, Chief Inspector at the same level would be the competentauthority. In a case where the original agency is the agency belonging to a certain ministry (or ofministerial level), the competent authority would be in hands of Chief Inspector of the ministerial
level.
In the last level, the final settlement competence belongs to the Chairman of People‘sCommittee, Minister (the Head of ministerial level), and General State Inspector. The General State
Inspector also has the final competence on taking consideration and reviewing all dispositions madeby Ministers or the Chairman of People’s Committee.
Thus, according to the previous mechanism, there were no independent judicial organs
vested in settlement of disputes. Although Inspectorates held a settlement function provided in both
the Ordinance on Inspection and the OSCCD, in practice, they are only a “helping hand”37to the37

See Per Bergling et al, The Vietnamese Legal System, 74 (1998)

12

Chairman of People’s Committees that failed to act as independent organs to protect people
infringed against.
2.2.2. Imperfection of Legal Norms
In Vietnam, the substantive laws applied to settle administrative disputes consist of a great
number of legislative regulations. However, they are still imperfect, non synchronous and sometimes
make the competent organs confused, bringing settlement to a standstill.
To be concrete, its imperfections can be identified as follows:Firstly, there was a lack of legal regulations concerning the complaints that were closely

connected to the revolutionary periods prior to reunification of the country (1975). This lack ofregulation included duties of the State regarding borrowed properties of people through two wars38,
the agricultural land reform in 1953-1954, the management of “non-owner houses” after liberation of
the country and so on. This period was characterized by the application of policy decisions of Party,
and state plans aiming to encourage people’s revolutionary enthusiasm, so that some policies ormeasures were seen as “compulsory and temporary” that inevitably violated the justice of certain
people or groups. In the process of building the country after liberation, due to the lack of statepolicies that were based on enacting the legislative regulations involving the alleged issues, it
became difficult for competent agencies to deal with such disputes.
Secondly, there appeared to be overlapping and contradictory legal regulations. The

OSCCD and the Ordinance on Inspection were the legal basis for settlement of administrative
disputes before the establishment of the ADCs, but in fact, they contradicted some legislative
documents, including the Law on Land, and the numbers of ordinances concerning the different
fields of stare management. For instance, while the State Inspectorate was stipulated in bothordinances as an agency in competence of dealing with all disputes, the Law on Land defined thePeople’s Committee at all levels as the only agency empowered to settle land disputes at locality39.
In cases of disputes arising in the field of housing, “firmly structured objects” or “long termed
growing trees”, the competence was in the hands of the people’s court40. Moreover, the regulations
concerning the settlement competence were different among legal norms while the Law on Enacting
Legal Norms41 aiming to deal with such overlapping and contradictions was not enacted. This
caused many difficulties in determining which proper law should be followed. The OSCCD provided
that five agencies were empowered to reach the final review decision42, but this could not be carried
38

State loaned money, gold, rice or some other properties of people to serve the revolutionary works through two wars. Afterliberation, people made complaints to State for giving back, but it still lacks of legal regulations concerning on these fields.
39

Law on Land, Art 6, 9, 21

40

Law on Land, Art 22

41

Luat ban hanh Van ban Quy pham phap luat, [Law on Enacting Legal Norms] was first enacted on November, 12th 1996

42

Supra note 35

13

CALE Discussion Paper No.4

out properly due to an unclear distinction, leading to the renouncement and avoidance of
responsibility by the competent agencies.
The third imperfection concerned the obsolete regulations that failed to deal with the rapidchange of society. After the Doi Moi policy, Vietnam shifted to a market oriented economy with theappearance of a wide range of reforms that required the new legal framework to adjust to continuouschanges. When disputes arose, especially in fields such as foreign investment, environment
protection, business or urban development, the competent agencies became puzzled as they wereunable to find regulations concerned with such disputes.
The final imperfection is concerned with the non-feasibility of legal regulations. The

administrative agencies were obliged to render a review decision, but no compulsory period of time
was defined. State Inspectorates were empowered to settle disputes, but in fact, they appeared tohave carried out “consultative” functions for People’s Committees, giving proposals or solutions
rather than giving real review decisions.
2.2.3. Defect of Settlement Proceedings and Failure of Implementation
OSCCD 1991 provided for reviewing procedures by stipulating that a complaint had to bemade within six months from the day the administrative decision was completed, except in certain
cases provided by law43. The competent agency in the first-instance has to settle the complaint
within 30 days after the day on which the application for review was made. In other instances, theapplication has to be settled within 60 days after the complaint was made.44 Thus, the State
Inspectorate is not the competent agency for resolving complaints in the first-instance. After
receiving complaints, the inspectorate agency notifies the discontent citizen and sends complaints tothe authorities concerned45. The remaining problem was that people did not know where to turn with
their complaints. Complaints were sent to various agencies; it is estimated that 30 percent46 ofcomplaints are in fact never settled at all, because they are sent to the wrong address. It takes at least
three to four months at each level to settle a normal complaint, provided it is sent to the competentagency to begin with. Thus, a great number of administrative complaints are not settled within thetime limit while the administrative disputes are growing in number and becoming more complicatedin accordance with changes in society. This makes settlement come to a standstill and causes a greatamount of damage to the people as well as the prestige of administrative agencies.47

43

OSCCD 1991, Art 19

44

OSCCD 1991, Art 22

45

OSCCD 1991, Art 21

46
See Le Binh Vong, Mot so van de ve Tai phan hanh chinh o Vietnam, [Some Issues on Administrative Jurisdiction in Vietnam], 81(1994)
47

Supra note 36, at 914

Under this mechanism, the democratic rights of complainants are not ensured because they
have no chance to examine and freely give their own opinions to the administrative agency
empowered to settle their complaints. All settlements are not in public view and the arguments
among parties in supply of evidence are not provided. People therefore have no other choice otherthan patiently wait for a reply from the competent agency as “granting a boon”48.
2.2.4. Capacity Limitation of State Officials and People’s Legal AwarenessFirstly, the outstanding problem here is the limited legal capacity of state officials in

dealing with disputes. The disputes arising in the localities, such as the commune and district level,
account for 60-70% of the total, however the number of inspectors in these levels is limited to two or
three, some rural areas in fact only one inspector who deals with disputes. The inspectors inlocalities lack the chance to improve legal knowledge as well as other specialized knowledge
necessary for dealing with disputes.
The administrative agencies that rendered the complained decisions did not pay muchattention to the settlement of disputes. Although each agency, such as the People’s Committee, had
the “Board of Receiving People’s Petition” a board that files and deals with people’s complaints, thecoordination between this Board and the agency in settlement was unsatisfactory. Some of theseboards delegated this task in its entirety to the inspectorates, which in fact held no real power. The
heads of agencies did not at times directly resolve complaints but delegated them to assistants torender the announcement to the people concerned. Mistakes were at times made in promulgating
legal documents in both formality and substantiality that led to a lowering in the effectiveness of thesettlement mechanism as well as the distrust of the people.
The State officials dealing with disputes at times did not act in the right way according tolaw, favoring instead the person they liked. At the locality, especially in the countryside, due to theimpact of “relative and neighboring relation”, negotiation was almost always applied in simple
cases, while the more complicated cases were ignored, or those cases that were solved, were done soin a compulsory manner. Consequently, settlement of who was right or wrong was often reached in
an unclear way.
Secondly, concerns the limitation of legal knowledge amongst the people and theirnonsupport towards state officials. The survey pointed out that 70% of those sharing settlement
defects belong to administrative agencies, with the remainder belonging to people who makecomplaints49. The legal knowledge of the people is still substandard, and is believed to be caused byineffective

legal education and promulgation. People do not know what agency to deal with forsuch disputes or which procedures should be applied. Consequently, that after waiting impatiently48
See Dinh Van Minh, Y nghia khoa hoc va thuc tien giai quyet khieu nai theo cap Hanh chinh, [The scientific and practical
implication of settlement of complaints by administrative agencies] in Thanh tra Nha nuoc, supra note 9, at.193
49

Ibid, at 915

CALE Discussion Paper No.4

for reply of appeals, they became disappointed or sometimes display serious outbursts of anger. Thishas been demonstrated with gatherings of great numbers of people in front state local agencies aswell as central agencies to put pressures to deal with the disputes50. Negative action has also
occurred at commune levels51.
The common phenomenon was the antipathy and non-support of people towards
bureaucracy. People did not often believe in the way of settling disputes by competent local
agencies52, so they chose to both send petitions to the central level for review and to find anotherway by using “close, relative relationships” in considering matters. Moreover, unlike Westerners,
the Vietnamese prefer mediation to litigation. They are respectfully patient to wait for a reply fromstate agencies, and to some extent, passive in protecting themselves from administrative abuses that
inevitably contributed for so long during the previous mechanism.
To conclude, the previous mechanism exposed a lot of negatives that needed to bereformed to adapt to new social changes. The next section will continue analyzing the indispensable
need for new a perception to JRAA as well as the setting up of an ADCs Model in July, 1996.

II. New Perception to Judicial Review of Administrative Action in Vietnam
JRAA is a very popular legal concept closely attached to the ROL that originated in thecommon law system. Accordingly, it is an indispensable concept for retaining administrative
agencies, while exercising great discretionary powers on a day-to-day basis within legal bounds.
JRAA, which was adopted in Vietnam under the civil law thinking and under the name of “Tai Phan
Hanh Chinh” (Administrative Jurisdiction), takes on a wide range of meanings and has been heavily
debated by legal scientists. The majority assumed that along with the birth of ADCs in July, 1996, it
has essentially marked the formation and development of JRAA in Vietnam. However, someresearchers looked back over Vietnamese history and considered that it had already existed for quite
a long period, “even in Vietnamese Feudalism”. This paper consequently gives in to curiosity andexamines whether or not JRAA existed historically.

1. Whether Judicial Review of Administrative Action Existed Historically in Vietnam
1.1. Trace back to Vietnamese Feudalism Regarding Settlement of People’s Claims
Nguyen Thanh Binh53 absorbed the legal concept of “Tai Phan Hanh Chinh” in a broad
50

Le Binh Vong (1994), p. 80.

51

Supra note 36, at 9-1052

Because they think that the local agency may be not impartial and objective to deal with complaints. In fact, the result of correct
complaints constitutes 57.54%, the both correct or wrong complaints makes 24,20%, the wrong complaints is about 18,26%. See
Ibid, at 753
He now is the Chief of Lawyer Training Department, Judicial Academy. His doctoral dissertation titled: “The Court’s Jurisdiction
over Settlement of Administrative Cases – Guarantee of Justice in the Relationship between State and Citizen” was published in16

sense and dated its existence back to Vietnamese feudalism with the aim of proving that it used toappear in some similar activities. Obviously, it is far from the substantial meaning of this concept as
will be analyzed later. However, to fully understand the historical development of ALRS as well as
to support topical discussion, this section finds necessity in briefly introducing the settlement ofpeople’s claims by Vietnamese Kings in Feudalism.
Confucianism ruling in Vietnamese feudal regimes invested the paramount state power tothe King as a “Mandate of Heaven”. Accordingly the King was expected to treat his people like hischildren, with full compassion and protection. Turning back to Vietnamese feudal regimes, sinceVietnam’s Independence from its Chinese Ruler in 938, it is true that although people were notregarded as citizens in modern sense, some “sage Kings” also practiced good governance policies todevelop the country, such as a censorial system to supervise the kings rulings and considerably
concern people’s claims toward local mandarins.
In the Ly King period (1010-1225), King Ly Thai Tong, from his ascending to the throne

in 1028, remarkably improved the state organization and “put the bell along the road of King Palacethat people could ring for complaining the misconducts of the local feudal power”54. In 1158, King
Ly Anh Tong also allowed to “put the big box in the center of the King Palace’s yard then people canleave their petitions”55.
In the Tran King period (1226-1400), the Kings appointed some agencies and authorities

in charge of settlement of people’s complaints. King Tran Nhan Tong (1278-1293) allowed people todirectly meet and present their complaints to him when he traveled incognito in localities.
In the Early Le King period (1428-1527), the first feudal law code namely Hong Duc(1483) consisted of 722 articles in which there were many articles concerning the administrativecomplaints and denunciations toward the central and local authority’s misconducts. People were able
to directly or through a representative acting their behalf, initiate lawsuits from the grass roots to thecentral level. Under this Code, an important element of the bureaucracy was the “Sovereign
Council” which had both administrative and judicial functions. Subject to royal prerogative, theSovereign Council controlled provincial administration56. Bui Xuan Dinh comments in his work
“Vietnamese Feudalism: State and Law” that the Hong Duc Code was the first legislation providing
in detail claim proceedings, the competence delimitation of local authority to avoid the stagnation of
petitions at the local level as well as the jumping to centre57. He evidenced article 672 of this Code

2004.
54

See Dai Viet Su Ky Toan Thu, Volume 1, 35 (1983)

55

Ibid, at 45

56

M.B.Hooker, A Concise Legal History of South East Asia, 74 (1978).

57

Bui Xuan Dinh, Nha nuoc va Phap Luat thoi Phong Kien Vietnam,[Vietnamese Feudalism: State and Law], 65 (2005)

17

CALE Discussion Paper No.4that prohibited local authority to refuse people’s claims and allowed them to jump petitions to ahigher level. Another additional provision also provides that “any authority that violates the law will
be beaten by cane or dismissed from his current post”58. Being deeply Confucian influenced, article
3 and 4 of Hong Duc Code established certain categories of persons as privileged. They included
relatives of the sovereign and those in his immediate service, certain officers of the state and persons
whose virtue and wisdom had been officially recognized. Accordingly, these persons could bepunished only by the sovereign and complaints against them had to be made in a special form to thesovereign. The imposition of sanctions was at the sovereign’s discretion.
In the Le-Trinh period (1527-1789), under the ruling of King Hy Tong (1680-1705) andKing Du Tong (1705-1729), although the legislation (codification) was not as developed as that ofHong Duc’s, as Bui Xuan Dinh comments, “this seems the most flourishing period of dealing withpeople’s claims and denunciation”59. A Chinese-like censorial system was set up in both the centre
and localities. At central level, “Ngu Su Dai” (Central Censorate) was known as “the eyes and ears”
of State that supervised all high-ranking mandarins’ activities and punished those who conductedillegal actions based on people’s claims or denunciations. At the local level, “Hien Ty” and “Giam
Sat Ngu Su” (Surveillance Agencies) were empowered to deal with claims related to local mandarins,
punishing authorities involved in bribes, corruption and misconduct against their status as people’s
fathers. A lot of imperial directives were enacted in this period to regulate in detail the claims
proceedings, competence and standards of local censors. Such imperial directives include 13
Surveillance Inquiries and 44 additional provisions by King Le Huyen Tong (1663), which provided
the proper proceedings to avoid the stagnation of petitions and punish authorities taking advantagesof resolving claims for their own profits60. A further two imperial directives (1739) prohibited thejumping of petitions to a higher level or making bribes to authorities dealing with concerned claims.
Ten standards of local censors (1731) which required those having a high degree of Confucian
examination replace the fatherhood system and a regulation on limited time of one month to deal
with tax claims (1726)61 are further examples of imperial directives implemented during this period.
In the Nguyen King period (1802-1858), King Minh Mang in 1827 set up further Regional

Surveillance Agencies (Giam Sat Ngu Su Dia Phuong) and Tam Phap Ty at the central level whichfunctioned as legal advisers to the King in solving people’s complaints and also a solver incommission. In cases of necessity, the King sent representatives to inspect the designated localities
and gather people’s petitions. It should be noted that “Ngu Su Dai” or “Tam Phap Ty” was similar to
the Chinese Censorate, but not exactly the same, since it had mixed functions of surveillance, control,
58

Quoc trieu Hinh Luat, [Hong Duc Code], 229 (1991).

59

Bui Xuan Dinh (2005), p.128

60

Supra note 54, at 297

61

Lich Trieu Tap Ky, Vol. 2, 119 (1975)18

sanction and consultant. As Woodside commented, the Nguyen Censorate was officially a full copyof Chinese (Ch’ing) Censorate Model in 1832 under its name Do Sat Vien. It held the supreme
control to six ministries (Luc Bo, as the Interior, Rites, Finance, Public Works, Justice, Wars) and all
local agencies through Regional Surveillance Agencies. Thus, Do Sat Vien (or Nguyen Censorate)
along with Tam Phap Ty (the Inspection and Advisory Agency) and Dai Ly Tu (the Supreme Court)
constructed the judicial system in this period.
The Gia Long Code (1815) was a faithful reflection of the laws of T’ang and the latter
Ch’ing with 938 articles including many provisions related to people’s claims and procedures thatmade them easier to initiate a lawsuit. The administrative law filed, Book One of Gia Long Codeprovided the system of government administration (art.13), the succession to rank (art.49), thecollusion and misconduct of officers and the right of people for claims. Book Two regulated the
conduct of the magistracy. Article 59 is interesting in that it especially imposed a duty on themagistrate to fully know the laws and to administer them in the proper spirit. Penalties, including
fines and caning, were imposed where an authority failed to satisfy his superiors, in the execution of
the sovereign’s edicts, or committed wrongdoings, such as destroying the office seals, making errors
in public documents, neglecting to make a proper report, using an official seal improperly and soforth. However, as already mentioned, due to deep influences by Confucian hierarchical order, thisCode also gave many favorable provisions to “superior men” in cases of law violation. A
government officer, for example, was punished far more severely than an ordinary person (art.275).
Specific classes involving superior and inferior officers (art.276), and the striking an individual of
the royal blood (art.274) clearly demonstrate the hierarchy embedded in these laws.
To conclude, it is apparent that Vietnamese Kings, albeit not all of them,to certain extent,

paid attention to the resolving of people’s claims and the self-control of their ruling by codifying andsetting up some institutions like the censorate, inspectorate agency model. Regarding the aspect ofprotecting people from administrative power, the concept of administrative justice derived from theWest was quite unfamiliar in Vietnamese feudalism. Instead, due to vigorous influences from East
Asia’s Confucianism, Vietnamese administrative review has its own characteristics, although somecommonalities can be shared with that of China. The Nguyen Censorate came later than its Chinese
predecessor. Until 1832, although primitive and Confucian in style, Vietnam seems to have three
independent institutions that may challenge state authority – namely: Do Sat Vien (Nguyen Censorate– Supreme Control), Tam Phap Ty (Inspection and Advisory) and Dai Ly Tu (Supreme Court).
Nevertheless, Vietnam had no administrative courts like that which existed in Nationalist China. Since
the birth of the Independent DRV, some Soviet concepts and institutions, such as administrative
justice, socialist legality, and the procuratura were actively imported into Vietnam and were
integrated with Confucian tradition. Legacy of French colonialism also remains. The next section
continues briefly introducing the court’s jurisdiction over administrative cases since French Colony up

19

CALE Discussion Paper No.4

to 1975.
1.2. Court Jurisdiction over Administrative Cases Prior to 1975
Due to the wars and the differences in legal ideology, there has been little Vietnamese legal
research carried out regarding this issue. Mentioned only in modern history, Vu Thu62 by making
references to numbers of previous legal provisions argued that JRAA, in the aspect of the judicial
court which granted the jurisdiction to hear administrative cases, originated in the French colony andexisted in Vietnam immediately after the foundation of DRV in 1945. Furthermore, the most recent
research by the Government Inspectorate Review Institution (2006) also supported the ideal that Tai
Phan Hanh Chinh in Vietnam had been derived from the French colonization during the 1920s withthe enactment of Decree (1921) by French Government. This decree provided that all administrative
disputes arising in Vietnam were in the hands of both Conseil d’Etat and Dong Duong
Administrative Jurisdiction Council63. However, the subjects addressed to judgments were limited toFrench state officials. This research also referred to some documents enacted within the Frenchcolony in the South of Vietnam before 1954 that founded an independent administrative jurisdiction
body, and included Administrative Court such as the Order 02 (1950).
To provide more evidence for the court jurisdiction over administrative cases in thisperiod, some analyses should be given as below:
Firstly, in the period of French colony, the territories in which French sovereignty was

directly exercised (Cochin-China) had quite distinct types of administration in comparison with thatof the French protectorate (Annam, Tonkin), the former providing for single and the later for a mixed
form. In Cochin-China, all legislative and judicial powers were directly in hands of the French law(Statut Francais) applied to French citizens, while Statut Annamite64 applied to indigenous persons
and asiatiques assmiles. French laws were always applied in cases of disputes between two laws orparties. In Annam and Tonkin, French power was exercised indirectly since the indigenous law codes(as Code of Gia Long, 1815) and tribunals were still retained. In Tonkin, the influence of theprotecting power was exercised far more directly in judicial administration and the reform of
substantive law after Royal Ordinances (1886,1889) devised a mixed French-Tonkinese system ofjurisdiction and distributed legislative and administrative power between French delegates andTonkinese ministers. However, the over-all control of all indigenous justice was transferred to the
Resident Superier in the case of Tonkin (1900) and Annam (1901)65.
62

See Vu Thu, The Foundation and Development of Administrative Justice in Vietnam, 10 Legislative Studies, 26 (2003)

63
Nguyen Tuan Anh & Tran Van Long, Mot so Quan niem chung ve Tai phan Hanh chinh, [Some Common Concepts on the
Administrative Jurisdiction], Bulletin of Government Inspection Review Institution (GIRI), 14 (2006)
64

Statutes promulgated en bloc in Cochin-China by Governor’s Arrete, modifying the French Codes for the colony, abolishing theindigenous penal laws, codifying the statut personnel of Annamites

65

See M.B.Hooker (1978), pp.153-173.

20

Thus, regarding the settlement of administrative cases, the French Conseil d’Etat modeland French substantive laws were applied to deal with cases involving French officers, not for
indigenous persons. It should be regarded as an expansion of French Conseil d’Etat jurisdiction out
of French borders, not an establishment of a new mechanism for resolving administrative litigations
in Vietnam since Vietnamese officers’ claims were always out of this court jurisdiction. However, as
the group of researchers of the Government Inspectorates evidenced the establishment of Dong
Duong Administrative Jurisdiction Council, and the delimitation with Conseil d’Etat under the
Decree on May, 6th 1921 and its revisions in 1928, 1932, it is undeniable that it brings Vietnamese
legal system in general and ALRS in particular much closer to French origin. It also explains why
among foreign donors, France was the most influential partner in the study and foundation of theadministrative court model in Vietnam. Like colonial legal transplantation elsewhere in East Asia,
the imported French colonial laws covered a “thin veneer”66 of Western legal ideology. In Vietnam,
although political events after 1945 may have brought further changes in Vietnamese law, as David
and Brierley commented, “the socialist codes are in essence civil law documents”67.
Secondly, in the early days of DRV, to support the view that judicial courts granted thejurisdiction to hear administrative cases historically existed in Vietnam, Vu Thu evidenced theDecree 41/SL issued by Government of DRV on October, 3rd 1945 saying that, the Ministry ofJustice was assigned to manage the model of administrative court set up under the French colonial
regime. However, in fact, it dealt with no cases, since Vietnam, right after was involved in French
resistance war for nine years and the French court model was gradually replaced by a Socialist type.
He also provided further proof that Article 120 of Law on Direct Tax (June, 18th1949) allowed
taxpayers to bring administrative cases to the judicial court in the case of disagreement with their tax
assessment. However, these provisions also could not, in reality, be performed.
Vu Thu’s arguments seem reasonable when he quoted more legal provisions such as Law
04 on Election of Local People’s Councils and People’s Committee (1957) that allowed people tobring action against State officials in court where their names were omitted from the list of voters(Art 15). This was reconfirmed in Article 11 of the Ordinance on Procedure for Resolving Civil
Cases (1989), which states that the People’s Court has jurisdiction to hear cases relating tocomplaints such as the list of voters, complaints regarding the inaction of state agencies to register
civil status.
Finally, below is an overview of the period of the Vietnam Republic in the South before

1975, with some outstanding remarks that should be considered:First of all, the Geneva Conference ended on July, 21 1954 with an agreement on thedivision of Vietnam into two territories at the seventeenth parallel. As commented by Williams, “the66

See S H Roberts, The History of French Colonial Policy 1870-1925, pp.64-75 (1963)

67

David Rene & Brierley J.E.C, Major Legal System in the World today, 207 (1985)21

CALE Discussion Paper No.4

communist regime in North Vietnam, led by Ho Chi Minh” regarded the government of the South “aslittle more than an American puppet regime”68. In fact, the US, took advantage of the French defeat
in the North, and had simply replaced France to set up a new imperialist colony in Southern
Vietnam 69 . A year after the Republic of Vietnam was proclaimed, the first Constitution waspromulgated on October, 26th 1956, with Ngo Dinh Diem as President. This arrangement formed the“First Republic of Vietnam”. President Diem’s Regime came to a violent end in 1963, after which
followed

a Military Government headed by General Duong Van Minh until 1967. The newConstitution on April, 1 1967 provided a presidential system based on the Separation of Power thatformed the “Second Republic of Vietnam” until 1975. An interesting question for discussion here iswhether the legal system in Southern Republic was similar to that of US or “common law” in nature,or whether the French administrative court model still remained, and if so, why?
It should be noted that Constitutions were frequently changed with seven revisions that attimes looked like the US model, although not quite the same, and other times resembled a model ofmilitary dictatorship. While the first Constitution provided for some checks on executive power, noseparate judicial branch was set up since the court system was under the control of the executive
branch namely Department of Justice. The last Constitution provided a president, bicameral
legislature, independent judiciary and checks and balances between the three branches70.
Regarding the model and jurisdiction over administrative lawsuits, as a direct result of theseparate administration of Cochin-China and Annam under French colony, the court system in
Republic of Vietnam still adhered to the French model, known as a dual system of judicial andadministrative courts, each having its own hierarchy and culminating in an appeal court. The highest
judicial court was the Cour de Cassation and the highest administrative court, the Conseil d’Etat.
After 1967, the control of the court system was changed from the Ministry of Justice to the Supreme
Court, however, the judicial system remained French “in tone” and the functions of the lower courts
were virtually unchanged. The common law concepts were still alien to Vietnamese jurisprudence,
while its codification - such as the administrative code, the code on the expropriation of properties
for public uses, the housing code and so on - was generally done so in the civil law thinking. In
addition, trial proceedings were, unlike those in the US characterized by direct confrontation andcross-examination, and inquisitorial in nature.
To conclude, all above evidence suggests that JRAA historically appeared in Vietnam.

However, a lack of both scholarly research and effective legislation in this area after 1945 provesthat legal theory on JRAA as well as a real legal institution guaranteed for its existence was
68

Michael.C.Williams, Vietnamese at Crossroad, 13 (1992)

69

National Administration Institute, Giao trinh Lich su Hanh chinh Nha nuoc Vietnam, [The Textbook of Vietnamese State
Administration History], 411 (2005)

70

See Major General George S. Prugh, Law at War: Vietnam 1964-1973, 22 (1975)22

definitely absent in Vietnam until the bloom of legal research related to a Law–Based State andsearch for an administrative court model after the VII CPV’s Congress (1991).

2. Looking for Model of Law-Based State and of Judicial Review of Administrative Action
2.1. From Socialist Legality to Socialist Law-Based StateThe doctrine of socialist legality was actively imported into Vietnam during 1960s-1970s.
Socialist legality was developed in Soviet society from a dictatorial trend that advocated the use oflaw and legal institutions to suppress all opposition to the regime to a new trend (after 1960) thatstressed the need to protect the procedural and statutory rights of citizens, while still calling forobedience to the state . Under the Gorbachev regime by late 1986, it stressed anew the importance ofindividual rights in relation to the state and criticized those who violated the procedural laws in
implementing Soviet justice.
Socialist legality officially became a constitutional principle under the Vietnamese
Constitution of 1980. Article 12 stated that “State manages society by means of laws that endlessly
strengthen the socialist legality”. It invested the CPV and State with prerogative powers to substitutepolicy for law. Until the early of 1990s, Vietnam totally applied the “dictatorship of the proletariat”a dominant model in the whole socialist system.
Looking back at the Soviet context during the mid-1980s, Mikhail Gorbachev introduced aserious of constitutional changes designed to formalize economic and social liberalization(perestroika) without fundamentally disrupting Communist Party Power. While looking for an
appropriate ideology to fulfill the current social changes, Soviet law makers turned back Rechtsstaat
theory and developed a constitutional doctrine – Pravovoe Gosudarstvo – that proclaimed thesupremacy of law and the constitution.
Parallel to the German Rechtsstaat, Pravovoe Gosudarstvo promoted the implementationof state policy through legislation. Contrasting with the ROL, it denies social customs andprecedents derived from sources outside the state that can check political and bureaucratic powers. If
there were no written legal norms, the state was powerless to govern or change any situation.
Besides this, the law was defined as an instrument of the government. Pravovoe Gosudarstvo also
required all government actions to be bound by law. Nevertheless, as Johnz Gillespie comments, it
fundamentally differed from Rechtsstaat in that it “radically departed from Leninist socialist legality
with its emphasis on Communist Party paramountcy and legal exceptualism”71. In “Political Report”
to XXVII Party Congress (February, 25th 1986), Gorbachev made three basic points related to
Pravovoe Gosudarstvo, to role of law, and role of courts in controlling administrative acts. Amongthem, an important point was that, in order to protect the state and all individual’s legal rights and71

John Gillespie, Concepts of Law in Vietnam, in Randall Peerenboom ed, Asian Discourse of Rule of Law, 151 ( 2004)

23

CALE Discussion Paper No.4

interests, it was essential that to improvethe work of procurators , the courts and the advokatura(lawyers) and to prepare “the law envisaged by the Constitution on the procedure for appealing tocourt the illegal acts of officials which infringed upon a citizen’s rights”72. This law was then enacted
in July, 1987 based on the article 58 of USSR Constitution of 1977.
Vietnam in the early 1980s was in a total economic, socio-political and ideological crisis.
After decades of socialist orthodoxy, during the V Congress of CPV (1982), it was being
controversially debated whether revolutionary ideology should continue to dominate legal thinking.
Many arguments were made for the separating of the CPV from the day-to-day running of thegovernment and governing society through law rather than moral rules or administrative orders. The
VI CPV Congress (1986) made an epoch for Doimoi in which the central planning economy was
replaced by the market economy and law rather than morality that governs all society. The
Party-State recognized that the socialist legality could no longer regulate a mixed-market economy.
The Chairman of the National Administration Institute, Doan Trong Truyen, admitted that
Vietnamese lawmakers, while searching for a new legal ideology, turned once again to the Soviet
Union for inspiration73. Pravovoe Gosudarstvo was strongly welcomed by Vietnamese leaders, andlater officially introduced in the VII CPV Congress (1991) by General Secretary Do Muoi. In
Vietnamese legal terminology, it was called Nha nuoc Phap quyen and shares some common points
with Pravovoe Gosudarstvo, such as: (1) It requires a stable, authoritative and compulsory law; (2)All individuals and entities are equal to law; (3) Law is used to constrain and supervise theadministration and enforcement (4) It still keeps the sole Communist Party Ruling, although it
clearly defines Party as a policy-maker while leaving State to enact and implement under Party’s
guidance. However, the main difference with the Soviet Pravovoe Gosudarstvo is that Vietnamese
legal theorists did not abandon the principle of socialist legality. Instead, they attached the term“socialist” and constituted a Socialist Law–Based State.
It is remarkable that although the ideology of Law-Based State had been introduced in
1991, the doctrine of socialist legality was still dominant and recognized by the Constitution of 1992.
Until December, 2001, article 2 of the Constitution said that “The Socialist Republic of Vietnam is a
Socialist Law-Based State of the People, by the People and for the People”. While socialist legality
promotes party paramountcy and state bureaucratic management, Nha Nuoc Phap quyen advocates
limiting party and state power with law. The juxtaposition and interaction between socialist legality
and Socialist Law-Based State make ideological debates among policy-makers and scholars andforms a type of statist socialism.
Dao Tri Uc and his State and Law Institution recently introduced a book entitled “Model72
See Donald D.Barry, Administrative Justice: The Role of Soviet Courts in Controlling Administrative Acts, in George Ginsburgsed, Soviet Administrative Law: Theory and Policy, 63 (1989)73

See Doan Trong Truyen, Ve Cai cach Bo may Nha nuoc, [On the Reform of the State Apparatus], 50 (1991)24

of Organization and Operation of Socialist Law-Based State” (2007) that makes a full analysis of its
model and characteristics in the current context. This book presents six characteristics of VietnameseSocialist Law-Based State as follow74: (1) It is a State of People, by the People and for the People. It
relies on Lenin’s assertion that democracy is only achieved where the working class centralize powerin their hands; (2) State organs and all individuals must respect and act within the Constitution andLaws; (3) It governs society by laws and guarantees the supremacy of laws in society. It separates
Party’s Guidance and State’s Governance and all Party activities are under the control of law; (4) It
respects and protects all people’s rights and legal interests and maintains the democratic relationshipbetween State and citizens; (5) It is constructed under the principle of Power Concentration, but clear
distinction among three State Powers: Legislative, Executive and Judicial. All State Power is unified
and centralized in the hands of the National Assembly. Independence of Courts is recalled bygovernment, particularly at localities to resolve all disputes incompatible with the principle ofLegality; (6) It is under the sole leadership of CPV.
2.2. Indispensable Need for Judicial Review of Administrative Action
The ALRS prior to 1996 apparently exposed many defects that needed to be replaced. The
establishment of an administrative court model undoubtedly aimed to carry out the main objectivesof the Legal and Judicial Reform after the VII CPV Congress75, building up the model of Socialist
Law-Based State as well as the democratic mechanism in Vietnam. In order to explain theindispensable need for the creation of an administrative court model, this paper takes inconsideration some aspects as outlined below:
2.2.1. Political and Democratic Aspects
The Declaration of Independence by President Ho Chi Minh (Sep, 2nd 1945) gave birth tothe DRV as well as acknowledged the human and democratic rights of citizens76. Through four
Constitutions, these rights have been prescribed, however, some of them have been violated77.
Violations havebeen made especially in the relation between the state and citizens. The previous

mechanism revealed many shortcomings, such as the lack of opportunity for people to directly
debate with the administrative agency when disputes arise; and the lack of an independent organ toresolve objectively and impartially of disputes that failed to catch up with the democratization
process emerging after Doi Moi 1986. Along with the development of the economy, social life, legal
74

See Dao Tri Uc ed, Mo hinh to chuc va hoat dong cua Nha Nuoc Phap Quyen Xa Hoi Chu Nghia Vietnam, [The Model andOperation of Vietnamese Socialist Law-Based State], pp.229-311 (2007)
75
The term of the VII CPV Congress from 1991 to 1996. The Judicial Reform was conducted from the end of 1992. See De tai
khoa hoc: Cai cach He thong tu phap o Vietnam, [National Project No 92-98-353: Judicial System Reform in Vietnam], 71 (1993)
76
Declaration of Independence (September, 2nd 1945) by President Ho Chi Minh: “ Men are born and remain free and equal inrights”
77

Ngyuyen Duy Gia (1995), p.137

25

CALE Discussion Paper No.4

science and information technology, people have opportunity to fully understand what legitimate
rights infringements they were dealt through administrative malpractice, and they try to look formeasures to correct them. This trend can be illustrated by the number of petitions increased andsome reactions by the local people occurred in some provinces in the early 1990s78. As a result, thebirth of an administrative court model will be a fruit of the democratization process. According tothis, the administrative court is empowered to deal with complaints about administrative abuses bystate officials. Thus, people for the first time can take state officials as defendants before a judicial
court, directly give their opinions and contribute discussion that they had never known before.
Regarding the political aspect, current Vietnamese state machinery has been based on theprinciple of democratic centralism, but with a clear distinction among the legislative, executive andjudicial powers. The legislative power is centrally in hands of the highest representative organ,
namely the National Assembly, while the executive power remains in hands of the government andjudicial power belongs to both system of courts and procuratorate agencies.
In the years of self- adaptation with reforms, the National Assembly played a stronger role
than in the past by seriously debating and revising proposed legislation. The Government also “hadsome latitude in implementing policies” and the Courts were given much stronger power in judgmentof not only criminal, and civil but also economic, and labor matters involved. The previous
mechanism limited the competence of resolving disputes within only administrative agencies surely
exposed the inevitable defects. Therefore, the creation of an administrative court model handling
disputes is an indispensable requirement, aiming to perform the principle of Power Concentration,
but clear discrimination among State Powers in which the Executive Power cannot exceed the otherpowers and must be bound by Judicial Power.
2.2.2. Economic and Administrative Management Aspects
After the Doi Moi policy, Vietnam shifted into a market oriented economy withmulti-economic sectors and multi-ownership of means of production , which has made fundamental
changes. The Constitution of 1992 provided the right of private ownership, and freedom ofenterprise. Land in Vietnam belonged to the state, but people were allowed to transfer land-use
rights. The change in the economic situation happened quickly and has in turn lead to the changes in
the legal relation between people and the state and among people. This also makes the number ofdisputes higher as well as the nature of disputes more complex. Thus the previous mechanism
featured by “internal control” seemed to be not an effective way to protect people’s rights andneeded a replacement.

78
Some provinces were “hot places” of disputes, such as Ha Tinh, Ha Tay, Nghe An , Ben Tre, Dong Thap …etc. See Bao cao kiem
diem ba nam thuc hien Phap lenh khieu nai, to cao 1991, [Report on three year’s Implementation of OSCCD] by General State
Inspectorate, 4 (1995)

26

Furthermore, the modern administrative law clearly discriminates governing functions
from adjudicating functions within the administration itself79. Looking back at the Vietnamese
administrative law’s history, it seems that the former is in excess of the latter. The concept of“adjudicating function” was not understood in its concrete meaning. It is more correct to talk about
the function of “self-reconsideration” by a state agency or of performing “non-judicial function” todeal with disputes by the Inspectorates. The previous mechanism did not provide grounds forjudicial review. A foreign idiom states “prevention is better than a cure, so good administration isbetter than remedies for bad administration” 80 . Thus, in the case of Vietnam, while theadministration has many remaining shortcomings leading to the high number of disputes, theapplication of judicial review embodied by the administrative court shall force the administration to
fulfill its role in a good manner, if it does not want to be a defendant in a court.
2.2.3. Legal and International Integration Aspects
Vietnam’s legal system was for a long time heavily influenced by the former Soviet Unionand the Stalinist period. Since the sharing of a common idea that “there were no opposition ofinterests between the state and citizens”81, the concept of “conflict”, “dispute” or “administrative
litigation” are not used to express the relation between the state and people. The term “complaint”
was used instead. The state, while governing country may correct its mistakes if people complain.
The relationship between the state and people is not regarded as a legal relationship, since most state
activities are controlled by Party directives or State plans. Law documents are limited in some fields
that cannot afford to control the legal relationship between people and state. The creation ofadministrative courts thus has changed considerably the relationship between state and citizens,
placing people and state (officials) on an equal footing before the court. This aims to meet thedemand of improving Vietnamese legal documents that were still imperfect.
In the aspect of international integration, it is true that international contacts are much
more frequent than they ever were before and the legal system of each country cannot be developed
in total isolation from those elsewhere. Consequently, many former socialist countries haveintroduced a western-style legal system82. Vietnam, as well as the other developing countries, havebeen heavily influenced by the form of judicial review originating in western countries. The ALRS
in these countries have been improved gradually “to follow their own paths”83, based on the
differences in their own historical, political and economic conditions. Thus, in Vietnam, along with

79

L.Neville Brown & John S.Bell (1998), p.288

80

Patrick Neill, QC, Administrative Justice – Some Necessary Reforms, 8 (1988)

81

See Rene David & John.E.C.Brierley (1985), p.285

82

Michale Bordan (1994), p.209

83

Yong Zhang, Comparative Studies on Judicial Review System in East and Southeast Asia, 259 (1997)27

CALE Discussion Paper No.4

carrying out the recent open-door policy and expanding its international cooperation, theestablishment of administrative courts aims to help Vietnam catch up with the mainstream of ALRS
around the world.
2.3. Legal Perception to Judicial Review of Administrative Action
The administration itself has “an intricate interlocking of judicial and administrative
functions”84 that is popularly accepted in the contemporary Vietnamese legal concept.

Empowered

to exercise great discretionary powers, the administration has the inherent potentiality to infringe
upon the rights of citizens at any moment. Therefore, there is an indispensable need for keeping
administrative powers within their legal bounds, preventing “the powerful engine of authorities fromrunning amok”85, so that people‘s rights and legitimate interests can be effectively protected fromtheir abuses.
Judicial review, in a general sense, means “a system of judicial control over administrativeand judicial acts”86by the competent court. JRAA is accordingly determined as a part of judicial
review under the aspect of administrative law that is clearly discriminated from judicial review of
constitutionality under that of constitutional law87. There has been a long history of experience of
JRAA in both common law and continental law88, in which it was believed that the courts “should
exercise a general superintending control over the action of administrative agencies and that theprocess of judicial review should be relied on to correct any error of administration”89. Thus, except
for the competence of review vested in the judicial court there is no need to further discuss this, thequestions arising here are: What grounds need to address JRAA?, Should judicial review be applied
to correct any error of administration?, and Should the grounds of judicial review be threefold:illegality, irrationality and procedural impropriety or not? Principally, the role of courts is limited toreview only the legality of administrative actions and the judges are not concerned with the“merits”90 in the sense of the rightness or the wrongness of appealed actions91. In other words,
judicial review is not to examine the rationality, but “the recognition and correction of the84

Carleton Kemp Allen, Administrative Jurisdiction, 60 (1956)85

Mark Aronson & Bruce Dyer (2000), p.2

86

Ibid, at 238

87
JR of Constitutionality while examines the conformity of various State activities, mainly legislative actions, to Constitution,
JRAA deals with the actions made by administrative agencies whether in conformity with Constitution or ordinary law. See Yong
Zhang (1997), p.5
88

C.T.Emery & B.Smythe, Judicial Review, 29 (1986)

89

Frank E. Cooper, Administrative Agencies and the Courts, 305 (1982)90

See Patrick Neill, OC, Administrative Justice, 210 (1988)

91

Ibid, at 212

28

illegality”92 thereof. In addition, some questions concerning whether or not the constitutionality ofdelegated legislation for judicial review, or what appropriate model should be applied to review
administrative actions are undoubtedly influenced much by the birth and development of ALRS.
Le Binh Vong and Nguyen Duy Gia who both studied in the former Soviet Union andEastern Europe are regarded as the earliest legal scholars to have started researching JRAA, which
was adopted in Vietnam and who supported the foundation of the AJB in Vietnam in the early 1990s.
Le Binh Vong had already realized the defects of Vietnamese administrative law, which for aquite long period lacked judicial review to protect infringed people from malpractices ofadministration. He found the reason was led by deep influences from the Soviet legal theory during
the Stalinist period93. Traditionally, he recognized that in former socialist states, complaints were notbrought to courts, and the infringed people lacked opportunity to protect themselves more impartiallyby judicial channels. However, he conceded that this did not mean, administrative justice that
“denotes court review of the legality of administrative acts”94 has never appeared in the Soviet
context. After the Stalinist period, some Eastern European countries of the socialist camp that“conflicted with Soviet leaders”, even the USSR thought it necessary to undertake some reforms tocarry out socialist democracy. Some of these countries, before they became socialist, had once
established administrative courts that held the government to to account in the eyes of the law. These
countries such as Hungary (1957), Czechoslovak (1955), Poland (1960), Bulgaria (1970) or Romania(1967) reestablished the former administrative courts and enacted administrative procedure code. He
provided evidence that even in the former Soviet Union, especially after the enactment of theConstitution of 1977, the judicial review system that was developed was marked by a renovation
period from 1986 and one year later, Law No 26 was enacted to allow people to appeal to the court theagainst unlawful decisions or actions made by state agencies. Thus, he suggested the inevitable needfor Vietnam to create an independent AJB system that restrained state power and made changes to therelationship between State and citizens, placing them in an equal status before the court. He strongly
supported the model of an independent administrative court, either attached to the National Assemblyor Government rather than within the People’s Court System - a topic that will be discussed further in
the next section.
Nguyen Duy Gia started his views from the Marxist-Leninist ideology. He pointed that,
according to its theory, “the socialist state which exists in the interest of all and not that of a privilegeclass” 95and “all individual rights and interests are automatically protected”96 and that this lead to92

Mark Aronson & Bruce Dyer (2000), p.494

93

Le Binh Vong (1994), p.89

94

Ibid. See also George Ginburgs, Soviet Administrative Law: Theory and Policy, 65 (1989)

95

Quoted from Rene David & John E.C.Brierley (1985), p.210

96

Id, at 285

29CALE Discussion Paper No.4

the “non-existence of disputes arising between state and citizens”97. During the process of exercisingpublic power, if the state agencies receive complaints from people concerned by virtue of causing
damages, the said agencies or higher levels are then immediately empowered to deal with it. This
would be reasonable if such agency was fair and impartial enough to protect those people infringed
against. On the other hand, suc power can be a threat, not only for the administration but also forsociety. In his well-known book “The Establishment of Administrative Jurisdiction in Vietnam” (1994),
Nguyen frankly realized that, through four Vietnamese Constitutions, although people’s legal rights
and interests have been completely prescribed, some have in fact been violated98, especially in therelationship between the state and citizens. He argues that the previous mechanism for the settlementof administrative disputes has revealed a lot of shortcomings and needs to be reformed. He quoted thenumber of petitions was getting higher and some negative reactions by local people had occurred insome provinces in the early 1990s providing support for the imperative of a judicial review system.
JRAA (or Administrative Jurisdiction) is accepted in Vietnam by the name of “Tai phanHanh chinh” and takes on a number of meanings, and involves a great deal of discussion amongscholars. Administrative jurisdiction, in a broader sense, is regarded as the judgment of the state
towards all disputes arising in the field of administrative management, and thus it includes both thesettlement of administrative disputes and the handing out of violations in the administrative
management field.
Nguyen Duy Gia gives the definition of “Tai Phan Hanh Chinh” in a narrow sense, as thesettlement of administrative litigation of people toward administrative decisions or actions made by
the state authorities applied to the “judicial litigation procedure” and the consultative activities99tothe government. Although there was no integration with the Western concept of JRAA, which may
be viewed as a problem, the concept of “Tai Phan Hanh Chinh” accepted in Vietnam in a narrow
sense, to certain extent, is close to it. According to this concept, a judicial court should be
empowered to deal with administrative disputes arising between people and authorities, and “TaiPhan Hanh Chinh” cannot be implemented without the existence of a court to deal with suchdisputes100.
“Tai Phan Hanh Chinh” imported into Vietnam has some characteristics as follows: (1) It
is exercised by the court’s model empowered to deal with disputes differentiated from those101of
criminal, civil, economic or labor matters; (2) It defines no grounds for review of constitutionality of

97

Nguyen Duy Gia (1995), p.136

98

Ibid, at 137

99

Consultative function to Government like the function of Conseil d’Etat in France. Ibid, at 15

100

Ibid, at 17

101

Administrative jurisdiction is quite different from judicial jurisdiction. See Le Binh Vong (1994), p.37

30

legislative actions as well as the rationality of litigated administrative decisions or actions. It isbound to review only the legality of administrative decisions or actions made by the ministerial levelagencies and downwards102 in the limited fields103of administrative management.
In short, Tai phan Hanh chinh was totally adopted by the CPV and State, however, thequestion of what kind of models should be the best applied was hotly debated among scholars in theearly of 1990s. This paper continues analyzing the legal debate on looking for the best model (before
1996), and discusses whether the final choice of ADCs (since July, 1996) is an interim or eternal
solution. It also reveals that the birth of ADCs Model launched a constant theoretical controversy
among Vietnamese legal scholars that has continued up to the present time.

III. The Birth of Model of Administrative Division Courts: Interim or Eternal
Solution
1. Proposed Models and Analyses: Theoretical Conflict and Divergence
The necessity of setting up the Administrative Court Model became an urgent requirement
for the process of Legal and Judicial Reforms. It was officially emphasized in Resolution 8 of the
VII CPV Congress that “there must strongly promote the establishment of an administrative court
system to deal with people‘s complaints toward administrative decisions”104. Before the birth of
ADCs in 1996, four models were proposed based on both their advantages and disadvantages to theVietnamese context at that time.
1.1. Model of Independent Administrative Court Formed by National Assembly
The model of an independent administrative court was suggested by scholars influenced byGerman and Swedish systems and by a team of legal experts who were assigned to drafting the law
on the administrative court’s organization in 1993. According to this model, the AJB should be
named “Toa An Hanh Chinh” (Administrative Court) established by the National Assembly.
Le Binh Vong suggested that the administrative court system in Vietnam should be divided
into two levels: a central and provincial level, separating it from the both existing people‘s courts
and the executive organs in which the provincial courts are in competence of dealing with in
first-instance cases, while the central level court deals with appeal trial cases. The Chief of theCentral Administrative Court would be approved and dismissed by the National Assembly andresponsible for all judgment works to it. All other judges would be presided over and dismissed by102

See OSAC, Art 12. See also Nguyen Duy Gia (1995), p.45

103

See OSAC, Art 11

104

See the Resolution No 8 of the VII CPV Congress (1995), available at http://www.cpv.org.vn

31

CALE Discussion Paper No.4

the President105. He argued that the biggest advantage of this model was that it clearly discriminatedthe adjudicating functions from governing functions. Thus, the objectivity and promptness in thelitigating procedures could be gained, since it was possible avoid strong influences from the
Executive Branch, particularly at local levels. Vietnamese scholars who supported this model were infavor of the independence of the judiciary and the independent status of the judges. Hoang van Hao
confirms that the “adjudicating function must be in the center of judicial power”106. Dinh Van Mau
goes further, considering that this court should be empowered to judge the unconstitutionality oflegal norms or hand over the claims for State compensation.
This model, however, was rejected because of two main problems, namely, its
unconstitutionality and the difficulty in its implementation. Since the Vietnamese Constitution of
1992 provided that “the Supreme People‘s Court is the highest judicial organ”, the appearance of aCentral Administrative Court would have lead to the co-existence of two highest judicial organs, asituation that would have been completely unconstitutional. In addition, this model failed to deal
with the objectives of public administration reform at that time, such as making the state machinery
not less expansive but more bulky. Vietnamese lawmakers also took into consideration of the limited
condition of the budget and the demand for immediately resolving the growing number of disputes,
consequently they refused this model.
1.2. Model of Administrative Court as Independent System Attached to Government
The model of administrative court under the Government suggested by scholars influenced
by the French system and by most of the legal experts currently working in State Inspectorates(former name of Government Inspectorate). This suggested model is based on the idea that Prime
Minister is the top executive power, responsible for the entire executive work of the National
Assembly, so that both the administrative and adjudicating jurisdictions must be integrated in thehands of the Prime Minister. According to this model, the term “administrative court” may be notused in the strict meaning of a “court”. To be concrete, this model seems a further development of theexisting State Inspectorate and is reminiscent of the model of Conseil d’Etat in France. At the centrallevel, the State Inspectorate would be the “Centre Administrative Court” with two main functions:“consultative” to the government and “adjudicative” to a lawsuit. The name might be called the“Administrative Legal Institute” or “Administrative Jurisdiction Institute”. Accordingly, the Head of
this organ would be approved by the National Assembly based on the proposal of the Prime Minister,and designated and dismissed by President. All other judges would be presided over and dismissed byPrime Minister. At the local level, these organs would be divided either at the provincial level and105

Le Binh Vong (1994), p.117

106
See Dai hoi Dang VIII & Mot so van de cap bach NN & PL, [The VIII CPV Congress & Some Urgent Issues on State & Law],
72 (1997)

32

some regional levels or at the district and provincial levels in a way that completely separates themfrom the local administrative organs. The Ex-General Inspector, Quach Le Thanh, strongly supported
this model when he believed that this model could benefit from ensuring that the unified
administrative power in the hands of the Prime Minister as well as to some extent the objectivity ofsettlement, since these organs would be subordinate to the Prime Minister, yet independent of theexecutive organs. Dinh Van Mau suggested that for the French administrative law doctrine, theadministration always included within itself the two interlocked and inseparable parts of “thegoverning” and “the adjudicating”, and considered the administration has proved in most countries
historically that the administrative jurisdiction originated from it. Dinh Van Minh in his book “TheComparative Administrative Jurisdiction” (1995) seemed to be very passionate about the Frenchmodel and French administrative law theory, and showed that administration itself holds two
integrated functions in which judicial functions are distinct and always remain separate fromadministrative functions. Like other supporters, he believed that this model could be able toimplement at immediately, because the organization and personnel of the existing State Inspectorates
could automatically be transferred to such mentioned organs.
Nevertheless, this model was also refused. The protestors considered that, although theorgans dealing with administrative disputes would have been independent from the executive organs
at the local level, the question of whether objectivity could have been firmly guaranteed, since it still
depended much on the Head of Executive Power was raised. Except for the Chief of central level
organs, all judges are appointed and dismissed by Prime Minister. Furthermore, the Vietnamesepolitical system is based on the principle of Power Concentration, but clear distinction between thethree state powers, therefore setting up such an organ to deal with disputes makes the Prime Ministerand his organ system encroach upon the judicial power exercised by the court system. Concurrently, it
contradicts with the Constitution in the provision that places the SPC as the highest judicial organ andthe other People’s Courts are the sole judicial organs in Vietnam.
1.3. Model of Semi-Independence Administrative Court
The model of a semi-independent administrative courts is a compromise by legal experts
who are in favor of setting up an independent administrative court system but carefully considered
whether it was against the current Constitution. According to this model, the two administrative
court levels would be divided: (1) At the central level, Central Administrative Court would be
attached to the SPC. It would be formed by National Assembly, but under the direct control of the
SPC. The SPC would be able to review all its judgments.
(2) At the provinces, the administrative courts would be formed separately to theprovincial people’s court system. The Central Administrative Court would directly control theiradjudicating works and personnel. Some legal experts supported this view and considered that such a33

CALE Discussion Paper No.4

model would avoid constitutional constraints, since it did not contradict Article 134 of theConstitution which provides that the SPC is the highest judicial body in Vietnam107.
In fact, the military court system has been formed along similar lines to this model withthree levels:the centre, the military zone and the regional levels. However, since this suggested
model is divided into only two levels (the central and provincial), it would not be able to avoid anoverload in administrative cases, which would cause a degree of inconvenience for people residing
in rural and highland provinces. Moreover, due to budgetary constraints, infrastructure, andpersonnel, and issues such as the training of administrative judges, this model was also finallyrefused by Vietnamese lawmakers.
1.4. Model of Administrative Division within People’s Courts (ADCs)
This proposed model is similar to the Chinese court model established in 1989. The only
difference can be seen in that while ADCs are formed in the people’s courts at all levels in China, no
administrative divisions would be created within people’s courts of Vietnam at the district level.
According to this model, an administrative division would be established in each provincial people’s
court and in the SPC. In each district people’s court, one special judge would be assigned to resolve
administrative cases.
This model, was not in fact strongly supported by the majority of scholars, particularly by
those working in Government Inspectorates and those advocating the foundation of an independentadministrative court system. It also revealed some mistakes that will be fully analyzed the next
section. However, Vietnamese leadership and law-makers, on the basis of analysis concerning thecurrent Vietnamese socio-political, legal and economic conditions, strongly supported this modeland considered its defects to be quickly rectifiable. The next section will analyze the reason why thismodel was regarded as the best choice and introduce its foundation in July, 1996 and its subsequent
operation.

2. Choice of ADCs Model
2.1. Rationale
The model of ADCs was very attractive to both the leadership of the country and thelawmakers, taking two main advantages in to consideration -namely the issue of constitutionality

and feasibility.
2.1.1. Issue of Constitutionality
First of all, it ensures the conformity with the existing Constitution as well as the mode oforganizing state power. Article 134 of Constitution 1992 states that:

107
Truong Khanh Hoan, Nang cao Hieu qua hoat dong cua Toa hanh chinh, [Improvement of the Effect of Administrative Division
Court], The Journal of Law Research, 39 (2001)

34

“The Supreme People's Court is the highest judicial organ of the Socialist Republic ofVietnam. It supervises and directs the judicial work of Special Tribunals and other tribunals, unlessotherwise prescribed by the National Assembly at the establishment of such Tribunals”
According to this, the ADCs are established within people’s courts to deal withadministrative disputes. Thus, the mechanism for settlement of administrative disputes in Vietnam,
apart from being in the hands of administrative agencies and the inspectorate system, was assigned
to the judicial courts. This choice could avoid creating another independent administrative court
system, like the continental law model, therefore, there is no need to change any provision of theexisting Constitution.
Secondly, in line with article 134 of Constitution 1992, economic divisions within thepeople’s court system was already established in 1995, which strongly confirmed the imperative ofcreating such ADCs at that time. Along with the proposal of setting up labor division courts at thesame time, it ensures the constitutional principle that the judicial courts are empowered to hand out
all legal disputes in Vietnam, in which the SPC holds the supremacy supervision. It was strongly
supported by Nguyen Duy Gia when he emphasized that “the administrative jurisdiction shall not be
named unless the competence to review belongs to the administrative division in a judicial court andvice versa ”108.
2.1.2. Issues of Feasibility
As Dang Quang Phuong argued, this model is easier to carry out in the present situation
because the system of the people’s court exists, so that the objective of not making the statemachinery more bulky can be achieved, as can the urgent requirement for settlement ofadministrative disputes be implemented sooner109. The economy of this model can be easily realized
by the availability of court facilities, such as courtrooms, headquarters, administrative and technicalstaff.
In addition, obtaining experience in the setting of the economic division court as before,
along with the setting up of a labor court division at the same time, ensures the integration in thesettlement of all legal disputes. Concurrently it also creates a good environment for administrative
judges to learn from other special judges, such as civil judges, since administrative litigation has
common points with civil litigation.
However, this model has also revealed some negative points, such as it does not ensure theprompt settlement of disputes due to the problem of training administrative judges. At the same time,
the people‘s court system now has to undertake large amounts of criminal, civil, economic, and laborcases, so that it fails to meet the requirement of timely dealing with all disputes. Some negatives

108

See Nguyen Duy Gia (1995), p.17

109

He now is Vice Chief Justice of SPC of Vietnam. See Dang Quang Phuong, May Y kien ve Mo hinh to chuc Toa hanh chinh,[Some Opinions of Administrative Court Model], in Thanh tra Nha nuoc, supra note 9, at.136

35

CALE Discussion Paper No.4

have been acknowledged, however the leadership, as well as lawmakers seem to be very attracted by
the advantageous sides, and hope the negative points will be rectified one by one in the future. They
felt that even if any other model were applied, they did not think all defects could be immediately
rectified. The personnel factor, such as the remaining problem of administrative judges, is be a good
example. They compared the system with several foreign countries that developed theiradministrative litigation over a long period, such as France, which took over 200 years, as well as
countries that are currently developing a judicial review system such as China, Indonesia, Malaysia
and Thailand. They believe that the shortcomings can be eliminated by continuing to maintain theexisting mechanism, but pouring a great deal of effort into improving the entire legislative
regulations, including the field of settlement of administrative disputes as well as the quality ofjudges and other persons in charge.
The 7th session of the VIII National Assembly (October,28th 1995) approved the Law on
the Amendment of LOPC in which the ADCs were established within the people’s court system110.
This marked for the first time, the appearance of a judicial organ dealing with administrative
disputes in Vietnam. The OSAC enacted by National Assembly‘s Standing Committee shortly
after111 became the fundamental legal basis for the ADCs dealing with administrative lawsuits from
July, 1996.
It should be noted that, although ADCs Model was founded and inaugurated in 1996, it did
not end the legal debate related to the model for the settlement of administrative disputes. By contrast,
it marked the start of continuous theoretical controversy among Vietnamese scholars continuing until
present.
2.2. Its Foundation and Operation (since July, 1st 1996)
2.2.1. Legal Basics
Some important legal documents regarding the settlement of administrative cases are as
follows: (1) the Constitution of 1992 and its Amendment in 2002: Article 74, 134; (2) Amendment of
Law on Organization of People’s Court (LOPC,1995, 2002); (3) Ordinance on Settlement of
Administrative Cases (OSAC, 1996) and its Amendment in 1998, 2006; (4) OSCCD (1991) and
LOCD (1998, 2005); (5) Circular No 39/KHXX (July, 6th 1996) of SPC on guiding theimplementation of some provisions of OSAC; (6) Circular No 07/HC (August, 9th 1996) of SPC on
guiding some issues regarding the administrative complaint resolutions; (7) Resolution No
03/NQ-HDTP (April, 14th 2003), Resolution No 04/NQ-HDTP (August, 4th 2006) of SPC on guiding
some legal provisions of OSAC; (8) Various substantial laws…etc.

110

See Amendment of LOPC enacted on October 28th 1995, Art 1.

111

Phap lenh giai quyet vu an Hanh chinh, [Ordinance on Settlement of Administrative Cases, OSAC], first enacted on May, 21st
1996

36

Thus, regarding Administrative Remedy, unlike continental law countries and also Japanand China, Vietnam lacks fundamental laws, such as Administrative Litigation Law, State
Compensation Law, Appeal Law, Administrative Procedural Law. The Law on Civil Judgment
Execution which includes administrative judgments has just been approved by the XI N.A (Nov, 14th2008) and come into effect on July, 1st 2009.
2.2.2. Court Organization
The structure of the Vietnamese People’s Court System is shown in Appendix 3. It should
be noted that the Constitution of 1959 and LOPC1960 completely replaced the structure of the oldcourt system based on jurisdiction level (cap xet xu) to that of three administrative territorial units(don vi hanh chinh lanh tho), namely: (1) People’s Court at district level; (2) People’s Court at
provincial level; and (3) SPC.
The organization of three levels of people’s courts regarding the settlement ofadministrative cases can be described as below:
Firstly, in the people’s courts at the district level, there is no administrative division. They

are the lowest courts in the people’s court hierarchy that are organized at the locality in equivalent
with each district unit. There are a total of 658 district people’s courts in the entire country, in which
the number of judges is 2643112. The number of administrative judges is around 658. Since there isno administrative division within each district court, one administrative judge is appointed to hearcases.
District people’s courts are the courts of first instance. Regarding the administrative
jurisdiction, district people’s courts are empowered to hand out the cases related to administrativedecisions of state agencies and their officials at district or lower levels (wards or villages) within thelocalities. Like provincial people’s courts, their administrative jurisdiction is limited by statutes inenumerated administrative cases. More analysis and discussion will be given to this topic in Chapter
II.
Secondly, in each people’s court at the provincial level, one administrative division isestablished. The number of provincial people’s courts is changed from 64 to 63 for the time being,
because Hatay Province was already merged with Hanoi on August, 1st 2008. The number ofprovincial administrative judges is about 953 of the total number of 2931 court staff.
Provincial people’s courts, unlike the supreme and district levels, are both the courts offirst instance and appeals. They share the same structure as the SPC in that they consist of fivespecial divisions – the criminal, civil, economic, labor and administrative law. Article 27 of LOPC
states that: “National Assembly’s Standing Committee, in case of necessity, will decide to form otherdivisions of provincial people’s courts based on the recommendation made by SPC’s Chief Justice”.
112
This statistic is made by Le Van Minh, Vice Chief of Department of Court Staff Management, SPC. See Le Van Minh, Xay dung
doi ngu tham phan theo tinh than cai cach tu phap, [Improving the Vietnamese Judges in line with the Judicial Reform], in SPC,
Research Project on Finding Solutions to Improve Settlement of Administrative Cases in line with Judicial Reform, 2005

37

CALE Discussion Paper No.4

As a court of first instance, provincial people’s courts have been given the jurisdiction tohand out administrative cases involving administrative decisions of some state agencies and theirofficials at the central and provincial levels, and district levels in cases of necessity. According to theexisting law, provincial people’s courts exercise their administrative jurisdiction by ADCs andadministrative judges specialize in hearing only administrative cases. However, the fact that there isan overload of other cases (civil lawsuits), and the lack of provincial judges leads to judges of ADCs
becoming appointed to hear not only administrative cases but also civil and labor lawsuits.
As a court of appeal, provincial people’s courts also have the jurisdiction to open appeal
trials toward the judgment made by district people’s courts. Unlike SPC with the creation of
Administrative Appeal Court, there is no such Appeal Division at the provincial level. Apart fromhearing an administrative case under the appeal procedure, provincial ADCs are also empowered toretrial the lower court’s judgments, which have already come into legal effect under the supervisory
or review procedure.
Thirdly, the SPC is the highest jurisdiction body and empowered to supervise and provide

guidance on the adjudication work of the entire Vietnamese court system. It is headed by a Chief
Justice who is elected, released from office or dismissed by the National Assembly upon the
proposal of the State President for a five-year term. Deputy Chief Justices and all Judges of SPC are
appointed, released from office or dismissed by the State President. The Judge Council of SPC,
according to article 21 of LOPC (2002), shall not exceed 17 members in total. The number of SPC
Judges is about 102 in a total of 495 court staff.
The SPC, under the Amended Constitution (2002) and LOPC (2002), no longer has
jurisdiction of the so-called “the first instance and final instance procedure”. Two main reasons forthe abolition of this regulation are as follows: (1) It aims to ensure the rights to appeal of litigation
parties; (2) It is in line with the trend of Judicial Reform recently in which SPC should be enhanced
its jurisdiction in terms of supervising all lower court’s judgments (through appeal trials and othersupervisory or review trials), and making guidance to all court system on how to apply the law
properly rather than hearing the cases at the first instance. The main guidance made by the Judge
Council of the SPC regarding the settlement of administrative cases is known as Resolutions (Nghi
quyet), such Resolutions include Resolution No 03 /NQ-HDTP (2003) and Resolution No
04/NQ-HDTP (2006). A question that should perhaps be raised is whether these Resolutions are
considered state laws or some kind of precedents.
As a court of appeal, the Appeals Division of the SPC is set up and located in some main
cities throughout the country. Locations of these courts includeHanoi, Danang, and Ho Chi Minh,and it is their task to hear appeals of cases in which judgments of the immediate lower tier courts,
have not yet become legally effective, and have yet been appealed or protested against in accordancewith the provisions of procedural law.

38

As a court supervising all lower court judgments, the Administrative Division of the SPC
was established and officially inaugurated on July 1st 1996. This Division conducts reviews on errorsof law (cassation or supervisory trial) or on newly discovered facts (review trial) in which “legallyeffective judgments have been protested in accordance with provisions of procedural law”.
The main difference between the two above procedures is that while the SPC can open an
appeal trial based on an appeal petition (don khang cao) of the concerned parties, the supervisory
and review trials are only opened in cases that have had an inquiry (khang nghi) initiated by certain
judicial officials, such as the Chief Justice of the SPC or Provincial Courts, the Chief Procurator of
the Supreme Procuracy or Provincial People’s Procuracies113.
2.2.3. Trial Panel and Participation of Procurators
This section focuses on analyzing the trial panel’s participation, including theadministrative judges, people’s assessors and the procurators in the process of resolving
administrative lawsuits.
Firstly, regarding the administrative judges, article 15 of OSAC (2006) provides theparticipation of the judges in each trial level as follows: (1) The first-instance trial panel is composedof one judge and two people’s assessors. In special cases, it may be composed of two judges andthree people’s assessors; (2) The appellate trial panel is composed of three judges; (3) The
supervisory or re-trial panel of a provincial court shall be the judge’s committee of this court. The
participation of this committee must be at least two thirds of the total members (the total number ofthis committee does not exceed 9114); (4) The supervisory or re-trial council of the ADC of the SPC
is composed of three judges; (5) The supervisory or re-trial council of the SPC shall be the judge’s
council of the SPC. The participation of this council must be at least two thirds of the total members(the total number of this council does not exceed 17115)
Under LOPC (2002), the Chief Justice of the SPC shall be elected, released from office ordismissed by the National Assembly upon the proposal of the State President. The Deputy Chief
Justice and Judges of the SPC shall be appointed, released from office or dismissed by the State
President. Judges of local people’s courts shall be appointed, released from office or dismissed by
the Chief Justice of the SPC upon the recommendation of the Judge Selection Committee116. The
appointment of judges does not only consider their professional quality but also their morality andpolitical status. Almost all judges are members of the CPV. To be appointed as a judge, apart fromthe requirement of professional quality the candidate, such as the graduation from a law university,

113

See OSAC 1996, Art 68

114

LOPC, Art 29, section 1.b

115

LOPC, Art 21, section 3

116

LOPC, Art 40, section 1,2,3

39

CALE Discussion Paper No.4

or having a certificate on judge training from a course at the Judicial Academy, the candidate musthave a certificate of completion for the political courses granted by the Ho Chi Minh National
Political School117. The judge candidates must be also strongly supported by Communist Party Cells
or Executive Committees of the CPV. For this reason, many foreign observers suspect theindependent status of judges dealing with administrative lawsuits, and regard the close link with theCommunist Party as a threat to judicial independence.
Up until the time of writing this dissertation, there were about 4,000 judges in the entire
court system, including 102 judges of the SPC. In comparison to this amount, which was allocatedby the National Assembly’s Standing Committee in 2003, the people’s court system alone needs
approximately 1,000 judges. Currently, there are only three judges in the ADC of the SPC. In mostprovincial ADCs, the number of administrative judges does not exceed three118. In district courts,
there is only one judge specialized in dealing with administrative lawsuits. Thus, it should beemphasized that the number of administrative judges is very limited, particularly in district courts.
Administrative judges are also inexperienced in dealing with lawsuits, particularly those arising in
new dispute fields, such as intellectual property, competition, financial service, international trade,and land compensation. Many local administrative judges still lack an LL.B degree and they have tofollow the in-service training courses held by law universities to fulfill this requirement. Since 1996,
deriving from the requirement of setting up the ADCs to deal with disputes as soon as possible, mostadministrative judges have been transferred from judgeships dealing with civil or criminal cases.
Some of these judges are still not well trained, and lack knowledge especially in regards toadministrative management and information technology.
The settlement of administrative cases relates closely to legislative regulations and Party
policies in all governing activities, whereas the legal provisions are scattered, even overlapping andcontradicting with each other, so that the judges must pour a great deal of effort into catching up
with such requirements. The administrative judges and the litigated state agencies are often in close
relation. Judges are subjected to statute law and are not allowed to be indifferent to the policies of
CPV and State. The judges are designated by the State President, or Chief Justice of the SPC for aterm of five years and not for a lifetime119. In addition, the salary of judges is still low. All of theabove-mentioned matters possibly provide a disincentive for judges to be active in their jobs, as well
as discourage them from being brave enough to stand beside people to protect law and justice. Somestate officials may feel uneasy to be taken as defendants in administrative cases, consequently

117

See Thong tu lien tich 01/2003/TTLT-TANDTC-BQP-BNV-UBMTTQVN, [Joint Circular No 01 on April, 1st 2003 by SPC,
Ministry of Defense, Ministry of Home Affair, Central Committee of Vietnamese Fatherland Front], Part I

118This statistic made by SPC in 2007. See SPC, Report on Assessment of Current Legal and Institutional Framework for
Administrative Court funded by Government of Vietnam-UNDP-Danida -Sida, Project VIE/02/015, 43 (2007)

119

See LOPC (October , 6th 1992), Art 38. According to its amendment (2002), the Chief Justice of SPC is empowered to designate
the local judges. The judges of SPC will be designated by President of State40

placing pressure on the judge in charge120. Such actions also heavily influence the effectiveness of
the ADCs’s settlement.
Secondly, regarding the people’s assessors, it should be emphasized that the participationof people’s assessors in any trial proceeding is a Constitutional principle. This principle originatedin article 64 of Constitution 1946, under the name “Phu tham nhan dan” (People’s Judge Assistant).
From the Constitution of 1959, which fully copied the Soviet model. The name of the principle hassince been changed to “Hoi tham nhan dan” (People Assessor). The main difference between theseprinciples is that while the former defines participation as an assistant of judges, the latter implies
equal status between judges and assessors during trials, as laid down in article 129 of theConstitution: “In the conduct of justice, assessors have the same power as the judges”. This seems
unreasonable when the OSAC provides the first-instance trial with the participation of one judge andtwo people’s assessors whereas the vote for judgment is decided by a majority. Hence, with theprinciple of equal voting, the people’s assessors who lack major legal knowledge in comparison withthe judges, contribute two thirds of reaching a final judgment. However, the fact that the judge incharge solely controls the trial from the beginning to the end and the people‘s assessors do not give
any reaction surely weakens their roles in regards to being equal to judges as provided by law.
Finally, regarding the procurators, the participation of procurators in administrative

litigation is different from that of criminal cases and may surprise Western observers, since theprocurators do not function as “prosecution” as in the criminal cases, but in “supervision of judicial
activities”121. Excluding cases that the Chief Procurator acts as a litigant to initiate the administrative
cases on behalf of minors or persons who have physical or mental defect122, the participation of
procurators seems unnecessary. This participation may even cause a disadvantage for litigants since
the procurator is inevitably in favor of state agency and acts like “the third judge” when he isallowed “to put questions after judges”123 in the “interrogating procedure”124, attend litigation
proceedings at any time125, and the absence in court is not allowable126. Discussion on whether
participation of the procurators in administrative lawsuits should or should not be compulsory is stillgoing on.

120
See Ap luc cua Tham phan trong viec Giai quyet Vu an hanh chinh, [The Pressure on Judges in dealing the Administrative
Lawsuits], available at http//www.vnexpress.net/Vietnam/Phap-luat/2002/02/3B9B93751
121

Constitution 1992 (revised 2002), Art 137

122

OSAC, Art 18

123

OSAC, Art 46, section 2

124

Ibid

125

OSAC, Art 18

126

OSAC, Art 43, section 3

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CALE Discussion Paper No.4

3. Theoretical Conflict and Controversy
3.1. Model of ADCs: Interim or External?
Right after the ADCs Model was set up and inaugurated in July 1996, Quach Le Thanh,
Ex-General State Inspectorate, in the National Research Project entitled “Administrative Court:
Theory and Practice” (1997), admitted frankly that although this model may be relevant in thecurrent context of legal, political, and socio-economic conditions, it was not really an ideal model127.
Anywhere, it is common that when any resolution or object is finally chosen by authority
or lottery, it may be either supported and praised or sometimes protested and criticized. The choiceof ADCs Model in Vietnam falls in to the latter. As analyzed in the last section, it should beemphasized that before this model was finally approved, there were four proposed models. Eachmodel displayed both advantages and disadvantages; however, the final choice of ADCs did not end
the legal debate among Vietnamese scholars, rather, it started a controversy that still continues. By
examining the below main issues, this section answers the question of whether the choice of thismodel was interim or external, and discovers why it is still strongly protested:
Firstly, this model fails to fulfill the requirement of clear distinction between theadministrative jurisdiction (tai phan hanh chinh) and judicial jurisdiction (tai phan tu phap) –between the adjudicative and governing functions within the administration..
In May 1993, Prime Minister delegated the State Inspectorate to preside over andcooperate with the MOJ, the Ministry of Home Affair and the SPC to research and draft a Law on
the Organization of Administrative Court. This means that prior to 1996, there was a strong tendency
of setting up an independent administrative court system . It was apparent that many scholars
working in the Government Inspectorate System were deeply influenced by French administrative
law theory regarding the clear distinction between the active and adjudicating administration and theFrench administrative court model.
The State Inspectorate evidenced Article 13 of the famous Law of 16-24 (August, 1790)
which was in part inspired by the Montesquieu theory of Separation of Power, stating that: “Judicial
functions are distinct and will always remain separate from the administrative functions”. This
article was also confirmed by Decree (in 1795) stating: “The prohibition is renewed against the
courts taking cognizance of the acts of the administration of whatever kind they may be”128. Thismeans that the judicial court cannot interfere with the work of the administration, or in other words,
the judicial jurisdiction is strictly separated from the administrative jurisdiction. If any malpracticeby the administration occurs, it may be reviewed by a “special body” holding an adjudicating
function within the administration, but absolutely independent from the governing system. Thus, inFrance, the judicial control of the administration is entrusted to a specialist corps of judges who sit in127

Supra note 9128

See L.Neville Brown & John S.Bell (1998), pp.44-12742

special courts. These specialized administrative jurisdictions are under the supervision, not of theordinary judicial courts, but of the Conseil d’Etat as the Supreme Administrative Court.
Partial to French theory and models, Vietnamese scholars expected to set up an
independent administrative court system for judicial control of the administration. They suggested
that at the central level, the central administrative court may be attached to Government or may beformed separately by the National Assembly to clearly distinguish it from the existing People’s Court
System. Creating such a model would ensure the characteristic of administrative jurisdiction incomparison with that of judicial jurisdiction.
After more than two years researching this model in great depth, it was totally rejected by
Vietnamese lawmakers, due to its unconstitutionality and unfeasibility at that particular time. As
fully analyzed in the last section, the model of ADCs was finally selected. It is apparent that thischoice disappointed many scholars and left behind a legal controversy that continues to the presentday. For these scholars, the establishment of the ADCs has completely separated the administrative
jurisdiction from the governing activities that naturally possesses an interlocked relationship within
the public administration itself. At the same time, it fails to distinguish the administrative jurisdiction
from the judicial jurisdiction and creates confusion. They demonstrate that administrative litigation
proceedings are heavily influenced by and almost copy civil litigation proceedings. The
administrative judges are not judges specializing in settlement of administrative lawsuits, rather
judges that have been transferred from civil or criminal courts, a fact that absolutely fails to meet therequirements of dealing with complicated cases.
Secondly, this model fails to fulfill the requirement of judicial independence.

Vietnamese scholars consider that the dependence of ADCs on the local governments is
the greatest threat to judicial independence. Article 17 of LOPC (2002) states that: “The SPC shalladminister Local People’s Courts in term of organization in close cooperation with Local People’s
Council”. Some other legal norms also detail the dependent relationship between the local people’s
court and local government, such as: (1) the appointment of local judges through the Judge Selection
Committee at the Provincial Level with the participation of the Local Government Members129; (2)the report on the performance of local courts to the People’s Council at the same level130; (3) thearrangement of personnel organization for the local courts; (4) the building of infrastructure(granting land), and equipment for the local court office facilities131. Such dependent relationships
apparently cannot ensure the court’s independence in dealing with administrative lawsuits regarding
local government decisions.

129

Ordinance on Judges and People’s Assessors (October, 4th 2002), Art 27

130

LOPC (2002), Art 29, section 2.d

131
Resolution No 132/2002 dated on April, 4th 2002 by National Assembly’s Standing Committee, Art 2 relative to the requirementof SPC in the Cooperation with Local People’s Council in Control of Local People’s Court System

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CALE Discussion Paper No.4

This model is directly impacted by the doctrine of State Power Concentration and theprinciple of Democratic Centralism controlling the entire operation of the Vietnamese state apparatus.
Vietnamese scholars comment that the success of the Constitution of 1992 was to re-conceptualize
this doctrine in which the “State of Proletariat’s Dictatorship” was replaced by “Socialist Rule of
Law State”. To a certain extent, it absorbs some elements of the doctrine of Separation of Power. It issaid in Vietnam that it is better to say Division of State Power rather than Separation of Power. Thus,
the existing ADCs Model does not guarantee in essence the independence of judiciary upon thelegislation or its execution. The extreme dependence on the local governments as mentioned above isthe result of State Power Doctrine strictly provided by Constitution. In addition, the principle of
Democratic Centralism also places the local courts in a complicated relationship with the local
governments, the superior state agencies, the CPV organs and so forth that can not avoid losing theirreal independence.
This model is also severely controlled by the CPV’s leadership. Most judges are membersof the CPV and are required to demonstrate both a professional quality and a moral, political quality.
Local Courts are frequently under the leadership of the CPV’s Executive Committee at theequivalent level and follow their guidance in some complicated or politically involved cases. For
such reason, it is reasonable to restructure the current ADCs system to guarantee its independence
from the Ruling Party.
Thirdly, this model fails to meet the demands of the judicial reform carried out by CPV

and State.
The Party and State have already realized the disadvantage of the existing ADCs Model, as
it fails to fulfill the people’s expectations in the protection of their legal rights and interests. In the
Judicial Reform Strategy to 2020, the Politburo of CPV frankly admitted that: “we should step bystep reform the people courts at all levels”, and “prepare for the establishment of the regional
administrative courts at localities”132. Thus, the CPV recognized that the existing model was
inappropriate, due to its extreme dependence on the local government under the administrative unit
and should be replaced by a new reformed court system. However, as to what kind of reformedmodel would be desirable to catch up with the goal of judicial reform and achieve real judicial
independence is still a topic of great controversy.
In short, it can be concluded that this model is regarded as an interim resolution orcompromise during a transitive period. The negative side of this model in the theoretical aspect aswell as its shortcomings in trial practice over past ten years once again has caused the legal
controversy of the administrative court model to become a hot issue. Like any socialist transitional132

See Nghi Quyet 49 NQ/TW (May, 24th 2005) Ve Chien luoc Cai cach Tu phap den nam 2020, [Resolution No 49 dated on May,
24th 2005 on Judicial Reform Strategy up to 2020], in Official Documents Regarding the Reform of State Apparatus by CPV, 25(2005)

44

country, it is closely relative to the process of transplanting the ROL and requires a great deal of timeand effort by the country’s leadership in their domestic reforms.
3.2. Taxonomy of Controversy Regarding Court’s Models
Since the birth of ADCs in July, 1996, although many different opinions have been given,
the taxonomy of controversial models can be identified as follows: (1) should change be madethrough an absolutely new model with some relevant amendment of the Constitution; or (2) should
the existing model be maintained with some appropriate changes (structural reform, jurisdiction);(3) should the existing model (for judicial review) be reconstructed and a new quasi-judicial AJB(for appellate system) be created with improvements of jurisdiction, training professional judges andso on.
Regarding the first opinion (1), Vietnamese scholars who previously did not support themodel of ADCs seriously criticized it and wanted it to be replaced by a new model. In their opinion,
there needed to be an independent administrative court system that was completely separated fromadministrative agencies, coexisting in parallel with the people‘s court system to deal with disputes.
Some scholars stated that, in Vietnam, the National Assembly was the highest state organ,
therefore the administrative courts must be established by the National Assembly while the Chief Justiceof the Central Administrative Court should be selected only by National Assembly also. This
arrangement aimed to empower administrative courts not only to deal with particular administrativedecisions or actions, but also to review the constitutionality and legality of any legal norm relative tolitigation133. These opinions also want any administrative decision or action made by sate agencies andofficials including those by Prime Minister, Ministers to be judicially reviewed. This view supports theGerman model of independent administrative courts and calls for changes in some Constitutional
provisions. Furthermore, some scholars studying from common law countries also want to introduce themodel of administrative tribunals to diversify many channels for people to protect themselves fromadministrative abuses.
Regarding the second opinion (2), this model was strongly supported by CPV and lawmakers,

which explains why ADCs Model was created sooner than expected. Scholars supporting this model
insisted that administrative lawsuits and all other legal disputes must be in hands of the judicial people
courts134.
Those against this model, believing that it may not ensure the characteristic of administrative
litigation, showed that the same discussion used to appear when Economic and Labor Division Courts
were established. They argued that if the administrative court system should be set up separately in order133

Le Binh Vong, Bao cao tong thuat De tai KH Toa Hanh chinh, [General Report on National Project on Administrative Court], 34(1997)

134

Nguyen Duy Gia (1995), p.137

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CALE Discussion Paper No.4

to ensure the characteristic of the settlement of administrative disputes, the criminal, civil, economic orlabor court system would also have to be separated, since each of them also had their own
characteristic.135Although clearly identifying the shortcomings, they always believed that it would be
gradually recovered in the future by pouring large amounts of effort into improving the entire set oflegislative regulations, the quality of judges as well as the judgment execution.
Regarding the last opinion (3), firstly, many scholars have been in favor of the quasi-judicial

AJB model which is formed and subordinated to the Prime Minister but separated from executive organs.
They desired to upgrade the existing Government Inspectorates to become Administrative Courts
belonging to the Executive Branch. According to this model, this agency would have two functions: 1)“dealing with disputes” and 2) “making legal consultation to the government” like the French model ofConseil d’Etat. They believed that the dependence on Executive Power could be recovered by creating
administrative courts independently of the ministries. The Chief Justice of the Central Administrative
Court is proposed by the Prime Minister but approved by the National Assembly and designated by theState President. The local administrative courts would not depend on local people’s committees or the
MOJ, but be directly controlled by the Central Administrative Court. Administrative judges would be
appointed by the State President or Prime Minister136. Furthermore, since the Central Administrative
Court cannot belong to the SPC, and so as to avoid the coexistence of the so called “two Supreme
Courts”, it could be renamed “Administrative Legal Institute” 137 , and with some changes to theConstitution to adapt with such demands. Secondly, apart from setting up an AJB attached to theGovernment as a new appellate system, they wanted to reconstruct the existing ADCs for judicial review
to guarantee the independence of the judiciary. These scholars support the reform of the ADCs Modeland argue that it should be conducted concurrently with the transplant of ROL, particularly with theinformal institution approach to the ROL in Vietnam at present. This dissertation supports this tendencyof reforming the current ADCs Model in which new elements (institution) should be added inharmonization with the existing elements, also in need of upgrading so as to avoid any shock throughsudden changes.
To conclude, the legal controversy regarding the administrative court model has continued

until present. It is known as a conflict between radical and conservative reformers. The CPV has
recently recognized the necessity of reforming the court structure to achieve judicial independence inresolving administrative lawsuits, a move that creates a very good opportunity for the development of
academic debates. The taxonomy of controversy regarding the administrative courts indicates the recent
active transplantation of foreign legal theories and models in Vietnam. Surely, it has positive impacts on

135

Ibid, at 187

136

Nguyen Nien, Mot vai Y kien thanh lap Toa Hanh chinh, [Some Opinions on Setting up Administrative Court] in Thanh tra Nhanuoc, supra note 9, at 85.
137

It means “Phap vien Hanh chinh”in Vietnamese. See Le Binh Vong (1994) p.42

46

the future development of Vietnamese ALRS as well as the contemporary administrative law. Morediscussions about challenges for the existence of ADCs, the support for other prevailing models as wellas the recommendations for both the creation of a new appellate system (AJB attached to Government)
and the reform of the judicial review system (Regional Administrative Courts) will be presented in
Chapter IV.
Concluding Remarks
The foundation of ADCs in 1996 marks a new perception of JRAA among Vietnamese
scholars who were historically influenced by socialist legal thinking the more recent absorbing of theidea of ROL, which was transplanted from the West. The choice of ADCs Model was the corollaryof a Socialist Law-Based State led by Ruling CPV. For more than ten years, this model has, to acertain extent, contributed to improving the democratic process and protecting people frommaladministration. Nevertheless, it is not an ideal model and is strongly criticized for lacking
judicial independence, thus failingto fulfill the requirement of post-WTO Accession (2006) asstwell as the ROL in the 21 century. This Chapter concludes that the existing model is only an interim
solution in the transitional period and is no longer appropriate for the current circumstances. To
provide more evidence, the next Chapter will explore the defects of its jurisdiction and some criticalcontroversies thereof.

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CALE Discussion Paper No.4

CHAPTER IIJURISDICTION OF ADMINISTRATIVE DIVISION COURTS:
CONSTANT CONTROVERSY AND PRACTICAL REMAINS

Introduction“The principle of legality prescribes a line of conduct for the administrationfrom which it can not depart without committing an excess of power. Any violation of theprinciple can be a ground for review and will make the acte administratif void”138.
(Neville Brown & John Bell, French Administrative Law, 1998)“In Vietnam, the Courts have jurisdiction over the legality of the administrativedecisions or actions made by administrative agencies or authorities infringing the citizen’s
legal rights and interests. The determination of court’s jurisdiction must be based on thefundamental principle of current State Power Mechanism”139.
(Nguyen Thanh Binh, Judicial Academy of Vietnam, 2004)

Chapter II explores the second research question why has the ADCs Jurisdiction, although
it was expanded in two revised OSAC (1998, 2006), still been strongly criticized for the lack ofcredibility and legitimacy? It first argues in accordance with the legal concept of Jurisdiction oversettlement of administrative lawsuits as given by Prof. Nguyen Thanh Binh so as to provide an
academic view to improve contemporary administrative law concepts in Vietnam. It then explainssome limited revisions regarding the extent of enumerated administrative matters judicially reviewed,
the permission of taking a lawsuit even with no reply from original agencies (with exception). These
revisions thus fail to fulfill the expectations of legal scholars as well as people who have been
infringed against. To provide more evidence on the defects of ADCs Jurisdiction, this Chapter
arranges five main arguments, addressing issues such as whether the mandatory pre-litigation period
should be abandoned, whether the time and scope of judicial review should be extended, andwhether the court’s jurisdiction over issuing judgments and recovering any error of law should beenhanced. As support for these arguments, some selected case studies throughout the country,
138

L. Neville Brown & John S.Bell (1998), p.239

139

Nguyen Thanh Binh, Tham quyen xet xu khieu kien hanh chinh cua Toa an Nhan dan – Su bao dam cong ly trong quan he giua
Nha nuoc va cong dan, [Jurisdiction over Settlement of Administrative Lawsuits – Guarantee of Justice in the Relationship between
State and Citizens], pp.82-83 (2004)48

particularly some of the most recently published Supervisory Judgments by SPC are fully analyzed.
This Chapter reveals that the determination of the court’s jurisdiction is based on the fundamental
principle of the Vietnamese State Power Mechanism. It is not possible to avoid some conflict withcurrent transitive conditions and needs to be reformed gradually.
I. Administrative Division Court’s Jurisdiction: Its Enlargement and Debates
1. Legal Concept
There is no common concept of administrative law in the world concerning the court’s
jurisdiction over administrative litigation due to the various types of court models and tribunals
empowered to deal with such litigations in existence.
In England, the Judicature Act of 1873 and 1875 ended the competing jurisdictions of thecourts of common law and the courts of the Chancery. All most all English litigants became able tochoose between different procedures available in the same ordinary court such as a writ, or an
application for judicial review140. Recently, the administrative court known as a specialist court, apart of the Queen’s Bench Division of the High Court, was established to hear public andadministrative law cases, including “claims for judicial review of inferior courts and tribunals,
public bodies and persons exercising a public function”, “appeals by way of case stated fromministers, tribunals and other public persons”141. This new body as well as the choice of procedure
now turns upon a distinction between public and private law that has been criticized by people suchas by H.W.R Wade, who describes it as as a “dividing line impossible to draw with certainty”142.
In France, due to the existence of the dual system of administrative courts on the one handand civil and criminal courts on the other, it may raise a critical problem among French litigants atthe threshold of their rights to obtain redress as to which of the two courts must handle the case. It
cannot be avoided that case are sometimes brought before the wrong court jurisdiction, and thus
there is nothing obtained except another decision from the court of conflicting jurisdiction.
To completely define the administrative court’s jurisdiction over administrative cases,
Neville Brown and John Bell in the productive book of “French Administrative Law” searched forsome criterions such as: (1) the State as a debtor, under which the Conseil d’Etat denied the ordinary
court’s competence to condemn the state to any money payment (damage compensation); (2) the
criterion of “the act of public authority” that draws the distinction between the actions of publicauthority and of mere acts of management in which the former is out of the jurisdiction of theordinary courts and the latter is within it; (3) the criterion of “public administration” (gestion140

L.Neville Brown and John S.Bell (1998), p.127

141

See Beverley Lang, Q.C ed, Administrative Court: Practice and Theory, pp.3-4 (2006)142

See H.W.R Wade, Administrative Law, pp. 682-695, (1994). It is quoted by L.Neville Brown and John S.Bell (1998)

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CALE Discussion Paper No.4

publicque) as a distinct from “private administration” in which the latter, due to its processes used assame as the private citizens, comes therefore within the scope of ordinary courts. On the other hand,the disputes arising out of its gestion publicque (the former) belongs to the administrative courts143.
In Vietnam, as analyzed in Chapter I, the model of ADCs with an exception (noadministrative divisions at district level) was chosen for resolving administrative cases. As a result,
there needs to be a proper legal concept and clear delimitation of the court’s jurisdiction overadministrative cases with that of other civil, criminal, labor or economic lawsuits.
So far, there is only a doctoral dissertation written by Nguyen Thanh Binh 144 thatspecializes on the court’s jurisdiction on resolving administrative cases in Vietnam. He analyzes thelegal concept of the court’s jurisdiction over administrative cases based on some ideas of Frenchadministrative law. He uses the term of “competence” in the French language and divides it into thefollowing three categories: (1) the competence over the nature of administrative matters (competencematerielle); (2) the competence over the territorial units (competence territoriale); (3) thecompetence over the standing of the parties (competence terrinalle)145. He quotes Gustave Peiser’s
definition of the court’s jurisdiction in a narrow sense, which limits the competence of administrative
judges in resolving a certain administrative dispute146. Furthermore, he also refers to Wolf Rudiger, aGerman professor who classifies the court’s jurisdiction over adjudicative objects, places and court’shierarchy147. Regarding what content the court can review, it is a common view among Vietnamese
scholars148 that the court can examine the legality of an administrative decision that may infringe
upon people’s rights and legal interests. From several analyses, he presents the concept on the court’s
jurisdiction over administrative cases as follows:“It is both a legal right and duty of the court on behalf of state power in examining andjudging the legality of a certain administrative decision or action under the judicial proceedings thataims to well protect the right and interest of individuals and entities”149.
The above definition on the court’s jurisdiction over administrative lawsuit leaves behindthe below arguments:
Firstly, it does not clearly distinguish the adjudicating function from governing function ofadministration, although the author refers to some elements of the French administrative law concept.

143

L.Neville Brown and John S.Bell (1998) pp.129-130

144

Supra note 53

145

See Nguyen Thanh Binh (2004), p.38

146

Gustave Peiser, Administrative Law (Vietnamese translation), 227 (2000).

147

Ibid, at 41

148

Such as Hoang Van Hao, Dao Tri Uc, Tran Ngoc Duong. See Dai hoi Dang VIII va Mot so van de cap bach ve Nha nuoc va Phap
luat, [The VIII CPV’s Congress and Some Urgent Issues on State and Law], pp.206-207 (1997)
149

Ngyen Thanh Binh (2004), p.48

50

In addition, the distinction with the jurisdiction of other courts (such as with other civil lawsuits) isalso not clear. Dinh Van Mau raises the question: “what is the scope of the adjudicating function?”
He considers whether it is possible for the court to annul an unconstitutional legal document or deal
with state compensation for any illegal acts150. It is true that while dealing with another lawsuit, civil,
labor or criminal, the court is often faced with the embarrassing question of whether it can actuallyannul an illegal administrative act. In addition, the issue of state compensation is also unfamiliar toVietnamese scholars and practitioners in both the theory and practice.
Secondly, to collate with three criterions of the court jurisdiction over administrative

lawsuits by Neville Brown and John Bell as mentioned above, this definition says nothing about thenature of “public authority” of the litigated acts, the distinction of “public administration” from“private administration” as well as the standing of state as a subject of compensation. Hoang Van
Sao comments that in order to define the court jurisdiction over administrative lawsuits, it needs to
be based on a clear distinction between the judiciary (quyen tu phap) and execution (quyen hanhphap), “public administration” and “mere acts of management”, judicial review by ordinary courts
and by administrative courts151. He shares some common views with French law insofar as disputes
arising within public administration (except mere acts of management) do not belong toadministrative court and emphasizes the feature of “public authority” as a litigated subject.
Regarding the nature of “public administration”, French administrative law provides that “someadministrative decisions are not within the jurisdiction of the administrative courts because they
constitute acts of state”. An early example of this category was the refusal by Conseil d’Etat toadjudicate upon the removal of Napoleon III’s cousin from the list of army officers by thegovernment of the Third Republic. To make a concrete legal concept on court’s jurisdiction, Hoang
Van Sao complements the term of “administrative disputes” distinguished with other private legal
disputes as objects to review by administrative courts. Furthermore, regarding the feature of “publicauthority”, he also adds the subjects of an administrative litigation in which one of the parties mustbe always a “public official or agency”. However, studied and influenced by German administrative
law theory, he agrees totally that an inquiry for damage or state compensation may be out of theadministrative court’s jurisdiction but falls within the competence of ordinary courts.
Thirdly, it says nothing about the Vietnamese court model handling such administrative

disputes as well as the kind of judgment that should be rendered by a competent court. The former
can be easily understood due to the characteristics of the Vietnamese court model. Vietnam has no
independent administrative court, rather ADCs like China. However, the model is not exactly thesame as China’s model, since the administrative division is not established at district courts. For this150

Ibid, at 44

151
Hoang Van Sao, Tham quyen xet xu cua Toa an Nhan dan, [The Jurisdiction of People’s Court over Administrative Lawsuits] in
Hoang Van Sao ed, Textbook of Vietnamese Administrative Litigation Law, 67 (2007)

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CALE Discussion Paper No.4

reason, some confusion in legal terms is sometimes created, on whether one should refer to them as
the “Jurisdiction of Vietnamese Administrative Courts”, the “Administrative Division Courts” or of“Vietnamese People’s Courts over Administrative Cases”. Another discussion on the given legal
concept falls on the content of judgment. While reviewing an illegal administrative decision,
whether courts are able to revise or annul it. This defect is apparently caused by the vacancy of legal
provisions regarding the administrative judgment in OSAC that will be further discussed later in this
Chapter.
Last but not least, this research finds it necessary to make clear the term of “judicial

proceedings” in the alleged definition. “Judicial proceedings” in Vietnamese legal term is known as
the court’s proceedings over resolving administrative cases including five periods, namely initiation
and registration of lawsuits; trial preparation; first-instance session; appeal trial and supervisory or
review trial; and judgment’s execution. This is distinguished from the “administrative proceedings”
in the process of administrative agencies or government inspectorates dealing with a certain
administrative complaints. Derived from the perception of Vietnamese scholars in terms of an
independent law branch, there is a clear distinction between administrative law (Luat hanh chinh)
and administrative litigation law (Luat to tung hanh chinh). As a result, the former includes
substantive rules related to the executive branch, public administration and law application in all
fields of administrative managements. By contrast, the latter mostly concerns the procedural rules
related to the court’s jurisdiction over resolving administrative disputes that arise between governors
and the governed152. Thus, although administrative litigation law is recognized as an independent
law branch and a separate law subject, it is closely attached to the main content of administrative law.
However, the biggest discussion here is while some countries such as France and China clearly
define grounds for judicial review153, Vietnamese law (OSAC) leaves it vacant. To explain thisvacancy, Vietnamese lawmakers consider that grounds for review can be found in the substantive
legal provisions concerning the competence and liability of the governors in administrative law.
Accordingly, there is no need to add any provision regarding grounds for review in OSAC. In fact,
this vacancy leads to the discretions of judges in resolving certain cases and fails to fulfill thepeople’s expectations.
To conclude, in order to approach properly the legal concept of court’s jurisdiction overhearing administrative cases in Vietnam, by analyzing the concept distributed by Prof. Nguyen
Thanh Binh and making references to classified criterions of French administrative law by Neville152
See Pham Hong Quang, Nguyen Manh Hung, Tran Thi Hien, Khoa hoc Luat to tung hanh chinh va Luat to tung hanh chinh
Vietnam, [Administrative Litigation Law as a Legal Science and An Independent Law Branch] in Hoang Van Sao ed, Textbook of
Vietnamese Administrative Litigation Law, pp.7-62 (2007)
153

French Administrative Law clearly defines Grounds for Review, such as L’inexistence; Incompetence; Vice de form; Violation dela loi; Detournemet de pouvoir (or abuse of power). See L.Neville Brown and John S.Bell (1998), p.246. Article 54 of Chinese ALL
provides the court’s jurisdiction to quash illegal administrative decisions in cases of being lack of essential evidence, violation oflegal procedures, ultra vires or abuse of power and so on

52

Brown and John Bell, the below features should be considered:(1) In Vietnam, such jurisdiction belongs to ADCs with exception;(2) Two parties involving the settlement process at courts, in which one of the parties must
hold the nature of “public authority”. State or any state agency can be a “debtor” (regarding theredress of damages) or any defendant;(3) Disputes before the court must be in the nature of an “administrative dispute” arisingout of “private administration”;(4) Objects of court review are particular administrative decisions or actions that directly
infringe people’s legal rights and interest. In Vietnam, mere acts of public administration, legislative
norms, military or diplomacy acts are out of the court’s jurisdiction;(5) Ground for review is to examine only the legality of litigated administrative decisions
or actions. The rationality or constitutionality is out of judicial review;(6) Procedure for review is a judicial proceeding with the compulsory participation of
procurators;(7) During the resolving of cases, the court can declare annulment of any illegal decisionand redress damages.
Since many issues regarding the court’s jurisdiction have been exhaustively discussed in
Vietnam, no concrete legal concept thereof can be provided. It would better to identify clearly its
features in reference to that of foreign laws. Nowadays, the tendency of establishing quasi-judicial
AJB to handle administrative lawsuits (the appellate system) is increasing around the world and isstrongly supported by Vietnamese scholars (the creation of AJB attached to Government).
Furthermore, the necessity of reconstructing ADCs Model in to Regional Courts (the reform of
judicial review system) is also highly recommended at present. Thus, the legal concept ofJurisdiction over Settlement of Administrative Lawsuits should be extended so that it involves not
only judicial courts, but also an AJB system like a quasi-judicial organ. The grounds for review are
not only limited to examine Legality, but Constitutionality and Merit, and the objects of lawsuits
should be all administrative matters, including the legal norms and damages caused by Stateagencies or public servants.

2. Grounds for Jurisdiction over Administrative Litigation
2.1. Principle of Legal Examination: Legality or Rationality
Max Weber first raised the issues of legality and legitimacy at the start of Germany’s
Weimar Republic in his published “Economy and Society” (1914). He professed his doubts over theefficacy of the status of legal authority and the existence of rational formal law as the 19th century
state governed by the liberal ROL, the Rechtsstaat, was eclipsed by the administrative or welfare
state. The legality and legitimacy’s issues were further developed by a German social scientist, Carl53

CALE Discussion Paper No.4

Schmitt, in his famous book of the same title154, in which to resolve the arbitrariness and incoherenceof authority, he claims, by admitting that there are pre-constitutional and pre-legal substantive values
or concrete decisions to which appeals might be directed, when the formal rules of a liberal or social
democratic regime collide or appeal are vulnerable. Principles of legality and legitimacy require astrong substantive law for binding authority within his discretion and a mechanism for reviewing
legality (by administrative courts) or constitutionality (by constitutional courts) of authority’s acts.
Granted the above implication, as John P. McCormick comments155, it is fairly astonishing thatlegality and legitimacy has not appeared in England before now.
This should be traced back to the principle of legality in French administrative law. This
basic principle or another so-called principle of control by courts over administration is that theadministration must be compelled to observe the law (as subjected to ROL, understood in Dicey’s
sense), and the proceedings of annulment (recours en annulation) are found ultimately on a violationof this principle. Neville Brown and John Bell distinguished it with English doctrines of ultra vires
that there be no question of a mere observance of statutory limitations, and it also goes further thanobservance of the common law principle of natural justice. French administrative law clearly defines
the grounds for reviews under this principle, such as l’inexistence; incompetence; vice de form;
violation de la loi156.
In China, a basic principle stipulated in the article 5 of ALL is that: “In handlingadministrative cases, the people’s courts shall examine the legality of specific administrative acts”.
The result of court’s judgment can be annulment of any specific administrative act that is judged to
be unlawful157. Article 54 of this law also defines in detail the scope of examining the legality, suchas lack of essential evidence, violation of legal procedures, ultra vires or abuse of power.
In Vietnam, the principle of legality is basically applied for the reviewing of any litigatedadministrative decision or action that can be found in several legal norms, such as article 1 of LOCD
(1998, 2005); article 1 of OSAC (1996, 2006). However, the grounds for reviewing the legality are
not completely regulated. Some Vietnamese researchers158 argue that due to the lack of legal norms
grounding such a review, the court is often puzzled with its conclusion whether or not the litigateddecision is lawful and is inclined to render a discretionary judgment. Furthermore, since theadministrative procedural law is in the process of being drafted, Vietnam lacks of substantive norms

154

Carl Schmitt, Legality and Legitimacy, (2004). The first edition was published in German language in 1932.

155

See John P.McCormick, An Introduction to Carl Schmitt’s Legality and Legitimacy, in Carl Schmitt (2004), Preface XVI

156

L.Neville Brown &John S.Bell (1998), p.240-247

157

See Yong Zhang, Comparative Studies on Judicial Review System in East and Southeast Asia, 47 (1997)

158

See Nguyen Van Quang, Ve xac dinh can cu tinh hop phap cua Quyet dinh hanh chinh trong xet xu hanh chinh, [Defining theGrounds for Review of Legality of Administrative Decisions in Resolving Administrative Cases], in 5 Luat hoc [Jurisprudence
Review], 18 (2004)

54

for reviewing what kind of administrative decision is considered legal. Here, it is worthy mentioningthat in Vietnam, apart from the role of the National Assembly’s Standing Committee and Executive
Organs in the interpretation of law, SPC also exercises the main function of making judicial
interpretation and guidance for the entire court system under Guidance Resolutions (Nghi quyet) or
Official Circular (Cong van). Although they have no legal effect as laws, the inferior courts
traditionally regard them as de facto norms that more or less reduce the supremacy of law as well as
bring to the surface unavoidable inadequacies. Other instructions by the SPC can be found in the
Annual Report on Adjudicating Work, or in some Supervisory Decisions159 by the SPC’s Judge
Council which help the inferior courts to resolve the same encountered issues. The following section
will analyze the grounds for review based on such instructions as well as some scholarly articles
concerned. To examine the legality, this section falls into two main categories, namely thesubstantive and procedural requirements.
2.1.1. Examination on Substantive Requirements
Article 37 of OSAC provided the time of 60 days for trial preparation from the registration
date of the lawsuit (with regard to complicated cases, the above time limit shall not exceed 90 days).
Thus, in this period, the most important task of the competent judge is to examine both thesubstantive and procedural requirements of a litigated decision or action. Regarding the former, thefollowing three main questions should be examined deeply: (1) Whether authority who renderedlitigated decision is a legal subject; (2) Whether the content of litigated decision is lawful160; (3)Whether there is any error of law.
For the first question, the judge has to first examine whether the concerned authority hascompetence regulated by law. Secondly, although his competence is possibly recognized by law,whether he exceeds his limits ofpower or inclines abuse of such power. This can compare with thecommon law term of ultra vires as well as the doctrine of discretion known as the basic grounds inmost administrative law system around the world. Thirdly, the judge also must consider whether theconcerned authority fails to perform legal duties (though in some cases, he does not deliberately
violate).
In fact, Vietnamese administrators have a wide degree of discretion in their own field of
management. The Chairmen of People’s Committees, for example, enjoy a discretionary power in
granting and recovering lands, imposing fines, compulsory measures and granting and withdrawing
licenses. Other areas include custom officers, polices, tax officers in their dealing with everyday life
administrative violations. However, Vietnamese administrative law leaves a great vacancy in both
legal theory and provisions on determining whether such discretion can be judicially reviewed and159

So far there were two publications, Volume 1 (2004) and Volume 2 (2008). However, the number of administrative cases is still
limited160

See Nguyen thi Thuy, Giai doan chuan bi xet xu, [The Period of Trial Preparation], in Hoang Van Sao ed (2007), p.241

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the grounding for their scope.
For the second question, the judge at first must consider whether the litigatedadministrative decision falls in to the category of the legality or rationality. As a general principle, acertain administrative decision is compulsorily required to ensure both of them, however the court’s
jurisdiction is limited to examine only the legality. Secondly, the judge, by collating the concerned
existing laws, examines whether the content of litigated decision is in accordance with such legal
provisions. The most important task for the judge is to find out the concise and effective legal
provisions, since they are sometime overlapping and scattered. In addition, the judge has todetermine whether there is sufficient reason to explain the making of such decisions. Since theVietnamese procedural system is inquisitorial, article 5 of OSAC requires the responsibility of theburden of proof to belong to both parties, and accordingly a litigated administrative decision will besentenced unlawful if there is insufficient reason proving its contents in accordance with existinglaws. Finally, though a litigated decision satisfies the legality for such a review, it may run out of thecourt’s jurisdiction because it is not in the scope of “enumerated cases” provided by OSAC, and not
the so-called “original administrative decision”161. This point will be further discussed later.
In trial practice, a great number of claim petitions are returned due to their failure to fulfill
the above conditions. A majority of legal scholars are against law-makers in terms of the limitationof administrative cases judicially reviewed by the article 11 of OSAC, although they arecontinuously expanded from 7 cases (1996), to 9 cases (1998) and to 21 cases (2006). Regarding thereview of the legality or rationality, since the fact that many petitions concerning the decision onland compensation or resolving land disputes were refused, it raises the debate among Vietnamese
scholars on whether the rationality of an administrative decision is also judicially reviewed162. They
refer to Chinese experiences in Art 54, section 4 of ALL stipulating that: “if an administrative
penalty is obviously unfair, it may be amended by court’s judgment”. Thus, Chinese law provides an
exception concerning the power of inquiry of the court, which enables it to conduct an examination
in to the rationality, the appropriateness of the administrative penalty imposed by the administrative
organs. In other words, inquiry in to the legality of the act is the general principle while inquiry in to
the rationality is the exception. However, an opposite idea by Vu Thu163 is that whether the courts,
by reviewing the rationality of such administrative decisions, deeply interfere and pass over theadministration. Some others support the idea that in the pre-litigation period, the administrative
agencies were already empowered to examine both the legality and rationality of their own decisions,

161
See Nghi quyet 04/NQ-HDTP (August, 4th 2008), [Resolution 04/NQ-HDTP on Guiding some provisions in Revised Ordinanceon Settlement of Administrative Cases dated on April, 5th 2006], section 2
162

See Dinh Van Mau & Pham Hong Thai, Tai phan Hanh chinh in Vietnam, [Administrative Jurisdiction in Vietnam], 90 (1995)

163
See Vu Thu, Tinh Hop phap va Hop ly cua Van ban Phap luat va Cac bien phap xu ly cac khiem khuyet cua no, [Legality and
Rationality of Legal Documents and Solutions for Recovering Defects], in 1 State and Law Journal, 15 (2003)56

therefore the judicial review of rationality was not necessary to put to the court164.
For the issue of error of law, the prerequisite for a successful judge a full legal knowledge

regarding the litigation process and Vietnamese statutory law system. Article 2 of the Law on the
Enactment of Legal Norms (2001) provided a wide range of state organs from the central to the local
level empowered to issue normative documents with different legal effects. However, though theachievements in legislative work have been highly appreciated recently, they still lack effective legal
documents in the field of administrative law, including procedural law. A considerable number ofadministrative legal provisions are classified as “under-law regulations” (van ban duoi luat), such as
Ordinances (by National Assembly Standing Committee), Decrees (by Government) and Circulars (byMinistries). Moreover, Vietnam lacks some very important laws relating to Administrative Remedies
and Administration Sanctions. To recover errors of law, the SPC often issues guidance for inferior
courts by Resolutions or Annual Reports that can not avoid undermining the effect of legislation as
well as encouraging the discretion of judgments.
In the practice of adjudicating works, some errors of law can be found such as thefollowing: (1) there were some fields of disputes grounded by no legal norms, particularly thosearising in the land and social policy during the wars and those appearing recently in the landcompensation policy; (2) on the other hand, there were some legal norms adjusting the same mattersbut contradicting and overlapping with each other; (3) some of them are also too abstract orambiguous thus requiring a clear interpretation. However, such interpretative documents, are notregarded as state laws and strong enough to compel authority to properly apply and ensure its
integrated application throughout the country. In practice, such documents may not always be
available leading the authority to have no other choice but applying the general principle and making
discretionary decision. There is a saying in Vietnam currently that: “Vietnam has a forest of laws but
People often live with forest-law”. This means that due to the errors of law and the tendency of wide
ranging discretion by authorities, people prefer to rely to a large extent on informal behaviors suchas social norms or family rules to solve their daily administrative disputes.
There is a commonly known fact in Vietnam that the law documents cannot be applied inpractice without interpretive documents, such as the Circulars made by various ministries.
Administrative law documents have no provisions concerning the application of the retroactive
effect. Meanwhile, article 76 of Law on Enactment of Legal Norms (2001) limits “only in extremely
necessary cases, a legal document may have a retroactive effect”. In practical trial overadministrative cases, such as tax-law cases, due to the lack of interpretative documents by the
Ministry of Finance, the tax officers often have a wide degree of discretion to determine tax
collection. Accordingly, the court is also reluctant to deal with such a case and give discretionary
164
See Nguyen Hoang Anh, Moi quan he giua Khieu nai Hanh chinh va Khoi kien Hanh chinh, [The Relationship between
Administrative Complaints and Administrative Litigation] in Hanoi National University, Faculty of Law’s Research Project, 53(2006)

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judgment, inevitably infringing upon the rights of individuals or organizations. This will be further
introduced in the Vietnamese Case-Study Analyses165 later in this Chapter..
2.1.2. Examination of Procedural Requirements
Regarding the examination of procedural requirement, two main questions should be
carefully determined by the competent judges: (1) Was such a litigated decision issued underconcrete administrative procedures ensuring transparency, openness and fairness?; (2) Did theform of such litigated decision contain any mistake, such as signatures, seals and other technicalrequirements and are there any marks of erasement or correction from the original?166.
For the first question, it should be noted that, with the exception of the Law on Enactmentof Legal Norms (2001) and Decree 135/ND-CP (2003) providing the examination and revision oflegal norms to ensure the legality, regarding the issuance of particular administrative decisions, there
are no general legal norms stipulating it. Since the Vietnam-America BTA came in to effect inDecember, 2001 and Vietnam is now already a member of the WTO, it requires a great deal of effort
by the Vietnamese government to improve the administrative procedures, in which Chapter VI of theVietnam-America BTA requires the transparency and the rights of bringing any illegal administrativedecision or action to the court at any period167. However, such requirements were only met in alimited way in the two latest revised LOCD (2005) and OSAC (2006). As mentioned, theAdministrative Procedural Law is in the process of being drafted and reveals many defects anddebates. In addition, the concept of transparency and some other common law concepts like natural
justice or due process recently imported into Vietnam are still unfamiliar and continually discussed.
In trial practice, the judge has to examine various kinds of particular litigated administrativedecisions, such as the decision to impose fines against administrative violations; the decision to apply
administrative compulsory measures as in the form of re-education at localities; the decision on
granting or withdrawing permits and licenses; tax-collection decisions; the decision on forcible
requisition, on land recovery and so on. The problem is that the procedure of enacting each decision isdifferent and lies upon various under-law regulations, namely Government Decrees, Circulars of one
or more related ministry. The administrators, while dealing with each particular case cannot avoid any
procedural mistake, such as enacting a decision on the imposing of a fine of over 100.000 VND(equivalent to 7 USD) without the procedure of making a report (lap bien ban)168; enacting a decision
on imposing a fine that exceeds ten days since the date of making report169 and so forth. The judge is
165

See Annulment of Administrative Decision on Personal Income Tax to Mr. K.S (Japanese Nationality) in Hanoi City. Appeal
Judgment No 112/HCPT by Appeal Administrative Court located in Hanoi dated November, 7th 1998
166

Nguyen thi Thuy (2007), p.241

167
Vietnam-America Bilateral Trade Agreement consists of VII Chapters and 72 Articles. See Government Inspectorate, Hiep dinhthuong mai song phuong Vietnam – Hoaky va Co che giai quyet khieu kien hanh chinh o Vietnam, [Vietnam – America BTA andMechanism for Resolving Administrative Litigation in Vietnam], pp.102-109, (2004)
168
169

See Ordinance on Resolving Administrative Violation (2002), Art 55
Ibid, Art 56

58

often faces confusion when determining whether such a decision can be annulled regardless of it
being still legal under substantive requirements.
The SPC has already made instructions that: (1) While dealing with a litigated decision, thejudge is required to examine whether the process of making an administrative decision or conducting
an administrative act complies with all steps and procedures prescribed by concerned norms.
Administrative decision must be legally in written form; (2) All procedural requirements must be
strictly followed and any breach of such requirements will make the concerned decisions or actions
immediately invalid. Thus, in general, Vietnamese law recognizes the procedural requirements as thebasic ground for reviewing the legality and allows the court to declare a certain decision or action
unlawful if it fails to fulfill such procedural requirements. However, some scholars consider that
instruction by the SPC is, although strict on the one hand, still abstract, since it does not clearlyclassify the nature of procedural mistakes170. The second question will continue this discussion.
For the second question, since an administrative decision must be shown legally in written

form, the judge has to examine any mistake that may be caused in the form of a legal document.
Except for some erasement or correction in the form of decisions without rational explanation or
having any fraud that must be considered as an unlawful decision, some minor procedural mistakes(or technical mistakes) may not invalidate such a decision, therefore there is no need to annul it.
The judges, in their adjudicating work, are faced with many situations where they must
decide whether they should quash a decision that is wrong in the written form, but completely legal
in the substantive contents. Some follow the SPCs guidance in term that “any breach of procedural
requirement makes a litigated decision invalid”, deciding to annul the decision. Some argue that theminor procedural mistakes have no influence on the validity of such a decision, on the standing ofparties and cause no harm to the substantive rights, therefore should be confirmed legal.
Some scholars refer to Chinese experiences on the classification of the administrative
procedure into legal and non-legal type, in which the former is stipulated by law and applies
compulsorily, while the latter can be regarded as customary rule171. Accordingly, any decision in thecase of violating the former will be invalid and vice versa. Article 107 of the draft law onadministrative procedure of China proposes that certain administrative decisions are invalid only
when they have serious and clear errors of substance or procedure. In addition, this law clearly
defines the form, contents as well as the legal effect of administrative decisions that totally support
the Vietnamese scholar’ s arguments regarding improvement of such issues.
To conclude, Vietnamese administrative law empowers ADCs to review only the legality of170
See Le Xuan Than, Mot so y kien ve to chuc va hoat dong cua Toa hanh chinh, [Some Ideas on the Organization and Operationof Administrative Courts], 7 State and Law Journal, 33 (2007). See also Nguyen thi Thuy, supra note 160
171
See Nguyen Van Quang, Comparative Study of System of Review of Administrative Action by Courts and Tribunal in Vietnam
and Australia, 201 (2006). (Unpublished documents). He quoted L. Feng, Administrative Law Procedures and Remedies in China,
190 (1996)

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certain administrative decisions or actions. Looking at Chinese experiences, some Vietnamese
scholars wish to study: (1) the way Chinese courts, in general principle, adopt the inquiry into thelegality of the acts while allowing the court to examine rationality as an exception. In fact, the twocountries share many commonalities regarding the unreasonableness of decision on administrative
penalties, particularly on the land dispute resolutions; (2) the process of issuance of administrative
procedural law in which the form, content and legal effect of a particular administrative decision as
well as the ground for reviewing it should be clearly defined.
Vietnam currently lacks many effective laws regarding the administrative dispute
resolutions. To examine the legality, the judges are often embarrassed with the error of law. They
follow the SPC’s instructions, but they can not avoid leaning towards their own discretion andrendering unlawful judgments. While handling out some lawsuits, the judges sometimes find illegal
norms that completely infringe upon the legal rights of individuals and organizations. However, they
are outside of judicial review. The next section will further discuss on the power of inquiry into legal
norms that to a certain extent also share commonalities with that of China.
2.2. Non-Power of Inquiry in to Legal Norms
In China, the power of inquiry in to legal norms is vested in the People’s Congress and its
Standing Committee of the same level and the Government at a higher level. The courts are notentitled to review the constitutionality or legality of any norm, even if a concrete case is lodged. In
the case where a judge discovers that an administrative regulation or rule to which the defendantaccorded is contrary to the superior legal norms made by the State Council, the only thing he can dois to report it to the SPC, then the SPC will ask the State Council to make a judgment on the issue.
However, there has recently been criticism among Chinese scholars about this issue as a limit of the
ROL in China. Chinese scholars study Japanese experiences in cases where, although the legislative
activities which are excluded from the subjects of issue, after a plaintiff has lodged a lawsuit against
an administrative act, the judges can review if the legal norms to which the defendant referredviolated Constitution or other superior rank legal norms, and SPC holds the final power for such a
review172. As a consequence, Chinese courts may, to a certain extent, examine the legality of somelocal and departmental legal norms directly related to the legality of a certain litigated administrativedecision.
Vietnam, up to date, has no mechanism for reviewing the constitutionality and legality oflegislative norms, although this issue was discussed before the foundation of the ADCs in 1996 andhas been revived recently. There were a number of reasons why Vietnamese lawmakers refused toempower the courts to carry out such a review:

172

Yong Zhang (1997), p.77. See also Japanese Constitution 1947, Art 81

60

Firstly, the Vietnamese political system is constructed under the doctrine of Power

Concentration and One Party Ruling. Article 84 of Vietnamese Constitution, Law on the Supervisionof National Assembly (2004), Article 81 of Law on Enacting Legal Norms stipulates the supreme
supervision power of National Assembly over the observance to the Constitution and laws of all stateorgans, organizations and individuals, including the enactment of legal norms. Hence, if the court isentitled to review statutes of National Assembly, it will contradict the existing Constitution.
Meanwhile, the amendment of the Constitution is always a complicated issue.
Secondly, Vietnam already has a mechanism for reviewing the constitutionality and legalityof any legislative norm by various channels under the supreme supervision of the National Assembly.
These mechanisms include: (1) National Assembly as Supreme Control; (2) National Assembly’s
Standing Committee and Nationality Council and Committees of the National Assembly holding afunction of Supervision; (3) Administrative Organs as Internal Control; (4) Government
Inspectorates holding Inspection and Advice; (5) People’s Procuracy performing Supervision of theenactment of legal norms from ministerial rank downwards173.
In general, the National Assembly can annul entire laws, resolutions, or legal documents of
its Standing Committee, State President, Government, Prime Minister, SPC and Supreme People
Procuracy or parts thereof, which is contrary to the Constitution, its laws and resolutions.
The National Assembly’s Standing Committee can annul a document of Government,
Prime Minister, SPC or Supreme People Procuracy which is contrary to its ordinances andresolutions; and can annul parts of or entire “wrong resolutions” of the provincial-level people
councils.
The Prime Minister can annul parts of or entire legal document of ministers, the Heads ofministerial-level agencies, the heads of agencies attached to Government and the provincial-level
people committees which is contrary to Constitution, laws and legal documents of higher-level stateagencies
The People’s Procuracy is entitled to suspend and propose to the competent state agency toannual unlawful legal norms made by Ministers, Heads of the ministerial-level agencies, Heads ofagencies attached to Government, local people councils and people committees
Government Inspectorates are required to help the government at the same level tosupervise and recommend it to review the legality of administrative norms.
Furthermore, the Vietnam Fatherland Front and its member organizations and all
individuals through their legal rights provided by Constitution can make any recommendation to thevalidity of legal norms. As such, by implication, Vietnamese law-makers consider that the above
mechanism for reviewing the constitutionality and legality is well guaranteed, therefore there is noneed to provide the courts powers for review.
173

See Law on Enacting Legal Norms (2002), Art 81-85

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Thirdly, Vietnamese law-makers affirm that the ADCs have been established for reviewing

the legality of a particular administrative decision or action that directly influences the legal rights ofa particular subject. In the case where an administrative norm is discovered to be unconstitutional or
illegal, they can recommend to the competent state agency for annulment as provided by law.
Moreover, since the administrative decision of legislative character is regarded as a decision of“internal administration”, the court cannot therefore interfere with such internal decisions. However,regarding democracy and the absolute protection of all individual’s rights enhanced by the recent
addition of ROL, this view seems to be currently under great challenge.
Finally, by also looking at foreign experiences, Vietnamese lawmakers present somecountries that exclude the legislative activities from the ground of JRAA as evidence. Some scholars
influenced by German views argue that the administrative decisions holding a legislative nature canbe directly controlled by the representative organs under the legislative process. Therefore, the court
is out of such review’s competence. In principle, some other countries, such as Japan and China, also
do not recognize the judicial review of legislative activities. It can be realized that the extent of thescope of the subjects depends on the governmental structure and the characteristics of the statutorylaws. Some of the above-mentioned countries have a completely different nature to each other, inparticular the difference between China and Japan. However, it is worthy to mention that there
always appears to be an exception for such a review in these countries. Japanese judges, for example,
are allowed to review certain administrative norms while handling concrete administrative cases.
German administrative courts can judge the legality of an administrative norm that grounded in law,which is basic for enacting such litigated administrative decisions.
In short, Vietnamese lawmakers have their own reasons for excluding the judicial review

of legal norms. However, a number of scholars still strongly support the broadening of the scope ofthe court’s jurisdiction as much as possible, including the previously mentioned issue as well as thereview of all fields of administrative management174. Some foreign observers consider that Chineseexperiences are worthy for the Vietnamese law-makers to follow. However, the review of
constitutionality and legality of legal norms and its effects is still unfeasible in these two countries in
the current context.

3. Objects to Judicial Review
Article 2 of OSAC (2006) stipulates that:“Individuals, state agencies and organizations shall have the right to initiate
administrative lawsuits against administrative decisions or administrative actions…Cadres andpublic servants holding the post of department directors and equivalent or lower post as defined bylaw on public employees shall have the right to initiate administrative lawsuits against the
174

Nguyen Hoang Anh (2006), at 36

62

disciplinary decision on job dismissal…”.
Thus, the disciplinary decision on job dismissal, although in nature is an administrativedecision, it has its own characteristics. These include: (1) it arises in the “internal relation” of theadministration; (2) the subject is always officials or public employees; (3) it may infringe the right of
having jobs as one of the basic legal rights of citizens provided by Constitution175. For such a reason,
Vietnamese lawmakers divide the objects for judicial review into three types as fully analyzed
below.
3.1. Individual Administrative Decisions
The concept of administrative decisions in Vietnamese legal terms has a broad sense.
Accordingly it is defined as a “written decision” issued by a state agency or a competent person thatis applied once or many times, to one or several particular subjects or any subject concerned, for a
specific matter in the field of administrative management. Vietnamese administrative law scienceclassified it in to three types. These three types are: 1) the administrative decision of legislative
character (Quyet dinh quy pham); 2) the decisive decision (Quyet dinh chu dao, like regulations or
guidance concerning the implementation of state’s policies at locality) and 3) individualadministrative decisions (Quyet dinh ca biet).
Principally, all administrative decisions should be addressed for judicial review in cases
infringing on the legal rights and interests of all individuals and organizations. However, as
mentioned in the last section, Vietnamese lawmakers consider that two of the former may be illegal
and irrational, but not directly cause damages for such a concrete subject. In addition, Vietnam has
its own mechanism to review such kinds of decisions through various channels; therefore, only
individual administrative decisions are subject to judicial review.
It is noted that Vietnamese law does not allow all individual administrative decisions to bereviewed by the courts. Some main requirements that should be figured out are as follows:Firstly, it must be enacted by administrative agencies or competent persons applied one

time, to one or several subjects concerned and must directly impact on the legal rights and interestsof these subjects. Some scholars debate that (1) whether some kinds of written documents issued byadministrative agencies or authorities, like public letters (cong van), notices (thong bao) or reports
on specific matters (bao cao) can be reviewed by courts in cases of violating the rights of people
concerned; (2) whether a certain illegal administrative decision, although people concerned benefit,
can be reviewed by courts176.
For the first question, the SPC has recently provided guidance for such kinds of legal
documents. Although they fail to satisfy the requirements of an administrative decision in both the175

See Hoang Van Sao ed (2007), pp.84-85

176

Ibid, at 83

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substance and form, it still forces people to follow, and consequently they are directly influences andface damages. For such a reason, it must be reviewed by the courts if it satisfies other conditions (asenumerated matters in the article 11 of OSAC). To some certain extent, it can be compared with theadministrative guidance in Japan and involves the question of whether such an administrative
guidance can be judicially reviewed.
For the second question, it was once fact that some state agencies already knew that theirissuance of decision was illegal (such as granting lands or some license without the correctcompetence provided by law). However, the concerned people also received benefits from such
illegal decisions, so they did not bring any claim to court. In this type of case, although theadministrative decision was illegal and necessarily annulled, the courts had no way to open a lawsuit.
Some opinions refer article 18 of OSAC providing the right to institute administrative lawsuits(quyen khoi to) of procurators, however this provision also limits the right of procurators in case ofsuch decisions “concerning on the minors, the physically or mentally handicapped, if no body
initiates the lawsuits”,
Secondly, it must be an administrative decision rendered for the first time (the originaladministrative decision). Section 2 of Resolution 04/NQ-HDTP (2006) interprets four kinds oforiginal decisions, aiming to distinguish between the decision on settlement of claims for the firstand second time by superior agencies.
To be in accordance with some requirements of the Vietnam-America BTA and WTO
regulations, the Revised LOCD (2005) abolished the rights of final settlements as well as the final
settlement decisions made by the Chairman of Provincial People’s Court, by Ministers and the Prime
Minster. Article 2 of OSAC (2006) also provides that the individuals have the right to initiate
lawsuits in courts, in cases where they have lodged complaints with the competent persons to settle
complaints for the first or second time but their complaints remain unsettled beyond the time limit
provided by law, or their complaints have been settled but they disagree with the settlement decisionat the first or second time. Thus, whether or not a complaint settlement decision is enacted or not(with an exception regarding the land issue177), individuals can initiate a lawsuit. However, theobject of judicial review here is not in the name of complaint settlement decision, but the originaladministrative decision as mentioned above.
An argument has been raised as to whether a certain part of the settlement decision isregarded as an original administrative decision, therefore can be taken to courts. For example, in apart of the settlement decision, the settlement agencies change the amount of fined money and it isprotested by people concerned.
Finally, it must be in the scope of the enumerated matters provided by OSAC (2006). It

177

See Law on Land 2003, Art 136 section 2. See OSAC (2006), Art 2 section2

64

allows all individuals to take administrative decisions arising in 21 matters that will be fully analyzed
in the next section of court’s jurisdiction over enumerated matters.
In summary, a certain administrative decision that satisfies the above three requirements

can be an object of judicial review. In the theory of Vietnamese administrative law, the concept ofadministrative decisions still remains unclear and inconsistent. Article 2, section 1 of OSAC provides
the litigated administrative decision must be enacted by a certain administrative agency or competentperson within such agencies. This provision leads to a number of arguments, such as: (1) whether any
decision made by an agency of CPV, a wide range of social organizations, like Fatherland Front,
Youth Union …can be taken to courts; (2) whether any decision made by Vietnamese diplomacy
representative organs located overseas (such as embassy or consulate) can be judicially reviewed andso on. These organizations are not administrative agencies; however, their decisions cannot avoid
infringing upon the legal rights of some concerned subjects. Regarding the aspect of State Will andPower, in any certain administrative decision, it cannot be in name when it is made for personal
purposes178. As this implies, when an authority takes bribes and renders an illegal decision, such as
granting license for construction or imposing administrative penalty,

the question arises of whether

this issue can be taken to the administrative court or other judicial courts.

In trial practice, a great

number of petitions are returned due to being out of the scope of the court’s jurisdiction which
inevitably makes people disappointed with the ADCs.
3.2. Job Dismissal Disciplinary Decisions
Disciplinary decisions on job dismissal, by nature is a kind of written individualadministrative decision, but is bound to a concrete subject, such as cadres and public servants. It is
one of the most serious disciplinary decisions among the six provided by the Ordinance on Cadresand Public Servants 179 . Since it reaches beyond the control of “internal administration”, andconsiderably infringes the citizen’s right of having jobs, it must be judicially reviewed
Article 2, section 2 of OSAC limits the only “the cadres and public servants holding thepost of department directors and equivalent, or lower post as defined by the legal norms on public
servants” can take a lawsuit.
First of all, the concept of cadres and public servants in Vietnamese administrative law

remains a controversy. It has been in discussion on what clearly classifies cadres and public servants,
public servants working in the state agencies (like the ministry, people’s committee…) and those178
Pham Hong Thai, Giao trinh Luat Hanh Chinh va Tai phan Hanh chinh Vietnam, [Textbook of Administrative Law andAdministrative Litigation Law], National Administration Institution, 339 (2006)
179

Ordinance on Cadres and Civil Servants was first enacted in 1996. Its latest revision was in 2003. According to this Ordinance,
Art.39, 6 forms of disciplinary measures as (1) Reprimand (Khien trach); (2) Warning (Canh cao); (3) Reduction of Salary (Haluong); (4) Reduction of Public Servant Status (Ha ngach); (5) Dismissal of High Position (Cach chuc); (6) Job Dismissal ( Buoc
thoi viec). On November, 13 2008, National Assembly approved New Law on Cadres and Public Servants. It comes in to effect July,
1st 2009.

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CALE Discussion Paper No.4

working in other fields of public services (like university, hospital…). In the case where a professorof a university is dismissed from his job, the question arises of whether he can take a lawsuit to thecourts. Article 1 of the existing ordinance does not give any concrete concepts of the cadres andpublic servants as well as provides no distinction among them. In principle, people who work in theparty’s agencies fall in to the category of “cadres”, and never receive a disciplinary decision on job
dismissal. Instead, the most serious disciplinary measure for them is to be discarded frommembership of CPV. They are always out of the plaintiff of a lawsuit.
Secondly, the discussion of why the existing law limits only “the cadres and public

servants holding the post of department directors and equivalent, or lower post”. The term
“Department Director” (Vu truong) refers to the leader of some departments within ministries,
ministerial equivalent agencies, or agencies belonging to government. Thus, Ministers, Vice
Ministers, Heads of Ministerial Equal Agencies and some other superior authorities at the centrallevel are not subject to administrative lawsuits. For such explanations, Vietnamese law-makers
consider that these people have quite a different procedure of appointment and dismissal, particularly
under the promotion of the CPV.
3.3. Administrative Actions
An administrative action of administrative agencies or officials while performing the
public power prescribed by law is also the object of judicial review180, understood as a “concrete
action” or “non action” that might not be in conformity with the law and needs to be initiated in the
court. In this case, it is identified as an illegal action or nonfeasance of the said agencies or officials,
clearly discriminated from the alleged written decision, such as an action of withdrawing properties
over limited competence, or the negligence of granting the construction or business licenses indemand seen as illegal “non-action”.
During the dealing with the above litigations, the court can issue an order on suspending
the implementation of that action (injunctive order), or an order on forcing the defendantadministrator to perform their legal duties. The important notice concerning administrative actions
addressed for judicial review is that the plaintiff must prove the direct damages caused by suchadministrative actions and the cause-effect relation thereof.

4. Court’s Jurisdiction: Classification and Analyses
4.1. Jurisdiction over Territorial Units
4.1.1. Supreme People Court
The Revised OSAC (2006) abolished the section 3 of article 12 regarding the jurisdictionof “the first instance and final instance procedure” of SPC. However, this article stipulates nothing
180

OSAC, Art 2, 4, 1266

about its jurisdiction over appeal, supervisory and review trials. It may create confusion for thereaders that only local courts are empowered to deal with administrative cases.
To explain and distinguish its jurisdiction with local courts, one should refer to article 20of LOPC (2002). According to this provision, SPC has jurisdiction: (1) to review an error of law(supervisory trial, giam doc tham) or review newly discovered facts (review trial, tai tham) in which
the legally effective judgments or decisions by district or provincial people’s courts have beenprotested; (2) to hear on appeal cases in which judgments or decisions of immediately lower courts(provincial people’s courts) which have not yet become legally effective, have been appealed orprotested.
4.1.2. Local Courts
District People Courts, in principle, are entitled to settle administrative cases under the

first-instance procedure. It can review administrative decisions or actions taken by state agencies orauthorities of the district or lower level on the same territory with the courts. In comparison with theold OSAC (1996, 1998), the latest regulations regarding the district court’s jurisdiction can be
identified as follows: (1) It empowers to district courts to deal with lawsuits related to lists of votersto elect National Assembly deputies or lists of voters to elect People’ Council deputies made by
voters list-making bodies on the same territory with the courts 181 ; (2) In some complicatedadministrative cases, such as cases relating to land disputes, to many subjects of different territory or
residing overseas, the trial panel of the district court can consist of two judges and three people’s
assessors (compared with one judge and two people’s assessors in normal cases)182.
Provincial People’s Courts have jurisdiction over both first-instance and appeal trials. In

principle, provincial people’s courts deal with lawsuits against administrative decisions or actions
made by central state agencies as Ministries, the SPC, the Supreme Procuracy and so on, which are
initiated by individuals whose place of residence or work are located on the same territory or byagencies or organizations which are headquarters on the same territory with the courts183. Article 12,section 2 of OSAC (2006) expands the jurisdiction of provincial people’s courts over the following
lawsuits: (1) It against decisions made by Chairmen of provincial people’s committee to settle
complains about the commendation or disciplinary decision by lawyer’s association; (2) It against
decisions on settling complaints about decisions on handling competition cases; (3) It falls under thejurisdiction of district courts but is picked up by provincial courts for settlement, such as acomplicated lawsuit related to many subjects including residing oversea, the district judges are
refused to handle out the cases provided by law184.
181

OSAC, Art 12, section 1

182

OSAC, Art 15, section 1

183

OSAC, Art 12, section 1

184

See Resolution 04/NQ-HDTP (August, 4th 2006), section 8

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4.1.3. Delimitation of Court’s Jurisdiction
Delimitation of Court’s jurisdiction falls in to two categories, namely: (1) the court’s
jurisdiction and the competence of superior administrative agencies dealing with claims at the second
time (hereafter as referred to superior agency); (2) the jurisdiction among the courts.
For the first category, it should be mentioned on the compulsory procedure, namely

pre-litigation. In this period, it requires the plaintiff to at first make a complaint to the administrative
agency or authority who rendered such litigated decisions (hereafter as referred to original agency)
within 90 days of the date of receiving the administrative decision or detecting illegal administrative
actions185. The time limit for the first settlement of complaints by original administrative agency
shall not exceed 30 days (45 days in remote areas, 60 days in complicated cases)186. Thus, since it is
a compulsory step, there is no conflict of competence between the court and the original agencies.
At the second step, if individuals do not agree with the decision on settlement by theoriginal agency, they can lodge a lawsuit to court within 30 days (or 45 days in some special
cases)187. The Revised OSAC allows individuals, in the case of receiving no decision on settlementby the original agency, to initiate a lawsuit since the expiration of limited time for claim’s
settlement188. However, LOCD 2005 also allows them to continue making complaints to the superior
administrative agencies. Thus, it may emerge a conflict of competence between this superior agency
and the court when individuals lodge their petitions to both of them. Such a conflict can be delimited
as follows: (1) For cases involving only one individual who simultaneously initiates a case to court
and lodges a complaint to the superior agency, the jurisdiction belongs to the former; (2) For cases
involving many persons who simultaneously initiate a case to court or lodge a complaint to thesuperior agency; or some of whom initiate a case to court, while the others lodge a complaint tosuperior agency, the competence belongs to the latter.
Along with LOCD 2005 which abandoned the final settlement by three administrative
authorities (LOCD 1998)189, OSAC 2006 allows the court to open the trial, even if the second-time
settlement decision by superior agency has been made, but still protested (unless otherwise provided
by law)190.
For the second category, to settle the conflict of jurisdiction among courts, (1) Chief

185

LOCD (2005), Art 31

186

LOCD, Art 36

187

OSAC, Art 2, section 1.a, Art 30, section 2

188

OSAC, Art 2, section 1.b

189
Three authorities render the final settlement as Chairman of People Committee, Minister, Prime Minister. See LOCD 1998, Art
23,25,28
190

OSAC, Art 13, section 1.c

68Justice of Provincial People’s Court decides which District Court is in competence in case theconcerned courts locate in the same province; (2) Chief Justice of SPC decides which Provincial
Court, or which District Court is in competence in case the concerned courts locate in the different
provinces191.
4.2. Jurisdiction over Enumerated Administrative Matters
Since the early 1990s, Vietnamese scholars strongly debated whether the scope ofadministrative matters should be limited for judicial review. Some scholars who supported for themodel of an independent administrative court proposed that the court should review all fields ofadministrative management, like Germany192. However, some of them also argued that, Germanadministrative courts were granted the jurisdiction over limited cases in the early days of its
establishment in the 19th century. When it developed and those concerned become more experienced,
it was possible for it to be granted with broader jurisdiction193. Looking at Chinese experiences,when ADC was established in 1989, it was also granted to review only 8 administrative matters194.
Furthermore, it included one “standby provision” that “the people’s courts shall accept otheradministrative cases which may be brought in accordance with the provisions of relevant laws andregulations”. The Government Inspectorate of Vietnam was in charge of drafting OSAC from 1995.
It was enacted by the National Assembly’s Standing Committee in June, 1996 in which the principleof enumerated cases was provided in article 11. This article also limited to 8 the number
administrative matters to be judicially reviewed, including one “standby provision” as in the case of
the Chinese example, ALL saying that “the court can have jurisdiction over other kinds ofadministrative decisions and actions prescribed by law”195.
To explain why the principle of enumerated administrative matters was adopted in OSAC
1996, Vietnamese lawmakers gave the below reasons:Firstly, Vietnam, at that time, had no experiences on JRAA. Some court’s divisions such as
191

See OSAC, Art 13, section 3

192

See Hoang Thanh Tung, Nhung van de tham quyen cua Toa Hanh chinh qua nghien cuu kinh nghiem cua Cong hoa lien bangDuc, [Some Issues on Administrative Court’s Jurisdiction from the Study of German Experiences] in Thanh tra Nha nuoc (1997),
supra note 9, at 45

193

Ibid

194

See ALL of China, Art 11

195

Article 11 of OSAC 1996 provided 8 administrative matters for judicial review as follows: (1) Protest against decisions toimpose fines against administrative violations or to apply measures for the compulsory dismantlement of the illegally built dwellinghouse, projects or firmly-structured objects; (2) Protest against decisions to apply administrative measures in the form of
re-education at communes, wards or townships, putting in to reeducation schools, educational establishments, medical
establishments or administrative custody; (3) Protest against decisions on dismissal, except those concerning People’s Army anddecisions on dismissal in accordance with the provisions of Labor Code; (4) Protest against decisions or administrative actions
concerning the grant and withdrawal of permits and licenses in the field of capital construction, production, business and land
management; (5) Protest against decisions on forcible requisition, forcible purchase and confiscation of assets; (6) Protest against
decisions on tax collection and tax arrears collection; (7) Protest against the collection of charges and fees; (8) Protest against otherkinds of administrative decisions and administrative actions as prescribed by law.

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economic, labor and ADCs were established at almost the same time with the limitation of sufficientjudges in both number and capacity. Therefore, if the court was empowered to review alladministrative matters, it would not be able to avoid the overload of administrative cases and reduce
the effect of newly established ADCs.
Secondly, the substantive administrative law was not sufficient grounds for all fields ofadministrative management. It lacked many legal norms for binding disputes arising in the field ofland management, housing or social policies during the wars. Some other disputes emerging in themarket economy have not been adjusted by law. If they were brought to courts, the judges would beunable to find the effective legal basics for review.
Thirdly, they considered that the judiciary could not interfere in all everyday

administrative activities. They provided as evidence French administrative law that recognizes“l’exception a l’Etat de Droit”196. This meant that some administrative activities, as exceptions,
could not be reviewed by the courts. They pointed out two trends of regulating the objects of judicial
review in the world, one giving “open” provisions that limited some administrative matters out ofcourt’s jurisdiction (like France), while the other issuing “close” provisions that limited someadministrative matters in court’s jurisdiction (like China and Vietnam).
Finally, Vietnam had its own mechanism for legislation and law interpretation in which theGovernment is empowered to enact legal norms to supplement those not yet regulated by law. The
standby provisions mostly appear in Vietnamese legal documents that allow Government to catch up
with any change in each period. With this implication, Vietnamese lawmakers believe that thestandby provision in Article 11 of OSAC could recover the defect of the principle of enumerated
matters. In practice, to complement some new administrative matters should be judicially reviewed.
The government enacted some decrees granting new jurisdiction to the courts197. However, this
explanation was criticized since such Government’s decrees can be considered as unconstitutionaland may threaten the independence of judiciary. The government cannot have more power than the
National Assembly and its Standing Committee on legislation. Moreover, it cannot empower a court
to review what is in the hands of its governance.
Article 11 of Revised OSAC 1998 did not include many new administrative matters forjudicial review as supplemented by Government decrees. Although was it increased to nine mattersin compared with the previous seven, it only rearranged the previous contents by separating the fieldof land management and the imposing of administrative violations into two independent clauses andstill retained the standby provision198.
196

See Nguyen Hoang Anh (2006), p.33

197

Such as, Decree 76/CP (November, 29th 1996) provided the court’s jurisdiction over administrative decision on grating thecertificates of copyrights; Decree 63/CP (dated October, 24th 1996) concerning the trade mark registration, intellectual property;
Decree 45/CP (July, 1st 1998) on the approval of technology transfer contracts and so on
198
According to Article 11 of Revised OSAC 1998, enumerated administrative matters as follow: (1) Petitions against decisions topenalize administrative violations; (2) Petitions against decisions or actions in the application of measures for compulsory

70Article 11 of the latest OSAC enlarges the court’s jurisdiction over 21 administrative
matters and the standby provision was also included199. Thus, the debate on enumerated cases seems
to be endless. Some scholars are afraid that the list of enumerated cases will be continuously
increased and there will be no way to prevent the interference of the Government in the field of
judicial review. They suggest that it should only regulate what administrative matters are out ofcourt’s jurisdiction in line with Article 12 of Chinese ALL200.
Regarding the present enumerated matters, followings items should be considered:Firstly, the administrative litigations concerning land management are always complicatedissues. Section 17 of Article 11 says: “The court has jurisdiction to settle lawsuits against
administrative decisions or actions related to management in the cases of land assignment, landlease, land recovery, land requisition, permission for change of land use purposes, compensation,
support, ground clearance, resettlement; grant or withdrawal of land use right certificates; andextension of land use duration”.
Thus, under this provision and also section 7.3 of Resolution 04/NQ-HDTP (2006) by the
SPC, administrative decisions or actions concerning the settlement of land disputes are out of thecourt’s jurisdiction. It always falls into the competence of claim settlements by local people’s
dismantlement of dwelling houses, construction or other firmly structured objects; (3) Petitions against decisions or actions inapplying or taking administrative measures such forms as re-education in communes, wards or townships; putting in to re-education
schools, reformatory establishments or medical establishments and administrative probation: (4) Petitions against disciplinary
decisions on the dismissal of officials or public servants who hold the post of the department heads and equivalent or lower-level
posts; (5) Petitions against decisions or actions concerning land management; (6) Petitions against decisions or actions concerning
the granting and withdrawal of permits and licenses in the fields of capital construction, production and business; (7) Petitions
against decisions or actions concerning the forcible requisition, purchase or confiscation of properties; (8) Petitions against
decisions or actions concerning the collection of taxes and tax arrears; (9) Petitions against decisions and actions concerning thecollection of charges and fees; (10) Other petitions as prescribed by law.
199

According to Article 11 of Revised OSAC 2006, enumerated administrative matters as follow: (1) Lawsuits against decisions on
sanctioning administrative violations; (2) Lawsuits against decisions on applying preventive measures to secure the handling ofadministrative violations; (3) Lawsuits against decisions or actions in applying measures to force execution of decisions on
sanctioning administrative violation; (4) Lawsuits against decisions or actions in applying or taking administrative measures suchforms as re-education in communes, wards or townships; putting in to re-education schools, reformatory establishments or medical
establishments and administrative probation; (5) Lawsuits against decisions or actions in the application of measures for compulsory
dismantlement of dwelling houses, construction or other firmly structured objects; (6) Lawsuits against decisions or actions
concerning the grant or withdrawal of permits in the fields of capital construction, production and business, business registration
certificates and certificates of practices; or lawsuits against other administrative decisions or actions related to trader’s business andfinancial operations; (7) Lawsuits against decisions or actions related to international or domestic trade in goods; (8) Lawsuits
against decisions or actions related to domestic and international financial transfer, services and service delivery; (9) Lawsuits
against decisions or actions related to requisition, acquisition or confiscation of properties; (10) Lawsuits against decisions or
actions related to the collection of taxes and tax arrear; (11) Lawsuits against decisions or actions related to the application of
charges, collection of charges and fees, collection of land use levies; (12) Lawsuits against decisions or actions in the state
management of intellectual property and technology transfer; (13) Lawsuits against decisions or actions in the state management ofinvestment; (14) Lawsuits against decisions or actions taken by custom offices or officers; (15) Lawsuits against decisions or actions
related to civil status management; (16) Lawsuits against decisions or actions of refusing to give notarization or authentication; (17)Lawsuits against decisions or actions related to management in the cases of land assignment, land lease, land recovery, land
requisition, permission for change of land use purposes, compensation, support, ground clearance, resettlement; grant or withdrawalof land use right certificates; and extension of land use duration; (18) Lawsuits related to lists of voters to elect National Assembly
Deputies or lists of voters to elect People’s Council Deputies; (19) Lawsuits against disciplinary decisions on the dismissal of cadresor public servants who hold the post of department director, equivalent or lower posts; (20) Lawsuits against decisions of Chairmenof Provincial People’s Committee on settling complaints about decisions of the Directorates or Commendation and Disciplinary
Councils of Lawyer’s Association; (21) Lawsuits against decisions on settling complaints about decisions on handling competitions
cases; (22) Other lawsuits as prescribed by Vietnamese law and treaties to which the Socialist Republic of Vietnam is a contracting
party”.
200

See Art 12 of Chinese ALL, (Enacted on April, 4th 1989; Effective on October, 1st 1990). More analyses will be given in the
Chapter III

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committees prescribed by the Law on Land (2003) and LOCD (2005). Furthermore, Article 135 of
the Law on Land provides that the courts are entitled to review a land lawsuit in cases where thedefendant shows his Certificates on Land-Use Rights. In fact, due to the lack of such certificates,
disputes often arise. In addition, Article 2 of OSAC 2006 only allows the court to review landmatters in section 17 of Article 11 in cases where the litigants have already received the settlement
decision made by the chairpersons of local people’s committees. To conclude, it seems to narrow the
way people can take land lawsuits to court and encourages the administrators to resolve them.
Secondly, Section 9 of Article 11 provides the court’s jurisdiction over the lawsuits against

administrative decisions or actions related to requisition, acquisition or confiscation of properties.
However, Resolution 04/NQ-HDTP (2006) limits the decisions or actions that emerged after 1991 totake to court (when Government Decision 297/CT dated on October, 2nd 1991 was made). Thus, inreality, many decisions or actions concerning requisition, acquisition or confiscation of properties
during the wars or in the central planning economy are out of the court’s jurisdiction.
Thirdly, Section 5 of Article 11 concerns the lawsuits against administrative decisions or

actions in applying measures to force the dismantlement of dwellings, construction or other firmly
structured objects. The concept of construction or other firmly structured objects are the abstract
concepts in Vietnamese language, since they emerge in various forms in the current process ofurbanization. The main task of the courts is to review the legality of the concerned administrativedecisions, not to examine the nature, and quality of such construction or firmly structured objects.
Therefore, it needs to be verified by special experts as well as by detailed regulations to avoid thecourt’s discretion.
Finally, to fulfill the requirement of the WTO regulations and the Vietnam-America BTA,

some new administrative matters are given to the court’s review, such as the competition cases(section 21), the state management of investment (section 13), cases related to domestic andinternational financial transfer and services (section 8), cases related to domestic and international
trade in goods (section 7) and to business and financial operations of private traders (section 6).
Substantive laws in these matters have been created recently which, to a certain extent, reveal thedefects and do not completely fulfill the international agreements. Moreover, the limit in capacity ofjudges is also a great challenge for reviewing such issues.
Regarding the standby provision of section 22 in Article 11, Resolution 04/NQ-HDTP(2006) made guidance as follows: If any decision or action out of the scope of 21 administrative
matters taken to courts, the court will (1) open a trial in case it was regulated in other Vietnamese
norms or in regulation of any international treaty to which Vietnam is a contracting party; (2) return
petitions in cases where there is no such above regulations. In short, the enumerated administrative
matters for judicial review are still in great discussion among Vietnamese scholars in which many ofthem strongly support for enlarging court’s jurisdiction at maximum. In addition, the maintenance of72

standby provision cannot absolutely resolve the issue of judicial independence when Government
itself may continue regulating other emerging lawsuits.
4.3. Jurisdiction over Trial Proceedings
4.3.1. Examining the Standing
Examining the standing of plaintiff and defendant is the priority work for competentjudges in settlement of administrative lawsuits. For such a reason, it must be carefully examined anddivided in to two main periods: (1) one is conducted right after a lawsuit is lodged. In the case ofsome requirements for their standings are not satisfied, the court will return the petition at once201;(2) the second is in the period of trial preparation (60 days from the registration of the lawsuit), thecompetent judge continuously examines their standings and other evidence. In the case of somerequirements being satisfied, they will decide to open the case for trial. By contrast, they can make adecision on temporary suspension or suspension of that lawsuit202.
Some requirements for the standing of plaintiff should be noted as follow:
Firstly, the plaintiffs must be individuals, state agencies and organizations that their legal

rights and interests are infringed against by a particular administrative decision or action (Article 1of OSAC). Article 73 also provides the standing of foreign individuals or legal persons, except thoseprescribed by the international treaties, which Vietnam has signed.
It can be said that Vietnam studied most provisions of the Chinese ALL. Under Article 2 of
the Chinese ALL, the plaintiff refers to only a citizen, a legal person or any other organization. Thus,
the term of “citizen” may be misunderstood insofar as only Chinese citizens can lodge anadministrative lawsuit. Article 70 clearly provides that: “this law shall be applicable for foreign
nationals, stateless persons and foreign organizations that are engaged in administrative lawsuits in
PRC, except as otherwise provided by law”.
To be a plaintiff, Vietnamese administrative law in general, requires his legal capacity
included the legal age (18 years), health conditions (such as, no mental diseases). In case of minors
or the disabled persons, the procurator can initiate a lawsuit. The plaintiff must prove his legal rights
and interests directly infringed against by a concerned decision or action.
Secondly, the plaintiff must take a complaint to the original administrative agency forreconsideration. In other words, Vietnamese law strictly requires the plaintiff must experience a
pre-litigation period before taking a lawsuit. This regulation fails to fulfill the requirement ofVietnam-America BTA and is still hotly debated, since it completely narrows the access of lawsuits.
However, a better regulation of OSAC 2006 is that, though the requirement for firstly making claims
to original agency is compulsory, the plaintiff can lodge a lawsuit if the claim settlement is not
201

See OSAC, Art 31

202

See OSAC, Art 37 section 2

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received within the limited time (30 or 45 days) as provided by Article 36 of LOCD 2005.
Thirdly, the plaintiff must meet the requirement of the limited time. Article 30 of OSAC

stipulates the limited time “shall be 30 days from the expiration of the time limit during which theclaim is not settled, or from the date of receiving the settlement decision but he/she disagree withsuch decisions”. This article also gives some exceptions, such as 45 days for “deep-lying, remoteareas where travel is difficult”, or in the case of unavoidable difficulties, the duration of suchdifficulties shall not be counted.
Finally, the plaintiff is allowed the option of either lodging a lawsuit to courts or making acomplaint to the superior agency. The delimitation of the court’s jurisdiction and competence of thesuperior agency was already analyzed in the last section.
For defining the standing of defendant, the following remarks should be considered:Firstly, Vietnam may share the difficulty in determining the defendant’s standing with

Chinese experiences due to the complexity of the administrative structure which covers various
institutions. In Vietnam, the concept of administrative organs is slightly abstract. OSAC defines thedefendant as an “individual, agency or organization that has made the administrative decision or
taken an action which is litigated”203; and the litigated administrative decision as “a written decision
made by administrative agency or competent persons therein”204. Thus, an agency in name ofdefendant is understood as an administrative agency. However, in fact, many litigated administrativedecisions are not made only by administrative agencies, but by local representative agencies like thePeople’s Council, the National Assembly’s Office, the Office of State President, the Court, theProcuracy, and the agency attached to Government. These agencies are apparently not defined asadministrative agencies. Furthermore, a considerable number agencies or organizations, like theagencies of the CPV, the Military, and the Father Land Front and its members, may render a decision
as having infringed against the rights of the concerned people. As a result, the unclear concept may
lead to misidentification of the defendant’s standing.
Secondly, the court may be confused as to decide whether the defendant is in the name ofagency or in the name of the head of such agency. As such, both the decision on imposing
administrative penalty and the decision on land confiscation are signed by the Chairman of Local
People’s Committee, however, if litigations appear, the former will be in name of Chairman, while
the latter will be in the name of the Local’s People Committee. Resolution 03/NQ-HDTP (2003)
explained that it should follow such delimitation due to the jurisdiction over the former addressing to
the Chairman of Local People’s Committee (Article 29, Ordinance on Resolving Administrative
Violations), while the latter assigning to the Board of Local People’s Committee (Article 24, Law onLand).
203

See OSAC, Art 4, section 6

204

See OSAC, Art 4, section 1

74

Finally, the court, in trial practice, is embarrassed to identify who the defendant of alawsuit is, such as the Chairman of People’s the Committee who was just retired or moved to anotherpost after his rendering of a litigated decision, or a New Chairman who is currently holding the post.
Resolution 03/NQ-HDTP also guided that the latter will be the defendant, because he is, on behalf ofstate power, required to inherit both legal rights and duties of the former. However, such explanation
does not appear to be entirely satisfactory.
4.3.2. On Evidences
In comparison with the Chinese ALL that clearly provides the evidence in a separated
chapter with six articles concerning the contents of evidence, the burden of proof on the defendant,
the legal proceedings for gathering evidence and so on, OSAC of Vietnam regulates only the processof collecting evidence by courts in article 38.
In principle, evidence is understood as being “written evidence”, such as administrativedecisions, the decision on claim settlement, and other concerned documents depending on the natureof each lawsuit, such as the certificate of land use-rights, land maps, and the conclusion of experts.
There is no official recognition of recording evidence. The duty of providing and supplementing
evidence is in charge of the plaintiff, the defendant and the concerned persons. Apart of requesting
evidence from the parties, Article 38 provides that the court may itself or mandate another court toconduct the examination and collectevidence.
4.3.3. On Damage Compensation
Unlike China, where the State Compensation Act was enacted in 1994 and the Chinese
ALL also includes one chapter with three provisions concerning the state liability for administrativecompensation, OSAC of Vietnam provides only one article for requiring the compensation in an
administrative lawsuit. Article 3 reads: “The person who initiates the administrative lawsuit may, atthe same time, demand a compensation for their losses. In this case, the provisions of the civil
legislation and the civil proceeding legislation shall be applied to settle such claims”.
Thus, the court will deal with this issue only when it is closely attached to theadministrative decision that is being reviewed. If the plaintiff has an independent requirement forcompensation, or fails to provide sufficient evidence for compensation, such lawsuit would betransferred to the civil court division.
Regarding the settlement of compensation in administrative lawsuits, the substantial
provisions of Civil Code 1995 (revised 2006), Resolution 388/NQ-UBTVQH (2003), Decree 47/CP(1997) and a number of ministerial circulars are applied205. In principle, the agency, where the205
See Duong Dang Hue, Thuc trang Phap luat hien hanh ve Boi thuong thiet hai do Can bo, Cong chuc Nha nuoc gay ra, [Thecurrent Legislation on Damage Compensation caused by Cadres and Public Servants] in Phap luat va Chinh sach ve Trach nhiem
Boi thuong Nha nuoc o mot so nuoc, [Law and Policy on State Compensation Liability in Some Countries], 163 (2007). See also
Civil Code 1995, Art 623,624; Civil Code 2005, Art 619,620; Resolution 388/NQ-UBTVQH dated March, 17th 2003; Decree 47/CP
dated May, 3rd 1997; Circular 01/TTLT-VKSNDTC-BCA-TANDTC-BTP-BQP dated March, 25th 2004; Circular 54/TT-BTCCBCP
dated on June, 4th 1998 and so on.

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wrongdoing public servants belong, first compensate for damages, then the head of such agency
establishes a Board for compensation settlement. This Board will decide the amount of money andthe method for returning compensated money by the concerned public servant. It is possible for the
public servant to return the entire amount at once or by gradual reduction from his income that does
not exceed 30% total of income per month.
In Vietnam, a draft law on state compensation has been made and received public feedback.
Some main issues have been discussed exhaustively, such as the court model and state agencies
involved the settlement of compensation; the fields of compensation - administrative management,
judgment execution and criminal proceedings; the legal foundations, and the degree and method forcompensation and so on206.
4.4. Judgment and Interim Relief
4.4.1. Administrative Judgment – A Legislative Vacancy
Although OSAC (1996) was revised twice (1998, 2006), errors have been found in theleaving of a legislative vacancy regarding the content and effect of administrative judgments207.
Some scholars suspect the reason why lawmakers left this vacancy, referring to Article 45 of LOCD
that clearly provides what kinds of settlement decisions should be rendered by the administrative
agency, while OSAC has no clear provisions208. Since the court finds no clear and effective legal
provisions in the case of determining an administrative decision illegal, it itself devalues its judicial
power by writing in the judgment paper that “suggesting (kien nghi) or proposing (de nghi) the
administrative agency to annul the illegal decision” . This surely is not in accordance with theprinciple of judicial independence209.
The Chief Judge of Hai Phong City ADC, Nguyen thi Mai, criticized that theadministrative judgment is far from completely resolving the people’s claims since she made acomparison with civil judgments210. She argued that the ADCs, after considering the illegality ofsuch a decision, only declared void instead of quashing the illegal decision and judging substantively
who was granted the land-use right.
Some local administrative judges support the idea that it is truly unreasonable for leaving a

206

Ibid, at 176-184. See also Nguyen Binh Chau, Gop y du thao Luat Boi thuong Nha nuoc, [Some Suggestion for Draft Law on
State Compensation], available at http://www.bbc.co.uk/vietnamese/forum/story/2008/07/080623_compensation_draft_bill.shtml
207
Article 49 section 2 of OSAC (2006) provides some contents of judgments such as the date and place of court session, the namesof trial panel, names and addresses of the parties, representatives, the content of claims, evidences, court fees and court’s decisions
and so on. However, what kind of judgment as a result of judicial review is not clearly provided.
208
See Nguyen Van Thanh & Dinh Van Minh, Mot so van de Doi moi Co che Khieu kien Hanh chinh o Vietnam, [Some Issues on
Reforming Mechanism of Settlement of Administrative Litigation in Vietnam], 136, (2004)
209
Ibid, at 166
210
Nguyen thi Mai, Ky nang phan dinh Vu an Hanh chinh va Vu an Dan su, [Skills for the Delimitation between Administrative
Cases and Civil Cases), 8 Legal Profession Journal, 12 (2004)76

vacancy of the administrative judgment211. They referred to the article 12 of the previous Ordinanceon Procedures for Resolving Civil Lawsuits, which provided that the court was empowered to annul
any illegal decision made by the state agency that infringed upon the legal rights and interests of theconcerned parties.
In trial practice, the court often renders some decisions in its judgment as follows:
In the case of acceptance of the plaintiff’s claim (meaning the administrative decisions areconcluded illegal), the judgments often involve: (1) Accepting X’s claims….Declaring theadministrative decision Y void (or illegal)…Proposing the administrative agency Y tosettle…Suggesting the administrative agency Y to allocate the land…; (2) Quashing theadministrative decision Z…Imposing the disciplinary liability to officers who granted land
illegally…; (3) Declaring annulment the illegal decision Z…Requiring the administrative agency torender a new decision212.
The latest Resolution 04 NQ/HDTP (2006) admitted the error of law and made guidance
that the court, based on each particular case, can render some judgments as follows: (1) Dismiss thepetition if it fails to give any legal basic; (2) Accept one part or the whole petition; Declareannulment (Tuyen Huy) of one part or the whole illegal decision; Force the violated agency toperform legal duty; (3) Accept one part or the whole petition; Declare an action illegal; Force theviolated agency to end illegal actions; (4) Force the violated agency to make compensation; (5)Declare annulment of disciplinary decision on job dismissal; Force the head of agency to perform
legal duty; Force the violated agency to make compensation and to recover legal rights or interests ofthe concerned public servants.
It should be noted that Vietnamese lawmakers had already realized the mistake of leaving
the vacancy of judgment contents under Article 49 of OSAC before they revised it in April, 2006.
The SPC also made the same guidance in the former Resolution 03 NQ/HDTP (2003). The questionis why they refuse to clearly provide this content in Article 49. It is true that Vietnamese scholars
find it embarrassing to determine whether the court is able to encroach upon the administration.
They consider that the courts cannot replace the role of administrative agencies. The courts are only
able to declare the illegality or declare an annulment of illegal decisions. Due to abstract regulation,
the question is whether such a decision is immediately void after declared illegally, or still effective
until the administrative agency itself annuls or replaces it by a new one. In addition, others areconcerned as to whether the court is able to decide the amount of money for fines, collecting taxes orcompensating damages. Further discussion on the defects of administrative judgments will be
211

Ngo Ngoc Tinh, Mot so van de Vuong mac trong Giai quyet Vu an Hanh chinh, [Some Troublesome in Dealing with
Administrative Cases], The Law and Democracy Journal, 25 (1999)

212

See The first trial judgment No 4/HC-ST (August, 14th 1998) of Tien Hai District People Court (Thai Binh Province); The appeal
trial judgment No 3/HC-PT(June,5th1999) of Thai Binh Provincial People Court; The first trial administrative judgment No
04/HC-ST(January, 31st 2002) of Tuy An District People Court (Phu Yen Province); The first trial administrative judgment No
12/HC-ST (January, 24th 1998) of Hanoi City People Court concerning the income tax of Mr KS (Japanese Nationality)…etc.

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analyzed further in the next part of this Chapter regarding Vietnamese case studies and practicalremains.
4.4.2. Temporary Suspension and Suspension of Settlement of Administrative Cases
Article 37, section 5 of OSAC reads: “With two months from the date of receipt of the case,the competent judge shall issue one of the following decisions: (1) To bring the case for trial; (2) To
temporarily suspend the settlement of the case; (3) To suspend the settlement of the case”. In somecomplicated cases, the time limit shall not exceed to three months.
Article 40 and 41 of OSAC provide some conditions that enable the court to suspend or
stop the settlement of lawsuits. These decisions may be appealed or protested against to the appellate
court. Regarding the suspension of the settlement of administrative lawsuits, Article 41 stipulates ina case where the plaintiff withdraws his petition, the court will decide to stop the settlement thelawsuit. The problem discussed here is whether the application for withdrawing the claim isvoluntary or not. Vietnamese law encourages the state officials and people to negotiate a way ofresolution. If a state official, before opening the trial, realizes his mistake and takes some efforts torecover damages to infringed people, the court, according to law, can decide the suspension of
settlement. The questions then become: (1) what happens if the decision or action is illegal, butpeople are intimidated by state officials resulting in the involuntary withdrawal of claims? (2) incases where people consistently do not withdraw petitions, what should courts do?
In the first question, the current OSAC fails to fully protect people by not clearlyproviding what cases the court may allow or not allow the withdrawal of petition. Here it shares with
Chinese experience, as Yong Zhang comments, in this case, “it is up to the court to decide whether
withdrawal of a claim should be granted”213.
In the second question, the answer is that the court may open the trial either to dismiss thepetition or judge the case in favor of the infringed people. In fact, people are put into a
disadvantageous position because the state officials concerned sometimes try to make suitablereasons for being absent at court. In addition, Article 7 of OSAC allows the court to possibly
examine a case without the presence of parties in cases where “the litigation content and evidence
are clearly supplied” or “the parties do not demand to participate the trial”. It is undoubtedly seen
as a legal “gap” that makes it possible for the state official to intentionally not fulfill

the duty ofparticipation and finally cause disadvantages for the infringed people.
4.4.3. Temporary Urgent Measures
The temporary urgent measures are possibly applied at any period of settlement
proceedings from “initiating administrative cases” to “enforcing the court‘s judgment” and consistsof two measures, namely: (1) temporarily suspending the enforcement of litigated administrative213

See Yong Zhang (1997), p.53

78

decisions214; (2) prohibiting or forcing individuals or organizations concerned to take a certain actionin order to ensure the necessity of settlement of administrative cases or the execution of thejudgment215.
The application of temporary urgent measures is evidently aimed to limit theunrecoverable damages for people caused by implementing the illegal decision, on the contrary, if
the wrong application of such measures is made, it surely harms public administration. What would
happen if all administrative decisions are obliged to be suspended when a proposal of applying
temporary emergency measures is made by people? Since the OSAC had no detailed regulation ofwhat strict condition was required, except that people have to take responsibility for their demand of
applying such measures and in case of damage is caused, they must make compensation216. Hence,
the application of temporary urgent measures breaks the principle of “acting without delay”217of an
administrative decision that makes judges in charge difficulties in the one hand. On the other hand,
however, since the OSAC provided that the judge also has to compensate the damages caused by thewrong decision on applying the such measures218, the judge cannot avoid their hesitance of reachingsuch a decision. The judge himself often feels uneasy scoping with administrative officials, alongwith no regulations of time limit and the effect of the alleged decision all make the application of
temporary urgent measures in practice far from well-performed.
4.5. Jurisdiction over Appeal and Supervisory, Review Trial
The judgment of the first-instance does not immediately come into effect. It could beobjected by the litigious parties or the chief procurator within in the time limitation of 10 or 20
days219(with some exception) since the judgment was given in order to require a second-instance trial
opened for reconsideration and correction of all mistakes.
Since the importance of the second-instance trial (Court of Appeal) is to recover thedefects of the first-instance judgment, protecting efficiently both legal parties from damages, it shallbe conducted by three judges, without the participation of people’s assessors. The Court of Appeal is214

OSAC, Art 34, section 1

215

OSAC, Art 34, section 2

216

OSAC, Art 33 section 1

217

Nguyen Manh Hung, Khoi kien, Khoi to va Thu ly Vu an Hanh chinh, [Initiating, Prosecuting and Filing an Administrative
Lawsuit], in Hoang Van Sao ed (2007), p.201

218

OSAC, Art 33 section 2

219

The time limitation to call for opening the second trial is ten days in case of the party concerned or procuratorate agency at thesame level with the 1st instant court require, or 20 days in case of the procuratorate agency at higher level with the 1st instant court
require, since the day judgment was given. See OSAC, Art 56, section 1, 2

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opened in cases where the first-instance judgment that has not come into effect220. The judgment of
the appeal court, after being given, shall in principle come in to effect at immediately.
Apart from the appeal trial, Vietnamese law provides for two types of review of legallyeffective judgments by higher courts, namely Giam doc tham (supervisory trial) and Tai tham(review trial). The above two trials share the following points points: (1) the objects of review are
the legally effective judgments including both the first-instance and appeal judgments; (2) the limit
time for protest is one year221. The main difference between these trials is that the former is aimed at
supervising serious defects in litigation procedures and violations in applying the law in settlingcases (or review on an error of law), while the latter aims to discover unknown circumstances that
may fundamentally change the nature of cases (review on newly discovered facts or review onfacts)222.
II. Vietnamese Case-Study Analyses: Current Controversies and Mistakes of Judgments
1. Whether Courts Can Review at Any Period of Administrative Complaints
1.1. Issue of Compulsory Pre-Litigation and Its Obstacles
Pre-litigation principle (Nguyen tac tien to tung) means, at the administrative level, any
individual or organization can make complaints with administrative agencies or authorities who
issued decisions or actions taken that might be considered as contravening the law or infringing upon
their legal rights and interests. In general, administrative law around the world completely
recognizes this principle and regards it as a good opportunity for the administrative agencies to
examine themselves and quickly discover and rectify any mistakes. This researcher agrees totallywith the positive points of the time period of resolving complaints, since it is not only good foradministrative agencies in cases where they do not want to hold the standing of defendant at court,
but also for any individual who can save time, and money in lodging a lawsuit. If this period is
optional and carried out perfectly, it would be ideal in a ROL society, in which all individual’s rights
are respected and effectively guaranteed. The biggest issue here is what happens if this period iscompulsorily required, but badly implemented by the concerned administrative agency. Apparently,
it would make obstacles for the infringed people to access administrative lawsuits.
In line with the implication, by analyzing some major obstacles, this section argues that220

The 1st instant judgment comes in to effect if within 10 or 20 days, there has no objections made by litigated parties or Chief
Procurator

221
OSAC (2006), Art 69. The old OSAC (1996) provided the time limit for the supervisory trial is 6 months, while for the review
trial is one year from the first-instance and appeal judgment come in to effect222

See OSAC, Art 67. These procedures may be influenced by the procedure of the court in France, since in the second-instant trial
namely Court of Cassation, Conseil d’Etat may be asked to reconsider in some cases such as :the process of “tierce opposition” (theparty are interested in the original proceedings was not joined in them); the case for revision (very serious defect in procedure wasfound ) or the case for “recours en rectification d’erreur materielle” (the material error of fact which would have had an effect on
the judgment was shown). See L.Neville Brown & John S.Bell (1998), pp.118-119

80Vietnamese law, instead of providing a compulsory pre-litigation period, should grant the infringed
people an optional right:
Firstly, the nonfeasance of the administrative agency forms the most serious obstacle since

it discards the right of administrative litigation access.
Before the OSAC 1998 came in to effect (January, 1st 1999), the nonfeasance of theadministrative agency completely prevented the infringed people from taking a lawsuit to court.
Article 30 of OSAC 1996 allowed the infringed people to take a lawsuit to court within 30 days fromreceiving “a written reply” (the first claim’s settlement decision) by the original administrative
agency. Thus, in case of receiving no reply, they completely lost any chance to be protected by ajudicial court.
To rectify this defect, Article 30 of the OSAC 1998 allowed them to take a lawsuit to court
even if they had not received any reply within 30 days, after the limit time for settlement ofcomplaints expired. This article excluded only cases concerning disciplinary decisions on job
dismissal that the infringed public servant was compulsorily required to submit the first-time
settlement decision made by their supervisors. Thus, this article was progressive and highly
appreciated, because it directly imposed pressure on the nonfeasance of the administrative agency
and significantly opened the door for infringed people to access lawsuits.
However, the latest OSAC 2006 once again narrows the way of initiating a lawsuit byproviding more exceptional cases where the first time settlement decision must be submitted. These
exceptional cases include: (1) a case concerning the disciplinary decision on job dismissal; (2) alawsuit against decisions on the management; (3) a lawsuit against a decision on the voter list; (4) acase related to the commendation or disciplinary decisions by the Board of Lawyer’s Association;and (5) a lawsuit against decisions on settling competition cases223. Vietnamese scholars argue that it
is not equal to restrict the above five cases that the infringed people cannot take a lawsuit without
receiving settlement decisions. In practice, the nonfeasance of the concerned administrative agency
in these above cases cannot be avoided, and in fact quite often happens. They question that whether
the above five cases belong to a specific field of the administration that the judicial power should be
limited to interfere, or whether these cases seem to be more complicated and may involve a lot of
misconduct of administrative agencies. If true, they make a considerable threat to the protection of
all people’s legal rights and interests, and thus, the new OSAC is regarded less progressive, even“step backward” compared with the revised OSAC 1998.
Secondly, in the pre-litigation period, the determination on who is in charge of dealing

with complaints at first is also a great obstacle. In principle, Article 30 of LOCD 1998 (Revised2005) regulates: “the complainant shall have to first make complaint with the persons who have223

See OSAC(2006), Art 30 section c,d,e,f,g

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issued the administrative decision…”. However, a variety of specific laws have different provisions
depending on who is in charge of dealing with complaints initially. The Ordinance on Resolving
Administrative Violations, for example, prescribes: “individuals who are subjected to the forcible
measures aiming to prevent the administrative violations, like the temporary detention, thetemporary seizure of tools or means used in the violation, the body’s check, have the right to lodge
complaints with the intermediate higher-level officials”224. In the Law on Taxes, the first competence
to review is in hand of tax offices, not tax collectors who issued administrative decisions. The sameprovisions are also found in the Ordinance on Exploitation and Protection of Hydrographic Works,
the Law on Army Duties and so on. Thus, not only people but also the competent judges find it
embarrassing when required to determine who holds such settlement competency in the first instanceand whether the general law (LOCD) or specific laws should be followed. Even when people know
exactly to which agency their petition should be sent, such as to X Local People’s Committee, they
do not know which Chairman or Board of X Committee will be in competence. In cases where the
Chairman who issued a decision dies, retires or is removed, it is necessary to be patient and wait fora reply. However, never waits. Thus, in these cases, the disadvantage apparently belongs to people
lacking legal knowledge, or without good contacts and as a result finally lose their chance for taking
a lawsuit.
Thirdly, the pre-litigation period makes obstacles in terms of the time requirement foraccessing lawsuits, wastes time, and even causes “hot” disputes and chaos as has in fact happened insome provinces.
Most of the cases that happened prior to December 1998 could not be filed and opene trials
because the infringed people did not meet the time limit requirement under Article 30 of OSAC. The
nonfeasance of administrative agency as above analyzed was condemned as the main factor
invalidating legal rights since “time is never neutral and here it works almost always against thecitizens”225. Furthermore, the limited time (30 days, or 45 days as an exception) seems to be very
short concerning complicated cases that require the gathering of large amounts of evidence, many
concerning people’s ideas, particularly for cases happening in rural areas. Article 30 of OSAC
provides a 30 day time limit, (1) since the date of receiving the settlement decision or (2) since thedate of expiration of the limited time for settlement of complaints under LOCD. For the first clause(1), some other legal norms regulate the time for counting since the date of issuing the settlement
decision. This is of course an error of law, and can be recovered, however, until present, suchoverlapping regulations for the pre-litigation period are really dangerous for lodging a lawsuit intime. For the second clause (2), the counting time duration for claim settlement by administrative224

See ORAV, Art 87

225

L.Neville Brown & John.S.Bell (1998), p.299

82agency is also abstract. People do not know exactly when their petition is filed and started for review
by the administrative agency. Particularly, in the case the administrative agency ignores to review orrefuses to review by mouth (not by legal documents), it is very difficult to count the time due to lackof evidence.
Another reason that causes a waste of time lies in the settlement decision at the first time in
the pre-litigation period. Under the OSAC, if it is not the original administrative decision, it cannot
be taken to court. For example, X People’s Committee rendered a decision on land recovery to A.
Then A made a complaint to X People’s Committee. X Committee issued the settlement decision thatdismissed A’s claim. In case of disagreement, A cannot take the settlement decision that dismissed A’s
claim to court since it is not the original administrative decision. Another example is that A had afine imposed by X for his violation of traffic law. A made complaint to Y. Y rendered a settlement
decision in which maintained the decision on imposing a fine (1). Y also issued a decision on
confiscation of A’s motorbike (2). In case of disagreement, A took an action to court. However, thecourt only accepted to review the decision on imposing a fine by X. The settlement decision (1)made by Y was out of court’s review, but (2) is regarded as a new administrative decision226. If A
wants to sue (2), A must make a complaint to Y again. Thus, A cannot take X and Y to the court at
the same time, and in this case, the waste of time is unavoidable.
Finally yet equally importantly, the misconducts or wrongdoings of administrative

agencies in the pre-litigation period are also counted as an obstacle. By nature, the settlement in thisperiod is known as the “minister-judge” mechanism in which the administrative agency always
holds a superior position. The red tape, the abuse of power, the corruption, the bribery and so on canbe named as disadvantages of this period. The complicated settlement proceeding also makes people
hesitate and try to have a case resolved by a close family relationship rather than by the law. One
more point should be added to its criticism. There are no effective regulations related to what kinds
of forms and contents of settlement decision should be issued legally. In practice, many of them are
rendered in the form of unofficial papers, such as announcements, letters or in case of an official
giving a decision without a state legal seal. How can these be seen as legal documents and submitted
to the court?
To prove the obstacle of the pre-litigation period, the next section will analyze somecase-studies:1.2. Revocation of Judgment Regarding Land Dispute in Dong Nai Province (1999)
On January, 1st 1999, X District People’s Committee (as referred to X Committee) issued
Decision 47/1999/QD-UB on settlement of a land dispute to A. Although A did not agree with thisdecision, A had not made any complaint to X Committee.
226

See Resolution 04/NQ-HDTP (August, 4th 2006), section 2.

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On February, 10th 1999, A initiated a lawsuit to X District People’s Court (as referred to X
Court). X Court did not regard Article 30 section 1, Article 31 section 3 of OSAC 1998 that required
A to have at first to make complaint to X Committee, and opened the trial. In the judgment, X Court
declared the legality of Decision 47 and dismissed A’s requirement.
A made an appeal to Dong Nai Province ADC. Dong Nai ADC did not discover the
mistake of X Court that failed to require A to make his complaint to X Committee. At appeal trial,
Dong Nai ADC declared the effect of the X Court’s judgment and also dismissed A’s requirement. 10days after the appeal judgment of Dong Nai ADC was made, it came in to effect. A had no right tomake further appeal. The only way this judgment could be reviewed was through Chief Justice ofDong Nai ADC or Chief Procurator of Dong Nai People’s Procuracy proposing SPC to re-open thetrial under the supervisory procedure.
On July, 20th 1999, SPC issued a supervisory judgment which declared that both X Court
and Dong Nai ADC seriously violated the law concerning settlement of administrative cases. It
pointed out that X court, instead of opening trial, had to return petition of A and require him to firstmake complaint to X Committee. The way A directly took a lawsuit to the court was a violation of
the compulsory principle of pre-litigation provided in Article 30 of OSAC. Dong Nai ADC also
made a mistake by ignoring this requirement. For such a reason, SPC annulled both of first-instanceand appeal judgment, and returned the case to X Committee for resolving A’s complaint underadministrative procedure227.
Thus, in the above case, the compulsory pre-litigation principle is really an obstacle for A
to initiate a lawsuit. Although the violation of two local people’s courts is apparent, under the
aspect of convenience for protecting infringed people, this principle inevitably restrains their rights
to access a lawsuit and wastes much time.
1.3. Lawsuit Regarding Final Reconsideration Decision in Can Tho Province (2006)
A and her husband’s family had lived on an area of land of 11.933 m2 in Omon District, Can
Tho Province since 1976. In 1981, her husband and mother in law transferred this land including ahouse to B. Since the land policy in this period did not allow people to sell or transfer land, the local
government confiscated all this land to common use of agricultural co-operatives228.
In 1982, A made a complaint to get back the land because her husband and mother in-law
themselves transferred the above land to B without her consent.
On May,2nd 1983, Omon District People’s Committee (as referred to Omon P.C) issued
Decision 229/QD-UB that accepted to give back to A 6.345 m2 that was previously transferred to B. A
and B also made a complaint regarding this Decision. After B’s death in 1989, C (B’s wife) continued
227

This case is quoted from the Report of SPC on the Adjudicative Work of the Courts in 2000 and Direction in 2001, 59 (2001)

228

This case is quoted from the Collection Book of Supervisory Judgments by Justice Council of SPC in 2006, pp.614-619 (2008)84

making this complaint.
On November,17th 1990, Omon P.C granted Land-Use Right Certificate of 6.345 m2 under theDecision 229/QD-UB (1983).
On February,18th 1995, Can Tho City People’s Committee (Can Tho P.C) issued theSettlement Decision 373/QD-UB in which: (1) Dismissed the petition of A; (2) Withdrew the Decision
229 (1983) of Omon P.C; (3) Accepted C to use the land of 6.345 m2 that was granted to A under theDecision 229. Due to the difficult implementation in fact, C did not get back the land, then continuously
complained to Can Tho P.C.
On December,17th 1999, Can Tho P.C issued Settlement Decision 3120/QD-UB in which:(1) Quashed Decision 229 by Omon P.C that accepted A to use the land of 6.345 m2; (2) Dismissed thepetition of A; (3) Reclaimed A’s land of 6.345 m2 and Withdrew the Land Use Right Certificate (1990)
granted to her; (4) Granted the above land to C and Required to make compensation for A’s labor onland (if necessary).
On August,11th 2003, A once again made a complaint, then Office of Can Tho PC replied by a
Public Letter 458/VPUB that: (1) Decision 3120/QD-UB (1999) was legal and came in to effect; (2)Required A to implement it. On September, 5th 2003, A initiated an administrative lawsuit to Can Tho
ADC.
At the first instance judgment No 01/HCST dated January,21st 2005, Can Tho ADC dismissed
the demand of taking a lawsuit of A and declared the legality of Decision 3120/QD-UB (1999). On
January,22nd 2005, A made appeal to Appeal Division of the SPC located in HCM City (as referred to
HCM Appeal Court).
At the appeal judgment No 12/HCPT dated April,29th 2005, HCM Appeal Court remained theeffect of the first-instance judgment and dismissed the demands of A.
On July, 1st 2005, A made a petition to ask the SPC to review this case under the supervisory
procedure. The SPC considered that: (1) Decision 229/QD-UB (1983) by Omon P.C was regarded as thefirst-time settlement decision on the field of land management; (2) Decision 373/QD-UB (1995) and
Decision 3120/QD-UB (1999) by Can Tho P.C were the second and final settlement decision under
Article 23 of LOCD 1998 (Revised 2004). Thus, A had no right to lodge an administrative lawsuit
because Section 6 of Article 31 of OSAC (1998) said “The Court shall return a petition in cases where
there has been a decision to settle the complaint by the immediate higher level person”. Both Can Tho
ADC and HCM Appeal Court made mistakes in application of Article 31 of OSAC (1998). Instead of
opening a trial, these courts should have returned the petition to A.
At the supervisory judgment No 02 (February,20th 2006), SPC annulled the both first-instancejudgment and appeal judgment and suspended the settlement of this lawsuit.
It should be said that this case took nearly 25 years to reach a decision, since A’s complaint toOmon P.C in 1982. Based on the existing LOCD 1998 (Revised 2004) and OSAC 1996 (Revised 1998),

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it was true that A could not take a lawsuit due to the final settlement decisions made by Can Tho P.C.
The problem is how can one believe the impartiality of such a final settlement decision. As analyzed in
the last sections, in order to enlarge the court’s jurisdiction, the latest revised LOCD (2005) and OSAC
(2006) abandoned the final settlement decisions and allowed the court (except the compulsory
pre-litigation period) to review any period of administrative complaint. For this lawsuit, A seems to bevery unlucky when the SPC made the supervisory judgment on February, 20th 2006, while both thelatest LOCD (December,2005) and OSAC (April,18th 2006) came in to effect from June,1st 2006. The
question is whether A can continue taking all above “final” settlement decisions made by Can Tho P.C
to the court or will A have to lodge a new lawsuit from the beginning including the compulsory
pre-litigation period.

2. Whether Court Can Apply Retroactive Principle
2.1. Issue of Error of Law
By and large, the Vietnamese law system remains immature, especially in the field of
ALRS. Excluding the LOCD, most other normative documents applied to the settlement ofadministrative disputes have appeared in the form of under-law documents, such as ordinances,
decrees, circulars, or instructions of the SPC to guide “complicated situations” that emerged in thesettlement process. Regarding the settlement of administrative lawsuits, some recent Resolutions
made by the SPC’s Judge Council, such as Resolution 03 NQ/HDTP (2003), and Resolution 04
NQ/HDTP (2006), are regarded as guidelines of laws. Their enactment is likely to supplement any
provision where the OSAC leaves a vacancy, such as the SPC’s guidance regarding contents ofjudgment is known as the supplement provision for Article 49 of OSAC. As a result, theeffectiveness of normative documents is not high. In addition, Vietnam still lacks many fundamental
laws regarding the ALRS. Consequently, it fails to create an effective legal framework that makes
judges as well as administrative agencies puzzled while dealing with people’s claims.
Some fundamental issues encountered that concerned the error of law are briefly analyzed
below:The outstanding problem is the formality of legal provisions. This defect is seen as a main

reason that causes difficulties for accessibility of administrative litigation. The regulation of
mandatory pre-litigation procedure before initiating a court case is a typical example of this. The law
requires people to submit the review decision made by the agency that first rendered the litigatedadministrative decision, however it is in fact difficult to afford due to the “silence” and nonfeasanceof the original agency or authority. OSAC (2006) still requires the plaintiff to submit the firstreconsideration decision made by the original agency or authority when initiating someadministrative lawsuits, such as those relative to the land issue under the competence of Local

86

People’s Committees, the list of voters, the disciplinary job dismissal, and the competition caseunder the jurisdiction of Competition Settlement Council attached to Ministry of Trade229.
The regulation concerning “concrete compulsory measures” applied to a certain
administrative agency that intentionally fails to perform their duty was not strictly defined230in theOSAC. Vietnamese law and completely lacks effective legal provisions to force the concerned
administrative agency or authority to implement courts judgments. In addition, although the OSAC
says that the court will render the final judgment toward the case, the kinds of judgments that can bereached are not provided by law, except by SPC instruction. The instruction that “in the case where
litigated decision is concluded illegal, the court will declare annulment”, is also a formality.
Furthermore, the redefinition of the Government Inspectorate’s function as “verifying, making
conclusion and proposing the resolution of complaints which fall under the settling competence ofChairman of People’s Committee at the same level”231 seems to weaken its role as it no longer
functions as an independent reviewing agency232.
The second major problem is the lack of detailed and concise legal provisions. Many legal

concepts stipulated in the normative documents do not provide correct meanings puzzling local
courts, not unified in the application of law. It also causes difficulties for the SPC to spend muchtime on providing guidance in particular emerging circumstances. For example, the OSAC provided
that people could “make a petition against decision on the compulsory dismantlement of the firmly
structured objects”, but what is meant by the concept of “the firmly-structured objects”233 was notclearly defined. Resolution 04 (2006) gives an abstract explanation that “there is no need to classify
the quality of firmly-structured objects and measure them by an amount of money. The court will
determine whether to file a lawsuit if the firmly-structured objects are objects such as water-wells,
car-parking, walls or fences, warehouses, or houses of worship”. Vietnamese scholars suggest thatsuch an explanation is not quite concrete and appropriate to Vietnamese current conditions
concerning buildings.
Another
circumstances”

234

exampleistheconceptof“administrative

case

with

complicatedwhich is provided in some articles of the OSAC. Resolution 04 explains thisconcept further, and includes lawsuits involving many fields, such as foreigners temporarily outside
Vietnam, and Vietnamese residing or studying overseas. According to this, the court of Appeal shall229

OSAC(2006), Art 2, section 2, 3, 4, 5, 6

230

OSAC, Art 74

231

LOCD, Art 27

232
Except the General Government Inspectorate is empowered to settle complaints which are further lodged after having been firstsettled by the Head of Government attached Agencies. See LOCD (2005), Art 26. The Local Inspectorate Agencies now hold themain function as “consultative” to the Local People’s Committee. See LOCD (2005), Art 27
233“Vat kien truc kien co” in Vietnamese language. See OSAC, Art 11 section 5234“Vu an co nhieu tinh tiet phuc tap” in Vietnamese language. See OSAC, Article 60

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be opened within 60 days, however in case of an administrative lawsuit with complicatedcircumstances, the time limit shall be 90 days (Article 60). Nevertheless, Article 30 of OSAC
provides the time limit for initiating a lawsuit to be within 30 days, in the case of “people residing ina remote area”, this time limit shall not exceed to 45 days. This means that this article does notinclude administrative lawsuit with complicated circumstances. Since the time limit for initiating alawsuit in Vietnam is too short (30 or 45 days), Vietnamese scholars consider that administrative
lawsuit with complicated circumstances, (such as lawsuits involved foreigners being temporarily
outside Vietnam, or Vietnamese residing or studying oversea) should be regarded cases of “people
residing in a remote area”, and the time limit for initiation should be 45 days. The present OSAC
seems to facilitate to the court’s work rather than to the plaintiff’s conditions. It should be comparedwith some foreign laws, such as the amended ACLL 2004 of Japan, which was made moreconvenient for the plaintiff by revising the time limit for revocation litigation from 3 months to 6
months.
Another emerging issue was that the law did not clearly define which cases the

responsibility belongs to the State or to the head of the state agency. This consequently leads todifficulties in defining exactly who is the defendant. If the defendant is a state official, he must fulfill
the duty of participation in court and hold legal responsibility. However, in cases where thedefendant is the State as a result of an error in law or policy, the question arises “how can the court
reach an appropriate judgment?” Parallels can be drawn with the Japanese ACLL in which theadministrative litigation is clearly divided into four types: Kokoku appeal litigation; party litigation;
public litigation and agency litigation235 which clearly distinguish state responsibility from that ofadministrative officials. Vietnamese law still leaves a significant gap which allows the imposition ofstate liability for infringing people’s legal rights and interests.
Contradiction also can be identified for the error of laws concerning the ALRS. The

OSAC stipulated that people have to make an appeal to state agencies or officials who first rendered
the litigated decision or action before initiating administrative cases but in fact, it contradicts manyother legal norms. Although the LOCD (1998, 2004, 2005) recovered such contradictions, it still laid
down a number of existing specific legal norms, such as: laws on taxes; land laws; laws on military
duty; ordinances on resolving administrative violation, ordinances on using and protecting thehydrometeorology works and so on. In legal norms such as these, there exist provisions requiring
infringed people to make a grievance to the higher agencies or authority rather than the original
ones.
Finally yet importantly, non-regulation is one of the biggest errors of laws that makes thecompetent agencies or courts able to find no way to deal with appeal matters. Since OSAC does not

235

See ACLL of Japan 1962 (the latest revised in 2004), Art 3, 4, 5, 6.

88

allow people to take any illegal administrative matter to courts, it cannot avoid a considerable
number of petitions being returned.
Regarding the claims that have appeared much in recent times, such as “claims for theundue compensation of land to be taken for public purposes”, in principle, the court may review thelegality of decision on land compensation, but most cases, were brought to court for reviewing theirirrationality. Most of these were also returned due to being beyond the competence of the court. The
only way people can deal with such claims

is to make an appeal to administrative agencies

according to the LOCD.
Another example that should be mentioned is the lack of effective regulations concerning
the foreigners and foreign entities, which makes it difficult for them to make appeals or initiate
administrative cases to protect their legitimate rights and interests236. Article 73 of OSAC only
provides: “The provisions of this Ordinance shall also apply to the settlement of administrative cases
involving the parties that are foreign individuals, agencies or organizations, unless otherwise
provided for by treaties to which the Socialist Republic of Vietnam is a contracting party”. In fact,some lawsuits on competition, intellectual property, foreign trademarks, personal income tax and so
on apparently involve many foreigners and foreign entities and have increased dramatically of late.
However, both the courts and foreign litigants may be puzzled and confused due to the lack of laws,
the slowness of guidance by the ministries, the contradiction among legal norms, particularly thefrequent changes of state policy regarding foreign partners over past ten years as well as theimplementation of international treaties when Vietnam officially became a WTO member (2006).
The next section will introduce a typical administrative lawsuit regarding personal income
tax arrears initiated by a Japanese plaintiff to explain for the issue of error of law in Vietnam.
2.2. A Case of Personal Income Tax Decision to Mr.K.S (Japanese) in Hanoi (1998)
The plaintiff was Mr Kazuya Sasaki (hereinafter referred to as K.S), the Director of Thuy
Khe Flower Village Ltd.Co who delegated Ms Huong Thuy as the legal representative to initiate thecase to Hanoi ADC. The defendant was the Taxation Office of Hanoi and was represented by the
Head of the Foreign Investment Tax Department237.
K.S litigated the Tax Office of Hanoi because this agency failed to correctly apply theexisting law to impose personal income tax on him during the period from 1994 to 1996. His income
from the said period rose from 990 USD to 2.739 USD per month. Accordingly, the total sum ofmoney he was imposed by the Tax Office of Hanoi was 1,030,942,380 VND238, equivalent to 68,730
236

Tran An Binh, Vi pham Hanh chinh va Giai quyet vu kien Hanh chinh co Yeu to Nuoc ngoai, [Administrative Violation andSettlement of Administrative Lawsuits involving Foreign Factors], in Thanh tra Nha nuoc (1997), p.177

237

See Judgment No 112/HCPT dated on November, 7th 1998 by Appeal Court of SPC located in Hanoi

238
Exchange rate between USD and VND (Vietnamese dongs): 1USD is about 16.000 VND. The original money is VND quoted
from Judgment No 112/ HCPT. The change to USD is under the calculation of the writer

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CALE Discussion Paper No.4

USD for tax arrears. In his opinion, due to the change of Vietnamese Law on Personal Income Tax
over the three years of 1994, 1995 and 1996, the imposition on income tax made by Hanoi Tax
Office had to base on the legal norms corresponding to the changes at each stage, outlined below:
The period from January,1st 1994 to March,31st 1994, the calculation of his income tax was
principally based on the Ordinance on Personal High Income Tax239(hereinafter referred to OPHIT)
which came into effect on April,1st 1994. Thus, he had to pay taxes only for general income thatoriginated in Vietnam, a total of 18.506.600 VND, equivalent to 1.234 USD.
In the period from April, 1st 1994 to March, 31st 1995, he had to pay taxes only for generalincome originated in Vietnam, not outside Vietnam as provided under OPHIT, because until March
30th 1995, the Ministry of Finance enacted Circular No 27 TC/TCT240 in which it stipulates thatgeneral income consists of income that originates from both inside and outside Vietnam. Based on
the Law on Enacting Legal Norms (Nov, 1996), the Tax Office cannot apply “the retroactive”241
toward cases that had happened before the law came in to effect. Accordingly, he had to pay taxes
for only general income that originated in Vietnam, a total of 33,577,428 VND, equivalent to 2,238
USD.
The period from April,1st 1995 to December,31st 1995, due to the absence of a Trade
Agreement on Tax Imposition between Vietnam-Japan, K.S agreed with the tax imposition toward
his income that originated in Japan, accordingly he had to pay taxes totaling 261,081,783 VND,
equivalent to 17,405 USD.
During the period from January,1st 1996 to December,31st 1996, the Trade Agreement on
Tax Imposition between Vietnam-Japan came into effect (January,1st 1996), therefore, he did nothave to pay taxes for income originating in Japan, but only in Vietnam in total of 61,440,000 VND,
equivalent to 4,096 USD.
According to the above calculations, in fact, he only had to pay taxes for three years
totaling of 394,524,773VND (equivalent to 26,301 USD) and not the 1,030,942,380 VND(equivalent to 68,730 USD) as calculated by the Hanoi Tax Office.
After receiving the settlement decision made by the Hanoi Tax Office that withheld thealleged decision, he initiated a case to the Hanoi ADC on January 24th 1998.
The Hanoi ADC, at the first instance trial, applied section 6 of Article 11, Article 12, 13,
and 49 of the OSAC and reached a judgment as follows: “Annulment of the decision on tax collect239

Phap lenh ve thue thu nhap cao, [Ordinance on personal high income tax, as referred to OPHIT] came in to effect on April, 1st
1994

240

Thong tu so 27/ TC/TCT Bo tai chinh, [Circular No 27/TC/TCT by Ministry of Finance] enacted on March, 30th 1995

241

The retroactive (Hieu luc hoi to) means the effect to matters that have occurred in the past. The retroactive will be not applied in
the cases of a past action is defined as illegal in the present time, but at the time it occurred, there had no law to define it as an illegal
action, therefore a person who performed such an action are out of the legal responsibility. See Law on Enacting Legal Norms, Art
7690

arrears made by Hanoi Tax Office toward K.S and requiring this office to render a new decision on
tax arrears in which it still forced K.S to pay tax arrears for income originated outside of Vietnam in
the period from June 1st 1994 to March 31st1995”.
On August 3rd 1998, K.S delegated to Ms Huong Thuy to make an appeal to the SPC’s
ADC for the content of “Hanoi ADC still allowed Tax Office of Hanoi applied the retroactive ofCircular No 27/TC-TCT to impose on tax arrears to him in the said period”.
The ADC of SPC applied Article 1 of OPHIT in 1994 showing that “foreigners who workin Vietnam and have the income originating from work are obliged to pay the income tax”. This
ordinance did not clearly define where the income was originated. Therefore, in this case theforeigners have to pay income tax for the total amount of income originating from both inside andoutside of Vietnam. The court also applied Article 6 of Decree 05/CP 242 on the guiding
implementation of the OPHIT in 1994 and section 1 of Circular 27 TC/TCT defining that:“foreigners who reside in Vietnam over 183 days are imposed on income tax originated both insideand outside Vietnam that is calculated by dividing into 12 months”243. In the court’s opinion, boththe Decree 05/CP and the Circular 27 TC/TCT are the guiding implementation documents of OPHIT
of 1994 that cannot contrast or reach out of the scope of this ordinance. The legal effect of bothalleged documents bases on the legal effect of OPHIT dated from June 1st 1994. Therefore, there wasno violation of the retroactive prescribed in Article 76 of Law on Enacting Legal Norms as well as
no matter of whether or not applying the legal responsibility toward a past action but at that time it
was not defined as illegal. The court agreed that the error laid down here was only due to theslowness in the guiding implementation made by administrative agencies (the Government, or the
Ministry of Finance), but it was unable to change the legal effect of OPHIT made by the delegate
legislative organ (National Assembly’s Standing Committee).
As a result, the ADC of SPC at the appeal trial did not accept the requirement of K.S for
not imposing tax of the total income originating outside of Vietnam in the period from June, 1st 1994
to March, 30th 1995 and withheld judgment made by Hanoi ADC.
Looking at the administrative case presented above, some comments can be drawn as
follows:
Firstly, although K.S lost the case at the Appeal Court of the SPC because of the given

reasons concerning the application of the retroactive provided in the Law on Enacting Legal Norms
as mentioned above, the mistakes can be seen easily due to the slowness of enacting the guiding
implementation documents by Vietnamese competent agencies. Since the amendment of OPHIT
came into effect on June 1st 1994. The Decree 05 until January 1st 1995, and Circular No 27 until

242

See Nghi dinh 05 /CP Huong dan chi tiet Phap lenh thue thu nhap cao, [The Decree 05/CP on Guiding Implementation of
OPHIT] enacted on January, 20th 1995
243

Ibid, Art 6

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CALE Discussion Paper No.4

May30th 1995 however, had only just been enacted. In addition, the regulation laid down in Article 1of the OPHIT was also not clear. The explanation sounds reasonable, however only based on
deductibility. Such a regulation in fact caused difficulties for the competent tax office to correctly
impose income tax on a certain subject.
Secondly, the judgments of the first-instance trial made by Hanoi ADC that “annulled theadministrative decision made by the Hanoi Tax Office”, and “required the alleged agency to renderanother decision”, in fact, was not a clear settlement and was still seen as a “formality”. What otherdecision should be rendered again by Hanoi Tax Office was not clear and what “compulsory
measure” to force the Hanoi Tax Office to perform duties was also not given.
Finally, the settlement of administrative cases concerning foreign factors is still new andquite often not suited to the current Vietnamese condition. Some legal provisions involving
foreigners as well as foreign entities were not clear and not defined in detail. Most cases are often
conducted under delegation and some regulations concerned, such as the court fees, the participationof foreigners, the delegation to lawyers in participation at court who are not compulsory for
Vietnamese nationals but may be for foreign lawyers244. Issues such as this are are not clearlyprovided by law.

3. Whether Court Can Encroach upon Administration
3.1. Issue of Judgment’s Defect and Discretionary Judgment
As analyzed in Part I of this Chapter, the greatest defect regarding administrative
judgments is the vacancy of legal provisions. Vietnamese scholars wonder why the OSAC, eventhough having been revised twice (1998, 2006), still leaves a vacancy regarding the real contents ofadministrative judgment and strict measures for its execution. It is suspected that the judicial
independence cannot fully guaranteed if the ADCs themselves still feel inferior to local
administration and hesitate to render concrete and strict judgment to its illegal activities. To recover
this gap, the SPC is granted to supplement provisions laid down in Resolution 03 (2003) or
Resolution 04 (2006). However, it was strongly criticized for two main reasons: (1) the content ofadministrative judgment is always the most expected result of resolving administrative lawsuits, but
it is not found in official laws, except within guidance made by SPC; (2) the SPC is not a legislative
body and its guidance can not regarded as a state law.
In addition, SPC guidance regarding court judgments is still a formality andcontroversial as identified below:
Firstly, when an administrative decision was concluded to be illegal, as guided by

Resolution 04, it would be declared an annulment, being considered a declaratory judgment. This

244

Tran An Binh , supra note 236, at 189

92

means that the courts could only conclude that the administrative decision was illegal, but would not
directly quash it. Thus, such an illegal decision would immediately become null and void or still
effective until the administrative agency annuls it or renders a new decision for replacement. Somescholars refer to Germany’s experience that the courts, apart from directly quashing illegal
administrative decisions, can revise some contents of litigated decisions, deciding the amount ofmoney for subsidy or forcing the concerned agency to perform some other legal duties245.
Secondly, the local court itself seems to lessen its judicial power towards powerfuladministrative agencies at the same level. The terms laid down in the judgment, such as “proposing”“suggesting” or “handing over administrative agency to reconsider or to act some others” and so on
were blamed for the defective judgments.
Thirdly, the court, on the other hand, is sometimes criticized for trespassing on

administrative powers, such as the court itself revising an entire illegal administrative decision orpart thereof, imposing a tax level for the concerned parties, imposing a disciplinary liability toadministrative officers, deciding the amount of money for fining the administrative violation and soforth. Nguyen Thanh Binh criticized the courts as sometime exceeding their jurisdiction and causing
further damages for the plaintiff, such as proposing the administrative agency to fine the plaintiff
money, cutting one part of the disputed land of the plaintiff for a third person concerned, imposing
the plaintiff to compensate damages or expenses for compulsory execution246
Looking at foreign experiences, Vietnamese scholars suggest some lessons should be
drawn:Firstly, there should be some mention of the substitutive power of the court. According to

the General Report of the VIII Congress of the International Association of Supreme Administrative
Jurisdiction (held in Madrid, 2004), many States have consolidated well-known typologies,categorizing judgment as declaratory, constitutive or requiring performance. Such judgments will
either conclude with the annulment or conformation of an administrative act, a declaration ofexistence or non-existence of legal relationship or an instruction to take an action. Approximately
50% of the states that submitted reports have recognized the substitutive power of theiradministrative courts. Some forms of substitution can be seen including: (1) The court may
substitute administrative acts which impose sanctions (China, Spain); (2) The court may establish alegal relationship and thereafter impose specific administrative actions. The final decision has been
adopted by the court and the court takes care of its implementation. This power is the main feature ofFrance, Greece, Turkey, Netherlands and also available in States where the administrative courts
have the power to “restore the legal situation of the plaintiff” like Colombia, Germany, Italy and245

Nguyen Van Thanh & Dinh Van Minh (2004), p.167

246

Nguyen Thanh Binh (2004), pp.180-181

93CALE Discussion Paper No.4

Spain; (3) The court will itself “instruct the authority to resume the case” or can substitute the illegal
administrative inaction by solving the case in merito without the need to return the issue to theadministrative authority such as Austrian and German systems247; and (4) The court can substituteadministrative decisions under special circumstances, only if provided by statutes, such as in Italy
and Luxembourg.
Secondly, regarding the power of administrative courts to enforce their decisions, in order

to avoid administrative inaction, the following measures can be given by courts:(1) Preventive measures. One of the simplest mechanisms for prevention of inaction is the
publication of judgments including the obligation on the administration deriving from such decisions.
Countries

such as France, Spain, Turkey adopt this measure. Some instruments are known as“urgency procedure” or “interim measure” as used in France, Germany, Congo, and Greece. Besides
urgency measures, the court may prevent or limit the risk of non compliance by stating in the written
judgment in specific and clear terms the duties set upon the authorities;(2) Means to reestablish legality. Courts are able to enforce by their own authority or
enforce indirectly either with the aid of other authorities or further mechanisms. The means ofenforcement conferred upon the authorities depend on the type of decision taken by theadministrative court whether it be the annulment of an administrative act or the imposition of an
administrative duty. For an annulment judgment, if the administration disregards the judicial
decision, it will be considered a trespass. In France, the court’s decision can include specific duties
that the administration must follow at the time of execution. For imposition of an administrative duty
to act, the courts can substitute administrative action through their own means in order to have their
judgment enforced (Spain, Germany).
Thirdly, regarding other measures for the effective execution, the administrative court canalso impose on the administration a pecuniary fine (Colombia, Portugal, Germany, Spain, Greece),
impose disciplinary measures on civil servants; or the court can grant some additional months to theadministration in order to fulfill its obligation. If the authority keeps silent and refuses to enforce thedecision, the court will make a decision and take action itself, substituting the authority.
Turning back the administrative judgments in Vietnam, in trial practice, many

discretionary and illegal judgments by local courts were rendered due to the lack of effective legal
provisions as well the formality laid down in the SPC’s instruction. The main mistake was found tobe that the court often encroached upon the administration and significantly interfered with thegoverning works.
Some evidence can be shown as follows:

At the appeal judgment No 04/HCPT (December, 2004), P Provincial ADC decided: (1)247
See “The Execution of Decisions of the Administrative Court”, General Report of VIII Congress of International Association ofSupreme Administrative Jurisdiction, 9 (2004)94

Declare annulment of Decision 174/QD-UB (2003) by X District People’s Committee concerning
the settlement of land dispute; (2) Assign the disputed land between the parties to the X District
People’s Committee and P Provincial People’s Committee for the management. Thus, the decision(2) was out of the court’s competence because it belonged to the work of the administration248.
At the appeal judgment No 06/HCPT (December, 2004), Y Provincial ADC decided to: (1)Declare annulment of Decision 1863/QD-UB (2003) by H District People’s Committee regarding theland dispute; (2) Grant to A the rights of using the disputed land; (3) Require A to complete somelegal procedures for getting the Land-Use Rights Certificate; (4) Require the H District People’s
Committee to impose the disciplinary measures to the violating civil servant; (5) Require the HDistrict People’s Committee to grant the Certificate on Land-Use Rights to A. Thus, except for
decision (1), all decisions were out of the court’s competence in which the court significantly
encroached upon the local administration249.
The next section will analyze some outstanding lawsuits that involved mistakes of court
judgments. In these cases, the local ADCs often reach discretionary judgments, encroached upon
Administration and caused damages for the litigated parties.
3.2. Annulment of Discretionary Judgment on Land in Thai Binh Province (1999)
Although Tay Luong Commune People’s Committee (as referred to Tay Luong PC) had nolegal competence of land assignment under the Law on Land (1988), it granted to A 300 m2 portionof swamp with a land-delivery receipt on December 2nd 1989250.
On March 10th 1990, Tien Hai District People’s Committee (immediate upper-level of Tay
Luong PC, as referred to Tien Hai PC) granted to A the other 150 m2 of land by Decision 12/QD-UB.
However, this land was already granted to others for housing by Tay Luong PC. Since 1990, basedon the state policy on land management, the Land Survey Department of Thai Binh Province
conducted a land survey in Tay Luong commune, set up a land map No 1079 including 300 m2 of theswamp that A had used since 1989.
On January 17th 1996, Tien Hai PC issued Decision 28/QD-UB that granted 99 m2 of land
to B for housing. However, Tay Luong PC did not implement to allocate this land to B under thecorrect plot of land as decided by Tien Hai PC. Instead, Tay Luong PC set up a landmark of 150 m2
for B that was located in the area of land already used by A. B had already built his own house. It
should be noted that, at that time, A also encroached on land not his, enlarging his land to 600 m2.
248

See Bao cao tong ket cong tac xet xu nganh Toa an 2005, [Report on Adjudicating Works of Courts in 2005], 104 (2005)

249

Ibid, 106250
This case is quoted and summarized from Annual Report on Adjudicating Works of the People’s Court in 1999 and Direction to2000, 45 (2000). See also Ly Cong, Phan Quyet cua Toa Hanh chinh ve Hanh vi Trai Phap luat trong Quan ly Dat dai o Uy ban nhandan xa Tay Luong, Tien Hai, Thai Binh, [The Judgment on Illegal Action concerning the Land Management in Tay Luong district
People’s Committee in Tien Hai, Thai Binh Province], in So tay Tham Phan, (The Judge’s Memorandum), Democratic and Law
Journal, pp.12-14 (2001)

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Due to a disagreement with Tay Luong PC, A took a lawsuit to Tien Hai District People’s Court (asreferred to Tien Hai Court).
At the first-instance judgment on August 14th 1998, Tien Hai Court decided to: (1) Accept
the reason for taking a lawsuit by A; (2) Keep the effect of the land-delivery note that granted to A
300 m2 of the swamp in 1989; (3) Propose Tien Hai PC to resolve the illegal land assignment of Tay
Luong PC to B. Tay Luong PC made an appeal to Thai Binh Province ADC.
At the appeal judgment, on October 16th 1998, Thai Binh ADC annulled the first instancejudgment. It judged as follows: (1) Dismiss the demand of A; (2) Quash the land-delivery receipt(1989) that Tay Luong PC granted to A 300 m2 of the swamp; (3) Propose Tien Hai PC to legalize the
150 m2 of land assigning to A according to Decision 12/QD-UB dated March,10th 1990; (4) Propose
Tien Hai PC to impose fines to A due to his encroachment onto land not his (he was only allowed touse 150 m2 under Decision 12/QD-UB); (5) Propose Tien Hai PC have the 450 m2 of land illegallyused by A returned and to legalize 99 m2 assigning it to B under Decision 28/QD-UB; (6) Propose
Tien Hai PC to impose the disciplinary measure on Tay Luong PC’s public servant who granted the
300 m2 of land to A against the Law on Land of 1988.
The above appeal judgment seemed to be disadvantageous for A as well as deeplyinterfering with the “internal work” of the administration, which included the imposing on fines anddisciplinary measures and so on. This judgment was protested by the Vice-Justice of SPC.
At the Supervisory Judgment No 04/GDT-HC (1999), ADC of SPC had someconsiderations such as:Firstly, it was true that since 1989, A was granted illegally 300 m2 of land and it exceeded

the total of 150 m2 of land as decided by Decision 12/QD-UB (1990). However, this fault did notbelong to A, but to Tay Luong PC that violated Article 13 of the Law on Land (1988) and Article 23
of Law on Land (1993) regarding the competence on land assignment. In addition, A had been instable use since 1989 and was also recognized in the land map No 1079 made by the Land Survey
Department of Thai Binh Province.
Secondly, A had an illegal action of land encroachment (exceeded 300 m2 of land asassigned in 1989), and it should be resolved by Tien Hai PC by Law on Land 1993. Tay Luong PC
itself illegally set up the land mark of 150 m2 to B for housing.
Thirdly, the appeal judgment that “dismissed the demand of A for taking a lawsuit while

confirming the illegal action of land assignment of Tay Luong PC” was illegal. In addition, since theland-delivery receipt (1989) was not an administrative decision, not a litigated object, it could nottherefore be annulled. The proposals of imposing a fine, imposing disciplinary measures orwithdrawing the land of the plaintiff were out of the court’s jurisdiction and infringed upon the legal
rights of others concerned.
The SPC quashed the appeal judgment of Thai Binh ADC and decided the following main96content: (1) Require Tay Luong PC to stop setting up a landmark of 150 m2 within A’s land for B andto set up the correct landmark of 99 m2 for B under Decision 28/QD-UB (1996); (2) Require Tien
Hai PC to recover the mistake of Tay Luong PC in 1989 in the land assignment to A, perform its
function on assigning land and resolving violations regarding the land management in accordancewith Law on Land 1993.
In short, Supervisory Judgment by the SPC pointed out the main mistakes of the appeal

judgment and agreed with some points of the judgment of the first-instance court. However, in order
to avoid direct interference in the administrative work, the SPC also included an abstract conclusion
related to the responsibility of Tien Hai PC under the existing Law on Land 1993. In this case, it is
implied that Tien Hai PC will decide to recover 300 m2 of encroached land by A, require B to return
150 m2 of housing land to A and grant to him 99 m2 of land for housing. However, it is not always
easy to implement because B had already built his own house on the 150 m2 area of land he had
occupied. Furthermore, A also had built on the 300 m2 area of land he had encroached upon. The
problem was making the court’s judgment feasible in practice. Right after being declared annulled,there was confusion as to whether the illegal decision become void or was still effective until theadministrative agency annulled or replace it with a new one. On November, 14th 2008, the XINational Assembly approved the Civil Judgment Execution Law which included the provisions that
an illegal administrative decision will be void after being declared annulled. This is a progressive
decision in the current legislative process. Nevertheless, the real defect of administrative judgment
as well as the low effect of its execution still constitutes the main negatives of contemporary ALRSin Vietnam that should be further discussed as a separate topic.
3.3. Annulment of Illegal Judgments Regarding Tax Sanction in Hai Phong (2000)
On July 8th 1997, the Tax Department of Vinh Bao District (in Hai Phong City, referred toas V Tax Department) issued an administrative decision on tax sanction No 45/QD-XL (referred toas Decision 45) to A. The administrative decision was to: (1) Collect the import tax arrears in total of61,268,600 VND equivalent to 4,080 USD; and (2) Impose the double fines for undeclared tax intotal of 122,573,200 VND equivalent to 8,172 USD251.
A made a complaint to V Tax Department. Since V Tax Department upheld its decision, A
took a lawsuit to Vinh Bao District People’s Court. The first-instance judgment on October 14th 1997
concluded the legality of Decision 45. The appeal judgment by Hai Phong ADC also declared thesame.
Although two above judgments came in to effect, Vice-Director of Supreme People’s
Procuracy considered that V Tax Department violated the competence on imposing fines as

251This case is quoted and summarized from the Report of SPC on Adjudicative Works of Courts in 2000 and Direction in 2001, 65(2001)

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prescribed by the Ordinance on Resolving Administrative Violation (ORAV, 1995). According to
Article 36 and 14 of ORAV (1995), V Tax Department was only allowed to impose fines notexceeding 10,000,000 VND, equivalent to 660 USD. He protested these judgments and required a
review under the supervisory procedure.
At the Supervisory Judgment No 03/HC-GDT(August,5th 1998), the SPC agreed with
Vice-Director’s opinion and quashed the Decision 45. It also required Hai Phong Tax Office toimpose the fines in accordance with Ordinance on Resolving Administrative Violation (1995).
After the Supervisory Judgment was rendered, the Hai Phong Tax Office on September 1st
1998 issued Decision 71/QD-CT with the same content as Decision 45 by V Tax Department. At thesame time, it issued the Decision 72/QD-CT that delegated to V Tax Department to apply atemporary seizure of violated goods. A took Decision 71 and 72 of Hai Phong Tax Office to Hai
Phong ADC.
At the first-instance judgment No 01/HCST (December 30th 1998), the Hai Phong ADC
decided to:(1) Accept the requirement of A; (2) Quash a part of Decision 71 which imposed the
double fines for undeclared tax in total of 122,573,200 VND equivalent to 8,172 USD. It pointed outthat under Article 36 and 14 of ORAV (1995), the Hai Phong Tax Office was also allowed to impose
fines not exceeding 100,000,000 VND equivalent to 6,667 USD; (3) Require the Hai Phong Tax
Office to impose fines for another violation - lack of sales receipt; (4) Calculate itself the import tax
arrears in total of 8,280,000 VND equivalent to 550 USD, the total fines for undeclared tax in totalof 16,560,000 VND equivalent to 1.100 USD.
Hai Phong Tax Office made an appeal against this judgment. The Appeal Judgment No 48
made by the SPC (April 29th 1999) declared the legality of the first-instance judgment. However, at
the Supervisory Judgment No 2/UBTP-HC (March 28th 2000), the Judge Council of the SPC
quashed the first-instance judgment No 01/HCST by Hai Phong ADC and also quashed the appeal
judgment No 48/HCPT by the Appeal Division of the SPC. It required Hai Phong ADC to re-open
trial at the first-instance procedure and also to issue immediately the temporary urgent measure on
the violated goods. The reason was that the Hai Phong ADC itself counted the total of fines and of
the import tax arrears. Thus, in this case, SPC concluded that the Hai phong ADC violated thecourt’s jurisdiction in dealing with a certain administrative case. The court only declared the legality
or illegality of a litigated decision. It could not encroach upon the administration by counting thefines or tax arrears itself.

4.Whether Scope of Accepting Cases Can Be Extended At Maximum
4.1. Issue of Scope of Judicial Review
Scope of Judicial Review under Vietnamese administrative law is narrow and fails to fulfill

98the expectation of people. Some main arguments can be summarized as below:
Firstly, regarding the enumerated administrative matters, Vietnamese scholars argue that

there should allow people to take any administrative matter infringing upon their legal rights andinterests to the courts. Although the revised OSAC has incrementally expanded the enumerated cases,
it seems that it has not kept pace with the rapid changes in society that cause new disputes to arise.
The standby provision in article 11 of OSAC allows the court to review other matters if they areprescribed by laws or treaties. In fact, “new matters” are often regulated in the Decrees ofGovernment in various fields of administrative management. In this case, Vietnamese scholars
wonder if it not only creates confusion regarding the legal effect of legal norms (such as theGovernment’s Decrees can not be higher than N.A Standing Committee’s Ordinances), but also
threatens judicial independence when the Government itself can decide a new lawsuit. They suggestthat the OSAC should only provide the exception of judicial review, such as matters relative tonational defense, securities, diplomatic relations rather than the enumerated cases laid down in
Article 11. It can avoid either the frequent revision of the OSAC or the encroachment of judicial
power by Government regulation.
Even in some enumerated matters prescribed in Article 11, they are not always allowed tobe heard by courts. Some specific laws or SPC guidance also limits its accesses to courts, forinstance:(1) Resolution 04, section 7.2 (2006) instructs that the court only deals with lawsuits
relative to requisition, acquisition, or confiscation made after the enactment of Decree 297/CT(October, 2nd 1991) by the Chairman of Minister Council (former name of Government); (2)Resolution 04, section 7.3 takes note in all cases, the reconsideration decisions on settlements of land
disputes are not objects of judicial review; (3) the Law on Land, Art 136 regulates that the court only
registers land lawsuits when the plaintiff submits the Land-Used Rights Certificate; (4) Resolution
23/2003/QH (January, 26th 2003) by National Assembly provides that the State does not reconsider
the policies regarding land control in the socialist transitional period enacted before July, 1st 1991.
Thus, a land dispute is regarded as a very complicated issue and counts for a great numberof lawsuits. However, regulations and guidance such as those above cause people to lose theopportunity to take a lawsuit to the courts. Article 11, section 17 of OSAC (2006) provides 11 moredetailed specific land lawsuits, such as land assignment, land lease, land recovery, land requisition,compensation, grant of withdrawal of Land Use-Right Certificates and so forth. However, all land
lawsuits relative to land recovery, requisition and so on arising before July 1st 1991 cannot be taken
to courts. Furthermore, Article 2 of OSAC also requires the plaintiff of a land lawsuit (sec.2) or oflawsuits regarding competition (sec.6), job dismissal (sec.4), lists of voters (sec.3) to submit thereconsideration decision by the original agency that really creates obstacles for direct access to court
litigation.

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Secondly, regarding the inquiry of legal norms, some Vietnamese scholars argue that there

is a need to empower courts to review the constitutionality and legality of any law or regulation. If
the constitutional court is not established to give final judgments to laws made by the National
Assembly as some Constitutional Courts in the world do, it should allow the SPC to review thelegality of certain administrative norms. In fact, no small number of local regulations are illegal andpossibly infringe upon people’s rights and interests252, but they cannot be judicially reviewed.
Although the Law on Enacting Legal Norms has already provided the mechanism to resolve illegal
and contradictious legal norms, if the court can review them, it will make competent agencies more
contentious before their enactment and reduce the damages for people.
Thirdly, regarding the damage compensation issue, the current OSAC, article 3 only

allows people to require the damage compensation attached to litigated decisions or actions. In thiscase, they have to prove evidence of damages. By contrast, the court will separate the requirement
for compensation in a civil lawsuit. Thus, under this article, people cannot take a damage lawsuit
separately to ADCs. It is not the same as either the French or the German administrative court indealing with such compensation issues. Vietnam still lacks legal theory regarding the statecompensation. Since Article 11 of OSAC also allows people to take a land compensation lawsuit to
the ADCs, it seems to be against the article 3. It is still unclear whether a state compensation lawsuit
can be taken to an administrative or civil division court.
Finally, regarding public interest litigation, Vietnamese law totally refuses to empower

courts to deal with such issues. Currently, it only allows people directly influenced by illegal
decision or actions to take a lawsuit. Thus, the question of whether public interest litigations should
be taken to court has been recently raised.
In short, the scope of judicial review is one of the most controversial issues. In trial

practice, a great number of lawsuits, particularly land lawsuits have been taken to courts, but
immediately returned at the front door due to them being beyond the court’s competence. The
number of recorded lawsuits is limited. Some of them were also be resolved by the first-instancecourt, but finally dismissed by the courts of higher level.
The following section will provide evidence on the narrow scope of judicial review byintroducing a land recovery case in Hanoi (1998) that still involves many arguments up to date.
4.2. Dismissal of Petition Regarding Land Recovery in Hanoi (2004)
H and his family reside in 180-47 Phuong Lien, Dongda (Hanoi) and possess a pond with

252
Such as, those prohibiting students from Music School to perform in Pub or Discotheque, banning each person to possess nomore than one motorbike、prohibiting people whose height under 145cm, weight under 40kg, are not allow to drive motorbikes,
banning the three-wheel motorbike as a mean of transportation and so on. According to statistic by Department of Checking Legal
Norms of MOJ, about 6.300 Legal Documents in 2008 were illegal. See Gan 6.900 Van ban trai Phap luat da duoc ban hanh, [About
6.900 Illegal Norms or Regulations were enacted], http://vnexpress.net/GL/Phap-luat/2008/11/3BA08CB1/100

an area of of 1,600 m2 located in land area No 5-57, arranged by the Land Management Agency
under the French colony in 1945253. After 1954, the Hanoi Administrative Committee (former nameof People’s Committee) granted H and his family a Certificate on possessing that pond on (February
5th 1956). From 1956 until 1998, H legally used this pond. Due alleged environmental pollution, H
could not use his pond for fishing or growing vegetables. H consequentially filled in this pond andbuilt a factory for producing hand-made goods. On February 28th 1998, Hanoi People’s Committee(Hanoi PC) issued Decision No 849/QD-UB on land recovery, accordingly his pond of 1,600 m2 wasto be return to the state and granted to the Dongda District People’s Committee for management. H
made his first complaint to Hanoi PC as prescribed by law and received the decision on dismissal ofhis demand. He took the lawsuit to Hanoi ADC.
At the first-instance judgment, Hanoi ADC dismissed H’s demand and upheld theDecision No 849/QD-UB. The judges considered that this pond was now out of his possess because
under the land policy in the previous socialist transitional period, this pond was allocated to Trung tu
Agriculture Cooperative for management.
H made appeal to the Appeal Court of SPC located in Hanoi. At the appeal judgment onJune 12th 1999, the SPC continued upholding the first-instance judgment and dismissed H’s demands.
The reasons were given as follows: (1) In line with the conclusion by Hanoi ADC, in the previous
land policy in 1960s-1970s for socialist transformation, like any Vietnamese citizen, H alreadygranted his own pond to the Cooperatives for common use; (2) H changed the purpose of using thepond (from agricultural purpose to manufacturing) without the approval of the competent agency.
The SPC considered that the land issues relative to former State land policy before July 1st 1991 (theregulations regulative to land control and Socialist transformation policy were made) could not be
solved.
Around this case, many arguments were made, such as: (1) the delimitation of who is theowner of pond - H’s Family or the Trung tu Agriculture Cooperative. Both courts had only based
their decisions on the special circumstances of the country (the socialist transformation policy), but
did not clearly confirm he had already granted his own pond to Trung tu Agriculture Cooperative; (2)Letter Circular No 1657 (1996) by Hanoi Department of Land Control confirmed his estate including
the pond under his name for registration, no transfer transaction was done; (3) Investigation Reportby Hanoi Police (1997) concluded that H did not encroach on public land; (4) Phuong Lien Ward
People’s Committee and Trung tu Agriculture Cooperative also found no evidences proving that H
had already granted his pond to this Cooperative in 1968. The protestors considered that Decision
No 849 QD-UB on land recovery was still wrong because under article 27, 28 of Law on Land
(1993), when land recovery is made in case of the wrong purpose, it needs to have a land-use

253
This case is quoted from Anh Tuan, Mot so y kien xung quanh Vu an Hanh chinh da qua 2 cap xet xu, [Some Views about An
Administrative Lawsuit Experiencing Two Trial Proceedings], in Democracy and Law Journal, pp.18-19 (2004)

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CALE Discussion Paper No.4

planning project approved by the competent agency. The land policy and laws have involved manychanges during over the past ten years. The revised Land Law was made in December 26th 2003.
Resolution 23 NQ/QH by the National Assembly on the same day confirms State does not resolve
any land recovery claim related to land control and socialist transformation policy before July 1st
1991.
The Judge’s Council of the SPC in 2004 at the Supervisory Judgment continued dismissing
H’s claims due to the above reasons. Thus, in nature, all land disputes relative to land recovery andother transactions under the former policy are not resolved by courts. Recently, Resolution 75
NQ-QH by the National Assembly on April 18th 2005 provides a more detailed explanation of theregulations of Resolution 23 (2003) about this land dispute. From now on, all claims for land
recovery, requisition and so on relative to the former land control policy before 1991 are not insettlement competence by both the People’s Committee and the Court. Regarding the above cases,
some commentators still disagree with the opinion of the Representative of the Hanoi PC that in thecase of using the land for wrong purposes, it must be returned, after which the plan or project for
newly using this land can be made. Thus, it is against with the current Land on Law (2003) and must
be replaced soon.

5. Whether Sanction Decision Violated Time Limit Can Be Wholly Quashed5.1. Issue of Time EffectTime effect is one of the important requirements toward the issuance of administrativedecision by the competent agency or authority. Depending on some particular fields of administrative
management, Vietnamese administrative law regulates differently the time effect of issuing suchdecisions. For example, in the field of administrative sanction, Article 56 of Ordinance on Resolving
Administrative Violation (ORAV, 2002) provides that since the date of discovering a violation andmaking report, the competent agency or authority must render the sanction decision within 10 days, incomplicated cases, it shall be increased to 30 days. However, in fact, the competent agency orauthority sometimes violates this time limit. If this happens, then the concerned decision is brought tothe court, to decide whether the court can quash it.
In principle, when a certain decision is rendered that violates the time effect, it becomesvoid and needs to be quashed. However, it cannot apply in all cases. Such as, the alleged Article 56,
section 1 reads: “in the case of exceeding the time limit, the competent agency or authority cannot
render the sanction decision, but can apply some other compulsory measures for recovering thedamages”. Thus, when a lawsuit is taken to court for quashing due to violated of time limit, there isconfusion as to whether the court can quash the decision as a whole or only a part relative to the
sanction measures.
Similarly, Article 10 of the ORAV regulates that since a certain illegal administrative102

violation happens, if the competent agency fails to discover and stop it within one year of time limit, it
can no longer be sanctioned, excluding other compulsory measures for recovering the damages.
Hence, in many cases, if the administrative agency still rendered sanction decision violating the time
limit, the court can annul such a decision. However, the part of decision regarding other compulsory
measures for recovering the damages probably cannotbe quashed.
In trial practice, the local court has often made mistakes regarding the time effect of thelitigated decisions. Some courts opened both the first-instance and appeal trial. After that, thismistake was discovered by the SPC through the Supervisory Proceedings. Some other courts
discovered this mistake, but quashed entirely the litigated decision. The next section will introduce alawsuit regarding the sanction on the intellectual property that still leaves behind the controversy
relative to the issue of time effect.
5.2. Lawsuit Regarding Sanction on Intellectual Property in HCM City (2005)
On June 26th 2003, the Section of Market Control 5A (as referred to Section 5A) belonging
to the Ho Chi Minh City Market Control Department (as referred to HCM Department) discovered A
cosmetic manufactures company (as referred to A Company) violated the trademark (the letter ofMISS) and the industrial design (the perfume bottle designed as a body of a girl) that were inpossession of Saigon Cosmetic Company. Section 5A made a report in which A Company wasdetermined as violatiolating the intellectual property rights prescribed by Article 50 of Decree 63/CP(revised by Decree 06/ND-CP dated February,1st 2001) and Article 805 of Civil Code254.
On June 27th 2003, Section 5A reported this case to HCM Department. Since both Section
5A and HCM Department had no competency to impose fines that exceed 20,000,000 VND
equivalent to 1,300 USD255, on June,31st 2003, HCM Department proposed HCM City People’s
Committee (as referred to HCM PC) to impose fines to A Company under Article 9, sec.2 of Decree
12/ND-CP (1999) on the violation of industrial design and Article 10, sec.12 of Decree 01/ND-CP(2002) on the violation of trademarks.
On August,11th 2003, Chairman of HCM PC issued Decision No 3271/QD-UB on
Administrative Sanction (as referred to Decision 3271) to A Company in which: (1) Fines in total of
75,000,000 VND equivalent to 5,000 USD were imposed; (2) The business license of A Company was
to be withdrawn within one year; (3) The violated goods were to be confiscated; (4) The sales ofviolated goods in the market were to be suspended. A Company made a complaint. On October 16th
2003, Chairman of HCM PC replied and maintained his Decision 3271.
On October 20th 2003, A Company initiated a lawsuit to HCM ADC. At the first-instance

254

This case is summarized from the Collection Book of Supervisory Judgments by Justice Council of SPC in 2005, pp.371-375(2008)

255

See ORAV, Art 37

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judgment No 11/HCST, HCM ADC dismissed the A Company’s petition. On March 1st 2004, A
Company made an appeal to the Appeal Division of the SPC located in HCM City (referred to as the
Appeal Court).
At the Appeal Judgment No 30/HCPT, the Appeal Court considered that the Chairman of
HCM PC violated the limited time for issuing Decision on Administrative Sanctions. Article 56 of
ORAV (2002) provided that: “Since the date of making the report, the competent person must issue anadministrative sanction decision within 10 days. In case of necessity, the time limit shall not exceed to
30 days”. Thus, the date of making report by Section 5A was June 26th 2003, but the date of issuing
Decision 3271 by Chairman of HCM PC was August 11th 2003,

just exceeding 30 days. As a result,Appeal Court quashed Decision 3271.
On January 31st 2005, the Chief Justice of the SPC protested the Appeal Judgment. On April
26th 2005, at the Supervisory Judgment No 02/HDTP-HC, the Judge Council of the SPC made thefollowing considerations:(1) Confirm the violation of A Company; (2) Recognize the violation of Chairman of HCM
PC in the limited time for issuance of Sanction Decision. However, the Appeal Court cannot apply
Article 56 of ORAV (2002) to quash all the contents of Decision 3271, because it fails to meet therequirement of the protection to trademarks and intellectual property. (3) According to Article 56, inthe case of expiration of time, the Chairman of HCM PC can not impose fines, but can apply someother compulsory measures to recover bad consequences, such as the destruction of violated goods, orthe suspension of sales. The SPC required the Appeal Court to re-open a trial under the appeal
proceedings.
This administrative judgment is still controversial. Some opinions consider that although a
mistake by the Chairman of HCM PC is evident, the judgment seems not to be strict enough toprevent and impose sanctions on a serious violation in the new field of intellectual property. Under
Article 12 of ORAV (2002), there are two types of administrative sanctions: (1) Main Sanctions
consist of a warning (Canh cao) and fines imposition (Phat tien); (2) Supplemental Sanctions consistof a withdrawal of license and confiscation of violated goods. In this case, due to the violation oflimited time for issuance of Decision under Article 56, all administrative sanctions cannot be applied
to A Company, with the exception of some compulsory measures mentioned above. Some viewers
also suggest that A company should have its business license withdrawn for a certain period of time.
However, others support that the court cannot decide anything against the existing laws. Article 56
aims to enhance the responsibility of state agencies and officials in discovering and resolving
immediately all violations of the law. The violation in the field of intellectual property is still new inVietnam and often involves a great amount of money, but the competence for imposing fines provided
by ORAV is very low. Such as the Section 5A is allowed to impose fines not exceeding 5,000,000
VND equivalent to 330 USD and the competence of HCM Department is 20,000,000 VND equivalent104to 1,300 USD (Article 37, section 2,3). In most cases, they have to transfer to the Chairman ofProvincial People’s Committee who is entitled to impose fines not exceeding 100,000,000 VND. Thus,
it makes the time for issuance of sanction decision longer and thus impossible to avoid mistakes,
particularly the case in hand of a busy Provincial People Committee.
6. Overview of ADCs’s Adjudication Over Past Ten Years and Judgment’s Mistakes
6.1. Statistical Data and Analyses
Some statistical data concerning the settlement of administrative lawsuits over the past ten
years (from July, 1996 to 2006) are summarized in this below table256:

Table 2: Settlement of Administrative Lawsuits Over Past 10 Years (from July, 1996 to 2006)
First-InstanceYear

Total Filed Cases

Second-Instance

Percentage

Trial1996 (6 months)

36

17

0

42.2%

1997

117

97

0

82.90%

1998

282

267

12 Appeal

75,3%

1999

319

408

19 Appeal

78.7%

2000

539

419

2001

803

564

2002

1064

770

2003

997

786

2004

1172

1006

2005

1361

1201

2006

1232

1081

76/121Appeal
25/26 Supervisory
172/230 Appeal
19/25 Supervisory
321/376 Appeal
24/24 Supervisory
439 Appeal
22 Supervisory498/552 Appeal
20/22 Supervisory470/505 Appeal
21/21 Supervisory354/382 Appeal
10/10 Supervisory

77.7%

70.2%

72.3%

86%

85.8%

88.2%

87.7%

The following chart shows the number of the solved cases at the first-instance trials since
1996-2006 and the area of administrative lawsuits arising recently (2006):
256

These statistical data are quoted from Annual Report on Adjudicating Works of People’s Court System since the birth ofAdministrative Court (July, 1996) up to 2006 presented by SPC of Vietnam. See Dang Xuan Dao et al, National Research Project on
Resolution for Improving the Quality of Settlement of Administrative Lawsuits by SPC, pp.101-102 (2005). See also Report on
Assessment of Current Legal and Institutional Framework for Administrative Court by SPC’s Project VIE/02/015, pp 26-29 (2007)

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CALE Discussion Paper No.4

Chart 2: Resolved Lawsuits at First-Instance

Chart 3: Areas of Administrative Lawsuits

Trial Past 10 Years

1400
1200
1000
800
600
400
200

Land Case s

0
1996

1998

2000

Total Filed Cases

2002

2004

Administrative Sanction: Tax, Othe rAd.Violation

2006

Othe rs: Social Policy, Trade, Intellectual
Property

Solved at 1st Trial

These above table and charts reflect to a certain extent the situation of administrative
lawsuits in Vietnam over past ten years.
Firstly, regarding the total filed cases and the number of the first-instance trials, it can be

identified that in the second half of this decade, the number of administrative lawsuits rapidly
increased, and the percentage of resolved cases is considerably high (almost 85% on average). The
reasons can be explained as follows: (1) the court’s jurisdiction has been expanded gradually throughthe revisions of OSAC (1998, 2006), and through some other Government’s Decrees to supplement
the stand-by provision in the article 11 of OSAC; (2) people are becoming accustomed to theappearance of the ADCs for protecting their rights against the malpractice of the administration; (3)the court, by its performance of adjudicative work under the spirit of judicial reform promoted byParty and State, has more paid attention to the settlement of people’s litigation and gradually
improved its capacity. However, Vietnamese scholars still suspect whether this statistic preciselyreflects the real situation in Vietnam. In fact, the number of petitions may be higher, but many havebeen absolutely refused at the front-door due to the failure of court’s jurisdiction or otherrequirements to initiate lawsuits. In addition, to explain unresolved cases, the following reasons canbe given: 1) the overload of filed cases, 2) the lack of detailed guidance, particularly the pressurecaused by the litigated administrative agencies, and 3) the Party’s views. The number of106administrative cases in Vietnam is still low in comparison to those in China, for instance in 1993
(three years after the foundation of the Chinese Administrative Litigation System), the total of
accepted cases by ADCs in China was 27,911257. In comparison with the civil lawsuits in Vietnam in2006 showing 143,580 resolved cases in total of 160,979258, the number of highest administrative
lawsuits (1,361 cases in 2005) is not considerable.
Secondly, regarding the second-instance trial, the number of appeal trials in the second halfof this decade is very high in comparison with 0 Cases in the two early years (1996, 1997) and with
12 and 19 Cases in the following years (1998, 1999). However, this does not mean that in the earlyyears, the judgments were correct and were not appealed. In fact, people were not accustomed to theadministrative lawsuit proceedings and some local ADCs were established very late. The high number
of appeal trials recently, particularly in 2005, shows that many mistakes of first-instance judgments
were made due to the rapid changes of laws, policies in the current context, the error of law as well as
the limitation of judge’s capacity. The SPC has recently made a great effort to supervise the inferior
court’s judgments through the supervisory proceedings and to publish judgments known as the mosteffective guidance to local courts. Nevertheless, in comparison with a considerable number ofSupreme Court judgments of Japan available on the internet and from other sources, the number ofpublished supervisory judgments in Vietnam is not worthy of mention. Only two or three cases (2005,
2006) were published in the form of a Collected Book259.
Thirdly, regarding the area of recent administrative lawsuits, the number of land cases

accounts for 35.20%, while the number of administrative sanction cases in all administrative fields isabout 42.90% and the remaining 21.90% is for new lawsuits arising recently, such as intellectual
property, business trade, goods services, and urban construction. The litigations relative to land issues
still counts for the most, although it has decreased in comparison with the early 2000’s, during whichit constituted for up to 60% of the total, of which the number of disputes relative to landcompensation for pubic purposes accounted for 56% of total disputes260.
The following table introduces some statistics regarding the result of the appeal judgments
by the superior courts in Vietnam and some references to China261:

257

See Yong Zhang (1997), p.64

258

See SPC, Annual Report on Adjudicative Works in 2006, 3 (2007)259

See SPC, Quyet dinh Giam doc tham cua Hoi dong tham phan Toa an Nhan dan Toi cao nam 2005-2006,[Supervisory Judgment
made by Judge Council of Supreme Court in 2005-2006]
260

See “Nam 2002: So luong Kien tung Hanh chinh gia tang”, [In the year of 2002, Number of Administrative Litigation isincreasing], available at http://www.vnexpress.net/Phap-luat/2002/3B9B8F2/

261
See SPC, Annual Report on Adjudicative Works in 2006, 23-26 (2007). See also Statistics of Second-Instance Administrative
Cases of China, Source in Year Book of Chinese Law, cited by Yong Zhang (1997), p. 65

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Table 3: Example of Hearing Appeal Trials in Vietnam (2002)
Accepted
Year of 2002

UpholdingAnnulment

Correction

Dismissal

Suspension321

175 (55%)

42 (13%)75 (23%)24 (7%)

5 (2%)

64

42 (66%)

11 (17%)11 (17%)00Appeal Case
Provincial
Court
Supreme Court

Table 4: Example of Hearing Appeal Trial in China (1993)
Year of 1993

Wound upAcceptedAppeal Court

7.584

7.426

Affirmed

Rescinded

Reversed

Withdraw

Others

4.859 (65%) 1.343 (18%)

555 (7%)370 (5%)457 (6%)

Glancing at the above two tables, an interesting point can be identified that the percentage
of annulments upheld in first-instance judgments in Vietnam and China is nearly the same, although
the accepted case number is very different. In general, the mistakes of the first-instance judgments
accounted for a considerable number of the total, resulting in their annulment or correction. Although
there are no updated official statistics, some Vietnamese reports have recently pointed out somefundamental mistakes of the inferior court’s judgments that will be further mentioned below.
6.2. Some Main Mistakes of Judgments
Some main mistakes of the inferior court’s judgments, including both the first-instance andappeal, can be identified as below:
Firstly, the court often violated the substantial laws regarding its jurisdiction over resolving

administrative lawsuits. Some examples can be given such as:(1) the court filed a lawsuit that was out of its jurisdiction over administrative matters;(2) the court did not file a lawsuit within its jurisdiction and returned the petition illegally;(3) the court failed to determine the legal status of plaintiffs and defendants;(4) the court failed to apply the time effect for issuing administrative decision provided invarious substantial laws;(5) the court violated the delimitation of jurisdiction over dealing with cases, such as theconflict of the competence between the ADCs and the Civil Division Court, between the ADCs andthe Local People‘s Committees in the settlement of land disputes.
Secondly, the court violated the correct settlement proceedings, such as:(1) the court filed a lawsuit that was completely resolved by the final reconsideration
decision;108

(2) the court failed to gather evidences that led to the wrong judgment;(3) the court suspended incorrectly the settlement of lawsuits under the appeal proceedings;(4) the court made mistakes in handing over judgments and the lawsuit files to concerned
parties;(5) the court failed to use correct legal terms laid down in judgment or decision and so on.
Thirdly, the court often encroached upon the administration by rendering discretionary

judgments, such as:(1) imposing the disciplinary measures to violated civil servants;(2) imposing the sanctioned fines to the plaintiff;(3) calculating the amount of tax collection, of money for compensation;(4) assigning to local people’s committee some works within the administrative power, suchas the allocation and confiscation of land, the grant of Land-Use Right Certificates and so on.
Finally yet importantly, the court was often embarrassed and made mistakes when dealing

with newly emerged lawsuits. The SPC’s Annual Reports in 2005, 2006 summarized and madeguidance concerning the two main lawsuits arising recently, such as:(1) the lawsuits regarding compensation, resettlement reasoned by land recovery for public
purposes;(2) the lawsuits regarding intellectual property.
The main mistake of the local courts is the failure to apply the correct legal norms regarding
the court’s jurisdiction over the enumerated administrative matters in each period262. In addition, thecourt also made mistakes in wrongly applying the time effect required for issuance of administrative
sanction decision.
Concluding Remarks
Through two revisions of OSAC (1998, 2006), the ADCs’s Jurisdiction has been gradually
improved to meet the demands of Vietnam-America BTA and the WTO’s Membership Regulations.
Nevertheless, it has revealed many defects and controversies that fail to fulfill the expectations ofboth the people and legal scholars. By analyzing a considerable number of case studies regarding the
hot and newly emerged disputes, such as land, tax, intellectual property, this Chapter proves thedefects of ADCs jurisdiction, the limited capacity of administrative judges in dealing with suchcomplicated lawsuits. It concludes that such jurisdiction needs to be extended to a maximum for262

For example, Art 27 of Decree 63/CP (1996) and Decree 06/CP (Aug, 2001) allowed people to take a lawsuit in case theDepartment of Intellectual Property belonging to Ministry of Trade refused to grant know-how license or to recognize thewell-known trade marks. However, the OSAC 1996, 1998 did not provide in the article 11, except the stand-by provision “otherpetitions are prescribed by law”. The latest revised OSAC 2006 has just provided this lawsuits belonging to 22 administrative
matters within court’s jurisdiction. Similarly, regarding the lawsuits on the compensation, resettlement for land requisition, although
it was not enumerated in article 11 of OSAC 1996, 1998, since the enactment of Law on Land 2003 and Decision 181/ND-CP(2004), Decision 197/ND-CP (2004), it can be taken to the court. In above cases, the court often made mistake in defining the timeon which it can deal with such a lawsuit or not. See SPC, Annual Report of Adjudicative Works, pp.17-20 (2005), pp.85-89 (2006)

109

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protecting all individual rights and interests including foreign partners in the globalization context.
Hence, to such extent jurisdiction will no longer conformed to the existing ADCs Model. To look forand recommend a better model, the next Chapter will explore some foreign experiences and confirm
the imperative of improving FLA Projects regarding the reform of ADCs Model and Jurisdiction in
Vietnam today.

110CHAPTER III

LESSONS FROM FOREIGN EXPERIENCESREGARDING ADMINISTRATIVE COURT MODEL ANDJURISDICTION

Introduction“Borrowing other people’s laws is seen as just a method of speeding up theprocess of finding legal solutions to similar problems – a process being encouraged all themore by the pressures towards convergence brought about by globalization”263.
(David Nelken, Comparative Law in the 21st Century, 2002)“We learned experiences of some countries with high development ofadministrative jurisdiction such as France, Germany and some of our neighbor countries
such as China, and Thailand in both law and organization under the thinking that: Take alook to the neighbors for studying what they have done and try to apply it in your own
house”264.
(Dinh Van Mau, National Administration Institute of Vietnam, 2006)

Chapter III fulfills the third research question “why does the reform of Vietnamese ADCs
Model and Jurisdiction need to learn foreign experiences and receive the Foreign Legal Assistance(FLA) thereof?” It also satisfies the curiosity of why three countries, namely France, China andJapan, are chosen for such a study. This Chapter supports the idea of David Nelken that “Borrowing
other people’s law is seen as just a method of speeding up the process of finding legal solutions tosimilar problems”. Based on its own characters, studying foreign laws and experiences is the best
way for Vietnam to save time and enhance the international integration. However, it questions
whether Vietnam can borrow all other laws and models without deep consideration, since in the caseof a false choice, it does not speed up the development process, but restrains it. For each of the three
above mentioned countries, this Chapter explores the main characteristics of the court models and263
See David Nelken, Legal Transplants and Beyond: Of Disciplines and Metaphors, in Andrew Harding & Esin Orucu eds,
Comparative Law in 21st Century, 26-27 (2002)
264

Dinh Van Mau, Giai quyet Tranh chap hanh chinh trong thuc tien Quyen hanh phap va Van de Tai phan hanh chinh, [Settlementof Administrative Disputes in the Practice of Executive Power and Issue of Administrative Jurisdiction], in Thanh tra Chinh phu,
Symposium on Establishment of AJB in Vietnam, 23 (2006)

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jurisdictions as well as introduces some relevant case-studies that are useful for Vietnamese learning.
Among them, China shares the most in common with Vietnam in the model of ADCs, theenumerated cases judicially reviewed, and the refusal of inquiry in to legal norms (with exception
recently). Nevertheless, China’s reform seems to be faster than that of Vietnam and provides somegood learning opportunities. Furthermore, Japan with its strong Judicial Reform carried out since theearly the 21st century, along with its new amendment of Administrative Case Litigation Law 2004
(ACLL) are very worthwhile to study. This Chapter implies that it is time for more planning of
FLA’s Projects involving the reform of ADCs’s Model and Jurisdiction, since this field has muchpotential and directly impacts on the speed of the process of international integration as well as thetransplanting of the ROL in Vietnam.
I. Motivations to Administrative Law Reform and Impacts of Foreign Experiences
1. Legal Transplant: Impacts of Foreign Experiences By Means of Foreign Legal Assistance
Alan Watson to date with approximately twenty books and one hundred articles proposes atheory of legal change that “the growth of law is principally to be explained by the transplantation oflegal rules”. Legal Transplant is defined in his famous book entitled “Legal Transplant – AnApproach to Comparative Law”– as “the moving of a rule or a system of law from one country toanother, from one people to another – has been common since the earliest recorded history”265. It is
generally accepted that borrowing from a different jurisdiction, for most of the time, and in mostplaces, has been the principal way in which law has developed. In focus, Alan Watson denies themirror theory of law that first appeared in the eighteen century by Montesquieu in his productive
work “L’esprit des lois” and regards transplants as the way most countries make their legal
evolution.
Kahn-Freund advocates the mirror theory and refuses the possibility of legal transplant.
He argue that the question of transferability initiated by Watson is sometimes confused with anotherquestion which demands to exploration: “whether law can induce or produce social changes”266. A
legal comparatist – Esin Orucu- also raises the question “whether law is a producer or a product ofchange”267 and argues that “we need a precise and suitable functionalist vocabulary pertinent to
individual cases”.
Vietnamese law students are unfamiliar with the theory of legal transplant as well as theWestern legal ideology related to the society and legal change. For students of Marxism, law is or
represents the interest of ruling class and is made for regulating the diversified social relations. Law
265

Alan Watson, Legal Transplant - An Approach to Comparative Law, 21 (1993)

266

Kahn-Freund, On Uses and Misuses of Comparative Law, 1 The Modern Law Review, Vol 37, pp.1-9 (1974)

267
E.Orucu, A Theoretical Framework for Transfrontier Mobility of Law, in R.Jagtenberg ed, Transfrontier Mobility of Law, 6(1995). It is quoted by David Nelken. See supra note 263, at 22112belongs to the superstructure, reflects the infrastructure and often changes itself in accordance withthe social changes. Law can hold a predictable function to society, but cannot induce or produce
social change. By contrast, social change makes the law change and develop.
For my first idea, the term “law” as used by Western comparatists includes both the“transplanted and internally produced” law. It seems to be very interesting to examine whether law(through transplant process) can induce or produce social changes. Vietnam in fact has experienced
a quite a long history of legal transplantation, from countries such as China, France, and the Soviet
Union through both colonization and revolution. More recently, legal transplantation has occurredfrom the West and East Asia by means of FLA.
Secondly, there should be a distinction made between the “Law and Development

Movement” (LDM) of the 1960s-70s and the re-emergence of the “New Law and Development” in
the Post-Cold War Era, particularly with the today’s ROL projects. As a result, the contemporaryreforms of the Vietnamese legal system in general and for ALRS in particular cannot help but be
deeply influenced by such a globally changing process.
Finally, as David Nelken said: “Borrowing other people’s law is seen as just a method of

speeding up the process of finding legal solutions to similar problems – a process being encouraged
all the more by the pressures towards convergence brought about by globalization”268. In the current
context, the legal transplant by means of FLA is strongly welcomed in the developing andtransitional countries like Vietnam, and is really a key push factor in the domestic legal reforms. The
impacts of foreign experiences as well the demands of transplanting foreign laws and models are
regarded as the essential motivation to Vietnamese administrative law reform regarding judicial
review.
Following the main stream of discussion mentioned above, this section addresses someissues:Firstly, LDM (1960s-70s) was led by US law scholars and activists working in the agency

for international development, the Ford Foundation, universities and other private donors in the US
and Europe. These individuals and organizations underwrote an ambitious effort to reform thejudicial system and substantive laws of developing countries in Latin America, Africa and Asia.
There were two main beliefs of this LDM supporting the discussion of whether law can induce or
produce social change: (1) law was regarded as an instrument to reform society and lawyers andjudges could serve as social engineers; (2) legal education and professional training would advancereform efforts in developing countries. The gap between the law on the books and the law in action
in developing countries was clearly recognized and it was only professional lawyers or judges who
were properly educated about the role of law in development who could close the gap. However, this

268

Ibid, at 26

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LDM finally failed due to the following factors: (1) the most significant reason was the naïve belief
that the American legal system, which Trubek referred to as “liberal legalism”, could be easilytransplanted into developing countries269; (2) The second reason was the LDM focused on the formal
legal system, strengthened the central power of authoritarian states while ignoring customary law
and informal methods of conflict resolution; (3) The third reason was the LDM involved too few
participants in the target countries, who would either carry out the reforms or be directly affected bythem.
Secondly, the re-emergence of New Law and Development commenced in the early 1990s,

after the collapse of communism in the Soviet Union and Eastern Europe and the subsequent shift
towards globalization of the world economy. This chain of events led to a new way of thinking about
the role of law in society. Trubek (1996) – the outstanding criticizer of LDM once again began
advocating a link between legal reform and economic and social progress, and called it the rise of the“New Law and Development”. He linked it to three factors: (1) Human Rights Discourse; (2)Globalization; and (3) the Washington Consensus, which privileges markets, favors privatization andpromotes closer linkages to the global economy270. In a recent academic paper, Trubek (2003) used amore exact term: “ROL replaces LDM”, and divided the ROL era in to two stages271. In principle, thefundamental elements of the ROL in the first stage are not immediately changed, nonetheless there is
growing new recognition: (1) the broader sphere of development policy; and (2) the complexity of
ROL official ideas, such as transplanting formalist ROL to the transitional countries could becounterproductive while informal rules and mechanisms could be more effective.
Thirdly, the New Law and Development was enhanced in Vietnam in the early 1990s by

the interest of both foreign donors and the Vietnamese government in promoting foreign investment
and a market economy. Looking at Vietnam’s experiences on the current FLA, some comparisons
between the New Law and Development and the LDM of the 1960s can be identified: (1) the US is
not the dominant player in the legal assistance arena in Vietnam as it was in Latin America, Asia andAfrica during the 1960s. Donors representing distinct political and legal systems compete for theirinfluences over the Vietnamese government. Pip Nicholson starkly puts the question “whether legal
reform initiatives extend to assistance to a one-party state with no avowed intention to move amulti-party democracy”272. Vietnam often rejects offers to provide legal assistance in sensitive
political fields. Some of the most recent experiences showed that attempts to link legal assistance to269
See David M.Trubek, The Rule of Law in Development Assistance: Past, Present and Future, in Y.Matsuura ed, The Role of Law
in Development: Past, Present and Future, CALE Book 2, 5 (2005).
270

Trubek. David M, Law and Development: Then and Now, Presented to American Society of International Law, pp.5-6 (1996)

271

Supra note 269, at 6272
Pip Nicholson, Distinguishing Law and Development: Legal Assistance and Vietnamese Courts, International Cooperation in thefield of Legal Studies and An Agenda for Comparative Law Studies, Symposium Papers (CALE), 46 (2005)

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political reform would result in donors leaving Vietnam and loss of influences; (2) Many Vietnamese
officials and scholars have more interest in studying the legal systems in Asia, particularly Japan,
South Korea, China, Taiwan, Singapore and so on rather than in adopting legal reforms based only
on Western models273; (3) The difference with the LDM that adhered to legal realism’s instrumental
vision of law within the US legal academy and the unique and powerful role of US advisors, the
New Law and Development involves more diverse donors based on more diversified theories, andconflicting agendas while recipients have more power to set their own agendas for legal reform.
It is worthwhile concluding that, Vietnam, with its history of strong nationalism and its
determination to reform, as Per Bergling commented, has proceeded cautiously but pragmaticallyand through a careful examination of the various models. Consequently, Vietnam has avoided manyof the pitfalls which other countries attempting economic reform have experienced274 . Surely,
Vietnam promises to be one of the most dynamic testing grounds for the New Law and Development
and its name is still often mentioned in the contemporary ROL agenda and on debates related towhether it may develop an alternative both to communism and liberal legalism.
In short, the following main remarks should be clearly identified:Firstly, the notion of “legal transplant” or “law” used for discussion in this section is a

generic term concerning both the “legal rules” and “institutions”, referring broadly to any influenceof foreign laws beyond national boundaries. Accordingly, legal transplantation originated from
Watson’s theory as “the moving of legal rules or systems from one country to another”, the stancemost widely advocated. Evidence of this can be seen in most parts of the world from ancient times tothe modern. If law is inherently national, does not “have wings” and “does not travel”275, there
would be no room for international legal cooperation and legal assistance aiming at codification.
However, it does not mean that, law can be transplanted successfully regardless of its historical,
social, cultural contexts or in other words any “obstacle” factor.
Secondly, to further discuss the question whether law is a producer or product of socialchange as well as to approach theoretically legal transplantation, it is essential to explore the way (ormethod) of transplanting law across cultural borders. Law can be transplanted both voluntarily andinvoluntarily as is identified by legal ideology (what to transplant); legal culture (environment forsuccess); the host country’s power structure (how to set up a transplant network) and elites (whodirectly transplants). Being different to involuntary transplantation by colonization, in which thelegal culture was less considered, with the colonist deciding to conquer, or impose its legal system

273

See Lua chon Dong A hay Dong Nam A cho tuong lai cua Vietnam, [The Choice of East Asia or South East Asia for the Futureof Vietnam], available at http://www.vietnamnamreview.com/modules.php?name=News&file=print&sid=7400

274

Per Bergling, Theory and Reality in Legal Cooperation – The Case of Vietnam, in Per Sevastik ed, Legal Assistance toDeveloping Countries: Swedish Perspectives on ROL, 68 (1997)

275

Pierre Legrand, The Impossibility of Legal Transplants, in Maastricht Journal of European and Comparative Law, pp.111-120(1999)

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on indigenous lands, the tendency of returning the group of laws or the regional values has increased
in contemporary voluntary transplant.
Thirdly, the study of foreign experiences by means of FLA is known as the most favorable

way to speed up the domestic legal reform in recipient countries. It is true that since the collapse of
the Socialist Block, Vietnam continues building its own statist socialist model, the dominant legal
ideology in Vietnam is multi-faceted and oscillates between strict legal instrumentalism promoted by
ROL and the political expediency permitted by Marxist legal theories. Voluntary reception in
Vietnam currently is carried out in three ways, namely pure reception, adaptation and collation for
self-improvement. For such reason, the FLA projects at present play very important roles to provide
useful foreign experiences and advice that can orient the better development of Vietnamese legal
system in the future.
Finally yet importantly, the historical experiences of Chinese and Soviet borrowings

provide Vietnamese lawmakers with valuable lessons for legal transplantation beyond the culturalborders and its dependences. On the following days of the Revolution, Vietnamese leaders abolishedthe colonial-feudal legal system and inaugurated the Soviet system , which they currently face issues
such as whether to reconstruct and rehabilitate what was lost. There is a tendency to reestablishtheFrench administrative court model as it used to be in the French colony in Vietnam or upgrading theGovernment Inspectorate to become a French Conseil d’Etat. In addition, since Vietnam has not
succeeded in previous legislation and there are many examples of long-standing customary rules inVietnamese law, there is also a tendency among scholars to recognize and promote the customary
and cultural values in the development of the Vietnamese legal system. As such, they wish to return
to so-called Asian Values by learning from rational experiences from East Asian systems.

2. Motivations to Reform of Vietnamese Administrative Law
As analyzed in Chapter I, Vietnamese administrative law, due to wars and its role inrevolutionary and political agendas, has remained under developed in terms of the protection toindividual rights from maladministration. Gaps exist in the theory of the distinction between active
and adjudicating administration, and of judicial review, an expanding body of administrative law.
At present, Vietnamese scholars cannot help but to follow the mainstream of global
administrative law. By adopting foreign theories and experiences regarding judicial review, theywant to re-conceptualize Vietnam’s own administrative law theories in the modern context. Thissection will analyze the necessity of the receptivity to foreign laws and experiences in the reform ofadministrative law by exploring three main factors: 1) self-identity; 2) the necessity of international
integration and 3) saving time.

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2.1. Self-Identity
It is essential to realize properly the “identity” of Vietnamese laws in general andVietnamese administrative law in particular in the context of the integration and the design for future
development.
The identity of Vietnamese laws can fall into two main perspectives: 1) what foreigners
impose on Vietnamese laws, and 2) the way Vietnamese people view its own identity. Ugo Mattei
comments that “Vietnam would first be seen as a traditional legal system”276 . Pip Nicholson
advocates that “Vietnam, for example, the rule of traditional law will dominate”, and notes that therule of traditional law in Vietnam takes many forms, among these “Confucian-Inspired and Chinese
Legalism”277. John Gillespie comments “Vietnam’s contemporary legal system is constructed fromlegal transplants historically derived from China, France, former Soviet, and more recently East
Asia and the West”278.
Some Vietnamese scholars, such as Nguyen Ngoc Dien279 admit that it is not easy todefine Vietnamese laws. To be modest, it is better to talk of the originalities or the particularities of
the Vietnamese legal system rather than its identity. He points out that the originalities of the legal
system, in regards to Vietnamese leaders, are closely connected to what so-called political and moral
interests. While the former, known as the conservation of socialist political regime, is attached to thevital interest of the country, the later might be tightly linked with the notion of social morality andthat of public order. He shows that for Vietnamese public order, it is forbidden to propagate
anti-communist ideas, criticizing the socialist ideology, possessing military weapons and individual
liberty is organized on the basis of conciliation between individual and social interests.
Due to the long history of colonization and two fierce wars, the historic evolution of theVietnamese laws is characterized by fragility and discontinuity. The subsequent legislation does notlegally succeed the previous one. As for the current legislation, which is quite young, its originality
has not practically been sufficiently estimated in various matters, for the purpose of qualification as
characteristic elements of a distinguished legal system. Mai Hong Quy280 in her recent paper
discusses the weakness of the Vietnamese legal system, namely the uncertainty from objective and276

See Ugo Mattei, Three Patterns of Law: Taxonomy and Change in the World’s Legal System, American Journal of Comparative
Law, Vol.45, pp.33-34 (1997)

277

Pip Nicholson, Roots and Routes-Comparative Law in Post Modern World, 13 (2001)

278

John Gillespie, Private Commercial Rights in Vietnam: A Concise Analysis、30 Stanford Journal of International Law, 325(1994); John Gillespie, Land Law Subsystem: Urban Vietnam as a Case Study, 7 Pacific Rim Law and Policy Journal, 555 (1998)

279

He is the Dean of Faculty of Law, Can Tho City University. See Nguyen Ngoc Dien, Du an Tro giup Phap ly o Vietnam, [Legal
Technical Assistance Project in Vietnam], 512 (2004)

280

She is the Dean of Ho Chi Minh City Law University. See Mai Hong Quy, Legal Reform in Vietnam, in International
Symposium on State, Social Transformation and Legal Reform held in December, 2006 at Nagoya University (CALE Papers),
pp.34-36

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subjective aspects, and demonstrates some drastic changes of social relations and the “short-life” ofeach enacted law.
In contemporary law development attached to the adoption of ROL, there is a tendency ofturning back the democratic constitutional ideology to the early 20th century in Vietnam andexplaining the situation at that time that “led to the emigration of intellectuals and revolutionaries toother countries, most notably France and Japan, where they hoped to learn from other nations how
to eliminate foreign occupation (or gain their support as allies)” as Truong Trong Nghia281 noted.
Most recently, Ex-Prime Minister of the Ministry of Justice Nguyen Dinh Loc highly appreciates theJapanese assistance in the codification of the Vietnamese Civil Code and confirms a new trend
among Vietnamese scholars to study Japanese legal ideology, legal culture as well as its practicalexperiences of legal transplant over a considerable period motivated for domestic legal reforms282.
Pham Duy Nghia in his recent publication emphasizes that Vietnam should not only
mechanically receive foreign laws, but understand the concepts hidden behind those laws andtransplant essential aspects of Western legal culture in to the Vietnamese legal system. Some other
scholars look at the implementation of different documents of the WTO, the AFTA, theVietnam-American BTA and the requirements for the changes in Vietnamese legal thinking inaccordance with the ROL’s values and suggest Vietnamese cannot ignore the rules of game in aworldwide playground “which mainly come from Western legal culture”283.
Thus, like any law field, Vietnamese administrative law shares the common trend that it ismoving towards adaptation to the changes of society and is searching for the best model and theory
for judicial review. Before the early 1990s, Vietnam almost completely copied Soviet administrative
law theory and institutions. Nevertheless, there are also some remnants of Chinese and French
influence, such as Nguyen Censorate, which came later in comparison with Chinese predecessor.
Until 1832, though being primitive and Confucian in style, Vietnam had three independent
institutions that could challenge state authority namely Do Sat Vien (Nguyen Censorate), Tam Phap
Ty (Inspection and Advisory) and Dai Ly Tu (Supreme Court). Furthermore, French influence could
be found in the existence of the administrative courts in the early DRV (1945) and in the Republic ofSouthern Vietnam (before 1975). The long existence of Government Inspectorates (since 1945) thatwere attached to the executive branch and functioned both in the resolving of people’s claims and thegiving of advice to the government, to certain extent, is reminiscent of the French Conseil d’Etat.
Before the foundation of ADCs (1996) and even today, many scholars still support the idea of

281

Truong Trong Nghia, The Rule of Law in Vietnam: Theory and Practice, in The Rule of Law: Perspectives from Pacific Rim,
available at www.mansfieldfdn.org/programs/program_pdfs/10nghia.pdf

282
See Nguyen Dinh Loc, Su Giup do cua Nhat Ban doi voi Vietnam ve mat Phap luat, [The Help of Japan to Vietnam in the Legal
Field] in International Symposium held in Tokyo in October, 2007
283
Nguyen Duc Lam, Vietnam Legal Culture in the New Era,
http://vietnamese-law-consultancy.com/english/content/browse.php.action118

upgrading this inspection system in to something similar to French administrative courts. However, anumber of scholars and lawmakers find the necessity to study the experiences of neighbor countries
such as China, since they share many common political cultural and social elements. It is cannot bedenied that during the process of establishing the ADCs, Vietnam learnt many experiences from
China. Recently, with the success of Japanese legal assistance in the codification of Civil Code(1995), Vietnamese lawmakers wanted to obtain more help and experience in some administrative
law fields, such as the codification of State Compensation Law, Administrative Procedure Law andAdministrative Litigation Law.
In the economy, trade, banking, taxes and civil law fields, Western and Japanese influencecan be found in most FLA Projects since the early 1990s. However, the projects related to theadministrative law field seem to be very limited. Recently, to meet the demands of theVietnam-American BTA and WTO membership, some projects were conducted by STAR-Vietnam
funded by USAID to revise and codify some administrative law fields. Some influence from
American legal ideology and institutions were not avoidable. This may lead to the difficulty ofachieving a “proper” identity in the development of Vietnamese administrative law. Some scholars
warn that Vietnam should avoid constructing ALRS from a mishmash of borrowed models andtheories, as it wastes time, money and undermine its effects.
2.2. Necessity of International Integration and Saving TimeThe necessity of international integration and saving time are also regarded as motivation
to reform contemporary Vietnamese administrative law due to the following reasons.
For the first reason, Nelken in his recent research suggests how current globalizing

developments are affecting the legal transfer. He suspects whether everything that is currently goingon in the way of legal transfers can be captured by the term of globalization, whether current trends
are best labeled as convergence, integration, or modernization, and raises the question is there any
traditional mechanism for legal adaptation still at work. For his view, globalization does not meanthat the world becomes more homogenous and it is unlikely to impose any one existing pattern oflegal culture. He advocates that it is unavoidable that the so-called Asian Values and culture finding
their way into law is unavoidable.
Because Vietnamese law has been accustomed to receiving foreign contributions throughits historical evolution, it is said that the most favorable method of improving Vietnamese laws is tointroduce and adapt some selective achievements of foreign legal systems in the national context. It
is true that Vietnam has been steadily integrated into the regional and international economy andpolicy, and Vietnam is consequently obliged to be subject to “common rules” of a “common
playground”. However, the Vietnamese legal thinking during the period of isolation was formed anddeveloped in a different way in regard to traditional legal thinking. Thus, the introduction and119

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reception of foreign laws, particularly in the field of administrative law, will not mean the impositionof a copy of any foreign version, but will be helpful motivation for Vietnamese lawmakers to reform
traditional legal thinking in conformity with the general standard. Regarding the ALRS, there is aneed to gradually improve legal theory and to reform the court model to better protect not only
Vietnamese individuals and entities but also foreign partners in the context of international
integration.
For the second reason, as described by Nelken , a positive aspect of borrowing laws is the

speeding-up of legal reform process. It is undeniable that the supremacy and development of law,particularly administrative law in terms of protection to individuals by courts neglected for decadeson account of pursuing a centrally planned economic policy. On the day following the adoption of
the open-door policy and a market economy, Vietnamese laws remained embryonic and insufficient.
It would therefore have taken a long time, not only to develop its legal system to that of the moreadvanced systems, but also to catch up with the common rules of developed countries. Vietnameseleadership has realized the importance of legislative work and finds the best way of saving time is byadopting foreign laws and enhancing legal thinking. Drawing lessons that other systems sharing
more or less similar economic and social contexts have been confronted with will prevent Vietnam
from spending as much time to achieve the best solution.
However, a negative point that should be seriously considered is the kind of foreign laws,
legal ideologies and institutions that should be adopted for speeding up the reform process. It should
kept in mind that a false choice does not save time, rather wastes time, and restrains development.
To conclude, this section proposes the follwing remarks: (1) Firstly, the globalization

prospective lies in the unity of diversity rather than the unity through uniformity and standardization.
Differences between legal systems are an expression of self-identity. As a result, cultural diversity isrelated to freedom of choice as a part of democracy, the one fundamental value for all nations aroundthe world. There is no perfect overseas model of administrative court that is completely inaccordance with the Vietnamese context, unless Vietnam itself finds out a rational mechanism for its
existence; (2) Secondly, Vietnam should begin with the foundational analysis of civil law thinking
adhering to Asian values. The rational reception of the world’s legal system is not only typical for
Vietnam, and not beneficial only for Vietnam; (3) Thirdly, the basic Friedman’s thesis is advancing,
for which there is no lack of evidence, that law changes overtime in response to social development.
“Nothing is historical accident”, and law is “reshaped by change”, “by economics and society”.
Conversely, law, at any given time, “does play a part in constituting, filtering and changing thebalances of forces in society”. Thus, law may be either a producer or product of change, as Orucu
argued “we need a precise and suitable functionalist vocabulary pertinent to individual cases”284.
284
See E. Orucu, A Theoretical Framework for Transfrontier Mobility of Law, 6 (1995). It is cited by David Nelken, supra note 263,
at 22

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II. Lessons from Oversea Experiences
This section selects three countries, namely France, China and Japan and analyses some of
their experiences regarding the court models and jurisdiction over resolving administrative lawsuits.
France is one of the most influential countries in modern Vietnam due to nearly one

century of colonization, ending in 1954. Although the political events after 1954 may have brought
further changes to Vietnamese laws, as David and Brierley described, the socialist codes in Vietnam
are in essence civil law documents285. Since the early 1990s, the Vietnam-France Legal House(Maison du droit), established according to a Bilateral Agreement between the Government ofVietnam and France (signed in 1993), has organized nearly one hundred workshops and training
courses including those concerning the study of the French administrative court model, and thecomments of Vietnamese legislative drafts related to the settlement of administrative lawsuits and soon. In addition, some of the government inspection delegations were sent to France in 1992 to study
French experiences286. Although the proposal of setting up a model of administrative court attachedto the government, like the French Conseil d’Etat model, it was not approved by National Assemblyat the end of 1995, yet it is still strongly supported by scholars.
China, although having no legal assistance projects concerning the foundation ofVietnamese administrative courts, it has had the strongest influence in Vietnam. Inspired by the
traditional thinking － “Take a look to the neighbors to know what they had done, then do it athome in accordance with one’s own conditions”, Vietnamese lawmakers, while seeking for a court
model were undeniably influenced by Chinese experiences that empowered the people’s courts tohand over administrative lawsuits. In addition, one cannot deny the thousand years of being a
Chinese colony as well as commonalities in political, cultural and social conditions.
Japan was one of the earliest donors that carried out legal assistance projects in Vietnam,

beginning in the mid-1990s. Japan, through JICA, actively assisted Vietnam in improving its laws in
the civil and economic areas, assisting with the development of the Civil Code, Civil Procedural
Code, and a number of legal norms related to civil judgment enforcement, bankruptcy, commercial
arbitration, state compensation, and areas of international law. However, legal assistance in the fieldof administrative law is still limited, yet promising. Recently, the Research and Education Center forJapanese Law, funded by the Japanese Government and promoted by the Center for Asian Legal
Exchange (CALE), was established in September 2007. This initiative has established a great
opportunity for substantial development in legal cooperation between Vietnam and Japan. Someworkshops concerning the WTO accession of Vietnam and the transparency in Administrative
285

David Rene & Brierley J.E.C, Major Legal System in the World Today, 207 (1968)

286
See Thanh tra Nha nuoc, Bao cao Khao sat kinh nghiem nuoc ngoai ve Tai phan hanh chinh, [Report on Foreign Experiences on
Administrative Jurisdiction], in Project on Drafting Law on Administrative Court submitted to National Assembly IX, 3 (1995)

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Procedure were organized with the participation of professors from Nagoya University which haveattracted a number of Vietnamese scholars to further study Japanese experiences in some fields ofadministrative law287. Furthermore, under the Justice Reform Strategy of Japan in the 21st century,
some recent amendments of Japanese ACLL (2004) as well as the reform of training of the legal
profession provide some ideal learning opportunities for Vietnam in improving the current ALRS, bycodifying this law and training professional judges in the future. For such reason, this section
chooses Japan from which to learn court about its model and jurisdiction over the settlement ofadministrative lawsuits as well as training human resources by means of FLA Projects

1. Learning French Experiences
1.1. Structure of French Administrative Court System
In France, for various historical reasons, public authorities have specific powers andobligations that prevent their actions from being reviewed by ordinary courts. Litigation taking place
between public legal persons, such as the State, national agencies or local bodies, has always beenbrought to specific jurisdictions in France. France has two completely separate orders of jurisdictions,each having its own supreme court at its head: the Cour de cassation for ordinary courts, and theConseil d'Etat for administrative courts, which are less numerous and have fewer cases to deal withthan ordinary courts, but traditionally have always had precedence over them. The possible conflictsof jurisdiction between civil and administrative courts, which, in practice, are quite exceptional, arearbitrated by a special court, called the “Tribunal des conflit” that has functioned consistently since1872 and is composed of three members from Conseil d’Etat and three from Cour de cassation.
The minister of justice, also a member, presides288.
The order of administrative jurisdictions has, as with the civil order, three levels of courts:
Tribunaux Administratifs (the administrative tribunals), Cours Administratives D’Appel (theadministrative courts of appeal) and, Conseil d’Etat (the Council of State), at the top. (See Appendix
4 & 5).
1.1.1. Conseil d’Etat
Conseil d’Etat is the spinal cord of the whole system of administrative courts. It is one ofthe oldest institutions of France, as its history goes back as early as the 18th century, when it was
created by King Philip the IV in order to give him advice on government issues and to assist him in
his mission to deliver royal justice to his subjects. After having been briefly suppressed during the287This workshop held in March, 2007 in HLU (Vietnam). This involves the project of “Asia-Afica Scientific Basic Foundation” of
Nagoya University, [アジア。アフリカ学術基盤形成事業] represented by Prof. Ichihashi Katsuya (2005-2007) in which somemain activities such as (1) Administrative Law Reform in Transitive Legal System, (2) Settlement of International Disputes andImprovement of Domestic Laws in accordance with WTO’s Accession, (3) Constitutionalism and ROL and so on. See Aikyo
Masanori, Nagoya University and Legal Assistance Project Study, [名古屋大学と法整備支援事業。研究] in Jurist No.1358 [特集:
アジアにおける法整備支援と日本の役割], pp.21-22 (2008)

288

H.B.Jacobini, French Administrative Law and Dual Court System, An Introduction to Comparative Administrative Law, 103(1991)

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French Revolution, as it was strongly tied to the monarchy, Conseil d’Etat was re-established in its
modern form, by Napoleon, just a few weeks after he came to power, in 1799. The main peculiarityof the Conseil d’Etat is that it exercises, through its different sections, a double role. It is not only thesupreme court of the administrative jurisdiction, but also acts as a legal adviser to the Government.
The advisory role of Conseil d’Etat is of the utmost importance in the daily functioning of

French institutions. Its role consists of looking into draft bills or decrees that have been preparedwithin ministries to give advice to Government about their consistency with constitutional law or
principles as well as international or national statutory laws. Furthermore, the Government may also
request advice from Conseil d’Etat on all legal or administrative matters, which it did recently, forexample, regarding several issues which had a major impact on the society or the economy. In order
to avoid any possible conflict of interests, the advisory work of the Council of State is carried out by
five so-called “administrative sections”, which are distinct entities from the judicial panel that is
exercised by its largest section, the Section du Contentieux .
The judicial role of Conseil d’Etat falls to the Section du Contentieux (Litigation Section)

which has to decide on cases related to issues previously submitted to the Council. It consists ofabout one hundred members and is divided in to ten sub-sections, which are in charge of apreliminary review of cases before these are settled in court sessions. Each of these subsections is
specialized in certain fields of law, however three among them deal only with fiscal and taxe matterswhich amount to 20 to 25% of cases289. While holding the judicial role, the Litigation Section serves
in different capacities, including: (1) the first and last instance judgment for approximately 20 % of
the cases settled by the Council each year; (2) a “juge de cassation” in which the Council reviews
the legal aspects of entire cases but does not look into the facts which have been debated before theprevious courts; (3) also as an appeal judge, in some cases, especially for litigation involving local
elections, which fall under the jurisdiction of administrative tribunals, on first hearing, but go
directly on appeal to Conseil d’Etat.
Conseil d’Etat acts as the Administrative Supreme Court, issuing between 10,000 and
11,000 judgments each year. It has approximately 300 members that are divided in to three basic
grades, namely“auditeur”, “maître des requêtes” and “conseiller d'Etat” (the highest grade).

Most members are recruited from the National School of Administration (ENA) which trains all highrank civil servants of the French administration. There is also another way of recruitment, which is
appointment by the President, in a limited proportion of the membership, of persons having
distinguished themselves in the practice of public administration. Promotion depends, in practice,upon seniority of service. This principle of automatic promotion is regarded by members of Conseil
d’Etat as the essential guarantee of their independence.

289

Ibid, at 75

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1.1.2. Tribunaux Administratifs and Cours Administratives D’Appel
Administrative Tribunals consist of 41 throughout country, with 30 in mainland France

and 11 in different French overseas territories．Only in 2007, they issued altogether about 183,000
judgments explaining the idea of quantitative importance of administrative litigation in France. The
administrative tribunals originated from prefecture councils that were created in 1879 and had
limited jurisdiction. In 1953, they became officially established as the courts which had generaljurisdiction for administrative litigation.
Administrative Courts of Appeal are more recent institutions, as they only date back to

1987. These institutions consists of eight Courts of Appeal throughout the country, the most recent ofthese located in Versailles, which was established in 2004 to cover most of the Paris metropolitan
area. In 2007, these eight courts issued, altogether, about 26,000 judgments. It is worth noting thatthe rate of appeal is significantly lower in administrative cases than in civil cases, which isconsidered by many observers to be due to administrative justice probably being, for various reasons,better quality.
Before 1987, all first-instance judgments of the tribunals could be appealed directly to theConseil d’Etat. However, due to the growing number of cases, resulting in an excessive work load
for this Council, it became necessary to establish an intermediate level of courts. Now, judgments ofthe tribunals can normally be challenged before the administrative courts of appeal, with the main
exception of those concerning some minor cases, which, cannot be appealed and are only liable to besubmitted to Conseil d’Etat acting as “juge de cassation”.
The organization of the lower courts, as well as the procedural rules that they apply, arebasically reproduced from Conseil d’Etat. By the Law of December, 31st 1987, the members of bothadministrative tribunals and administrative courts of appeal are under the management, no longer of
the Interior Minister, but of the Secretary-General of the Conseil d’Etat which is responsible for all
aspects of their organization, functioning, staff recruitment or training, and funding. For this purpose,
the Conseil d’Etat, which is completely separate from the MOJ, enjoys full managerial independence
and budgetary autonomy. It is essential to stress that the main guideline of all administrative
tribunals and courts of appeal is to comply with the case-law issued by Conseil d’Etat. As a matter offact, though the Council's precedents are not, in theory, legally binding, administrative jurisdictions
practically always implement them very strictly, since their judgments could otherwise be
successfully challenged.
There are approximately 1,000 judges who are granted the full guarantee of independenceby their status. They are, notably, irremovable and, in order to prevent any interference from theexecutive power, all the main decisions concerning their career, such as promotions or transfers, aremade by an independent council which is presided over by the Vice-President of the Conseil d’Etat.
The judges are recruited, like members of Conseil d’Etat, from the ENA, but, due to the recent need124

to increase the number of judges, other methods of recruitment, such as special competitions that areheld every year to select new judges among civil servants, lawyers or high level law graduates, havebeen implemented.
1.2. Some Experiences on Court’s Jurisdiction
1.2.1. Objects subject to Judicial Review
The French administrative courts have jurisdiction over all disputes related to decisions or
actions of public authorities, from minor decisions made by any local authority to decrees issued
by the President, whether the complainant seeks the annulment of an act or financial compensation
for damages, and this applies in all fields of public administration. The most common kinds ofadministrative cases are those related to the application of economic or social regulations, taxation,
town-planning, building permits, public works, public service procurement, environmental projects,
hospital liability, immigration permits, civil servants' career and pensions, European and local
government elections, and so on.
Thus, in comparison with the jurisdiction of Vietnamese ADCs, the French administrative
courts have a large jurisdiction over administrative cases as described below:
Firstly, the French administrative courts can review the legality of legal norms, from “tinydecisions” made by any local authority to decrees issued by President of the Republic, except theso-called “actes de gouvernement” (the acts of governments).
It is important here, at first, to explain the doctrine of actes de gouvernement, which has
played an important role in French administrative law and been the subject of much controversy
among French scholars. The distinction between the acts of governments and other acts of the
President has long been an established principle of the jurisprudence of the Conseil d’Etat and it too
rests on the distinction the French make between the President as an administrative agent and as apolitical authority - between the function of “administering” and the function of “governing”. The
French scholars construed the category of government acts within its scope which was a publicnecessity or which even served an important public interest, such as the protection against riot,
insurrection, floods, epidemics and so on. This theory prescribes that in such cases, although suchacts might violate private rights, if necessary to the social or national defense, the government may
resort to them. Accordingly they were responsible only to Parliament and not to the Conseil d’Etat290.
The typical case for explaining the evolution of this doctrine was the case of Prince Napoleon (CEFebruary, 19th 1875)291 that made important to establish the right of Conseil d’Etat to determine for
290

Jame W.Garner, French Administrative Law, 6 The Yale Law Journal, Vol 33, 607 (1924)

291
In this case, since the annual Army List published in 1873 omitted the name of the former Emperor’s cousin, Prince Napoleon
who had been appointed general by the Emperor in 1853, he then appealed to the Conseil d’Etat. This omission was upon the
instruction of the Minister of War. The Conseil d’Etat rejected the Minister’s argument that the plea of actes de gouvenerment could
be raised in any case of a political complexion. It went on to decide that such family appointments were governed by the special
statutory provisions under the terms of which they could not appear in the Army List.

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itself what matters fall within the doctrine of actes de gouvernemen292
To acquire a larger degree of independence, the Conseil d’Etat, hitherto, by a series ofdecisions, has steadily reduced the large domain of government acts, which had escaped fromjudicial review. It includes little more than such acts of the President, such as the calling of elections,summoning, adjourning and closing Parliament, the conduct of foreign relations, extraordinary
measures in times of war in the interest of the national defense and so on. Thus, in principle, thelegal norms can be judicially reviewed by French administrative court’s jurisdiction. Nonetheless,the doctrine of actes de gouvernement is still important as can be well illustrated by cases such as thecase of Association Greenpeace France (CE September, 29th 1995) in which Greenpeace failed topersuade Conseil d’Etat to quash the decision of President Chirac or to suspend its implementation
regarding the nuclear testing in French Polynesia; or the case of Prefet de la Gironde vs Mhamedi(CE December, 18th 1992) in which Conseil d’Etat decided the suspension of the treaty was notreviewable, being an acte de gouvernment taken by the Minister of Foreign Affairs on behalf of thestate.
Secondly, the French administrative courts are not limited to review administrative matters

enumerated in a certain legal provision as is the case in Vietnam. In principle, the courts can review
any illegal decision or action made by authorities in any field of administrative management.
However, French administrative law gives principal exceptions in which some decisions or actions
are always not within the jurisdiction of administrative courts. Such exceptions can be arranged to
the following four categories: (1) the first covers those matters excluded from review by any court,
ordinary or administrative, including the parliamentary proceedings and international relations; (2)the second category covers those matters being judicially reviewed by only the ordinary courts, suchas: the administration of justice; the administrative activities of a private character; the matters
traditionally reserved to the civil courts; and the doctrine of flagrant irregularity (or voies de fait)293;(3) the third consists of those matters which are taken to the ordinary courts by virtue of special
statutory exceptions. In recent years, some matters are within the jurisdiction of the ordinary court,
such as indirect taxation, employer’s liability, running down cases, nuclear accidents, competition
and the post294 and so forth; (4) the fourth is the illegality as a defense in the ordinary court (orexception d’illegalite) that allows the defendant in the civil or criminal cases can challenge thelegality of the administrative act upon which the plaintiff or prosecution rest their cases. This aims to292

L.Neville Brown & John.S.Bell (1998), p.162

293
This doctrine indicates some irregularity on the part of the administration which is so flagrant and gross that it can not be
regarded as an administrative act at all but is treated as if it was the act of private body. Accordingly, it does not fall in thejurisdiction of administrative courts but within the cognizance of the ordinary court. The famous case is Carlier (CE November, 18th1949). See Ibid, at 139
294

See Law of July, 26th 1996 on Post and Telecommunication, Law of July, 6th 1987 on Competition, Law, Law of August, 2nd 1989
on Financial Market, Law of September, 9th 1986 on Terrorism, Law of December, 31st 1991 on Compensation for victims of AIDS
and so on

126avoid the circuity of procedure, and appears to be something from which Vietnam can learn, since inmost similar cases, the Vietnamese courts often require the litigants to return to the pre-litigation
period and initiate a new administrative lawsuit
Thirdly, the French administrative courts can deal with claims for damages caused by anaction or a decision of the administration that is fundamentally different with the common law’s
courts and also the administrative courts of some civil law countries like Germany, Sweden, Austria
and so on. German administrative courts are only competent to control the legality of administrativedecisions or actions, while claims to compensation for damages caused by the administration arebrought before the ordinary courts295. In France, the administration may be liable in some situations
even without a wrong being done, where harm is caused to an individual for the public goods. It is
recently argued by some French scholars, such as J.Bell and A.W.Bradley that the administrative
liability, unlike private law, is not based on the notion of causing harm, but on the principle ofequality before public burden as stipulated in Article 4 and 13 of the Declaration of the Rights of
Man of 1789296. Another point has been argued that there is no difference between the damage
caused by an administrative activity and the damage caused by a private person. The damage
suffered by a person run over by a private car and by a person run over by a car belonging to theadministration is the same, and the faulty driving of a private person or of an administrative
employee is the same nature. This may be debatable insofar as the litigation relating to the liabilityof the administration gives administrative courts the opportunity to control the workings ofadministration and to define certain standards of correct functions. Nevertheless, the idea that there
is no need to take the litigation relative to the liability of the administration before administrative
courts is still a hot issue and one worth discussing in the case of Vietnam.
1.2.2. Grounds for Judicial Review
Regarding the administrative court’s jurisdiction, litigation coming before the courts isbasically divided into two categories: (1) the first is the “contentieux de l'excès de pouvoir” (or ultra
vires litigation) in which the courts will annul some administrative acts or decisions on the ground of
its illegality; (2) the second is the “plein contentieux” (or full litigation) that the court will determine
a person's rights or entitlement, which may not only result in quashing an administrative decision but
also involves revising it or granting compensation for any damage caused by illegal decisions or
actions.
While the litigations in the second category appear in a number of areas, such as local
government elections, tax cases and actions for damages on the ground of contractual or
non-contractual liability, most litigations taken to the court fall into the first category, the “excès de295

See Jean Michel Galabert, The Influence of the Conseil d’Etat outside France, 3 The International and Comparative Law
Quarterly, Vol 49, 706 (2000)

296
See J.Bell and A.W.Bradley, Government Liability: A Comparative Study, 225-7 (1991). It is cited by L.Neville Brown & John
S.Bell, (1998), p.184

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pouvoir” (ultra vires) in which the court is empowered to annul illegally litigated decisions. Thissection will focus analyzing some grounds for annulment of impugned decisions.
Vietnamese ADCs, to a certain extent, share some commonalities with French
Administrative Courts in insofar as the courts review both the formal validity of decisions and theirsubstantial merits, although such grounds for review are not so clearly regulated in the existing
Vietnamese laws.
Regarding the formal validity, two traditionally admitted grounds for review are as
below:
The first is “incompetence” (or want of authority). If an official acts completely withoutauthority, it will be declared void for incompetence. Thus, in a case where the administration takes adecision in a domain reserved for parliament by the Constitution, or a certain prefecture governor or
mayor has made a decision that actually falls under the authority of a minister, such decision will beannulled on this ground.
The second ground for review is “vice de forme” (or procedural ultra vires) which isdistinguished from substantial ultra vires in English law. Like English law which a makes distinction
between mandatory and directory requirements, French law also distinguishes between the essential
and inessential formalities. The courts will generally not insist on a rigid observance of allprocedural formalities. Only failure to observe an essential formality will lead to the voidance of thesubsequent decision. An example of such a case is the annulment of the decision due to the lack of
the mandatory prior consultation of an advisory committee, such as the Petalas Case (CE November,
18th 1955) in which an order of extradition of a foreign citizen, which was made without consultation
with the appropriate government department, was held void for want of compliance with an essential
procedural requirement.
With Regards to the substantial merits of administrative acts, two traditionally admitted
grounds can be named as below:
The first and by far most important is “violation de la loi” (or violation of law). The termof “loi” (law) is to be discussed in a wider sense, rather than simply used in its usual French meaningof written law. It can be subdivided into several grounds, such as error of law, error of fact and or
error in the assessment of facts. In its written form, the violation of loi (law) includes the violation of
the Constitution, of an international treaty, of a statutory law passed by parliament or of a ministerial
regulation. It also includes the violation of the so-called general principles of law which are various
fundamental principles recognized universally by the public law tradition, such as the principle ofequality of citizens before the law, the principle of non-retroactivity of administrative acts and so on.
The second ground related to substantial merits is the “détournement de pouvoir” (orabuse of power). It is essentially subjective, involving the court’s examination of the motives thatinspired the administration when making its decision. If an administrative power exercises discretion

128

for some objects other than that for which power or discretion was conferred by the statute, it will bedeclared void. Some examples of this ground for judicial review can be taken as the regulations
made by the mayor of a commune controlling the holding of dances were quashed, because they
were made to encourage people to patronize the mayor’s own business; the mayor’s orderprohibiting dressing and undressing on the beach was annulled since its real purpose was not for
public decency, but so as to compel “would-be” bathers to use the municipal bathing
establishment297 and so on.
Finally yet importantly, this section finds the necessity to mention the aspect of theadministration’s discretion known as the extent ground for judicial review. Although relatively
uncommon, there are some cases, where the administration is in a situation of bound authority,
which means that it has no discretion at all. For example, if a citizen applies for a license, after his
fulfillment of all requirements, such as the passing of an examination, and the completion of his or
her tax duties, according to law, the administration is then bound to issue the license. It has no choice
to do otherwise. The judge will exercise a full review on its decision if it happens to reject theapplication. In other cases, the administration may have full discretionary power, which means thatit has absolute discretion to make such decision. Thus the judge would not review at all.
In most cases, the administration has limited discretion. As such, according to different
criteria determined by the Conseil d’Etat case-law, the court will either exercise a full review oflegal definition of facts, or confine itself to a review of manifest error of assessment of facts. In theformer, the court will set aside the impugned decision on the mere ground that its assessment of facts
is different from that of the administration. In the latter, it will only check if this decision is notflawed by a gross mistake of assessment and will not quash it where reasonable, even if the judge
thinks that it was not necessarily right. For example, if building permission has been refused because
the planned construction was deemed by the administration to be harmful to visual perspectives
around a nearby historical monument, this assessment will be subject to full review. But, in the caseof a civil servant who has been disciplined by his superior, the court, after having checked if thealleged offence could actually give grounds to disciplinary proceedings, will not fully review the
proportionality of the imposed sanction to this offence, and will confine itself to checking theabsence of manifest error of assessment.
Thus, the above theory of discretionary power of the administration and ground for review
are completely new in Vietnamese administrative law. The court is often embarrassed to deal withthe so-called discretionary power of administrative agency, due to a lack of the effective substantial
and case-law created by the SPC.
1.2.3. Judgments, Decisions and Effects of Annulment of Administrative Acts
In the tribunal administratif or the cour administrative d’appel, the courts usually consist
297

Rault Case, CE March, 14th 1934; Beauge Case, CE July, 4th 1924. See L.Neville Brown & John.S.Bell (1998), p.247

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CALE Discussion Paper No.4of three members: the rapporteur, the president and one other judge. In more important cases, a fullcourt of up to seven judges may sit. In the Conseil d’Etat trials, for the less important cases, itconsists of the original sub-section or of two sub-sections combined or the full Litigation Section.
For the complex or important matters possibly involving politics, it tends to be heard by a Litigation
Assembly consists of 12 members.
Regarding the administrative judgment, to be equivalent to four categories of litigation

before the courts known as Le contentieux de l’annullation (the annulment litigation); Le contentieuxde pleine judisdicrion (full litigation); Le contentieux de l’interpretation; Le contentieux de larepression, the French administrative judges can render the final judgment including the following
main contents: (1) Annulment, Uphold or Revision of the litigated decisions; (2) Determination of aperson’s rights or entitlement; (3) Decision on compensation for damages caused by illegal
decisions; (4) Interpretation of some administrative decision in the sense of explaining its legal
meaning or significance (such as in case of reviewing the legislative norms); (5) Imposition of fines
or an additional amount which takes account of the damage done to public property; (6) Impositionof compulsory measures to the offences and so on.
Thus, the jurisdiction of French administrative courts over rendering the judgment is large
and clearly provided by law. It can impose strict measures to force the wrongdoing authority or
administrative agency, as some French scholars comment, regarding the le contentieux de larepression, the administrative court acts as a criminal court that may impose fines (notimprisonment), or heavy payment for the interference with public property298. Since the Act of 1995,
administrative judges have been granted power to issue injunctions ordering the administration totake such measures as the court deems necessary to execute its judgment. These measures may varyfrom one case to another, depending on the grounds for the annulment of the impugned decision.
Regarding the effect of annulment of administrative acts, as an example, the case of ajudgment having annulled an administrative decision refusing to grant an immigration permit. If thisdecision has been set aside because of procedural ultra vires, but might be right as to substance, thecourt will only order the administration to re-examine the immigrant's application in order to make a
new decision. But, if the decision has been voided because it violated one of the applicant's
substantial rights, for instance, his right to lead a normal family life with a spouse and children
already residing in France, the court will order the administration to issue an immigration permit.
Thus, when a decision is annulled, it is immediately voidable and often attached to other mandatory
duties of the administrative agency or authority. In the Vietnamese case, due to a lack of legal
provisions as well as the weak power of the court regarding annulment judgments, it raises thequestion of whether the annulled declaratory decision immediately becomes null and void or still
effective until it is annulled or revised by the concerned agency or authority.
298

Ibid, at 180-181. See also Rognant Case (CE June, 22nd 1987)130

Regarding the court’s decision on suspending the implementation of the challenged
decisions, it should be said that in France, it is not an automatic effect when a claim is lodged by any

single citizen. Recently, since an important reform was adopted in 2000, administrative courts havedeveloped a full range of summary proceedings which allow the judges, under certain conditions, tosuspend the enforcement of administrative decisions. For example, in the case of building permits,
the implementation of such impugned decision could result in a violation of an individual’s rights or
cause him irrecoverable damages, the court can render an urgent decision to prevent it. In Vietnam,
the article 33 of OSAC (2006) also provides the court’s jurisdiction over deciding this suspension.
However, the lack of clear guidance on at what extent the court can issue such decision as well as the
restrain of the judge’s decision in terms of absolute compensation duty for a wrong decision makethe judges puzzled in particular cases.
To conclude, Vietnam can learn many experiences from France regarding its court models

and jurisdiction over administrative cases. Some scholars strongly support the idea that the existing
Government Inspection would be the model of Conseil d’Etat and the local inspection system would
be the French Tribunaux Administratifs and Cours Administratives D’Appel. In addition, theVietnamese court’s jurisdiction should be expanded and made more effective, in a similar way towhat has happened in France. The next section will introduce a new French administrative caseconcerning the court’s jurisdiction regarding the annulment of a school’s decision based on a lawthat is considered illegal and highly infringing upon individual freedom.
1.3. Introduction to French Sikh Schoolboys Lose Turban Case (2005)
In March, 2004, France passed a law that bans so-called conspicuous religious symbols
and attire in the classroom. Under this law, schoolchildren are banned from wearing the Christiancross, the Jewish skull-cap, the Islamic head scarf and the Sikh turban. The three French Sikh boys
were expelled from school of Louise-Michel de Bobigny (Seine-Saint-Denis) in December, 2004 forrefusing to remove their Turbans. Their request for re-entry into the school with Turbans was
rejected299.
On April, 19th 2005, their representatives took this school’s decision to the Frenchadministrative court in Melun, in the outskirts of Paris.
The Melun administrative court upheld the expulsion of three Sikh schoolchildren for
wearing a Turban on the grounds that the Turban made them instantly recognizable as Sikhs. In thecontent of judgment, the President of Melun administrative court, Judge G Roth, stated that,
according to French law, the administration did not have to consider if the Turban had the effect of299

This case is quoted from Internet sources. See United Sikhs Press Release, http://www.unitedsikhs.org/rtt/; Sikh schoolboys
lose French case, available at http://news.bbc.co.uk/2/hi/europe/4461905.stm; or
http://www.unitedsikhs.org/PressReleases/PRSRLS-19-04-2005-00.htm;
http://www.panthic.org/news/124/ARTICLE/1260/2005-04-24.html

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proselytizing or that it led to a breach of public order. It was decided that wearing even a small kaki
(very small turban) was against the “secular” school law.
The lawyer representing three Sikh schoolboys、Mr Felix de Bellboy, said that the court’s
decision is regrettable, because it did not pay any regard to the French Constitution and to Article 9of the European Convention of Human Rights that guarantees the right to practice ones religion. In
addition, under the French Constitution and Article 9 of the European Convention, the right topractice one's religion can only be derogated on grounds of public security and safety.
However, the Melun Court gives the idea that the Administration did not have to consider
if wearing the Turban would lead to a breach of public order. It only followed a regulated law.
The fathers of these boys grieved that three Sikh boys, then aged between 15 and 18,
consequently remain without a proper education. They wanted to appeal to the highest court as they
believed that the law could not intend them to abandon their religion. For them, a Turban is a part oftheir body - like hair. Without it, they could not be recognized as the Sikhs.
The leader of United Sikhs France said that the court was asked to uphold freedom of
conscience for the 15 year olds, which is protected under French law. However, the court has notupheld both the letter and spirit of the law. He confirmed that “with one stroke of the pen, the court
today has made the Sikh religion, which has been in existence for more than 500 years, illegal”.
On April, 21st 2005, another case was taken to the court in which a Sikh with Frenchnationality was also fighting in court for the right to have a turbaned-photo on his passport andID-cards. He also made an appeal to the Supreme Court, but following pressure by French
politicians, no regular judiciary hearing was to be conducted, and only one commissioner was todecide the outcome. The Sikh considers that the French Judiciary has become a panel of politicians,
where they use a political approach. Reasoned by the so-called “public-security”, the authorities arebreaking basic human rights.
The Leader of French Committee for Action on the Sikh Turban objected to the Prime
Minister and emphasized that: “The five children who were expelled from the schools were notallowed to wear turbans, and neither would the next generation of children starting the school. Thus,
it is a very serious matter for French Sikh and the Sikh nation at large”.
The French Sikhs consider that the situation for Sikh children is very serious. Some reports
show that many children between the ages of eight and nineteen have faced bullying at school. Afterthe laws were passed, there was a raise of tension and confusion among Sikh children. Their natural
religious development faces external hindrances. The law banning the turban will only exacerbate thisproblem as it isolates the child from an early age instead of helping him to integrate into mainstream
society.
In short, this above case seems to be very complicated since it does not involve only adecision on expelling from the school but also a law be considered against the Constitution and132

European Convention of Human Rights. Although such a decision can be reviewed by theadministrative court, the law banning the turban may not be reviewed since it falls in to the principal
exception concerning the political character or the issue of the international relation. In Vietnam,
legal norms are always out of court jurisdiction. However, in fact, some local norms contradict withstate laws, even against with the people’s legal rights and interests, such as prohibiting students fromMusic School to perform in a Pub or Discotheque, banning each person to register no more than one
motorbike, prohibiting people whose height under is 145cm, or weight under 40kg, from driving
motorbikes (these regulations were eventually cancelled), banning three-wheel motorbikes as ameans of transportation and so on. The Department of Checking Legal Norms, attached to the MOJ
has recently just announced that about 12% of the norms (about 6,900) enacted by competentagencies throughout the country are illegal300. The problems of whether such decisions based onillegal norms that cause damage to people can be taken to the court or require judicial review are still
debatable.

2. Learning from Chinese Experiences
2.1. Establishment of ADCs and an Administrative Litigation System
2.1.1. Constitutional Background: From Rule by Man to Socialist Rule of Law StateThe Revolution of 1911 abolished the feudal monarchy and gave birth to the Republic ofChina but the imperialism and feudalism was not entirely overthrown. The CCP with Chairman Mao
Zedong, in 1949, overthrew the rule of imperialism, feudalism and bureaucratic-capitalism, andfounded the PRC. After founding the PRC, China gradually achieved its transition from a
new-democratic to a socialist society, abolished the old nationalist laws and began building asocialist legal system. However, its development did not always share the same common logic witheither the Soviet Union or Vietnam.
As Yu Xingzhong comments, the frequent revision of the Chinese Constitution reflects thechanging “objective” determination by the CCP of “actuality”. The PRC has promulgated four
Constitutions 301 . Each of these Constitutions bears the mark of the political and economic
environment in which it was produced302.
The traditional Chinese moralism was embodied within the ruler, who had responsibility
for maintaining harmony. Chinese leaders in the 1950s, like those of Soviet Union during 1930s-40s,
promoted a policy of class struggle (Vyshinsky’s model of legal theory was adopted). Soviet Advisors
300
This is quoted from Vnexpress Information on December, 25th 2008. See Gan 6.900 Van ban trai Phap luat da duoc ban hanh,[About 6.900 Illegal Norms or Regulations were enacted], available at http://vnexpress.net/GL/Phap-luat/2008/11/3BA08CB1/
301
See Chinese Constitution in 1954, 1975, 1978. The current Constitution was adopted by the 5th National People's Congress(1982) with some revisions in 1988, 1993, 1999, and 2004 (the latest revision by the 10th National People's Congress on March 14,
2004)
302

See Yu Xingzhong, Legal Pragmatism in RPC, in Perry Keller ed, Chinese Law Legal Theory, 44 (2001)

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helped the PRC Government with the task of building a new “socialist legality”. As noted, theChinese legal system, though deeply influenced by the former Soviet Union, was by no means slaveto Soviet formulate 303 . CCP was relatively free in formulating its own theory of law withinframework of Marxism-Leninism.
Mao Zedong’s conception of law mixed the legal order and justice in a broader frameworkof politics and ideology. Law, defined as an instrument of class struggle, was to be implemented not
so much by formal judicial organs as by mass participation in political campaigns and mass
movements. It was called Rule by Man in China. During the Mao period: “the legal system served
primarily as a hand-maiden to politics”. There was little if any separation between law and politics
and “the purpose of law was to serve the state not to protect individual rights”. Accordingly, there
were few legal channels for citizens to challenge government decisions.
Deng Xiaoping’s conception of law was much more pragmatic. He did not return to allfeatures of the Soviet model but insisted on searching for a Chinese path to the development of asocialist legal theory304. He clearly distinguished between ideology and political practices and saw
that what had become known as “rule by man” had to be replaced by the “rule of law” undoubtedly, law must be the highest authority. However, as Yong Zhang comments, it is possible tosay that the Chinese style rule of law was “rule by law”305 and the conception of ROL remained acontroversial topic of debate. Following Deng Xiaoping’s “Open Policy” that launched the country’s
impressive modernization program, the Constitution was changed in 1982. He demanded thecompletion of legal codes, insisted that “there must be law for people to follow”, all were “equal
before the law” and reminded the party cadres to exercise their leadership role within the boundaries
permitted by law. Under Articles 41, the Constitution of 1982 allowed citizens to sue the government
or civil servants for unlawful activities and claim damages. However, in the first half of the 1980s,
administrative jurisprudence in China was still unpopular. This situation continued until theenactment of ALL on April 4th 1989, which marked the establishment of China’s administrative
litigation system.
Jiang Zemin appears to have continued Deng’s insistence on market reform within acontext of stability. He has reaffirmed a commitment to the regulative functions of law in a market
economy, promoted new economic legislation, renewed emphasis on establishing legal infrastructure,re-enforcing Judicial Independence, improving the quality of legal personnel, training lawyers andpromoting popular legal awareness. However, as Carlos Wing-Hung Lo comments: “Jiang still
appears to adhere to a repressive view of law rather than to emphasis on human rights”, and303
Carlos Wing-Hung Lo, Socialist Legal Theory in Den Xiaoping’s China, in Perry Keller ed, Chinese Law & Legal Theory, 89(2001)
304

His insistence in 1979 on the “four cardinal principles”: The Socialist Road; Dictatorship of the Proletariat, Leadership of Party;
Marxism-Leninism and Mao Zedong Thought
305

See Yong Zhang ed (1997), p.73

134

concluded that “Yet one is always conscious of the fact that Deng always saw rule by law occurring
under the party tutelage, and Jiang seems to continue to hold that position” and “the socialist rule oflaw remains limited ” 306 .

According to the amendment in 2004 of the PRC Constitution, itemphasizes the constitutional supremacy (art 5), the power belonging to the people (art 2),
democratic centralism (art 3), the right to petition to state including state compensation (art 41).
As in the Vietnamese context, although Jiang Zemin in 1996 adopted a new official policyof ruling the country in accordance with law and establishing a Socialist ROL State, which was
subsequently incorporated into the revised Constitution of 1999, the ROL concept continues to be a
topic of debate. While China’s leaders have officially endorsed ROL, they have not sanctioned theliberal democratic version (or thick version of ROL). Jiang Zemin and other statist socialists endorse
the so-called “the Socialist Rule of Law State” that is defined by: (1) A socialist form of economy
that promotes the market-based economy in which the public ownership still plays a somewhat largerole than others); (2) A non-democratic system in which the sole Communist Party plays a leading
role; (3) A mechanism of democratic centralism; (4) An interpretation of the rights that emphasizes
stability, collective rights over individual rights and subsistence as the basic rights rather than civil
and political rights.
As mentioned, the definition of ROL in China and also Vietnam is still controversial. How
one defines ROL will depend on one’s purpose. Many debates in China and Vietnam regarding state
reform in general and legal reform in particular have been laid down in terms of the ROL.
Nevertheless, one cannot deny that since the end of the 1980s, China has taken strong reforms,
particularly in the legal field, at a much faster pace than Vietnam. In the field of administrative law,some evidence clearly shows the inevitable and significant impacts to the reform of Vietnamese
administrative law such as the birth of the administrative litigation system (1989), the establishmentof the state compensation system (1994) and the codification of several other law fields.
2.1.2. Administrative Litigation System and Model of ADCs
It should be noted that, unlike the Vietnamese context under French control before 1945,
there once existed a model of European administrative court in China until the 1949 Revolution.
After Japan made efforts to modernize its legal system by introducing Western-style codes andcourts, it succeeded in persuading the Western powers to relinquish their extraterritorial jurisdiction
by the beginning of the 20th century. This Japanese experience, to some extent, contributed to theintroduction of legal reform in China307. In the period of the Republic of China, a series ofcomprehensive codes of law were promulgated partly based on the European continental model(such as the laws of Germany, Japan and Switzerland), partly on the Anglo-American model, and306

See Perry Keller ed, Chinese Law and Legal Theory, 486 (2001)

307

See Albert Hung-Yee Chen, An Introduction to the Legal System of the People’s Republic of China, 20 (1993)135

CALE Discussion Paper No.4

also on the existing traditional of the late Qing and feudal period. The laws were collectively known
as the Collection of the Six Laws including administrative law that even today forms the basic legal
system in Taiwan. Since the foundation of the Chinese Soviet Republic in 1931, a system of people’s
court was also established which was modeled upon that of the Soviet Union. After 1949, China
developed its legal system fully in line with Socialist law and the court model. During this time,
China faced, as Yong Zhang describes, “thirty years without administrative law” and the firsttextbook of Chinese administrative law (published in 1983) “had a strong socialistic tinge”308 that
ignored the necessity of any kind of administrative jurisprudence.
Under Deng Xiaoping’s ruling, from 1982 to 1989, many specific statutory laws laid down
provisions309 to implement the article 41 of the Constitution of 1982 that allowed people to sue theauthorities and agencies. According to official statistics, while from 1983 to 1986 less than 100
administrative cases were taken to the courts in the whole country, the number of cases suddenly
increased to about 6,000 in 1987310. What would account for this sudden increase in such lawsuits?
One of the main reasons is the establishment of the ADCs in 1986311. Thus, in principle, before its
establishment, such administrative lawsuits were lodged by the traditional civil division courts. Thissituation shares some commonalities with Vietnam in that before the birth of Vietnamese ADCs,
some administrative matters, such as those concerning residential registration, voter lists and land
administration were taken to the people’s courts. At that time, such cases might have been classified
as civil lawsuits rather than administrative ones. It is worthy mentioning that Chinese people’s courts
normally consist of four divisions in which the establishment of economic (1983) and administrative
divisions (1986) were more recent developments than that of the traditional criminal and civil
divisions.
By the end of 1990, the administrative divisions existed in the SPC and all 31 high courts
as well as 90% of all intermediate and basic level courts. Differing from the Vietnamese court
system, the design of the PRC court system is based on the principle of “four levels of courts and at
most two trials to conclude a case”. Two trials are named the first-instance and the appeal trials. The
four levels of courts consist of more than 3,000 basic level people’s courts at the county level; 376
intermediate people’s courts in cities and prefectures within provinces; 31 high people’s courts at theprovincial level; and the SPC as the top. Until now, the ADCs appeared at all four levels of the308

See Yong Zhang (1998), p.74

309
Such as, The Civil Procedure Law (1982) makes specific provisions regarding the settlement of administrative lawsuits; The
Regulation on Punishment in Public Security Administration (1986) allows the parties to lodge complaints against decisions on
administrative punishments and compulsory measures or sue the public security agencies to the court; The Land Administrative Act(1986) permits the parties concerned who are not satisfied with the settlement dispute decisions awarded by the land administration
bureaus can makes complaints or pursue the case in front of the law court …etc.
310

Its statistic is originated from Haocai Luao ed, The Judicial Review System in China, 566 (1993), Beijing University Press in
Chinese language. It is cited by Yong Zhang (1998), p.53
311

See Albert Hung-Yee Chen (1993), p 108

136

Chinese people’s court system while such an administrative division is not set up at the lowest court
level (the district level) in Vietnam.
Although the ADCs were established in 1986 for handling administrative lawsuits, it stilllacked the basic legislation (such as an effective specific law) to make it legally binding. The Civil
Procedural Law promulgated on March 6th 1982 was only the procedural law making some specificprovisions regarding the settlement of administrative cases312. From 1982 until 1989, it is reported
that over 130 laws and regulations had been made that provide for the possibility of administrative
lawsuits. Among them was the Regulation on Punishment in Public Security Administration (1986),
the Land Administrative Act (1986) and so on. In 1988 in particular, Article 11 of the revised
Constitution added that the state allows individuals to do business and their legal rights and interests
are protected by the state. Consequently, the protection to private enterprises including private
partners becomes necessary. Some Chinese scholars comment that this change not only reflected thepositive attitude of Chinese lawmakers towards the establishment of a democratic and law-ruled
state but also directly promoted the process toward the codification of the Administrative Litigation
Law as well as the foundation of a new Administrative Litigation System in China313. The following
fundamental reasons can be said to have motivated the enactment of the new law: (1) the trial
practices faced with obstacles in the legal theory related to settlement of administrative cases relying
on Civil Procedure Law; (2) the dramatic increase of administrative lawsuits taken to the courts; (3)the confusion on determining what kinds of administrative litigation to be resolved and the issue of
special judge’s experiences. As this implies, the ALL of the PRC was promulgated on May 4th 1989
and came in to force on October 1st 1990. For many Chinese scholars, this officially marked thefoundation of the new administrative litigation in China.
In 1993, the revised Constitution adopted a socialist free market, strengthening thelegislation in the economic field and granted more rights to people operating private business anddemanding the remedy of the state’s mistakes. As a result, the State Compensation Act waspromulgated on May 12th 1994. Thus, ALL (1989), the Administrative Reconsideration Regulation(1990), the State Compensation Act (1994) are the fundamental legislations providing grounds forpeople to act against authoritative administrative decisions or take actions for redress in China.
2.2. Some Experiences Regarding Jurisdiction of Administrative Division Court
2.2.1. Principle of Legal Inquiry and Scope of Accepting Cases
Article 5 of China’s ALL reads: “In handling administrative cases, the people’s courts

312

The article 3, section 2 of Civil Procedure Law of PRC reads: “The provisions of this law are applicable to the administrative
cases that by law are to be tried by the people’s courts”.

313

See Songnian Ying, Administrative Litigation System in China, in Yong Zhang ed (1997), p.46. Many Chinese scholars also
believe that the enactment of Regulation on Punishment in Public Security Administration (1986) represented an importantmilestone in the development of administrative litigation in China. See also Albert Hung-Yee Chen (1993), p.177

137

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shall examine the legality of specific administrative acts”.
Regarding the principle of legal inquiry, first of all, Chinese law empowers the court toexamine the legality, not the constitutionality and also the rationality of specific acts. However, ALLalso provides an exception as laid down in Article 54, sec.4 that “if an administrative penalty is
obviously unfair, it may be amended by judgment of people’s courts”. This means that in somenecessary cases, as stipulated by law, the court enables an examination in to the rationality of acertain administrative decision or action.
Secondly, the power of inquiry in to legal norms (sometimes called the abstract

administrative acts) is vested in the Chinese People’s Congress and its Standing Committee of thesame level and the people’s government at a higher level314. However, there is also an exception thatwhile reviewing the legality of a specific administrative decision or action, the court, to some certain
extent, can hold power of inquiry into the legality of regulations made by the departments at centrallevel or by the local governments. Article 52 of ALL reads: “Local regulations shall be applicable tothe administrative cases within the corresponding administrative areas”. Nevertheless, it should be
noted that in the case of such regulations considered unconstitutional, the court cannot declare voidor annul decisions due to its jurisdiction belonging to the National Congress or its Standing
Committee. At present, Vietnam shares the same concerns regarding the discussion on whether toreview the constitutionality and legality of legal norms or abstract administrative regulations, andwhether the constitutional court should be set up, seen as attractive options to many legal
researchers.
Thirdly, the principle of legal inquiry provides a clear definition on the objects for judicial

review, known as “a specific administrative act”. Being different with article 4 of the Vietnamese
OSAC that gives the definition of administrative actions, decisions or disciplinary decisions on job
dismissal as objects of judicial review, China’s ALL has no clear provisions. Upon the opinion of theChinese SPC, the specific administrative acts refer to “the unidirectional acts” given by stateadministrative agencies or their functionaries empowered by the law or regulations, by the organs or
individuals entrusted by the administrative organs in exercising their administrative duties, towardspecific citizens, legal persons or other organization on specific concrete matters concerning therights and duties of citizens, legal persons or other organization315. Thus, in principle, the definitionof a specific administrative decision in China is the same as “the individual administrative decision”(Quyet dinh hanh chinh ca biet) in Vietnamese law. However, some main questions should be further
314

See Art 67, section 7 of the Constitution of PRC. It reads: “The Standing Committee of the National People’s Congress exercises
the power to annul those administrative rules and regulations, decisions or orders of the State Council that contravene theConstitution or Law”. Art 89 provides that State Council is empowered “to alter or annul inappropriate orders, directives andregulations issued by the ministries or commissions”, and “to alter or annul inappropriate decisions and orders issued by local
administrative organs at various levels”.
315

See the Opinion of People’s Supreme Court on Certain Problems Concerning the Implementation of the ALL at the 499th
Meeting of Trial Commission of the People’s Supreme Court on May, 29th 1991. See Yong Zhang (1997), p.48

138

explained: (1) the first question is whose decision can be taken to the court; (2) the second is whether
the decision has the characterics of “internal administration” like disciplinary measures,
appointment or dismissal of the post can be judicially reviewed; (3) the third is what is the firstadministrative decision or the first reconsideration decision, and whether the latter is objected toreview.
For the first question, Chinese law also shares some commonalities with the Vietnamese
situation in terms of the difficult identification of subjects to review or the so-called the standing ofdefendant. This is due to the complexity of Chinese administrative structure which covers various
institutions approved by the government and with elected leaders, institutions appointed by StateCouncil, institutions authorized with a certain administrative powers, ad hoc agencies, the party,social organizations and military agencies and so on. However, article 25 of ALL also has some clear
explanations that is of use for Vietnam to learn from in terms of determining whose decision it is or
who is the legal subject of the court316.
For the second question, China’s ALL has already provided some specific matters always
being out of the court’s jurisdiction involving the matters arising in “internal administration” such as
the award or punishment, or the appointment or relief of duties of its personnel (Art 12, sec.3).
For the last question, although Chinese law does not define in as complicated a way, thefirst administrative decision and the first reconsideration decision as Vietnam, Article 25 also
stipulates that for a reconsidered case, if the organ that conducted the reconsideration sustains theoriginal specific administrative act, the organ that initially undertook the act will be the defendant. In
the case where the organ that conducted reconsideration has amended the original specificadministrative act, the organ which conducted reconsideration would be the defendant. Thus, such areconsideration decision including amendment can be reviewed by courts. However, Chinese law
retains provisions that the final specific decision (involving the final reconsideration) is out ofcourt’s jurisdiction (Art 12, sec.4)
Regarding the scope of judicial review in Chinese ALL, it seems to be that Vietnameselawmakers mostly studied Chinese experiences in terms of enumerated administrative matters
judicially reviewed317 and of the stand-by provision under article 11 of ALL 1989 (compared with
316

Such as: (1) if an administrative organ had been abolished (or an authority retired), the administrative organ (or a new one) thatcarries on the exercise of functions and powers of the alleged organ or authority shall be the defendant; (2) If a specificadministrative act has been undertaken by an organization authorized to undertake the act by the law and regulations, theorganization shall be the defendant. If a specific administrative act has been undertaken by an organization as entrusted by anadministrative organ, the entrusting organ shall be the defendant; (3) If two or more administrative organs have undertaken the same
specific administrative act, the administrative organs that have jointly undertaken the act shall be the joint defendant and so on. See
Article 25 of Chinese ALL

317

Article 11 of China’s ALL limited 8 specific administrative acts for judicial review as (1) an administrative sanction, such as
detention, fine, rescission of a license or permit, order to suspend production or business or confiscation of property, which one
refuses to accept; (2) a compulsory administrative measure such as restricting freedom of the person or the sealing up, seizing or
freezing of property which one refuses to accept; (3 an infringement upon one’s managerial decision-making powers which isconsidered to have been perpetrated by an administrative organ; (4) a refusal by an administrative organ to issue a permit or license,
which one considers oneself legally qualified to apply for, or its failure to respond to the application; (5) a refusal by anadministrative organ to perform its statutory duty of protecting one’s rights of property, as one has applied for, or its failure to139

CALE Discussion Paper No.4

article 11 of Vietnamese OSAC 1996). The stand-by provision of this article reads: “A part from theprovisions set forth in the preceding paragraphs, the people’s courts shall accept otheradministrative cases which may be brought in accordance with the provisions of relevant laws andregulations”. Thus, in order to adapt to social change, some new administrative litigations can besupplemented. For example, Article 3, sec.3 of State Compensation Act (1994) stipulates that theindividuals can take administrative compensation lawsuits to courts in cases where theadministrative agency or authority while undertaking their duties results in injury of the body or thedeath by resort of violent acts and the like. Such kinds of legal provisions concerning the statecompensation are still unfamiliar to Vietnamese lawmakers in both theory and practice and worthyof noting. Furthermore, the article 12 of ALL also limits the four scopes318 of matters that arealways out of the court’s jurisdiction that to a certain extent make the cases absolutely resolved andreduces the confusion of judges while recording a lawsuit.
Chinese scholars put forward different opinions regarding the above scope for accepting
administrative cases as provided by the article 11 of ALL. Like the Vietnamese case, some of thescholars consider that at the time of this law enactment, the scope for review should not be
excessively broadened, because in China, both the substantial and procedural administrative laws arestill incomplete. In addition, the special judges lack of the quality and experience dealing with newadministrative disputes. Consequently, time is needed to gradually broaden the scope of judicial
review to guarantee effective implementation of the administrative litigation system in China.
However, a larger number of scholars still criticize that the scope is too narrow and must be definedin a more expanded and generalized way.
In a practical trial of China, as the number of administrative lawsuits rose, the scope of the
ALL also expanded. However, according to Chinese official statistics, there is an interesting point
that, right after the ALL was promulgated, about 80% of administrative matters, such as law
enforcement, urban development including land disputes, housing, commercial administration, tax
collection, environmental protection were targets of administrative lawsuits. This number declined to
52% in 1995, and has since declined to about 40%. Minxin Pei comments that the Chinese sue thegovernment to protect their liberty and property only as a last resort319. Sometimes, they refrain fromsuing not because their rights have not been violated, but their status and stakes are not high enough.

respond to the application; (6) cases where an administrative organ is considered to have failed to issue a pension according to thelaw; (7) cases where an administrative organ is considered to have illegally demanded the performance of duties; (8) cases where an
administrative organ is considered to have infringed upon rights of the person and of the property.
318

Article 12 of China’s ALL stipulates four matters always out of court’s jurisdiction as (1) acts of the state in areas like national
defense and foreign affairs; (2) administrative rules and regulations, decisions and orders with general binding force formulated andannounced by the administrative organs; (3) decisions of an administrative organ on awards or punishments for its personnel or theappointment or relief of duties of its personnel; (4) specific administrative acts that shall, as provided by law be finally decided byadministrative organs.
319

See Minxin Pei, Citizen v.Mandarins: Administrative Litigation in China, 152 The China Quarterly, 840 (1997)

140

They filed suits under the ALL because they had no other choice. Apart from the disputes overland-use, lawsuits against the law-enforcement agencies still made up most of the administrative
cases, Minxin Pei explained why fewer lawsuits were filed against the two agencies (as theindustrial and commercial administration and tax collection offices), because these agencies were
often in a better position to retaliate against plaintiffs if they lost. As a consequence, a private citizen
could win once but lose the rest of his life, as he concluded.
2.2.2. No Compulsory Requirement of Administrative Reconsideration
Vietnam can draw from the experience of Chinese law that allows the court to directly
register lawsuits without the compulsory requirement of the first reconsideration by original agencies
or authorities like the pre-litigation principle under Vietnamese OSAC.
In the process of drafting ALL of China, there used to be much debate about whether ageneral rule should be adopted that a person aggrieved by an administrative act may only lodge alawsuit after his failure to obtain a remedy by an application for review by the administrative
authorities responsible for the act. Before this law’s enactment, while some relevant laws made it
mandatory for the remedies by administrative review before taking a lawsuit, some other laws allow
persons to immediately take the matters to courts. It is recorded that, in practice, about 90% of
administrative cases before being lodged by courts had gone through the reconsideration stage by theagencies or authorities. However, a better point that can be drawn from Chinese experience is that
under the Regulations on Administrative Review of China (1990), the reviewing authority in respect
to an administrative organ’s act is normally the administrative organ at the next-higher level in thehierarchy, and the organs may establish a unit specializing in administrative review work320. In
Vietnam, most of the cases require the agency or authority who was first involved with suchcomplaint decision or action to reconsider the matter. Without such a procedure, all petitions must be
returned from the door of the courts.
Article 37 of China’s ALL provides that except where there exists certain legal norms
requiring the compulsory administrative review procedure by administrative organs before lodging alawsuit, all individuals aggrieved by administrative actions may either apply for review before
resorting to litigation or litigate directly to the competent courts. Article 38 also stipulates that ageneral time limit of two months is required for within which the reconsideration agency must makeits decision, and the dissatisfied applicants may litigate the matter within 15 days of the review
decision. In the case of a direct litigation to the court, the general rule is that it should be commenced
within three months of the administrative actions (Article 39 of the ALL)
2.2.3. Judgment and PerformanceFirst of all, there should mention to the ground for judicial review under Chinese law.

Although Chinese administrative law has no the substantial theory regarding the grounds for judicial
320

See Regulations on Administrative Review of China (1990), Art 11, Art 4

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review similar to that of French administrative law, as mentioned in the last section, ALL also
provides some grounds to review the legality of litigated administrative decisions or actions. Article
54, sec.2 stipulates that the court will examine and give final judgment based on considerations ofwhether having (1) an inadequacy of essential evidence; (2) an erroneous application for the law or
the regulations; (3) a violation of legal procedure; (4) an exceeding authority; or (5) an abuse of
powers. Such a regulation is completely vacant under the Vietnamese OSAC. In a practical trial, thejudges often apply the general and abstract regulations regarding the requirement for a legal
administrative decision or action that often leads to discretionary judgments.
Secondly, the ALL of China also clearly provides the contents of administrative judgments,

something that is still a large vacancy in Vietnamese law. As a final judgment during the trial, thecourt can render four types of decision, namely upholding judgment; annulment judgment; enforcing
judgment and changing judgment321. The upholding judgment means the certain litigated act remains
in effect because it is in accordance with the law. The condition of the upholding judgment can beseen as having conclusive evidence, concrete applications to laws or regulations, and the complied
legal procedure. The annulment judgment consists of the whole or partial annulment of the litigatedadministrative decision as the result of lacking sufficient evidence, of erroneous application of law
and regulations or abuse of power and so on. The enforcing judgment allows the court to force themistaken agency to undertake a specific administrative act anew or to forcibly perform its duty
within a fixed time. The changing judgment implies that an administrative sanction may be changed
if it is obviously unfair. For this point, it can be realized that the Chinese law has an exception toreview the reasonableness of the concerned decision. In this case, the court can replace theadministrative agency to decide a more rational measure, such as an amount of a fine, of tax
collection and so on. Thus, it raises the question of whether the court trespasses on administrative
power. Some Chinese scholars consider that there should be more specific conditions given for eachkind of judgment to avoid overlapping, such as the abstract delimitation between the irrationality andabuse of power and what is standard for such a review, the distinction between the violation of legal
procedure when an agency fails to perform legal duty and when they deliberately delay theirperformance. In addition, due to the appearance of state compensation litigation, a so-called“confirming judgment” should also be added because, for example, in the case of compensation fordamages caused by beating, the fact that such damage firstly must be confirmed before thecompensation is made.
Thirdly, in order to ensure the effect of the court’s judgment execution, article 65 ofChina’s ALL provides special compulsory measures that may be taken against the administrative
organs in question if they refuse to perform legal duties laid down in the judgment content. Somecompulsory measures can be counted as follows: (1) Sending an inquiry to the bank to transfer from321

See Art 54, China’s ALL

142

administrative organ’s account the amount of fine that should be returned or the damages should be
paid; (2) Imposing a fine of 50 to 100 yuan per day on the administrative agency that fails to performthe judgment or order within the prescribed time limit; (3) Putting forward a judicial proposal to thesuperior agency of the violated agency for supervision; (4) Proposing a criminal liability to the headof administrative agency or the concerned authority in the so serious circumstances that a crime may
be constituted.
Regarding the recent implementation of judgments, in general, as Songnian Ying
comments, “no cases of brazen refusal”322 to carry out a court’s judgment seem to have appeared
and the provision for compulsory performance of the ALL is itself well asserting. Nevertheless, as
Yong Zhang recognized that, due to the lower awareness of obeying the law among people including
authority as well as the less strict punishment, the administrative agencies also have not become
accustomed to conducting administration according to law. An example illustrates that administrative
agencies do not reply to parties who apply for licenses or properly protect the security of the life andproperty of citizens and so on. Yong Zhang refers to the Japanese experience regarding the remedies
for those interests which are characterized as “new or social rights”, such as the right to social
welfare benefits, health insurance, education, housing and the like, and considers that Article 54 ofChina’s ALL should give more specific measures to these concerned issues323.
2.3. Introduction to Some Administrative Lawsuits in China
2.3.1. Hepatitis B Carriers Case (2003)
In the middle of 2003, the Personnel Affair Bureau of Wuhu district, Anhui province, thedefendant in the case, rejected Zhang’s application for a public servant’s position in the general
office of the government of Wuhu district, on the ground that he is carrier of the hepatitis B virus,
despite his excellent result in the National Entrance Examination for public service employment. (Heranked number 1 among other 30 applicants)324.
In October 2003, Zhang took the case to the Wuhu District ADC. This ADC convened on
December 19th 2003 to hear the case. In backing his claim, it said the report from a local hospital,
entrusted by Wuhu government to conduct health examinations, which says Zhang was not qualified
to be a civil servant, violates provincial standards. HBV carriers can be separated into several kindsof groups based on the specific virus and its potential to spread. Zhang does not belong to the sevengroups mentioned in Anhui's provincial health standards that disqualifies applicants from public
service. Therefore, the court said, the Wuhu government could not deny Zhang's application basedon the report but should have obeyed provincial standards. It concluded that the decision to stop

322

See S.Ying, Administrative Litigation System in China, in Yong Zhang ed (1997), p.57

323

Ibid, at 80

324

See The Court Confirms the Right of Hepatitis B Carriers, available at http://en.ce.cn/Life/health/t20040403_595013.shtml

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Zhang's application for the public service lacked merit, and asked the authorities to withdraw thedecision.
Thus, Wuhu District People Court gave Zhang, a hepatitis B carrier, the victory while
saying the local government was wrong to discriminate against him. It is the first case in China
involving the rights of a hepatitis B virus (HBV) carrier. Chinese scholarship welcomed this court
decision with precaution. Some scholars remarked that this is an indication of the improvement of
judicial reform. It reasserts the protection of human rights via judicial procedure325. However, theproblem laid down is that the Wuhu government after that finished hiring and the position, Zhang
applied for, has already been filled. The court backed Zhang’s discrimination claim, but did notsupport a second lawsuit to order the government to find him a job. This is regarded as a defect of
the court’s judgment due to the weak role of the court as well as the ignorance of the administrative
agency. How can the court compulsorily require the administrative agency to grant the job to people
involved the HBV? Chinese scholars suspect that Zhang sees the verdict as a victory, but experts
were unsure whether the verdict was a victory for China's millions of HBV carriers who are fighting
for equal employment opportunities.
In middle April of 2004, the defendant of this case, the Personnel Affair Bureau of Wuhu
district appealed to the intermediate court (Anhui Province ADC). This case is yet subject to further
adjudication of the court of the second-instance. The discussion still goes further because in China
the number of HBV carriers is still large. It is estimated that there are about 100 million HBVcarriers in China. If Zhang won a case, it meant that, as a precedent, the following cases must givefavor to the plaintiff involving HBV like Zhang. While there are no national laws or regulations
against HBV carriers joining the public service, many local governments and departments of thecentral government have issued their own regulations to bar them. Still, the number of appeals is
growing and some local governments are beginning to change their views. Some, including Hunan
province, have allowed its departments to employ HBV carriers whose infectious ability is so weakthat common daily contact, such as shaking hands and having dinner together, would pose no risk.
2.3.2. Qiao Zhangxiang vs. Ministry of Railways Case (2001)

On July 3rd 2001, Lawyer Qiao Zhangxiang from North China’s Heibei province took
the Ministry of Railways to the Beijing ADC because this Ministry raised the ticket prices
during the Spring Festival without the approval of State Council or any public consultation. It is
the first time that the ministry, which still monopolizes railway transport across the country, hasbeen brought to court in this way. In this case, the Beijing and Shanghai railway administrations
and the Guangzhou Railway Corporation (Group) are also the co-defendants with the Ministry

325

See XiaoHong Yu, Administrative Litigation as a Function Substitute Revisiting the Constitutional Review System in China,
Mini-APSA Paper, 27 (2007)144

of Railways326.
He claimed that the Ministry of Railways' practice of raising the railway ticket priceby 20 to 30 per cent during the Spring Festival peak travel period was illegal, because it did nothave the right to raise prices. He considered that such regulation must be approved by StateCouncil. The decision of this ministry violated legitimate rights of the consumers, including his.
At the reconsideration procedure, the ministry said that the decision to raise prices wasapproved by State Development Planning Commission and State Council. It the dismissed Qiao's
complaint, saying that the ministry had followed the Pricing Law, carried out investigations andlistened to public opinion.
The Beijing ADC applied Article 11 and 12 of ALL saying that it did not havejurisdiction over the case, because the decision to raise ticket prices by the Ministry of Railways
was an “abstract administrative act”. China's ALL does not include cases of abstract
administrative acts, which usually refer to the promulgation of administrative regulations that do
not have specific people as their target. After a public hearing, the court failed to reach a verdict.
In practice, the Ministry of Railways has often raised prices during the Spring Festival,
when Chinese people nationwide travel home. Although other means of transport, such as buses
and aircraft, are also available, trains still dominate because of their speed and low price. Qiao
made appeal to the SPC, however, his demand was once again dismissed.
According to Qiao, the judges in the case knew that the Ministry of Railways had
circumvented the law, but did not want to enter a judgment against a central government department.
After thirteen months of administrative reviews and appeals, the judges ruled against Qiao and hisclients. Qiao realizes that he did not file the lawsuit with the expectation of winning. However, Qiao
believes that he should have won the case from a purely legal point of view. He describes the judges’
decision as like “the referee in a soccer match pretending not to notice a goal was scored.” Heconsiders the case as “tactical,” because he knows that policy changes would probably occur
whether he won or lost. He claims that the litigation and surrounding publicity have indeed proved
influential, citing a surge in public hearings convened by government departments. It is true that it is

the first time that the ministry, which still monopolizes railway transport across the country, hasbeen brought to court in this way. Since the lawsuit was lodged and tried, the Ministry ofRailways has begun to hold public hearings on ticket pricing327.
To conclude, China shares some commonalities with Vietnam relating to the defects ofthe current ALRS, such as the abstract administrative regulations made by ministries may be
326

See Fair Fare for Rail Passengers, available at http://en.cnta.gov.cn/gl/2_view.asp?id=172; Railway Ministry Taken to Court for
Spring Price Hikes, People’s Daily Newspaper, available at
http://english.peopledaily.com.cn/english/200107/04/eng20010704_74140.html

327

See Public Internet Litigation in China: A New Force for Social Justice, Research Report, 7 (2007), available at
http://www.clb.org.hk

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difficult to be taken for judicial review, the strong discretionary power of administrative
agencies in everyday workings, as well as their hesitation to be defendant in court’s defendant.
Furthermre, the implementation of judgment in fact is also a significant remaining issue, even if
the plaintiff can win the case. Nevertheless, the two above cases prove the step-by-stepdevelopment of the new administrative litigation system that to a certain extent can protect
people from administrative misconduct. So far, there has been no administrative decision madeby central agencies or authorities to be resolved by Vietnamese ADCs. It does not mean thatthey always correctly perform correctly their work. In addition, the regulations in legislative
character made by both central and local agencies, as were mentioned, are sometime illegal,
even unconstitutional, but are always out of ADCs’s jurisdiction. The above Qiao Zhangxiang vs.
Ministry of Railways Case can be a good reference for Vietnam in respect of a ministerial levelagency, for the first time, acting as a defendant and its norms challenged by a judicial court.
3. Learning from Japanese Experiences
3.1. Change from Model of Administrative Court to Ordinary Court
3.1.1. Meiji Constitution and Model of Continental Administrative Court
The separation of state powers, the ROL, judicial review, democracy and human rights are
the basic principles accepted in Japan328. The Japanese administrative litigation system is not as welldeveloped as in the real common law and continental law countries but is characterized by acompromise between the two329. It is not a new matter like China, Vietnam and some otherdeveloping countries in the Asian region, because 120 years have passed since an Administrative
Court was established in 1890 under the Meiji Constitution of 1889.
Article 61 of Meiji Constitution provided:“No suit at law, which relates to rights alleged to have been infringed by the illegal
measures of the administrative authorities, and which shall come within the competency of the Courtof Administrative Litigation specially established by law, shall be taken cognizance by a court oflaw”.
According to this article, people whose rights were infringed by the illegal measure of
authorities are allowed to initiate a case to an administrative litigation court established by law. The
necessary reason for setting up a separate court for administrative lawsuits was so that theadministrative agencies whose official dispositions contravene the law, or who overstep theirauthority and injure people’s rights could not escape from being judged by the administrative
litigation court on the one hand, while on the other, to ensure the independence of the judiciary andof the administration, the ordinary court has no power to annual a disposition of an administrative
328

See Yong Zhang (1997), p.259

329

Ibid

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official commissioned by the constitution and the law. If the ordinary court was allowed to judge
administrative dispositions, the administrative officials would be subordinate to the judiciary which
may create obstacles for social management, public welfare may be lost, and the effectiveness of theadministration would be paralyzed.
Thus, the drafters of the Meiji Constitution incorporated the continental notions of a strict
separation of powers, denying the judiciary the competence to adjudicate direct appeals fromadministrative actions. One of the principal drafters, Hirobumi Ito, commented that: “The proper
function of judicial courts is to adjudicate in civil cases, and they have no power to annul measuresordered to be carried out by administrative authorities, who have been charged with their duties by
the Constitution and the law”330. It can be said that the Japanese administrative system before 1947
was established on the example of the Prussian system of administrative law. In Japan, much of the
prewar administrative doctrine followed inexorably from the institutional separation of a special
administrative court from the ordinary judiciary. Under the old administrative system, the concept of
ROL or the principle of legality of administrative acts had already been adopted. However, under the
Meiji Constitution, the Japanese Emperor was sovereign and all executive and administrative power
was derived from the Emperor. The Imperial Diet was no more than the organ to support theEmperor in making laws. Regarding the concept that administration had to be conducted according
to the law and its activity could be reviewed by the court, the administrative litigation system under
the Meiji Constitution was set up, but was in fact extremely deficient. The ROL in this period was
also called the ROL in form, or formal legalism.
In the Meiji period, although more than 1,000 cases331 were resolved yearly, there wasonly one administrative litigation court located in Tokyo, as a single instance court, withoutcompetence to rehear cases and its decisions were not subject to further review. Its judges, called
councilors (Hyojokan), could concurrently hold other administrative posts. The jurisdiction of thiscourt was limited in the “enumerative principle of special laws”, such as assessment of taxes andtheir collection, refusal of trade licenses, public work cases and others, meanwhile damage
reparation and other pecuniary cases were outside the court’s jurisdiction. These cases were only
taken to the court after the administrative appeals (petitions or sogan) had been exhausted.
Again, it should be emphasized that the Meiji Constitution established a continental typeadministrative court, and the grounds were prepared for the reception of the continental
administrative law in Japan. Due to the implications of this, it is necessary here to further mention
foreign influences in the Japanese administrative law in general and the administrative litigation330

See Hirobumi Ito, Commentaries on the Constitution of the Empire of Japan 1889, translated in to English by Miyoji Ito. It iscited by John .O.Haley, Introduction to Japanese Law, in John Owen Haley ed (1986), p.2
331

See Shuichi Sugai &Itsuo Sonobe, Administrative Law in Japan, 28 (1999)

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system in particular. This also is also a potentially good learning experience for Vietnam on studying
foreign laws.
Firstly, German influences is by far the greatest. It was no coincidence that at that time,

many young scholars from Japan staying in Germany, subsidized by the Japanese Government, had
an “irresistible attraction” to a newly published book of Otto Mayer in 1895 entitled “Deutsches
Verwaltunsrecht” (German Administrative Law). Tatsukichi Minobe (1873-1948) then translated theMayer’s book and formed the mainstream-school of Japanese administrative law332. Yatsuka Hozumi
is also well known as the earliest and most fervent Japanese advocate for a dichotomy between
public and private law and the concept of “administrative acts” (Gyosei Koi or Verwaltungsakt) in
German theory. Since the Japanese government policy at that time, characterized by the official
motto of “fukoku kyohei” - a wealthy country equipped with a strong army, it was common sensethat the German theory “went hand-in-glove with the official Japanese trend”333.
Under Otto Mayer’s theory, the central and most important concept was the Rechtsstaat(statutory state) compared with the Polizeistaat (police state), as Mayer drew a gloomy picture of theGerman ancient regime. According to him, the Rechtsstaat was “simply the state with well-orderedadministrative law”, and the administrative law meant the legal order of the relationship between theadministrating state and its opposites-participants, called “Untertanen” (subject). His theory wasinterpreted favorably in Japan as a general duty of obedience of the subjects to administrative power
when it was granted by the enacted law. The Meiji Constitution employed the term “shin-min”
interpreted as “subject”, so that Mayer’s theory, as Sugai and Sonobe comment, could fit all themore easily in to the nation. The Rechtsstaat requires not only the utilizing of the means of statutelawmaking, but also making administrative decisions in individual cases. Thus, the above term ofadministrative decision, referred to as administrative disposition in German law, and later Japaneselaw, “has to be inserted between the statute-law and its realization of execution by a practical deed”.
Mayer called this Verwaltungsakt (Gyosei Koi or administrative act), corresponding to the originalFrench term of acte administrative. It should be noted that, prior to the war , the introduction in
Japan of theory and institutions adapted from German models led Japanese scholars to German
sources (dominated by the Rechtsstaat notion) to learn the doctrine that explained their meaning andfunction. Out of German theory and concepts, Japanese scholars recreated a body of administrative
law doctrine for Japan, among them the principal pillars in this period were a dichotomy between
public and private law and the concept of administrative acts.
The other importance of Mayer’s theory was his division of the entire field of
administration into two categories, namely the “interference administration” and the so-called“service-administration” in which the former was covered by the principle of “reservation of332

Ibid, at 38

333

Ibid, at 39

148

statute-law” (Vorbehalt-principle) and the latter by public-facilities establishment which needed not
to be statute laws. He also divided the administrative function of the state into roughly the same twocategories of restrictive functions and “service” functions in which the former being subject to thereservation of statute-law’s principle, or possibly to the administrative court for review and the latternot. It can be compared with the distinction between “Les actes de puissance public” (the act ofpublic authority) and “Les actes de gestion” (the mere act of management) in French law334 that also
had an indirect influence on Japan through the medium of German scholarship.
Secondly, regarding the French influences, Sugai commented that French law had only anindirect influence in Japanese administrative law “which absorbed German theories lock andbarrel”. The most important case to be mentioned by Japanese scholar was the “Blanco judgment”
on February 8th 1873 that provided a theoretical foundation for a sphere of administrative law built
around the concept of public service and was finally resolved by the Tribunal of Conflicts in France.
The theory of demarcation between the jurisdiction of administrative tribunals and ordinary courts
originally consisted of the distinction between the act of public authority and the mere act ofmanagement, just like the American law distinction of governmental and proprietary functions inmunicipal corporation cases. In the former, when the public authority issued orders or commands
toward the people, which could not be reviewed by ordinary law courts, since if such a process wereallowed, the ordinary courts would have been left with the same status as individuals. Thisdistinction is still being used in Japan as a delineating theory about administrative lawsuits, such as,
in the theory of the exercising of public power in the Japanese ACLL. However, while the concept of“service public” became all important in French law, the Japanese concept of administrative law in
the Meiji period was much narrower. This can be seen in the narrower limit of the Meiji
administrative court, especially in matters concerning the monetary affairs, damage reparation or theso-called administrative contracts.
Japanese scholars at that time were also unfamiliar to the French law’s distinction between
the “adjudicating” and “active” administration, and a famous French legal proverb that “judging
administration is itself a part of administration” which empowered the Conseil d’Etat to hold boththe advisory and judging function. As a result, the Meiji Constitution of Japan refused the model ofFrench administrative court, as Sonobe concluded that: “[t]he administrative power to adjudicate(Gyosei Saibanken) is a part of the judiciary and stands in opposition to the executive branch, but it
is reserved to administrative courts which are established separately from ordinary courts”335.

334This drew a distinction between those actions of the administration which involved its public authority and mere acts ofmanagement (acts de gestion) which did not. The former were outside the jurisdiction of the ordinary courts, the latter were within it.
In other words, disputes arising out of its gestion publique (public administration) belonged to the administrative court. See
L.Neville Brown & John S.Bell, (1998), p.129

335

Itsuo Sonobe, Comparative Administrative Law: Trends and Features in John Owen Haley ed (1986), p.42

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To conclude, the creation of the administrative court under the Meiji Constitution resolved

the debate in Japan whether a separate court was needed or a House of Councilors (Sanji-in) should
also function as a court, in a fashion similar to the Conseil d’Etat in France. However, it was also
different with the German model that, whereas there was at least one administrative tribunal in eachLand (member-state) in Germany, only a single court was established in Japan. Furthermore,regarding the issuance of judgment, while the common law countries give five kinds of remedies,such as mandamus, certiorari, prohibition, injunction and declaration, and the German law provides
the mandatory injunction, performance and the declaratory judgment, in Japanese law, the only
available remedy, namely the annulment (torikeshi) of the administrative acts was provided.
3.1.2. Japanese Constitution (1947) and Changes to Model of Ordinary Court
In contrast with the ROL in the Meiji period that was criticized as the ROL in form, theROL under the present Constitution (1947) is called substantial ROL or substantial legalism.
According to the present Constitution, the sovereignty of the state is vested in the Japanese people.
The Diet is the highest organ of state power and the sole law-making organ of the state. The
fundamental rights and freedoms of the people, with exception to inference with public welfare, shallbe in the supreme consideration in making legislation, in government affairs and protected by the
judicial courts. The constitutionality of laws and administrative regulations or rules has to submit to
the judgment of the independent courts. Administrative actions or activities which violate laws andinfringe the people’s legal rights also have to obey the judgments of the law courts and these issues
are comprehensively summarized.
Regarding the court model over resolving the administrative lawsuits, the JapaneseConstitution 1947 changed a continental law system with an independent administrative court toan American-type administrative lawsuit proceeding by ordinary courts. Article 76 of the newConstitution provided that: “the whole judicial power should be vested in law courts”, whichmeant that the power of adjudicating administrative litigations should be included, so that not
only civil and criminal cases but also administrative cases would be in the hands of the “whole
judicial power”. The second paragraph of this article also provided the prohibition of
extraordinary tribunals like as the administrative litigation court in the past and prohibited “anyagency of the Executive” from being given “final judicial power”. Thus, the JapaneseConstitution of 1947 completely abolished the existence of the continental administrative court.
Nevertheless, regarding the resolving of administrative lawsuits, Japan never lost its
characteristics and completely followed the American administrative law theory and model.
Jiro Tanaka was the famous Japanese scholar who played a leading role in thedevelopment of Japanese administrative law in the Occupation reforms and the postwar era. In
the Occupation period, three significant administrative law reforms were undertaken by theDivision of SCAP: (1) The expansion of the state liability to compensate any person injured as a150

consequence of official misconduct;(2) The attempt to deal with the procedural problems inherent in the shift to a systemof direct review of administrative actions by the regular courts. Furthermore, the administrativeacts doctrine in which review is precluded unless the action is a disposition (Shobun) that affects
in some concrete fashion the rights and duties of the party seeking review continues to prevail.
Shobunsei encompasses the questions of what actions are subject to review, who is entitled toseek review and when review is appropriate;(3) The other concerns include administrative guidance; the consequence role ofdamage actions and so on.
It is worthy noting that in 1962, some years after the Occupation ended, the Special
Rules Governing Administrative Litigation Law (1948) came to be superseded by a new law
called “Administrative Case Litigation Law” (ACLL) which comprised of a self-sufficient andexhaustive code on administrative lawsuits. Thanks to ACLL, Japanese administrative law has
reverted to the old theories of the administrative litigation practiced by ordinary courts. In
outward appearance, the ordinary courts handle administrative lawsuits as provided by the newConstitution, the procedures followed concerning such lawsuits is virtually the same as that in
the old court. Thus, as highly appreciated by Sugai, the authors of the new law were thought
indifferent to the Constitution’s restraint, “[t]hey blithely went ahead and revived the old court’stheory of the old continental-style administrative lawsuits”336. Along with others, he called thisthe failure of Americanization of Japanese Administrative Law337.
The court system in Japan consists of four tiers, including 450 summary courts as thelowest courts, 50 district courts in which there is one for each prefecture with the exception of
Hokkaido which has four district courts; eight high courts referred to as the Appellate Courts
located in Tokyo, Osaka, Nagoya, Hiroshima, Fukuoka, Sendai, Sapporo, and Takematsu, andthe Supreme Court as the top338. In general, the ordinary court system deals with administrative
lawsuits and there is no existence of administrative courts. However, the reality is that recently
there are separate administrative branches in many districts handling administrative cases. Suchcases brought to court in Tokyo, which accounts for most administrative cases, as well as in
Osaka, Nagoya, Yokohama, Saitama, Chiba, Kyoto and Kobe are assigned to special
administrative divisions and are not heard by civil judges arbitrarily chosen to hear such cases339.
336

Sugai Suichi, Administrative Law at the Crossroad, in Shuichi Sugai & Itsuo Sonobe (1999), p.30

337

Ibid, at 81. He also evidenced the “substantial evidence rule” in the Anti-Monopoly Law Art 80 that presupposes the entire
structure of Anglo-American type judicial proceedings which in fact are lacked in Japan. Other examples like the existence ofjury-system, the overall limitation of appellate jurisdiction to question of laws, the tax-player lawsuits …etc. Those basic ingredientsof Anglo-American legal system were totally absent in the local law. So the Occupation Forces-Inspired Law Reforms were utterly
doomed to failure.

338

See Joseph W.S.Davis, Dispute Resolution in Japan, pp.61-73 (1996)

339

See Carl F.Goodman, Justice and Civil Procedure in Japan, pp.460-463 (2004). In Tokyo, there are three special divisions, in151

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To some extent, there is a kind of administrative division within the normal court system, likethe models in China and Vietnam. However, the greatest distinction of the Japanese court
system is that the courts are divided throughout the whole country, are not based on theadministrative units and are absolutely independent from the local administrative agencies.
Article 12 of the old ACLL provides for the court where the administrative agency is located, or
where the immovable or specific place is situated, or the court of location of the lower
administrative agency shall be in competence to deal with administrative lawsuits that aims toensure the impartiality and avoid subordination to the administrative agency during litigation
process. However, to cater for difficulties faced by parties located far from Tokyo to institute a
lawsuit and make more convenient for the plaintiff, the revised ACLL (2004) supplemented two
new points, accordingly the court empowered jurisdiction will be: (1) the court where thedefendant resides (Art 12, sec.1) or (2) the district court located in the same place where theHigh Court having authority over the district court of the plaintiff’s residence (Art 12, sec.4).
For example, a resident of a district in the Tohoku (Northeast) could bring an action to the Tokyo
district court or the district court in Sendai. Sendai would be permitted because it is the locationof the High Court with jurisdiction over the district court in Tohoku.
To conclude, to paraphrase one foreign commentator340the dominance of public law theory(developed under Meiji Constitution as a result of the separation of administrative and judicial
adjudication) and the failure of the Occupation Reforms (to provide alternative model) have
prevented the Japanese judiciary from playing a significant role in protecting the citizen fromgovernmental abuse and helped the Japanese bureaucracies to preserve their independence fromjudicial oversight during the Post-War period. The common sense of Japanese actions over history is
described very well by the idiom “Wakon Yosai” which can be translated as “Japanese Spirit andWestern Technology”341. For valuable experiences of transplanting Western legal theory, as Professor
Yanase explained: “[W]e have somehow learned the conclusions arrived at by Western learning, but
it seems that we succeeded in absorbing that total personality make-up that gives birth to thoseconclusions…It is perhaps not surprising that we are able to achieve any solid interpretation ofconfidence in such theories”342.

Osaka with 2 special divisions, in Nagoya, Yokohama, Saitama, Chiba, Kyoto and Kobe each with one division that handle
administrative cases.
340

John O.Haley (1986), p.14

341
See the idiom (四字熟語) of Wakon Yosai (和魂洋). It is cited by Takao Tanase, The Empty Space of the Modern in Japanese
Law Discourse, in David Nelken & Johannes Feest ed, Adapting Legal Culture in the 21st Century, 195 (2001)
342
See Y.Yanase, 7 Academic Prospective Administrative Law, 132 (1951). It is cited by Itsuo Sonobe in John Owen Haley ed(1986), p.57

152

3.2. Some Experiences on Jurisdiction over Settlement of Administrative Cases
3.2.1. Scope of Judicial Review
The establishment of the administrative court in the Meiji period (1889 – 1946) paved theway for separating judicial courts from administrative sectors, and separating the administrative
court from ordinary courts for the recovery of the administration’s mistakes. However, its
jurisdiction was severely limited by the administrative cases enumerated in the Act Concerning
Administrative Litigation and its judges were not wholly independent from the administration.
Also, being different from China and Vietnam in terms of retaining the enumerated matters
judicially reviewed, the Japanese courts are allowed to review illegal dispositions of any
administrative authority and other statutes “without the limitation of jurisdiction”343 over all fieldsof the administration.
Thus, in order to analyze the scope of judicial review by the Japanese courts, this section
will address the following questions: (1) What is the concept of “disposition” (shobun) and what are
its conditions for reviewing it (shobunsei)?; (2) Can the court can review the illegality of theadministrative guidance?; (3) Is there any exception of the limits of judicial power, although noenumerated administrative lawsuits have been provided by law?; (4) Are legal norms out of thecourt’s jurisdiction such as with the cases of Vietnam and China?; .
For the first question, it should be foremost noted that the term of “disposition” inJapanese has not been uniform and thus the meaning of the term depends upon its interpretation in
the various laws. Generally, however, “disposition” has been considered to mean nearly the samething as “administrative act”. Other words that generally carry the same meaning as “administrativeact” in the various laws and regulations include “permission”, “patent”, “approval” and“prohibition”. Article 3, sec.2 of ACLL (2004) provided that: “A suit for revocation of disposition
shall mean a litigation seeking the revocation of a disposition of an administrative agency and anyother act coming under the exercise of pubic power by an administrative agency”.
Thus, a disposition addressed to the revocation litigation in Japan must hold the nature of
exercising public power by the administrative agency or authority. Japanese administrative law gives
four characteristics of an administrative disposition: (1) the public power; (2) the legal effectiveness;(3) the direct and concrete impact to the administrated; (4) the external relation between theadministrator and the administrated 344 . Thus, like the definition of an administrative decision
addressed to judicial review in Vietnam, a disposition can be taken to Japanese courts when it
ensures its issuance under the exercise of public power, the time limited by law, and its direct
343

Sugai Suichi & Itsuo Sonobe (1999), p.82

344

See Ishikawa Toshiyuki ed, The introductory Japanese Administrative Law, [ 初 め て の 行 政法 ], pp.67-72 (2006).The
characteristics of an administrative disposition consist of (1) 権力性 (the public power); 法的効果性 (the legal effectiveness); 直接具体性 (the direct and concrete impact); 外部性 (the external relation).

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influence on the infringed people. The discussion here is whether the decision which possesses thecharacteristics of internal administration (like those made between the head of the agency and his
staff as disciplinary decision and so on) is regarded as administrative disposition, and consequently
can be taken to the courts. Japanese administrative law, in principle, does not recognize the decision
made within the internal relations of the administration, for example the order addressed to theinferior (Buka) by the head (Joshi), as an administrative disposition. However, regarding thedecisions addressed to civil servants by administrative organs, such as a disciplinary decision on job
dismissal, or a decision on the leave of absence from one’s duty, the court can determine whether
such decisions are “administrative dispositions” 345 and satisfy the condition of shobunsei.
Consequently, it can be judicially reviewed.
As mentioned, shobunsei encompasses the questions of what actions are subject toreview, who is entitled to seek review and when review is appropriate. Along with therequirement of the plaintiff standing, shobunsei is the prerequisite for the court to register alawsuit. Through judgment practice, the Supreme Court instructs two main requirements of theshobunsei as:(1) the exercise of public power; (2) the necessity to directly and concretely spring thelegal effectiveness and influence on the people’s legal rights and duties346. The revised ACLL
(2004) has expanded the limited time from three months to six months from the date on which it
became known that the disposition was made, in which people can take such an illegal
disposition to the court347. Vietnam can learn from this experience since, in Vietnam, the limited
time for compulsorily taking an administrative complaint is only 90 days, and for lodging alawsuit, 30 days (or 45 days as an exception).
Some scholars criticize that the shobunsei restriction limits who may seek review348.
Excluded under the shobunsei test are most, if not all, informal actions by administrative
agencies regardless of apparent illegality or actual injury. In the Post-War experience, thelandmark case regarding the determination of shobunsei was the Supreme Court’s en bancdecision in Hayashi Ken Zosen K.K vs. Director of the Marine Accidents High Board of
Inquiry349. In this case, the Supreme Court reversed the judgment of Tokyo High Court anddismissed the litigation demand of plaintiff Hayashi, stating that:345

According to the Art 92 , section 2 of Law on State Public Servants (国公９２条の 2) and Article 51, section 2 of Law on Local
Public Servant (地公５１条の 2), the disciplinary decisions on job dismissal (懲戒免職) or the decision on the leaving absencefrom one’s duty (分限休職) can be determined whether is an administrative disposition. See Ibid, at 72.
346

See Keiko Sakurai & Hiroyuki Hashimoto, Administrative Law [現代行政法], 238 (2006) There are two main requirements forshobunsei as (1) 公権力性 (the exercise of public power); (2) 国民の権利義務に対する直接.具体的な法効果の発生(it must
directly and concretely spring the legal effectiveness and influence on the people’s legal rights and duties)
347
See Revised ACLL (2004) of Japan, Art 14 section 1
348

See John O.Haley ed (1986), p.10349

See 15 Minshu 467 (Supreme Court, Grand Bench, March, 15th 1961)

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“[T]he decision by Board of Marine Accident is a decision clarifying the cause of themaritime disaster that does not limit in any duty on the part of the Appellee …and does not havethe effect of a binding determination of the Appellee’s negligence. This being the case, thedecision does not have a direct effect on the Appellee’s rights and duties, thus it can not be
considered to be an administrative disposition and we must hold that the Appellee is not allowed
to file suit”350.
Due to the focus on individual rights, the issue of shobunsei is closely related tostanding. The shobunsei restriction can be found in Article 9 and 39 of the ACLL, stating that
only persons with “legal interest” in the revocation or invalidation of challenged actions may
bring suits to court. Some famous cases in the past include Novo Industri A/S (Danish
pharmaceutical firm) vs. Japanese Fair Trade Commission in which the courts reasoned that
Novo Industri A/S lacked standing – the requisite legal interest to sue, and thus it was not a party
to the Commission’s decision351. Recently, the Japanese government’s 2004 initiative to amend
the ACLL does not change the wording of the Article 9, but it does add a new Article 9,
subdivision 2 whose purpose would appear to loosen the legal interest doctrine. This provision
would allow a reviewing court to consider statutes other than the statute under which the agency
is acting to determine whether a legal interest has been injured. Another issue closely related tothe shobunsei is the existence of Administrative Guidance in the daily life of Japan. If an agency
does not make a disposition, but simply suggests a course of action, there has been no shobun,
accordingly there is nothing to review. Thus, as most of Japanese agency takes place throughadministrative guidance rather than disposition, it leaves a big gap in administrative matterssubject to review. This consideration will be discussed in the next question.
For the second question, in principle, the Japanese courts refuse to review the legality of

the administrative guidance since it fails to fulfill the requirement of shobunsei. Administrative
guidance existed in Japan long before there was any statute that defined this term. The
Administrative Procedure Law of Japan in 1994 (revised in 2005) is the first statutory
definition352that gives some characteristics of administrative guidance as follows: (1) it can not be adisposition because it can not determine and adversely affect legal rights; (2) it must fall within thescope of the agency’s duties or functions; (3) it must be non-compulsory and must seek voluntarycompliance; (4) it must have as its objective, the obtaining of a result to further an agency’s goal353.
Thus, administrative guidance is voluntary, non-compulsory, and has no direct legal influences on

350

Ibid, at 470

351

See Case of Novo Industri A/S vs. Fair Trade Commission, 29 Minshu 1592 (SC, the 2nd Petty Bench, November, 28th 1975)

352

See Carl F.Goodman (2004), p.336

353

See Art 2, section 6 of Administrative Procedure Law (APL) 1994, (The latest revised in 2005)

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the administered. In other words, it is in essence not a real administrative disposition, therefore
cannot be reviewed. However, in practice, the few administrative guidance cases that have been
decided by courts throw an interesting light on judicial review of such guidance.
The earliest case dealing with administrative guidance was the judgment of the Tokyo
Court of Appeal in 1963 which refused a challenge to the administrative guidance issued by theJapanese Foreign Ministry354. In this case, the court rejected the demand of 345 plaintiffs in total of
500 Festival group’s participants who sued the Foreign Ministry for the refusal to issue passports fortheir participation in Festival of World Peace held in Moscow. Since the plaintiff voluntarily
complied with the Ministry’s instruction not to submit individual applications, it barred the successof the plaintiff’s claim. Another early case was in 1971 where Tokyo District Court permitted a suitchallenging a notice (Tsutatsu) issued by the Ministry of International Trade and Industry (MITI) anda warning (Kankoku) by the prefecture authority. In this case, the court held that the plaintiff could
challenge the notice but not the warning, since the court reasoned, in the reality of the administrative
affairs the notices played an important role and can strongly affect the concrete rights and duties ofindividuals. Although the court finally ruled against the plaintiff on the merits of his challenge, thislawsuit also raised a strong debate on whether administrative guidance should be judicially reviewed
and whether its real affect was to protect the legal rights of people. Some scholars considered thatthe administrative guidance is though technically voluntary, Japanese administrators rely on informalpressure and other means of enforcement to persuade the regulated party to comply355. Hence, itcannot avoid causing any injury to people and be regarded as a threat to the ROL in Japan356.
In fact, taking a revocation litigation regarding the administrative guidance to the court is
not an easy task in Japan, due to its dissatisfaction with the requirement of shobunsei. Recently, therevised APL (2005) defines guidance as suggestion to policy or practice that the agency wants tocarry out which is voluntarily followed by the administrative entity (Article 2). Guidance ceases tobe guidance when it becomes compulsory, therefore the local courts can examine whether a notice,warning or instruction has content similar to a shobun. To avoid the extraordinary inconvenience thatarises thereby, Article 35, section 2 also provides that where an administrative guidance is renderedorally, the person imposing it in question shall provide the matters of the subject party, the purpose,content and the persons responsible and so on in writing. Furthermore, it seems to be expected in therevised ACLL (2004) that litigation is considered regarding the administrative guidance in the formof the party litigation (Tojisha Sosho) which may require the government entity issuing the354

See Young M.K, Judicial Review of Administrative Guidance, in Meryll Dean ed, Japanese Legal System, 188 (2002)

355

Ibid, at 191

356
See Dean Meryll, Administrative Guidance in Japanese Law: A Threat to the Rule of Law, Journal of Business Law, pp.398-99(1991).

156

administrative guidance in the legal relations to be a defendant357. In a paper by Professor Nakagawa
paper358, he suggests that the 2004 amended ACLL points the way towards a new model of judicial
review. He calls for a new philosophy that would see the ordinary system of civil litigation as thebasic method of challenging administrative power in court, except in cases of administrative
disposition, because the ACLL only requires revocation suits for such cases359. Some other cases
concerning administrative guidance can be cited here, such as the Hiroshima SMON Case (1979)360,
the Nakatani Case (1985),361 the NHK Censorship Case (1990)362, the Daiwa Bank Case (1999)363
and so on.
For the third question, an outstanding point that should be a good lesson for Vietnam isthat the Japanese ACLL has no enumerated provisions regarding the administrative matters judiciallyreviewed. It means that the courts can review the legality of all fields of administrative activities.
However, there are also two main limitations of the court’s jurisdiction: (1) some governmental
actions which are of a highly political nature do not come under the review of the courts, even if theyrise to action at law. The Japan-U.S Security Treaty was as an example of not coming under court
review due to its highly political nature; (2) Where the law gives an authority discretion, the judicial
courts can not override the exercise of such discretion. However, it does not mean that the exercise
of discretion by an administrative authority is not always outside the scope of court’s review. Article
30 of ACLL provides that: “as to a discretionary disposition by an administrative authority, a court
can revoke the disposition only where the limits of discretion are exceeded or discretion is abused”.
For the last question, the Japanese Constitution provides that “the Supreme Court shall be

the final court which determines whether any law, ordinance, rule or decision is constitutional ornot”364. Hence, though having no constitutional court, Japan recognizes the constitutional review andthe constitutionality of laws, regulations or rules have to submit to the judgment of an independent
judicial court365. In practice, the initiation toward administrative legal norms is not clearly defined in357

See Keiko Sakurai & Hiroyuki Hashimoto (2006), p.137. See also Art 4 of the revised ACLL (2004)

358

Prof. Takehisa Nakagawa (Kobe University)’s paper titled: “Judicial Review in the US and Japan: Implications of the 2004
Amendment of Japanese ACLL”. It was quoted by Ronald M.Levin (Washington University in St.Louis), Reform of Judicial Review
in Japan: An American Perspective, CDAMS Discussion Paper, available at http://www.law.kobe-u.ac.jp/lawrev/mokuji.htm.

359

Ibid, at 6360

See Kanazawa Osamu et al, Waseda Bulletin of Comparative Law, 50 (1981)

361
Nakatani vs.Tokyo-to, 39 Minshu 989 (Supreme Court, July, 16th 1985). See Takehisa Nakagawa, Administrative Informality inJapan: Governmental Activities Outside Statutory Authorization, 52 Administrative Law Review, 175 (2000).
362

Case No.800 of 1986 (Supreme Court, Petty Bench April, 17th 1990), available at the Supreme Court website
http://www.court.go.jp363
See Tsuyoshi Yamada, Daiwa Bank Case, 15 Columbia Journal of Asian Law 193, pp.210-211 (2002). See also
http://www.columbia.edu/cu/asiaweb/v15n2Yamada.htm
364

The Constitution of Japan, Art 81

365

See Yong Zhang (1997), p. 69

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CALE Discussion Paper No.4

ACLL because of opinions stating that “statutes and orders are universally held not to be subject tojudicial review”. However, the content of some legal norms, such as administrative circulars can bereviewed as extending the direct influence over rights and duties of particular citizens366, such as thecase of “Application to quash a circular relating to the cemeteries and burials”367. In short, inJapanese law, after a plaintiff has lodged a lawsuit against an administrative act, the judges candecide if the legal norm to which the defendant referred violated the Constitution or other superiorranked legal norms by reviewing the concrete administrative case. The final power to judge theconstitutionality of laws and regulations belongs to the Supreme Court, not inferior courts.
3.2.2. No Compulsory Administrative Reconsideration
Before the enactment of ACLL in 1962, the so-called “requirement of the primaryadministrative complaint procedure” was a general rule. According to this, the interested party had togo through an administrative complaints procedure against the action in question before initiating thelawsuit to court368. ACLL abolishes this requirement and allows a lawsuit to be filed immediately at
court. In cases where some special laws continue to require a primary procedure of reconsideration
by a disposed agency or upper level agency, the lawsuits cannot be filed in court369. However, ACLL
has created good conditions for litigants initiating a case to court in cases where they do not obtain adecision made by reviewing agencies such as where: the review decision is not rendered after the
expiration of three months from the date when a complaint was made; or the urgent necessity to
avoid serious damages caused by disposition; or there is a justifiable reason for not obtaining areview decision370.
3.2.3. Categories of Administrative Litigation
The Japanese ACLL provides four kinds of litigations, namely Kokoku (appeal) litigation,
party litigation, public litigation and agency litigation in which the two former are called “subjective
litigation”. The two former cover the cases of specific injuries to individual rights and interests while
the two latter are called “objective litigation” characterized as public interest litigations (SeeAppendix 6). It should be noted that the categories of the administrative litigation in Japan are verybroad and the Japanese courts have a wide jurisdiction over determining an administrative lawsuit,for example, litigation regarding public interest has existed in Japan for a considerable period, while
it is still a new issue adopted in China, and absolutely unfamiliar to Vietnam.

366

Shuichi Sugai & Itsuo Sonobe (1999), p.107

367

Minshu Vol 22, No 13, Third Petty Bench of Supreme Court, Showa Year 43 (December, 24th 1968). See Ibid.

368

Yong Zhang (1997), p.9

369

ACLL, Art 8 section 1

370

ACLL, Art 8 section 2

158

Public litigation (Article 5) means a litigation seeking the correction of acts notconforming to laws and ordinances of the state agencies or public entities, which is instituted in thecapacity of a person as a voter or in another capacity that does not involve the plaintiff’s personal
legal interests but rather his concern as a citizen. Thus, the plaintiff in this litigation is to represent
the populace as a guardian of the public interest, and a court’s judgment is effective not only to theplaintiff and the defendant but also as to the whole population. Some examples of this litigation
include the election litigation (Senkyo Sosho) that a voter or a candidate who has an objection against
the validity of the election under the article 204 of the Public Officer Election Act; the inhabitant
litigation (Jyumin Sosho) that an inhabitant may take an ordinary local public body with respect to afinancial issue under the article 242 of Local Government Act.
Agency litigation (Article 6) concerns a controversy on the existence or exercise of power

between agencies of state or a public body. As a general rule, this issue is to be settled inside theadministration, however in case of necessity provided by statute, the court can resolve it371. Anexample of this litigation is the Okinawa Governor Mandamus Case in which the National
Government sued the prefecture governor to require him to sign leases for American air bases on
Okinawa372.
Party litigation (Article 4) means: (1) a litigation relating to a disposition or decision toaffirm or constitute legal relations between parties, which make one of the parties in the legal
relation a defendant in accordance with the provisions of laws or orders; (2) a litigation relating to
the legal relations of public law. For (1), although the usual case would be for a person aggrieved bya disposition to bring an action for revocation of such disposition, a particular statute necessitatesthat an action be brought against the other party rather than an action for revocation as it is thought
to be the best method for settling the dispute. This litigation is generally called a formal party action(Keishikiteki Tojisha Sosho). Regarding the administrative guidance mentioned above, since therevised ACLL 2004, there is an expectation that such litigation should be in form of the Tojisha
Sosho (Party litigation)373. An example of this litigation is an action taken by a landowner under
Article 133 of the Land Expropriation Act for more compensation than awarded by the expropriationcommittee. For (2), an example of this would be an action brought by a civil servant dismissed by an

371

Such litigations as: the mandamus proceedings brought by a prefecture governor as an agent of the state against a mayor, thehead of a town or village before a district court under Article 146 of Local Government Act; Mandamus proceedings brought by acompetent minister against a prefecture governor before a high court under the article 15 of National Government Organization Act
and the article 146 of Local Government Act in cases where the prefecture governor administers or conducts affairs entrusted to him
as an agent of the state in violation of law or instructions from the minister, or fails to administer or conduct such affairs, and does
not obey an order issued by the minister…etc
372

See Okinawa Governor Mandamus Case, Case No.90 (Supreme Court, Grand Bench, August, 28th 1996)

373

See Keiko Sakurai & Hiroyuki Hashimoto (2006), p137

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CALE Discussion Paper No.4

allegedly void disposition for a confirmation of his status as a civil servant. This litigation is referred
to as a substantive party action (Jisshistuteki Tojisha Sosho)374
Kokoku (appeal) litigation (Article 3) is the most important administrative litigation

provided in Japanese ACLL. To meet the demands of Justice System Reform in Japan in the 21st
century, the revised ACLL 2004 expanded the categories of Kokoku litigation from four types to six
types:
1) the lawsuit for revocation of disposition is the most typical and important among theobjects of the administrative litigation that is centrally introduced in the ACLL. It means a litigation
seeking the revocation of a disposition of an administrative agency and any other act coming underthe exercise of public power by such administrative agency.
2) the lawsuit for revocation of decision that refers to an action by which revocation of adecision or another action of an administrative authority in sought on an application for review, anobjection or any other kinds of administrative complaints.
Both above types form the same category of “actions for revocation” (Torikeshi Sosho)with the same nature and same procedure for application. Nevertheless, the main difference is thatthe former may be brought to the court immediately without going through an administrativecomplaint procedure, even where an administrative complaint may be lodged in order to challenge
the disposition. It is also the main distinction with that of Vietnam for the compulsory requirementof the pre-litigation period. In Vietnam, due to the restriction of the concept “the first administrativedecision” (Quyet dinh hanh chinh lan dau), the decisions resulted from “the application for review”(reconsideration decision) or the so-call “objection” are not addressed to the court’s jurisdiction.
3) the lawsuit for affirmation of nullity means a litigation seeking to confirm the existenceor non-existence of a disposition or decision, or of the effectiveness or ineffectiveness of thereof.
4) the lawsuit is taken to confirm the illegality of forbearance (a failure to take an action)of an administrative agency or authority.
Among above four litigation types, the suits to overturn a disposition (the first type) are thecases of the most interest because they implicate the judicial review power of the courts where theagency action involved. The latest revised ACLL 2004 supplemented two new types of lawsuits
under the article 3, section 6 and 7 that categorizes the fifth and the sixth types of litigation as below:5) the lawsuit is taken to demand the legal obligation attached to the administrative agency(Gimutsuke no uttae)375. In this litigation, a plaintiff can seek an order compelling the agency to act
in a regulatory fashion when it has failed to take action (Sec.6.1). A plaintiff also may seek an order
requiring the agency to enter a favorable determination in a situation where the applicant has applied

374

Ibid, at 224-225

375

See ACLL 2004, Art 3 section 6, 義務付けの訴え (Gimutsuke no uttae)

160

for some form of government benefit (such as social security payment or a license) and the agency
has failed to act (Sec. 6.2). While under the old law, in this situation, the applicant could only seek adeclaration that the agency must act in reasonable time, this revised law allows the court to order theagency to grant the relief requested. In other words, both declaratory and active relief must be taken.
The court has authority when granting relief to the plaintiff to either order the specific term of theagency action or may order the agency to grant plaintiff relief while permitting the agency todetermine the specific of that relief. For example in a social security payment case, the court couldorder that agency make the payment, but permit the agency to calculate the payment rather than the
court make the calculation.
There are two main conditions for asserting an agency failure to act: (1) it must relate to an
application for a disposition or an appeal within the agency that is legally bound by statutes; (2) noagency action has been made although the reasonable period of time provided by law had passed.
The relief can be only granted if the courts finds that the agency’s inaction is unlawful or an abuse of
discretion376.
6) the lawsuit is brought to demand the suspension of an action from the administrative

agency (Sashitome no uttae)377. This litigation allows the plaintiff to require an injunction to preventthe administrative agency from taking an action when it is asserted that the agency has no legal
authority to so act. This is a potentially significant change in the law, as it would permit injunctive
relief in situation where previously the court had no power to intervene.
Article 37, sec.4 limits the conditions for taking such a lawsuit in cases where the plaintiff
has no other available remedy and the agency is threatening to take an action that will inflict a“grave” loss on the plaintiff. The standard of “grave loss”378 (Jyudaina songai) is not clearly
defined in the ACLL. However, in the trial practice, the court must consider such things as thedifficulty of recovering damages to compensate for the loss as well as the nature and extent of theloss threatened. One of the latest cases regarding this new litigation is Beltway Ruling Snubs Land
Claim (2004) in which the Tokyo District Court, presided by Judge Toshihiko Tsuruoka stated that“the metropolitan government’s seizure of private property does not bring about irrecoverable
damage to the plaintiff”. As a result, the court refused to issue an injunction to prevent building
roads and to grant the plaintiff the monetary compensation for their loss379.

376

See ACLL 2004, Art 37, section 2, 3

377

See ACLL 2004, Art 3 section 7, 差し止めの訴え(Sashitome no uttae).

378

See ACLL, Art 37, section 4. 重大な損害(Jyudaina songai)379

See Follow up Beltway Ruling Snubs Land Claim, available at http://search.japantimes.co.jp/cgi-bin/nn20040427a1.html

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3.2.4. Interim Relief, Judgment and Implementation
Firstly, regarding the issuance of interim relief (Kari shobun or provisional disposition),in principle, the ACLL does not allow a provisional disposition to spoil the effect of the dispositionor any action exercised by public power. Article 25, sec.1 reads: “the institution of a revocation
lawsuit shall not preclude the effect of disposition, the execution of disposition or the continuance ofprocedure”. However, the ACLL concludes a provision that permits the court to temporarily suspend
the applicability of a disposition, where a suit to set aside the disposition is pending. Under the old
ACLL, the condition for application is in the case of urgent necessary to avoid “an irreparable
injury” caused by the disposition. The ACLL 2004 changes the term of “an irreparable injury” to“serious injury”380 which seems slightly expand the court’s jurisdiction to grant such relief. In fact,“serious injury” is not clearly defined but it would appear a lesser standard than the old “irreparable
injury”. In other situations however, the court may not issue the temporary suspension if issuancecould seriously affect the public welfare. Vietnam seems to have learned from this Japaneseexperience, since the OSAC (2006) newly provides that in case of emergency and preventing“serious injury”, the court can issue the decision on temporary enforcement suspension.
Nevertheless, due to the lack of a clear definition of the standard of “serious”

as well as the strict

imposition on the judge’s liability, it still prevents the judge from courageously granting such relief.
Secondly, regarding the court’s judgment, when dealing with revocation litigation, thecourt often renders three types of decisions: (1) Dismissal of the petition. The court will give backthe petition at the front door since it lacks of the fundamental conditions for taking a lawsuit; (2)Dismissal of the demand. After filing and examining the case, the court finds no relevant reasons forplaintiff’s demand, then dismisses it; (3) Approval of plaintiff’s demand. As a result of examining
the case, the court can approve one part or the whole of the plaintiff’s demand381.
Under ACLL, where a litigated disposition or a decision is concluded illegal, as a generalrule, it will be revoked by a court’s judgment. However, the “circumstantial judgment” (Jijyo
Hanketsu) is an important exception to this general rule 382 which was once criticized for its
unconstitutionality. In fact, the application of “circumstantial judgment” is not always easy and suchcases do not often occur. The application of the free discretion’s doctrine by courts can be discussed
for this situation. The question of discretion in many instances is a question of statutory
interpretation and as Japanese bureaucrats draft most statute, they do so in a way that gives the380
See ACLL 2004, Art 25 section 2. The term of “irreparable injury”(回復困難な損害) was replaced by “serious injury”(重大な損害)381

See the type of judgment. (判決の種類). Keiko Sakurai & Hiroyuki Hashimoto (2006), p.252. Three types of judgment
regarding the revocation litigation known as (1) 訴え却下; (2)請求棄却; (3) 請求認容

382

See Art 31 of ACLL 2004. This judgment means in an action for revocation, where a disposition or decision on an administrativecomplaints is illegal but serious damage will be caused to public interest by revoking it, if the court after considering the degree ofdamage suffered by the plaintiff, indemnity for the damage, ways of preventing the damage and all other circumstance, believes that
it is not in accord with public interest to revoke such disposition or decision, the court may dismiss the action

162bureaucracy wide discretion. Courts then looking at challenges to the bureaucratic action are
confronted with a statute that broadly delegates discretionary authority.
Finally, regarding the implementation of the judgment, Article 33, sec.1 of ACLL reads,“A decision of the court which revokes a disposition or a decision on an administrative complaintbinds the administrative authority which the party litigant and any other administrative authority
concerned with regard the case”. Sec.2 also compulsorily requires the administrative agency, which
made the wrong disposition or decision to issue a new one in compliance with the purport of
judgment. In comparison with Vietnam’s current OSAC, it still leaves a vacancy on the effect of
judgment and its execution. If the litigated agency does not perform its duty or passes a newadministrative act that continuously fails to satisfy the infringed people, they have no choice otherthan initiating another lawsuit against the new one.
3.3. Introduction to Some Administrative Lawsuits in Japan
3.3.1. Revocation of Approval Disposition on Constructing Odakyu Line (2005)
The summary of the judgment
This judgment concerns the action to quash the approval disposition about: (1) the buildingof the consecutive grade separation of railroads as a city planning project; (2) the establishment of
the attached street upon making the consecutive grade separation of railroads. Regarding (1), theinhabitants who reside in the related area prescribed in Article 2, sec.5 of Tokyo Environmental
Impact Assessment Ordinance No 96 of 1980 (before its amendment by Ordinance No.107 of 1998)
posses “legal interest” and will have standing to sue for revocation of this approval. However,regarding (2), the inhabitants possessing “legal interest” and “standing” are restricted to those whohave an estate on the project-site of an attached street. The inhabitants living in the vicinity of the
project-site have no rights to sue.
The legal norms for references
Articles 1, 2 and 59 of the City Planning Law; Article 2 and13 of the Tokyo Environment
Impact Assessment Ordinance; Article 9 of ACLL.
Following the summary of the facts
On June 19th 1994, the Minister of Construction, based on Article 52, sec.2 of the City
Planning Law (before amendment by Law No.160 of 1999), made an approval disposition for the city
planning projects in Tokyo. The content of this approval disposition consisted of: (1) making therailroad consecutive grade separation of the section from near Kitami Station to near Umegaoka
Station on the Odakyu Line; (2) establishing the attached street upon making consecutive grade
separation of railroads.
Among the plaintiffs, X1 to X33 and X38 to X40 were all those who did not have estateson the project-sites of the city planning project. Only X34 to X37 had estates on the site of theattached street. Furthermore, X1 to X33 resided in the related area prescribed in Article 2, sec.5 of163

CALE Discussion Paper No.4

Tokyo Environmental Impact Assessment Ordinance. According to this provision, this area is
specified as an area with a possibility that the enforcement for construction project may have aremarkable influence on environment in the area and its circumference.
All X plaintiffs took the lawsuit to Tokyo District Court for the revocation of the
Minister’s approval disposition and made Minister of Construction as a defendant (hereinafter as
referred to Y).
At the first instance judgment (2001), Tokyo District Court considered that the approvaldisposition was made without the deep consideration on the environment impact assessment andlacked cautious examination on the project’s expense. As a result, the content of approval was illegal.
The court accepted the demands of all plaintiffs Xs.
At the appeal judgment (Koso shin), Tokyo High Court (2003) denied the “standing” of X1
to X37 who merely resided around the project area and of X38 to X40 who resided outside of the
project area, and finally dismissed their appeal (Dismissed the petition). The court also
acknowledged the “standing” of X34 to X37 concerning only the attached streets to which theirestates belong, however as a result of judgment, the court dismissed their demand. The appeal
judgment annulled the first-instance judgment which approved a part of X’s claims.
Opinions of Supreme Court
At the final appeal judgment (Jokoku shin), (December 7th 2005), the Supreme Court’s
opinions were as follows: Regarding the revocation of the approval disposition about the build ofconsecutive grade separation of railroads, X1 to X37 have legal standings. Appellants X38 to X40 do
not have standings. Regarding the revocation of approval disposition about the attached street
project, X1 to X33 and X38 to X40 do not have standings. X34 to X37 hold standings only when
they own estates in the project-site.
Supreme Court applied Article 9 of ACLL to determine whether X plaintiffs had legal
interests, whether they held legal standings or not. Section 1 of this article prescribes “Suits forrevocation of a disposition may be filed only by persons having legally protected interests forseeking the revocation of the said disposition”. Such legally protected interests have been infringed
or may be infringed inevitably by a particular disposition with the intention that besides the generalpublic interests, individual interests should also be protected. Thus, in the case of being infringed,
they must possess “standing” in the revocation lawsuit.
Regarding whether there existed legally protected interests of a third party, it should take
into consideration provisions of the enabling acts of disposition, the purpose of the enabling acts aswell as the contents and characters of interests. The Supreme Court also applied the Article 9, sec.2
that was newly established by the revised ACLL (2004) in which, in cases of judging contents andcharacters of interests, two main points must be taken into consideration: (1) the contents, thecharacter of interests which will be infringed in the situation that the disposition in violation of the164enabling act is carried out; (2) the mode, the grade of the infringement.
From the aim and purpose of City Planning Law, it seems that these legal provisions wereintended to protect the local resident’s concrete interests in not suffering remarkable damage tohealth or the living environment by the noise, vibration and so on, resulting from an illegal
construction project. In the light of contents, the character and the grade of the infringement, it isdifficult to judge whether those concrete interests were absorbed into general public benefit. Judging
from provisions of City Planning Law, the Supreme Court found that it intended not only to regulate
the construction project with regard to maintenance of city planning institution, but to protect theprivate interest of not suffering damage to health or living environment.
Hence, the inhabitants who reside around the site of the city planning project (X1 to X37)
have a possibility of suffering directly remarkable damages caused by the noise, and vibration,
therefore they possess legally protected interests and have standing in this revocation lawsuit.
Regarding the standing in an action to quash the approval disposition regarding theattached street project, the court determined to exclude X34 to X37 owning their estates in the
project-site, the remaining Xs had no real rights on estates within the project-site, therefore there
were no grounds to construe that their rights or legally protected interest had been injured or would
likely be injured by reason of project approval.
In rendering the final judgment, the Supreme Court concluded that: (1) Based on thearticle 61 of City Planning Law such as “The contents of the project are in conformity to the city
plan and the project is appropriate”, the approval disposition made by Minister of Construction islegal; (2) Regarding the judicial check of the approval disposition, the court finds no the deviation of
the discretionary power; (3) Regarding the environment influence, the court also finds the defendantno lacking of the consideration related to the railways noise and having a rational consideration on
the environment influences as laid down in Environment Impact Assessment Report (1995); (4)Regarding the check of substitution proposal related to the requirement of plan, land form,
circumstances as well as the time duration and expense of the project, the defendant also meets theserequirement; (5) The reasonable calculation method of the project expense is also concluded. As
such results, the Supreme Court dismissed the X plaintiffs appeals383.
To conclude, this judgment is the first judgment of the Japanese Supreme Court (Grand

Bench) which applied the new Article 9, section 2 of ACLL (2005). It has important implications
that, regarding the standing of revocation litigation, changed the judgment of the Supreme Court 1st
Petty Bench (Judgment on the Tokyo Circular Road No 6 incident on November 25th 1999)384.
383

See X v. Minister of Construction. Case No.114 of 2004. 1886 Hanrei Jiho 52. Supreme Court G.B on December, 7th 2005.,
availableat
http://www.court.co.jp;
See
High
Court
Backs
Elevated
OdakyuLine,
http://search.japantimes.co.jp/cgi-bin/nn20031219a4.html]; See also The Noise Issue and Judicial Review of City PlanningEnterprise (Project)－Jokoku Judgment regarding the Odakyu Litigation, [騒音問題と都市計画事業の適法性―小田急訴訟上告
審本案判決], ジュリスト(Jurist) No.1354, pp.38-39 (2008)384

In the Tokyo Circular Road No.6 Incident, except the person who has an estate on the project-site was acknowledged to possess

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3.3.2. Confirmation of Invalid Permission in Monju Case (2003)
Summary of the judgment
The Appellate Nagoya High Court (January 27th 2003) dismissed the judgment of the
Fukui District Court (2000) and confirmed that the permission for the establishment of the Monju(Nuclear Reactor) was invalid and reversed it385.
The facts of lawsuit
In 1980, the Power Reactor and Nuclear Fuel Development Corporation (which waschanged to Japan Nuclear Cycle Development Institution since 1998) applied to the Prime Ministerfor permission for the corporation to establish Monju (a prototype fast breeder reactor) in Tsuruga
City, Fukui Prefecture. In 1983, after taking the review by the Atomic Energy Commission and the
Nuclear Safety Commission, the Prime Minister permitted this application.
In 1985, the residents living around Monju filed a suit against the Corporation for an
injunction against the construction and the operation (civil action), and also filed a suit against thePrime Minister, seeking for an invalidity confirmation of the permission to establish Monju(administrative litigation).
The Fukui District Court (1987) denied the plaintiff’s standing and dismissed the petition.
However, the Appellate Nagoya High Court, Kawazawa Branch (1989) recognized the plaintiff’s
standings only for those who lived with the range of radius of 20km from Monju.
The Supreme Court (1992) recognized all the plaintiff’s standings and remanded the caseto the district court.
After the dispute on the standings, discussed above, had settled and the trial concerning thesafety of Monju had begun, the reactor suffered a sodium leak accident in December 1995. When thesodium used in the cooling system comes into contact with the concrete floor, a hydrogen explosion
occurs. In order to prevent such contact, a steel plate covers the floor. Through the verification
process of the accident, it was found that the sodium leak undermines this more speedily than had
been expected. The Nuclear Safety Commission did not consider this finding in its safety review.
The Fukui District Court (2000) reopened the trial, but still dismissed the plaintiff’s
petition. The court considered that even if the Nuclear Safety Commission had overlooked thefinding, as given by Ikata-ruling (Supreme Court’s judgment in 1992) that the subject of the safety
review is only the basic design of the reactor and not detailed design of the reactor, such as the shapeand depth of the plate. As a result, the review was rational.

the standing, the local residents were denied their standings for the revocation lawsuit of approval disposition. By contrast, thisjudgment (Odakyu Line 2005) applied the Art 9, section 2 of ACLL (2005) allowed the people residing in the related area specified
in Art 2, section 5 of Tokyo Environment Impact Assessment Ordinance (X1 to X37) to possess standing concerning the action toquash.
385

See Case No 12 of 2000, 1818 Hanrei Jiho 3, Isobe v. Prime Minister, Nagoya High Court, Kanazawa Branch (January, 27th2003). See also Appeal Judgment after Sending back the first trial of Monju Administrative Litigation, [もんじゅ行政訴訟差戻後
控訴審判決], ジュリスト(Jurist) No.1269, 41 (2004)

166

The Appellate Nagoya High Court (2003) vacated the first-instance judgment, confirmedthat the permission to establish Monju by the Prime Minister was invalid and reserved.
Opinions of Nagoya High Court
The Nagoya High Court gave its opinions based on the three main following issues:
Firstly, it is whether the requirement of the permission to establish the nuclear reactor wasinvalid. The court follows the Ikata-ruling (1992) on “Administrative Review Process Control
Approach”. Accordingly, the court should review whether the administrative review made before
granting permission was rational. This case is not a suit for revocation but for invalidity confirmation.
Therefore, the court induced from the general principle that it was needless to review “clear”
illegality, but was enough to review only the “material” illegality when the court recognized that
there was an “extraordinary situation”. When considering the mistaken administrative agency’s
review, it was “impossible to deny the concrete possibility” that radioactive material in the nuclear
reactor would leak into the atmosphere, known as the “potential dangers”. As this implies, thepermission to establish the nuclear reactor was materially illegal and the court could confirm it asinvalid.
Secondly, what subjects must the safety review to establish a nuclear reactor contain? The

court also follows Ikata-ruling which is a distinction between the “grand design” and “detailed
design” in which in the safety review to establish a nuclear reactor, it is inevitable that the subjects of
the latter are wider than those of the former.
Thirdly, is does the permission to establish the Monju satisfie the invalidity requirement?

The Court applied the Law for the Regulation of Nuclear Source Materials, Nuclear Fuel Materials
and Reactors provides “technical ability” (Article 24, sec.1.3) and that the “nuclear reactor has no
deficits to prevent disasters”. The appellants argued that there were “material mistakes and deficits”
in the administrative safety review before permission to establish Monju. In conclusion, the court
confirmed that the permission to establish Monju was invalid for the “material” illegality.
To conclude, this case attracted much attention from mass media because it was the firstcase where the defendant administrative agency had lost in administrative litigation a dispute on thepermission given to establish a nuclear reactor. Japanese scholars find this case interesting from theviewpoint of Japanese administrative law theory because it removed the “clear” requirement fromthe administrative lawsuit to confirm the invalidity of the permission to establish a nuclear reactor,
on the ground of the potential danger of a nuclear reactor as an “extraordinary situation”386. From
this case study, Vietnam can learn about a new type of litigation regarding the confirmation of aninvalid disposition, particularly of that made by the top of the administrative branch . Influenced
from German administrative action theory, Japanese law has also categorically divided the illegality

386

See Comment on the Case No.12 of 2000. Isobe v.Prime Minister, Waseda Bulletin of Comparative Law, Vol 23, 72 (2003)

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of administrative disposition between the “ordinary illegality” (deficit) and “clear and material
illegality” which is very necessary to determine whether a disposition should be quashed or its
invalidity confirmed. This area is still vacant in Vietnamese administrative law theory.
III. Necessity of Foreign Legal Assistance Regarding ALRSAs Bertil Wennergren, a Swedish Justice of the Supreme Administrative Court, comments:“Administrative law is a legal discipline which often tends to be neglected”387. It is true that in thecontext of the international cooperation, while many important topics belonging to administrative
law have been regulated in international treaties, for instance, child welfare, gender equality, air andwater pollution, the administrative organization and procedure have not attracted much attention.
Nevertheless, when foreign investors come to invest in a country, they need to know about theadministrative law system of that country. They also expect to know how their legal rights can bewell protected by ALRS.
Like any developing and transitional country, Vietnamese administrative law is not wellstructured and systematized. The ALRS in Vietnam is still immature and criticized for not being run
by an effective court model and mechanism. Along with the analyses of some foreign experiences
regarding the administrative court model and jurisdiction in the preceding part, this section continues
to explore the necessity of an FLA Project towards the improvement of current ALRS as well as
training human resource thereof.

1. Administrative Law Review System: A Difficult but Potential Field
1.1. Limitation of FLA Projects
Promoted by the Open-door and Doimoi Policy (1986), Vietnam began encouraging andmobilizing activities and projects, as well as programs on international cooperation. In this period,
there were about fifteen sponsors, including NGOs who funded approximately 100 activities. Such
activities focused on reciprocal legal assistance carried out under bilateral agreements. However,from 1992 onwards, the projects of FLA were officially commenced in Vietnam upon Government
policies on promoting international cooperation activities in the legal sector. According to the“Report on Comprehensive Needs Assessment for the Development of Vietnam’s Legal System to theyear 2010” the by Government, until now, about thirty Vietnamese agencies have co-operated withforeign countries on legislation and legal implementation. There have been various foreign partners,
including foreign governments ( France, Sweden, Germany, Japan, Denmark, the Netherlands,
Switzerland, Canada and South Korea); the inter-governmental organizations such as UN, and theEU; the NGOs, such as KAS, and FES, and the international and regional financial organization such

387

Bertil Wennergen, Administrative Law-Setting the Bureaucratic Structures, in Per Sevastik ed (1997), p.187

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as the WB, IMF, and ADB. The Report confirmed clearly that: “After more than fifteen years of
implementing the Doimoi Policy, Vietnam has steadily improved its legal system. This improvement
has, in turn, made positive contributions to the implementation of the Party’s policies on establishinga socialist-oriented market economy and the Socialist ROL State in Vietnam”388.
It is apparent that the international cooperation activities contributed considerably to therealization of these achievements. However, to follow the mainstream of the discussion, apart frommentioning to some achievements, this section mainly focuses on the limitation of the FLA projects
regarding ALRS.
UNDP started carrying out legal assistance projects with the MOJ of Vietnam in 1994.

Together with the progress of legal framework improvement, UNDP has also co-operated with theVietnamese Government on some projects to strengthen the ROL through sub-projects, such as:strengthening the law-making capacity of the National Assembly; strengthening trial capacity; andstrengthening prosecutorial capacity in Vietnam. This project provided officials the comparative law
knowledge in drafting some important codes, but none of them were related to the field of
administrative law review. On September 4th 2003, the MOJ, UNDP, Sida and DANIDA signed on to
the Project VIE/02/015 “Assistance for the implementation of Vietnam’s Legal Development Strategy
to 2010”. At present, Project VIE/02/015 is considering requests for assistance to draft some legal
documents that among others involves some drafts relative to ALRS, such as State Compensation
Law, and Administrative Procedure Law. However, the necessity of drafting an Administrative
Litigation Law has not seen much interest. In 2007, UNDP started some sub-projects with theVietnamese Government to carry out a survey on the court system, including the current ADCs. It
has been carried out with the participation of some foreign partners including France, Germany,
Sweden, Japan, the UK, the US, Russia, and Indonesia to formulate recommendations for Vietnam.
Thus, it is a promising project for improving the current ALRS.
SIDA (Sweden) was known as the earliest foreign partner officially carrying out legal

assistance projects in Vietnam through the first Agreement on “Assistance in Strengthening StateManagement by Law” singed in October, 1991. To date, four main projects389 of co-operation with
SIDA have been completed, in which the area of lawmaking has always been considered a priority.
Among them, the assistance on revising OSAC, the Law on Enacting Legal Norms, LOPC and so on
has been provided. By SIDA projects much more focused on improving the ROL, gender equality,
and legal education and information, however, the concrete field of administrative law review was
not included in its projects.
388
See Report on Comprehensive Needs Assessment for the Development of Vietnam’s Legal System to the year 2010 byGovernment
389

Such as, The Projects for Support for Construction of the Legal Framework; for Strengthening Capacity of Enforcement
Agencies, for Legal Training; and for Legal Information, Legal Dissemination and Legal Aid. See Uong Chung Luu ed, Assessmentof Current Status of International Legal Cooperation Activities in Vietnam with Respect to Management and Coordination, 25(2007)

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JICA (Japan) started in the early 1990s and stepped up its efforts in 1996 with the signingof the Minutes of Cooperation in the Legal and Judicial Areas between JICA and Vietnam. JICA
actively assisted Vietnam to improve its laws in the civil and trade areas, including the Civil Code of1995, the Civil Procedure Code, Law on Civil Judgment Enforcement as well as Legal Norms onIntellectual Property, Commercial Arbitration, International Economic Integration for WTO’s
Accession and so on. With the success and confidence of the past assistance in the field of civil andtrade laws, some fields of administrative law such as the State Compensation, Administrative
Procedure - particularly Administrative Litigation have recently attracted attention from Vietnamese
partners and has proved to be a promising challenge. In the field of assistance for strengthening
capacity for institutions of legal implementation, JICA is now assisting the SPC in standardizing andpublishing judgments and processes for adopting precedents. The publication of recent Supervisory
Judgments by the SPC, although those regarding the administrative lawsuits are still limited, has
marked a turning point for the development of legal studies in Vietnam. JICA has actively assisted
the Judicial Academy of Vietnam in improving the quality of legal profession training. At present,
the Japanese Government is also considering a project to assist the Judicial Academy in building its
new campus.
The establishment of the Research and Education Center for Japanese Law in Vietnam(2007), promoted by Center for Assistance of Legal Exchange (CALE, Nagoya University) is seen as
an extremely productive initiative for deepening the legal cooperation between the two countries.
Furthermore, some recent FLA projects carried out by CALE, and the Legal Information ResearchCenter of Nagoya University show a great deal of promise, marking the substantial development oflegal cooperation upon the new policy of Japanese Government and JICA. Among four main
missions of the New JICA policy, “Improving Governance” is considered to be of vital importance tothe stable economic growth, and social security of developing countries like Vietnam in which thefour key words Accountability, Transparency, Publicity and Trust need to be secured to achieve thesuccess of the contemporary FLA strategy390. It is expected that Japan, as a country with a highly
developed administrative law system, as well as a country with recent experiences on reforming its
Justice System, involving revisions of ACLL (2004), Administrative Procedural Law (2005), thetraining of professional legal human resources and so on, can provide greater help in the field of
ALRS, a field that continues to be controversial in Vietnam today.
French Legal Assistance, through Maison du Droit started in 1993, based on a Bilateral

Agreement between the two Governments. It can be said that the specific forms of cooperation, suchas workshops, seminars, training courses, surveys and so on, have contributed considerably to theprocess of improving the legal system of Vietnam. Some workshops related to the amendment of390

See Aikyo Masanori, The Goals of Entire Conference on Study of Foreign Legal Assistance Strategy, in “2008 年度, 法整備支
援戦略の研究” Conference held by CALE (Nagoya University) on December, 13-14, 2008170

OSAC, some surveys and study trips to French administrative courts have been conducted in the past.
In the field of ALRS, however, the use of such activities have not yet been used to their fullpotential.
The STAR Project promoted by Vietnam-America Commerce started in 2002 with many
Vietnamese partners and has recently provided active assistance in the law-making field. To performthe main goal of Reviewing the BTA and Comparing Regulations of the WTO with existing
Vietnamese Regulations, apart from the other civil, and commercial law fields, this project directly
impacts on the ALRS in Vietnam in regards to protecting all individual’s rights, particularly therights of foreign investors. LOCD and OSAC were immediately revised in 2005, 2006 upon the
WTO’s requirement. Furthermore, some assistance was provided relating to the draft of
Administrative Procedure Law. Furthermore, assistance relating to the introduction of aquasi-judicial adjudicating body like the common law Administrative Tribunal, the Claim Settlement
Council, support for AJB attached to Government and so on has been provided. Apparently, it is
impossible to avoid leaving a great controversy regarding the gap of legal concepts, and institutions
between those which have been historically inherited from civil law and those newly transplanted
from common law traditions.
The earliest cooperation between Vietnam and FES (Germany) commenced in 1989,
through the making of drafts relative to the area of social securities, including labor, and insurance,
particularly in the field of administrative jurisdiction. Many workshops regarding administrative
jurisdiction were held and some Vietnamese officials were sent to study the German administrative
law theory and court model. However, this project was completed in early 1990s as a result of thecollapse of the Berlin Wall. Vietnam also cooperated with KAS, MOJ of NRW, and GTZ since 1994
in the area of law-making, but none of the associated projects related to administrative jurisdiction.
Some Vietnamese scholars feel a degree of regret that the German assistance in this field was in fact
the earliest, yet did not last long, and had hoped to absorb German administrative law theory
regarding the JRAA and the experience of Administrative Court Model.
In short, by glancing at some FLA Projects in Vietnam from the early 1990s until present,

it is true that those related to ALRS are still few in number and have potential for further
development. The next section attempts to find some explanations and suggestions for the future
development of ALRS in the new era of ROL.
1.2. Potential Development
This section explores some main reasons that explain why less attention has been paid tothe field of ALRS in the past:Firstly, to repeat a comment by a Swedish scholar, administrative law is regarded as a171

CALE Discussion Paper No.4

legal discipline which often tends to be neglected391. Administrative law of a country is often not
well structured, systematized and tends to have developed in a more or less haphazard and disjointed
manner.
Secondly, one aspect of administrative law and perhaps the one that most often comes into

focus is the ROL through procedural guarantees for an individual or his/her access to judicial review
by either the ordinary courts of law or by the administrative courts. It is true that the legal assistanceprojects regarding this issue must require this in the long run and meet the demands of current
conditions of recipient countries. Vietnam historically has a complicated administrative legal system.
The change of Vietnam’s policies in the early 1990s that aimed to build the Socialist ROL Stateapparently resulted in considerable development of the legal system. However, Vietnam has not
attracted many assistance projects for improving the ALRS due to: (1) some defects in the existingmechanism; (2) the defect of the legal system grounded for legal assistance activities392; (3) the lackof background in administrative law theory regarding judicial review; (4) the limitation of staff
capacity; and (5) the hesitation from foreign partners.
Thirdly, the administrative law is not strongly related with procedural guarantees and other

ROL matters, rather, it involves complicated material provisions dealing with innumerable subjects
to which a state has to pay attention, for example public order, social welfare, planning, taxation,
trade and industry, traffic, employment, education, environmental protection and so on. In Vietnam,
there are also some very complex fields involved, such as land control, urban construction,transportation, “street” businesses and so on. In fact, there are no general advisory guidelines tofollow. The Vietnamese government, particularly at the local level, often has its own policies orregulations for governing society. When an administrative dispute or litigation case arises in any
field of administrative management, it frequently adjusts laws or regulations to bind it. Thus, due tothe diversity and monopoly of the administration, legal assistance is often prevented from pouringmuch effort in to this field.
The field of ALRS is closely related to the domestic law and policy, and is particularly
deeply attached to the state power mechanism and other sensitive political issues. Some foreign
partners may be willing to grant assistance, but they are also deeply concerned with the so-called theinterference with the recipient country’s internal workings.
The recent development of international cooperation, however, shows that one country
cannot be well developed in total isolation from others. Due to the rising number of foreign investors

391
Bertil Wennergren, Administrative Law: Setting the Bureaucratic Structures, in Per Sevastik ed, Legal Assistance to Developing
Countries, 189 (1997)
392
Up to now, Three Key Legal Documents Regarding the Foreign Legal Assistance are Decree 103/1998/ND-CP on theManagement of Legal Cooperation with Foreign Countries; Decree 17/2001/ND-CP on Promulgation of Regulation of theManagement and Use of ODA; Decision 64/2001/QD-TTg. Both two Decrees 103 & 17 are of the same status in the legal hierarchy
and thus difficult to apply them if they overlap and conflict. Many provisions of Decree 103 are not suitable to current situation andneeds to be revised. See Ibid, at 16-18

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or cooperative partners doing business in Vietnam, as has been seen recently, Vietnam needs todevelop its administrative laws in general as well as the ALRS to properly protect legal rights andinterests of all individuals and entities including foreign partners in accordance with international
treaties and practices. Consequently, FLA in this field, although relatively insignificant until present,shows a great deal of promise if both Vietnam and its foreign partners can share mutual benefits andmeet at the same goals.

2. Recommendations
The activities of legal international cooperation in Vietnam have been varied andnumerous, and should be improved in all fields of law. However, in this research, therecommendations focus on the improvement of ALRS in general, and the model of ADCs and its
jurisdiction in particular. They will be classified temporarily in three activity groups, namely: (1)support for improving legal framework, (2) support for constructing institution, (3) support for legal
training and exchange of legal information.
2.1. Support for Improving Legal Framework
The establishment of a legal framework that meets the requirements of a socialist-oriented
market economy when starting with something that retains legacies from a centrally planned
economy is not a simple task. It requires a great change in awareness of those officers responsible forlegislation or determination of policy. Up until now, there have been at least 50 legal documents(from Government Decrees to Codes) which have been supported on professional avocation anddrafting skills. Through the Project on Assessment of Legal Framework, UNDP in cooperation with
the MOJ supported the improvement of the legal framework for economic activities andenvironmental protection in Vietnam. The UNDP recommended the amendment of existing laws aswell as enacting new laws and regulations that focused on the following 11 main subjects: (1) Civil
Law, (2) Commercial Law, (3) Securities Market Regulation, (4) Bankruptcy Law and Dispute
Resolution, (5) Enterprise Law, (6) Law on Competition, (7) Land Law, Law on Environment andNatural Resource Protection, (8) Banking Law, (9) Public Finance, Taxation and State Budget, (10)Legal Information and (11) International Treaties393. Thus, the field of ALRS including the reform of
ADCs Model and its Jurisdiction has not been paid much attention, except for a few recent projects
regarding the revision of OSAC, and the draft of State Compensation Law. Up until now, Vietnam
has completely lacked fundamental laws regarding Administrative Remedy.
Regarding the construction of legal framework in general, particularly relative to ALRS,
the below main defects and recommendations can be given:

393

See Uong Chung Luu ed, Assessment of Current Status of International Legal Cooperation Activities in Vietnam with Respect toManagement and Coordination, 28 (2007)173

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Firstly, it lacks an overall strategy for reform and development of the legal system ofVietnam. It is easily identified that the civil and economic law fields have been highly prioritized
while the field of public law, such as the administrative apparatus, administrative mechanism and
ALRS, has been largely overlooked. Some proposals relative to the public law field are laid down ina Reform Strategy promoted by CPV, but they have been submitted to the competent authorities andare still waiting for review and approval. For such reason, it lacks of a firm legal basis for canvassing
and attracting sponsorship in the legal sector.
To recover this defect, the Vietnamese government should possess a more specificlaw-making plan regarding public law, including the improvement of ALRS. In the future,
Vietnamese lawmakers will need to enact some fundamental laws regarding the administrative
remedy, such as the ALL, APL, Administrative Appeal Law, and the State Compensation Law. The
APL should be enacted soon to ensure the transparency and impartiality in all governing activities.
The competent authorities should change their awareness regarding the public law sector, clearly
separating it from the political issues helping to make legal cooperation projects smooth andeffective. CPV nowadays has actively affirmed the need for the constructing of a State governed by
ROL, protecting all individual rights and interests from the administrations abuses. Thus, thecompletion of legal framework regarding the ALRS is a vital factor, which directly impacts on theprocess of transplanting and achieving the ROL in Vietnam.
Secondly, Vietnamese competent agencies and authorities still lack the sufficient awarenessof the meaning and objectives of legal cooperation projects as well as the initiative in thecooperation process. The problem is that some of them always have in mind that co-operation means
fiscal sponsorship. It is one of the legacies of the culture of expectation and dependence of theformer state-subsidy regime that is regarded as a remarkable obstacle in the contemporaryinternational legal cooperation. Furthermore, many agencies have not actually taken the initiative inattracting sponsorship. Instead, they tend to passively wait for proposals from foreign counterparts.
For the fulfillment of the above defects, Vietnamese partners should be more active incalling for assistance and cooperation. When Vietnam fails to reveal properly what they need tomake a concrete plan (such as time, contents, and finance), foreign partners, although willing, cannot
set up the project agenda in a timely manner. For now, the Vietnamese government should fix theplan of making a new Law on Administrative Litigation, and the amendment of LOPC. In the casewhere the model of AJB attached to Government is approved, there needs to be clear plansestablished for enacting laws regarding its organization and personnel. Vietnam should not only wait
for FLA projects funded by sponsors, but actively set up cooperative projects in making such lawswith their own budget. Such activities can include the organization of international symposiums, thedispatching of delegations for study trips, the receiving of foreign opinions in drafting processes andso forth.

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Thirdly, there happens to be an overlapping of legal co-operative activities in some fields

while other fields are left vacant. This is a major concern of both the Government and foreign donors,
since some sectors desperately expect support from donors but no donors provide support. On theother hand, there are some fields that receive support concurrently from many donors. It is true thatmany donors do not want to sponsor fields that are too sensitive and political, related to politics, andstate mechanisms including ALRS. Furthermore, the hesitation as well as the flexibility inadministrative procedures from Vietnamese partners, such as the excessive time limit for licensing,the delay in responding by Vietnamese agencies and so on are obstacles for the development ofprojects. Since many donors come to Vietnam today, the free choice of donors and the highcompetition among them also make Vietnamese partners deeply consider the kind of projects thatwould be appropriate with diversified foreign partners and ways to achieve reciprocal benefits.
For such implications, Vietnam should enhance cooperation projects with all donor
countries, but regarding the improvement of ALRS, it needs to prioritize the setting up of projects
with those donors that originated from civil law thinking, and those having mature experiences in
adopting foreign laws, such as Japan. This dissertation focuses on recommending projects relative to
the ALRS addressed to the following specific countries:(1) France is one of the countries that has most influenced the foundation of ADCs in
Vietnam since 1996. Many scholars have been inspired by French administrative law theory relative
to the double function of administration - governing and adjudicating, and proposed the model of
AJB attached to Government. The Government Inspection Delegation was sent to France in 1993 to
study the model and jurisdiction of French administrative courts. The Maison du Droit established in
Hanoi Law University (1993) is the bridge for exchanging experiences and information. Thus,
Vietnamese Government should determine the establishment of AJB attached to Government, thenset up a cooperation plan with its French partner for studying experiences in making that law andtraining adjudicators like the model of French National Administration School (ENA).
(2) Japan has been one of the earliest, most durable and enthusiastic donors, commencing
in the mid 1990s. Vietnam should actively call for projects on enactment of fundamental laws
regarding Administrative Remedy that Japan has already possessed for a quite long history.
Furthermore, the new revisions of ACLL (2004), APL (2005) as well as the overall Justice System
Reform initiated from 2001 are good lessons for Vietnam to share experiences on legislation, law
implementation and legal education. Japan also has rich experiences in absorbing Westernadministrative laws, coupled with remarkable economic development. It can share what theVietnamese legal system has to face in the transitional period.
(3) Germany, as mentioned in the last section, was the earliest donor in cooperation with
the Vietnamese Government in promoting the establishment of Administrative Jurisdiction. Due tothe collapse of the Berlin Wall, this cooperation was suspended. However, many Vietnamese scholars

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studying and absorbing German administrative law theory prior to this event, expect to re-invigorate
this cooperation and develop Vietnamese administrative law in line with the continental
administrative law. As such, the improvement of legal cooperation projects with Germany is animperative for reforming ADCs model and its jurisdiction in Vietnam today.
(4) China is not a donor of FLA projects in Vietnam, but the necessity of studying Chineseexperiences is undeniable, due to its strong influence on political and social conditions in Vietnam.
Vietnam should actively set up the cooperation projects with China to share some commonalties inenacting ALL, State Compensation Law as well as the obstacles the two countries have faced inreconstructing ALRS in accordance with the principle of State governed by ROL and One Party
Ruling.
(5) Vietnam should also continue enhancing its cooperation with other donors, such as the
US, Australia, and Canada in the improvement of its overall legal framework, particularly in regards
to substantive laws relative to various administrative activities in the global context, such ascompetition, trade business, land control, and intellectual property. To achieve this success, allforeign donors should be more patient and deeply understand the Vietnamese culture and current
context. Truly, some past projects were suspended due to a lack of mutual understanding and overeagerness or touching on overly sensitive issues.
2.2. Support for Constructing Institutions
A sound legal framework without any practical effect is irrelevant. Up to now, there havebeen more than ten sponsors in the fields of constructing institutions and law enforcement. In thisarea, France has carried out projects on the computerization of the public notary, assisting theimplementation of Vietnam-France BTA on Adoption. Japan (JICA) has conducted a project onstrengthening the capacity of institutions of legal implementation , which focused on the assistanceof the SPC in standardizing judgments and processes for adapting precedents. Sweden (SIDA)
conducted projects on strengthening the governing capacity of the MOJ and purchased facilities for
10 Provincial Divisions of Civil Judgment Enforcement in Vietnam. Germany (KAS) provided
facilities to Thanh Hoa Province People’s Court, and strengthened the adjudicative capacity of
Hanoi and Hatay Province People Courts. Some other projects were also carried out by various
donors, such as Canada (DANIDA), who provided software for the e-library and other assistance to
the NA’s Office, SPC and Supreme Procuracy.
Regarding the FLA in this field, some issues remain: (1) it is unbalanced in terms of thecontent of cooperation. Too much attention (including finance source) has been paid to this area
while sponsorship sources are limited. It reduces the amount of sponsorship available for otherfields; (2) it is mostly focused at the central level while local agencies lacked of information andassistance. According to a Survey made by the MOJ International Cooperation Group, 22 of the total

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of 27 Provincial People’s Committees up until now, (28 in total of 52 Local Justice Departments, see
Appendix 8) have not carried out any project with foreign partners; (3) so far, there aren’t any
projects regarding the reform of the court system including the ADCs. Following the mainstream ofthis research, the below recommendations on constructing institutions have been made:Firstly, in respect of reforming the ADCs Model, the Vietnamese Government should

foremost set up a plan for replacing the current people’s court system, divided according toadministrative units by the new model of regional courts. To prepare for this change without any
shock, this process can be taken gradually. It needs to begin from the study of overseas models inwhich the model of Japanese courts can be a good reference. Apart from the success of previous FLA
projects, the assistance of JICA presently in the publication of SPC judgments, legal professional
training and so on, have been highly appreciated. Japanese donors deeply understand Vietnamesemechanisms, culture, as well the obstacles faced in the transitional period. Many projects now arefocused on improving the judicial branch’s capacity, something that Vietnamese partners see as very
attractive. As such, it is really a good chance to enhance projects regarding court’s reform.
Accordingly, the Government should be more active in planning and financing rather than expecting
sponsorship from outside.
Secondly, in respect to founding the new appellate system, such as the establishment of

AJB attached to the Government, the quasi-judicial tribunals, Vietnamese should enlarge the legal
cooperation with various donors for gaining experience and assistance since it is still unfamiliar in
Vietnam.
Thirdly, in respect to enhancing the capacity of the judgment execution body, theVietnamese and foreign partners should set up projects that directly impact on the effect of thecourt’s judgments at the local level and obtain more participation and response from the ingredientpersons. The Law on Civil Judgment Execution was approved by the National Assembly on
November 14th 2008, which aims to better guarantee the effect of a court’s judgment394. This newlaw seems to bring a significant change for the judgment execution in Vietnam. Nevertheless, theexecution of administrative judgment in fact is not an easy task, since it still lacks a strict sanction
mechanism towards violated agencies or authorities. Thus, the projects on survey of judgment
execution at the local level, improving the capacity of executors, studying overseas experiences andso on deserve to be recommend in the future.
Finally yet importantly, the cooperation projects should address local governments,

especially at the grassroots for improving the governing capacity. A famous French legal idiom
suggests Prevention is better than a cure, the improvement of awareness, facilities, and treatment
394
Some new changes such as: (1) clearly distinction between the management agency attached to MOJ and execution agency at
locality, (2) strengthening the capacity of executors by allowing them to use support measures for preventing the attack of debtors,(3) socialization of judgment’s execution at locality by defining a new legal post as Execution Delegator (Thua Hanh Vien). See
Luat thi hanh an dan su duoc Quoc hoi thong qua co nhieu dot pha, [Law on Judgment Execution newly approved by NA have somebreak changes], available at http://www.moj.gov.vn/p/render.userLayoutRootNode.uP

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policy can prevent civil servants from misconduct. Some projects regarding the improvement ofcapacity on resolving land disputes, residence registry, social policy, property acquisition and so onat the local level can be a good reference.
2.3. Support for Legal Training and Exchange of Legal Information
Parallel to strengthening the legal framework and institutions, human resource training isinvariably identified as one of the priorities in Vietnam and attracts the interest of many donors.
Currently, some main types of legal cooperation in this field include: (1) Support for basic legal
training; (2) Assistance for training legal officers; (3) Exchange of Legal Information. The
establishment of Research and Education Center for Japanese Law in Vietnam (2007) provides agood opportunity for the new development of legal training and exchange of information involving
not only Japan and Vietnam, but also others in the Cooperation Network. Some recommendations
regarding three above types of cooperation mainly addressed to the Japanese donor are as follows:Firstly, regarding the basic legal training, Australia, Canada, France, Germany, Japan,

Sweden, Switzerland and the USA as well as the ADB and the UNDP currently support basic
training for Vietnamese human resources. In the future, the cooperation in this field should: (1) set
up a co-ordination training course for LL.M and Ph.D in Vietnam. Like the experiences of Sweden
and France, HLU should cooperate with GSL (Nagoya University) to open Masters and Doctoral
Courses, so that students can have a chance to study Japanese laws. Through a Teleconference
Network, students can attend the lectures by Japanese professors and freely discuss related legal
issues; (2) organize workshops with the participation of foreign experts, particularly relative to thefield of pubic law; (3) dispatch foreign experts to give lectures or discuss ways of absorbing legal
theories through analyzing judgments, of writing academic papers and so on; (4) dispatch graduate
students of the Law School (before entering Legal Training and Research Institute) to be in chargeof Japanese law classes at the Research and Education Centers for Japanese Law in recipient
countries395; (5) continue sending more students to study overseas in all legal fields in which the
public law students should be increased; (6) support more facilities, foreign textbooks and law
databases.
Secondly, regarding the training of the legal profession, this cooperation is very new andcarried out by only two organizations in Vietnam, the Judicial Academy and Procuracy College.
JICA is supporting the Judicial Academy in designing programs, compiling training documents,
supplying facilities and so on. France has sent experts to give lectures to lawyers and notary public
officers. At present, CIDA (Canada), the Faculty of Law of Lyon III University (France) and the395

See Aikyo Masanori, Nagoya University and Legal Assistance Project Study, [名古屋大学と法整備支援事業。研究] in Jurist
No.1358 [特集: アジアにおける法整備支援と日本の役割], pp.23-25 (2008). See more Program of Training Japanese Experts
who can design Legal Assistance [法整備支援をデザインできる専門家の養成プログラム] presented by Prof. Matsuura Y(2007-2009)178

Delegation of EU are developing cooperation projects with the Judicial Academy to train court’s
officers.
Nevertheless, the training of the legal profession in Vietnam is not systematic, nor is it ofhigh-quality or professional. This paper supports the idea of establishing Law Schools in parallelwith Law Faculty and that the training of legal professionals must be a Process, not a Single Point
like the Japanese experiences upon the Justice System Reform since 2001. Further discussion on this
topic will be carried out in Chapter IV, Part II.2 regarding Recommendation on Improving Legal
Human Resource. This section focuses on the following suggestion on improving FLA Projects inthis field: Vietnam and Donors should: (1) set up projects aiming to strengthen the capacity ofadministrative judges, such as the skills in analyzing judgments, supplement courses for international
integration, foreign languages and IT; (2) provide more advice to the Judicial Academy to reform its
training program, focusing on each specific career; (3) exchange judge’s experiences through study
trips, international symposiums, and Teleconference Networks; (4) reform current legal professional
training to ensure a close connection between Basic Legal Education (Law Faculty), Vocational
Training (Law School), the National Bar Examination, and the Judicial Academy.
Finally, regarding the exchange of legal information, Vietnam should set up morecooperation projects to directly access the legal information of foreign partners, such as
Teleconference Networks, Internet Law Databases (Translation of Japanese Law in English), and thee-Legislation Dictionary396.
The newly established Research and Education Centre for Japanese Law provides not only
Japanese language and law tuition, but also facilitates the exchanging of legal information amongscholars and law students. In the future, it should provide some useful courses for exchanging
experiences on specific law fields, the skill of analyzing and teaching court’s judgments, the skill ofwriting papers and so on.
Japan (JICA) cooperated with Vietnam since 1993. Up until present it has provided
ongoing legal assistance to Vietnam as a “pivotal means of assistance and part of JICA key
policies”397. In its strategy, it aims to “extend support to developing countries to develop their laws
which encompasses support for drafting of specific bills, creation of various legal systems for the
implementation of laws and the capacity building of legal experts and practitioners”398. The legal
assistance cannot succeed by merely assisting the draft of bills, but requires actual law
implementation and training of human resources. Upon the New JICA policy, it will provide creative,
highly effective support towards the inclusive and dynamic development process which focuses on
396
These Projects are led by Prof. Matsuura Y., Director of Legal Information Research Center of Nagoya University established in
April, 2008. See Ibid, at 23-24
397

See “Basic Policy for Legal Assistance of Japan ” issued by Japan International Cooperation Agency (JICA) on July, 11th 2001

398

Ibid

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four missions: 1) addressing the global agenda, 2) reducing poverty, 3 improving governance, 4)
and achieving human security. Among recipient countries, Vietnam cannot help being involved in
JICA’s long-term perspectives since it is a complicated yet dynamic transitional country and its
success in reforming legal system will prove the success of New JICA projects.
Nagoya University has recently been carrying out some active FLA projects that focuseson the improvement of legal human resources, particularly for the younger generation (as one of thepriority areas in the strategy), the legal information facilities, the foundation of legal basic sciencesin Asia and Africa, the responding to what the recipient countries need399 and so on. To reform theadministrative law system in transitional developing countries such as Vietnam, Japanese professors
find a necessity in approaching the basic theory and paradigms, particularly those relative to themechanism of institutional change under the view of economic study400. It is an extremely usefulsuggestion for this dissertation, to approach institutional change theory for recommending reform of
the current ADCs Model which will be discussed in Chapter IV. In February 2008, Japanese MOFA
held an International Symposium regarding the philosophy and the way of promotion to FLA relativeto Democratism and Human Rights which attracted many scholarly interests. It lead to theimperatives of researching and promoting such a field in recipient countries401.
Thus, Vietnam, as a promising recipient country, should, based on its own actual
conditions, set up appropriate cooperation programs that satisfy its actual needs. This dissertation,
apart from emphasizing the necessity of legal cooperation with diversified countries, mainly
supports a close, confident legal cooperative relationship with Japan.
Concluding Remarks
Borrowing foreign laws and legal theories by means of FLA is a voluntary transplant andmore preferable in the contemporary context. To reform the existing ADCs Model and Jurisdiction,
Vietnamese lawmakers need to follow the mainstream of civil law thinking, and Asian legal
traditions in accordance with the domestic facts. France, China and Japan have been chosen for the
studying of experiences due to the historical colonial influence (China, France), Asian values (China,
Japan), the earliest and most enthusiastic donors who carried out FLA projects (France, Japan), anda mature experience in importing foreign laws (Japan). This Chapter considers that Vietnam canlearn from the experiences of each of the above countries, but cannot totally follow any model.
Concurrently, the creation of a new model for ALRS needs to avoid a mishmash of borrowed things.
399
The Project of Promotion on Research Correspondence with the Need of Regions of Japanese MEXT, [ニーズ対応型地域研究推進事業] represented by Prof.Aikyo Masanori (2006-2009).
400
See Ichihashi Katsuya, Basic Theory for Administrative Law Reform and Legal Assistance thereof in Market Economy
Transitive Countries, [市場経済移行国における行政法改革及びその支援のための基礎理論] in Symposium on Legal
Assistance Strategy Study held by CALE on December, 13-14, 2008
401

See Aikyo Masanori (2008), pp.22-25

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To achieve success, Vietnam needs vigorous support from foreign donors regarding the constructingof a legal framework, institutions and training legal human resources. Based on given foreign
experiences and FLA projects, the next Chapter will further discuss the new challenge to theexistence of ADCs Model and suggest academic views of this author for reforming it.

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CHAPTER IV

NEW CHALLENGES TO EXISTENCE OF CURRENT ADCs
IN VIETNAM

Introduction“As one looks at policy developments and the burgeoning law and development
literature, it looks as if we are entering a new stage in ROL era…Official ideas about the
ROL become complexified. Attempts to transplant formalist ROL to developing/or
democratizing countries could actually be counter-productive for economic, institutional,
and political development, especially when informal mechanisms would be more effective
and efficient…”402.
(David M. Trubek, The Role of Law in Development: Past, Present, Future, 2005)“The change of taking administrative lawsuits to independent administrative
jurisdiction body rather than to courts is in accordance with the new trend of the worldthat entrust the adjudication to a special body with high quality and familiar with its usual
work…We respectfully propose to establish the Administrative Jurisdiction Body (AJB)
where can independently and impartially review all administrative decisions and actions
protested by any organization and individual including foreigners”403.
(Vietnam-STAR Project, Recommendation on Establishment of AJB, 2006)

Chapter IV takes considers deeper whether the existing ADCs Model can survive fromfacing with the strict criticism and the current strong supports for other prevailed models. The
reform of ADCs Model, like the reform of any economic or political institution, is always acomplicated issue and closely related to the transplanting of the ROL for the time being in Vietnam.
This Chapter is inspired by David M. Trubek’s above suggestion and questions whether in order toreform the current Vietnamese administrative court system, is approaching the informal institution of
ROL relevant to Vietnam? It analyzes four main models vigorously supported recently amongscholars, particularly the model of AJB attached to Government. It mainly argues that the current
ADCs Model is failing to meet current demands. It needs to be changed by creating a Regional Court
402

David M. Trubek, The ROL in Development Assistance: Past, Present and Future, in Y.Matsuura ed, The Role of Law in
Development: Past, Present and Future, pp.13-16 (2005)

403
Vietnam-Star Project, Bao cao va Khuyen nghi ve viec thanh lap Co quan Tai phan Hanh chinh o Vietnam, [Report andRecommendation on Establishment of AJB in Vietnam], in Thanh tra Chinh phu (2006), p.127-129 (2006)

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Model (Judicial Review System) in parallel with the Model of AJB attached to Government(Appellate Review System) so that it can better guarantee Judicial Independence and more effectively
protect all individual’s legal rights and interests in the new era of ROL.
I. Contemporary Legal Debates on Setting up Models Other than the Existing Model
1. Transplanting Rule of Law and Judicial Reform Regarding the Administrative Court
Model
1.1. Informal Institutional Approach to Rule of Law
It is common sense that the judicial reforms have been vigorously carried out in both thedeveloped and developing countries recently, particularly in those countries who have just emerged
from the collapse of the Soviet Socialist Block. In this process, the transplant and interpretation of
the ROL in each country is always regarded as the spring-board for any domestic reform. Regarding
the current reform of the Vietnamese court system including the ADCs model, some foreign scholars
have argued that it “can not be read as indicating a shift to ROL”404. It seems to be a rather strict
criticism, and to a certain extent denies all efforts of Vietnamese leadership. As a grounding for thecontemporary legal debate regarding the existing court model, it is necessary here to discuss whatbest approaches to the ROL exist in the current context.
Alan Watson defined comparative law as a distinct academic discipline405 that should beconcerned with “the study of the relationship of one legal system and its rules with another”. He
pointed out the main type of such relationship between systems known as one borrowed from theother or both borrowed from the third406. Vietnam, for the best way to improve its own system andspeed up the reform process, should take advantage of studying overseas experiences of legaltransplant by means of the FLA. The question is where should Vietnam study and what kind ofmodel should be followed? It is always necessary to remember that the Vietnamese legal system isclosely attached to the Asian legal culture including the Confucian influence. Furthermore, the civil
law legacy from the French is also important to remember. Thus, it is inappropriate to importwholesale, a Western model of the ROL as well as judicial review in Vietnam. In the Comparative

Law Workshop held in London (2000), which was also the centenary of the First International
Congress of Comparative Law, the comparatists commented that while the 20th century looked
at similarities between legal systems from the perspective of exportation, in the 21st century, “we404
See Pip Nicholson, Distinguishing Law and Development: Legal Assistance and the Vietnamese Courts, in International
Cooperation in the Field of Legal Studies and Agenda for Comparative Law Studies, CALE Papers on International Symposium, 53(2005)
405

Alan Watson (1993), pp.1-9

406

Ibid, at 7183

CALE Discussion Paper No.4

should look for differences from the importation perspective”407. David Trubek, the famous
comparatist supporting for the ROL’s importation in the era of New Law and Development,
recently suggested that there should be an opening for the introduction of new ideas of ROL. It
can avoid both the idea of “one size fits all” and the “sure faith in legal transplant”408. He
quoted the World Bank’s points of view that: “attempts to transplant formalist ROL todeveloping countries could actually be counterproductive for economic, institutional andpolitical development, especially when informal mechanisms would be more effective andefficient”409.
This dissertation supports the informal institution approach to the ROL in the current
Vietnamese context. As evidence, the following two main theoretical questions should be clearlyprovided: (1) How the do institutional factors change society? (2) Why is an informal institution
approach appropriate for transplanting ROL in a country deeply derived from Asian values like
Vietnam?
For the first question, Douglass North firstly defines institutions in to formal and informal

constraints410. Masahiko Aoki also added some elements, such as formal rules including politicalrules such as constitutions, state laws and regulations, economic rules and contracts, and informal
rules attached to social norms, ethical rules and conventions and so on411. The biggest concern here
is how institutions change in developing countries undergoing economic transition.
Firstly, it is necessary to trace back to the Marxist theory on “the Base and Superstructure

Model” and “Rules in the Relations of Production”412 to compare and explain institutional change.
Under Marxist theory, the superstructure is derived from its relationship with production, which is
produced in practices associated with the later. Laws which belong to superstructure in origin, thenserve as rules to govern the material base. More particularly, Marxist historical materialism taught its
students that, due to the economic change and growth, the relationship with production fails to fulfill
the requirement of development of forces of production. As a consequence, a social revolution
occurs to make the relationship of production as well as the social superstructure, including law,compatible with forces of production’s growth. Such social revolutions lead to the establishment of a
new social order in which the dominant institution benefits the ruling class.
Secondly, it is necessary to approach the traditional theory of New Institutional Economic

407

Andrew Harding & Esin Orucu ed, Comparative Law in the 21st Century, 9 (2002)

408

See David M. Trubek (2005), p.15

409

See Legal Institution of a Market Economy, World Bank Web, available at
http://www.1.worldbank.org/publicsector/legal/index.html

410

See Douglass C.North, Institution, Institutional Change and Economic Performance, 4 (1990)

411

Masahiko Aoki, Toward A Comparative Institutional Analysis, 5 (2001)

412

See Hugh Collin, Marxism and Law, pp.77-85 (1982)

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that was rooted in Ronald Coase’s fundamental insights about the critical role of institutionalframeworks and transaction costs for economic performance. Institutions as “the rules of game” andunder this game, economic growth and its efficiency are principal factors causing an institutionalchange. Douglass North agrees fully with Ronald Coase who made the crucial connection between
institutions, transaction costs and neo-classical theory in terms of the existing institutions reflecting
economic efficiency. However, he argues that “the neo-classical result of efficient markets only
obtains when it is costless to transact, when it is costly to transact, institutions matter”413. Thus, as a
new approach, he sees changes in relative prices as a major force inducing change in institution, andaffirms the main function of institution is to reduce transaction costs in the economy. In addition, heargues that the institutional change is possibly affected by cultural, and environmental factors.
Another approach to the institutional change can be found in Knight’s view that social conflicts andthe way of settlements may result in the change of institution414.
Thus, regarding the institutional change, Marxist theory, to a certain extent, may sharesome commonalities with New Institutional Economics, such as the factor of economic growth andsocial conflict inducing institutional change. Both of these also share the view that institutionalchange is not easy work, nor is it a smooth path. However, the fundamental distinction lies on what
Marxists “emphasize [as] the tensions created by class struggle” found in the Communist Manifesto(1848) and “social order was seen as a problem of political stability” 415 . New Institutional
Economics is purely an economic and institutional theory that is distinguished with the revolutionary
violence theory initiated in Marxist-Leninism.
For the second question, it first should be noted that, to fulfill the requirements of themarket economy, many former socialist and Asian countries have imported the ROL, as a set offormal institutions originating from the West. However, it is undeniable that many of these attempts
have failed. Speedy privatization and rapid political reforms do not mean the ROL can be quickly
achieved. It is supposed that when the formal contents of the ROL are not compatible with theinformal institutions in a transitional society, failure is unavoidable. Incompatibilities include, theabsence of core elements of ROL, the overlapping in the legal system, and the defect of enforcement
mechanisms. Particularly where the formal institution of ROL fails to correspond with real practice,people are inclined to seek social norms and informal practices to secure their rights. This tends tobecome grounds for corruption, bribes, or other bad conduct of the administration. As a result, itcannot avoid creating burden on the judicial court in general and the administrative court inparticular.
In Vietnam, like some East Asian countries with deeply rooted Confucian values,
413

Douglass C.North, The New Institutional Economics and Development, http://www.econ.iastate.edu/tesfatsi/NewInstE.North.pdf

414

See Jack Knight, Institutions and Social Conflict, pp.4-12 (1992)

415

Hugh Collin (1982), p.129

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transplanting the ROL has apparently faced the restraints of informal institutions. Furthermore,political reform is always a pre-condition and pressure for such requirement of ROL. An interesting
point for discussion is whether to maintain informal institutions while adding some appropriateelements or immediately introduce a new formal institution.
This paper supports the former because of the following reasons:Firstly, in the famous book, namely “Comparative Institution Analysis” (2001), Aoki

distributes a wide-ranging discussion on how institutions evolve and introduce typical types of
institutional evolution, particularly regarding the demise of the market communist state. Amongthem, Type 2 - “Transfer of Social Capital Across Different Transaction Domain” (See Appendix 7)
implies that, in response to a shock or crisis, the old institution can gradually evolve inharmonization with newly emerged ones 416 . Thus, in the current situation, to adapt to therequirement of ROL, without any shock or obstacle, new institutions should be graduallytransplanted and harmonized with existing informal ones.
Secondly, as North already argues, the reduction of transaction costs is the main functionof institutions. As a result, maintaining informal institutions with some added elements can benefit
from such cost reductions rather than absolutely establishing new institutions. As such, to fulfill aformal version of ROL, Vietnam surely lacks many institutions resulting in the requirement of agreat deal of money and time.
Thirdly, some recent scholars also argue that the tendency for institutional refinementshows the advantages of changing a particular institutional element or adding new elements toexisting institutions rather than completely creating an entirely new set of institutional elements417.
The West has experienced approximately one hundred years of ROL, therefore, it cannot be
immediately developed in Vietnam with many traditional legacies remaining. Carelesstransplantation leads to failure.
My judgment is that, as any transitional country, Vietnam cannot adopt all elements of
ROL or copy a Western model in its entirety. Instead, Vietnam should adopt elements based on
existing informal institutions. If any informal institution is not against the core ROL, it should bemaintained and harmonized with the newly imported elements. In cases where some contrast isevident but does not harm social orders and people rights, it can be gradually adjusted.
1.2. Judicial Reform and Vietnamese Communist Party’s Points of View
The world has witnessed Vietnam’s Doimoi (Renovation) since the VI Party Congress(1986). However, from the perspective of judicial reform regarding the court model for impartially
416

See Masahiko Aoki (2001), pp.250-253

417

See Douglass C.North, New Institutional Economics and Development. See also Greif Avner, Institutions: Theory and History,
38 (2003)

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protecting people’s legal rights and interests, Vietnam really emerged in the second half of the 1990s.
It is commonly recognized that the CPV is the sole ruling party and “the force leading theState and society”418. For most Vietnamese, this recognition is due to historical development andobjective reality. Since its birth in 1930, the CPV led the Vietnamese people to escape nearly one
century of French colonialist rule, liberating the entire country through two bloody wars that
undeniably draws the belief in the CPV and consolidates its leading role. Furthermore, Vietnam is
influenced by Confucian culture in which loyalty to Rulers is regarded as the most morally required
for all people. As a result, what the CPV had done for the country and its people in the past and what
it its current efforts in reform, has lead people to respect it and recognize its mandate to govern
society. This point is important to understand for foreign observers who may be surprised and feelcurious as to why any reform in Vietnam including the establishment of an administrative court
model has already found its origins in official Party documents. This section analyzes somerequirements of judicial reform regarding the ALRS including the administrative court model basedon the development of some fundamental CPV’s documents:
Firstly, it must evidence the Resolution 08 of the VII CPV Congress (January, 23rd 1995)

on “Further Improving the Socialist Rule of Law State of Vietnam with the Focus on Public
Administration Reform”419. This Resolution underlines the need of building the Socialist ROL State
that fully protects the democratic rights of people and preserves the social order. Regarding the
ALRS, it clearly emphasized that “there should enhance the settlement of the people’s complaints,
promoting the establishment of the administrative courts handling out the lawsuits against the illegal
administrative decision or action”.
In respect to reforming the judicial body, this Resolution points out the necessity of
expanding local court’s jurisdiction, clearly delimiting jurisdiction between the supreme and local
courts, restricting to the first-instance and final judgment procedure420, and requiring particularly thestudy and creation of specific courts dealing with economic, administrative matters and so on. The
result was the promulgation of the revised LOPC (October, 28th 1995), which empowered thepeople’s court system to handle administrative lawsuits, and the birth of the ADCs in July, 1996.
Thus, this Resolution was highly appreciated as a break-through in forming the administrative
litigation system in Vietnam.
Secondly, Resolution No 8 NQ/TW by the CPV Politburo (January, 2nd 2002) needs

addressing. This Resolution is regarded as a critical review of five years of administrative lawsuit
experiences on settlement. The first issue laid down in this document was that “the adjudicative

418

See Vietnamese Constitution (2002), Art 4419

See Nghi quyet 8 Hoi nghi Ban chap hanh Trung uong Dang Cong San Vietnam Khoa VII, The Resolution No 8 of the VII
Party’s Congress (January, 23rd 1995), available at http://www.cpv.org.vn/print_preview.asp?id=BT2660737535
420

So tham dong thoi la chung tham. This judgment procedure was abandoned since the promulgation of the Revised LOPC (2002)

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works must be met with the Party’s strategy and policy”, and “it needs to closely obey to and serve
suitable political tasks that set up in each period”. This guidance may be criticized by foreignobservers since they consider that the Party deeply interferes with the judicial workings. In fact, it isa constitutional principle binding the organization and operation of all Vietnamese state mechanisms
and public servants. Nevertheless, this Resolution strictly requires the liability of the judicial bodies
and authorities. Particularly, based on the theoretical controversy and practical legacy regarding theadministrative court model and jurisdiction, this Resolution provides the following main points of
guidance: (1) Expanding the local court’s jurisdiction, especially the jurisdiction of the district court
to recover the stagnation in settlement of administrative lawsuits at locality; (2) Reforming theorganization of SPC to improve performance of the supervisory trial and of making guidance on
adjudicating works to local courts; (3) Facilitating the infrastructure of judicial bodies as well as thereasonable payment policy for judicial officers.
Thirdly, Resolution No 48 NQ/TQ by the CPV Politburo (May, 24th 2005) on “Strategy for

Building and Improving Vietnamese Legal System up to 2010”421 will have a profound significancein setting up some important legislative works in coming times. This Resolution comprehensively
assesses the defect of the whole legal document system in Vietnam, including overlapping,
low-effectiveness and unfeasibility. It recognizes the contradiction of legal norms related to thesettlement of administrative claims and litigation that fails to fulfill people’s expectations,particularly the requirements for Vietnam’s Accession to the WTO. Regarding the settlement ofadministrative lawsuits, the following fundamental guidance should be noted: (1) Guarantee that any
illegal administrative decision or action be discovered and resolved in a timely fashion by the court.
This means that in the future, people may take any administrative lawsuit to courts without the
restriction of enumerated matters; (2) Establish a legal mechanism that allows the Government torequire or make objection to any serious violation in the field of administration upon the judicial
litigation procedure. It seems that Vietnam, to some extent, has learned from the Japanese experience
regarding the right of objection of Prime Minister, laid down in the article 27 of ACLL of Japan; (3)Revise and codify parts of ALRS, such as the ALL, APL, Appeal Law, State Compensation Law,
LOCD and so on; (4) In respect to internal integration, this Resolution points out the imperativenessof re-checking all domestic legal norms to discover any provision against international customs andtreaties that Vietnam stands as a member. The areas of most concern are the settlement ofadministrative lawsuits involving foreign subjects and the issue of guaranteeing equal status offoreign standings and the resolving of law conflict issues.
Fourthly, along with Resolution No 48 NQ/TQ mentioned above, Resolution No 49

421

See Cac Van kien cua Dang va Nha nuoc ve Cai cach Bo may Nha nuoc, [Official Documents of Party and State Regarding State
Mechanism Reform], in Ho Chi Minh National Political Institution, pp.2-15 (2005)

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NQ/TQ by the CPV Politburo (June, 2nd 2005) on “Strategy on Judicial Reform up to 2020”422
forms the most important Party documents for coming times. It definitely emphasizes the task of
judicial reform as being to extend the adjudicative jurisdiction of courts over settlement ofadministrative lawsuits, particularly to renovate judicial proceedings that make it simpler and moreconvenient for people assessing lawsuits. It must ensure equality between citizens and state agencies
or authorities before courts. This Resolution does not mention “the adjudicative works must be met
with Party’s strategy” and “serve suitable political tasks”, but it still confirms the Party Ruling overreform of the whole judiciary to ensure political stability and orientation of building the Socialist
ROL State. The following issues concerning the effect of ADCs should be identified: (1) thecontinued enlarging the court’s jurisdiction over administrative matters and the preparation for theestablishment of regional courts; (2) the reform of some legal proceedings for assessing andresolving administrative lawsuits; (3) The gradual publication of judgments through Collection
Books or Internet, excluding those involving national security or causing negative influence onsociety; (4) the guarantee of the effect of court’s judgment and execution; (5) the consideration of the
project of replacing the existing Procuracy System by a Prosecution Institute (Vien Cong to). Thus,
whether the Procuracy still holds a supervisory function over judicial activities or to what extent it
can participate in administrative lawsuits are being deeply considered.
Truly, some recent reforms regarding the ALRS have resulted from the above Party
Resolutions. Apart from some fundamental revisions of LOCD (2005), OSAC (2006), a new Law on
Civil Judgment Execution (2008) has been made, some other fundamental laws related to this havealso been released for public opinion and are in the drafting process.
To conclude, some recent Party’s Resolutions have had a profound impact on setting up theoverall strategy and policy for judicial reform including ALRS. These Resolutions have emphasized
the renovation of proceedings that have created more favorable conditions for people to accessjustice and participate in court proceedings on an equal status with state agencies and authorities.
Undoubtedly, this trend aims to reinforce public confidence in to the entire court system in generaland ADCs in particular. However, to what extent it can ensure judicial independence and how best to
guarantee people from administrative misconduct are still topics of controversy. In the strategy ofjudicial reform, the CPV provides a general framework and the promise of reforms relative to thecourt’s jurisdiction. It still, however, leaves behind real debates among Vietnamese scholars
regarding an effective model for JRAA. In fact, the defects of the existing model once again result in
hot debates among scholars as to whether courageously set up new models or preserve the existingone. The next section will analyze this controversy under the scholarship’s points of views.

422

Ibid, at 16-25

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2. Constant Debate on Looking for the Best Model
2.1. Whether to Form an Administrative Jurisdiction Body Attached to Government
As analyzed in Chapter I, this model was once strongly supported by Vietnamese scholars
influenced by the French administrative court system and those working in the state inspection
agencies during the first half of the 1990s. As a matter of unconstitutionality and someinconveniences concerned, this model was finally refused before the revision of LOPC in October
1995.
However, due to the defects in existing ADCs as well as criticism for its low effectivenessover the past ten years, this model once again has been vigorously supported by a considerable
number of scholars. In early 2006, the Government Inspectorate, under the implementation of theGovernment Mission Agenda of the year 2006, cooperated with other relative state agencies, alongwith the grant-help of Vietnam-STAR Project, to set up a research project on “Establishment of the
Administrative Jurisdiction Body in Vietnam”, in which this model was centrally discussed andapproved.
Deputy General Inspector, Vu Pham Quyet Thang as a leader of this project, presented
some main reasons for establishing the new AJB attached to Government, such as the defectivenessof the self-reconsideration mechanism within the internal administration, the low impact of ADCs,
the lack of an effective mechanism for judgment execution and the requirement of international
integration.
Firstly, regarding the administrative law theoretical issue, Dinh Van Mau repeated what

he used to suggest ten years prior about this model, based on the French administrative law theory as
well as the practical experiences of France and Thailand regarding the model of Council of State. His
theory was to clearly distinguish between the administrative jurisdiction and the judicial jurisdiction.
He also gave three main types of litigation concerning state agencies: the legislative litigation, thejudicial litigation and the administrative litigation in which the last must be in hands of a stateagency independent from other administrative agencies, but belonging to the government, like theFrench Conseil d’Etat. Dinh Van Minh has been a very enthusiastic supporter of the French model
since the early 1990s. Passionately inspired by French law theory regarding “the active andadjudicating administration”, he evidences the article 13 of French Law of 16-24 August 1790
stating that: “Judicial functions are distinct and will always remain separate from administrative
function. It shall be a criminal offense for judges in the civil courts to concern themselves in any
manner whatsoever with the operation of the administrators, nor shall they call administrators toaccount before them in respect of the exercise of their official functions”423. He vigorously supports
the idea that administrative matters should not be handled by current judicial (people) courts, but by423
See Dinh Van Minh, Model and Experiences of Establishing AJB in the World, in 9 Review of Inspection Science & of
Anti-Corruption, 53 (2006). See also L.Neville Brown & John S.Bell (1998), p.127

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a special body holding adjudicative function within the administration, and thus the Government
Inspectorate should be upgraded to such an agency.
Secondly, regarding the organization of this model, Vietnamese scholars propose this AJB

would be independent from the system of administrative organs and attached to Government under
the direct control of the Prime Minister. It should be named “Administrative Jurisdiction Institute”(Vien Tai Phan Hanh Chinh, herein after referred as to AJI) and divided into the below three levels:
At the central level, the central AJI is formed by the National Assembly and holds threemain tasks: (1) Resolving administrative lawsuits relative to the central state agencies and thoseconcerning claims that have been settled by the ministers, the head of equal-ministerial agencies orof agencies belonging to the government, but are still being protested; (2) Consulting with theGovernment and Prime Minister as to what concerns the administrative fields including specificurgent cases; (3) Making guidance to the local AJI. One scholar suggests that it is not necessary for
the Head of the central AJI to be the Prime Minister because he already holds a very busy andcomplex governing function424. Instead, the Head should be approved by the National Assembly
under the recommendation of the Prime Minister.
At the local level, the AJI should be divided into the regional (vung) and area (khu vuc)bodies.
The regional AJI should be compounded by some provinces that are empowered to deal
with lawsuits relative to both central and local agencies, such as claims that have been reconsideredby the Chairman of Provincial People’s Committee but are out of the consent and claims relative to acertain Minister’s decision.
As for the above regional AJI, the area AJI shall comprise of districts or cities belonging toprovinces that handle lawsuits relative to district agencies and those concerning the claims that havebeen reconsidered by the Chairman of District People’s Committee but are still in disagreement.
The personnel working in the AJI at all levels can be called adjudicator (Tai phan vien),
being categorized in to three levels: the adjudicator, the middle-rank adjudicator and senioradjudicator. Except the top of AJI, all other adjudicators will be appointed and dismissed by thePrime Minister based on the recommendation of the Advice Council formed by him.
It should be said that in general, this model resembles that which was proposed ten years
prior. However, in order to avoid the existence of two Supreme Courts, which would be regarded as
unconstitutional, some scholars suggest that at the central level, there Vietnam should also set up theadministrative division within the SPC. This division court would conduct supervisory trials (Giamdoc tham) on all administrative judgments made by AJI system. Thus, it would conform with Article
18 of the Constitution stating that “The SPC is the highest adjudicatory body of the Socialist

424This is given by Nguyen Van Thuan, The Deputy Chairman of NA’s Legislative Committee. See Thanh tra Chinh phu (2006),
p.88

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Republic of Vietnam”.
To follow this model, there are two main opinions among scholars:Some scholars propose the establishment of AJI, but still keep the model of ADCs forjudicial review. Following this opinion, they divide the process of resolving administrative disputes
into three periods: (1) Firstly, it is the mediation or “self-control” period carried out by theadministrative agency or authority who renders the complained decision or action; (2) Secondly, incase of disagreement, it will be followed by review period conducted by the system of AJI. Such AJI
will examine both the legality and rationality of the litigated decision or action; (3) Thirdly, theADCs will conduct the judicial review to only the legality of the litigated decision or action and thejudgment made by AJI being protested. They believe that this model avoids unconstitutionality thatwould require the revision of the existing constitution. Concurrently, it fulfills the requirement of
WTO regulations that guarantee all administrative litigations be finally reviewed by independent
judicial courts, even any final reconsideration decision that has been made425.
Some scholars propose the establishment of AJI by merging the current Government
Inspectorate System and the existing ADCs. Following this opinion, the AJI is regarded as a realadministrative court like the tribunaux administratif and cours administratives d’Appel in France.
The existing ADCs within the Local People’s Court System will be cancelled, except theAdministrative Division within the SPC that holds the final judicial review toward all judgments
made by the AJI system through the Supervisory Proceedings. Thus, some scholars want to study
French model, but cannot introduce a dual court system like France because of the current
Constitution’s restraints. For this reason, the preservation of the Administrative Division within the
SPC for final judicial review is the best way to guarantee its supremacy in the whole adjudicating
works prescribed by the Vietnamese Constitution. However this proposal seems to reveal an unclear
distinction between the appellate system and the judicial review system and the immature theory
thereof in Vietnam.
Finally, regarding the jurisdiction of AJB attached to the Government (AJI), some main

issues related to the scope for review, judgments and proceedings need to be figured out:
Since the AJI can review both the legality and rationality, the scope for review should be
expanded to any administrative law field. The scholars suggest that it should be allowed for people
to bring any administrative matter to AJI, excluding some matters that would be out of jurisdiction
such as: (1) those relative to national defense, security, diplomacy, or secrete; (2) those arising in theinternal administration, such as the decisions on appointment, dismissal or removing from posts andso on. However, regarding the decision on disciplinary measures including job dismissals, the people
concerned would be able to bring it to AJI if the reconsideration decision by the administrative

425
See Tran Van Son, Model of AJB in the Context of Building the State governed by ROL in Vietnam, in 9 Review of Inspection
Science and of Anti-Corruption, pp.41-45 (2006)

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agency was protested. The AJI would also be empowered to examine the legality and rationality of
the legal norms, but its jurisdiction would be limited to only propose to the competent agency forannulment or revision. Furthermore, the AJI would be able to deal with compensation matters taken
by people who are infringed by any illegal decision or action. It was also questioned whether the AJI
could review matters relative to the public interest and require the state compensation liability. It canbe realized that the scope for review is very large, but this AJI system can not be regarded as a very
powerful court, therefore its effect is still doubted.
The AJI, during the handling of lawsuits, can give some kinds of “judgment” such as: (1)Confirming the legality or rationality of litigated decision or action; (2) Quashing the whole or partsof the illegal decision or action; (3) Revising some irrational parts of the litigated decision; (4)Requiring the administrative agency or authority to perform legal duties; (5) Determining andRequiring the compensation liability of the administrative agency to the infringed people; (6)Proposing the competent agency to impose the disciplinary measures to the violated public servants;(7) Proposing the competent agency to annul or revise the illegal or irrational legal norms grounded
for the litigated decision.
Concerning the proceedings, Vietnamese scholars consider AJI can interfere and review at
any period of the self-reconsideration by governing agencies. This means that people can directly
bring the case to the AJI without the first compulsory grievance to the original agency or authority.
At the same time, they can take a case to AJI, even where the first or second reconsideration
decisions by administrative agencies have been made. The trial proceedings can be easy to accesswith the participants of three to seven adjudicators depending on the nature of each lawsuit. Since
the adjudicating work of the AJI is different from that of the judicial court, consequently, excluding
lawyer participation, the participation of procurators is unnecessary. In principle, the judgments by
the AJI strictly bind to all concerned agencies, authorities and people. Immediately after being
declared illegal, the alleged decision must be null and void. Some scholars propose to study Chineseexperience in respect that the AJI can impose fines or demand the bank to deduct from the account ofagencies or authorities who fail to fulfill the legal duties concluded by judgment. The AJI also has
the right to inform the failure of the judgment’s execution by mass media. Moreover, the AJI may
require a police investigation agency to initiate a criminal liability to those who fail to executejudgment resulting serious damages426.
To conclude, the model of AJB attached to Government but independent of theadministrative agency system, has become recently strongly supported among scholars who are
influenced by the French system and mainly those working in current government inspection
agencies. It can be realized that this idea is derived from the low effectiveness of the existing ADCs

426
See Vu Pham Quyet Thang, Dan de Hoi thao Khoa hoc ve thanh lap Co quan Tai phan Hanh chinh o Vietnam, [Introductory
Speech on Symposium on Establishment of AJB], in Thanh tra Chinh phu (2006), pp14-15 (2006)193

CALE Discussion Paper No.4

and the less important role of inspection agencies in the settlement of people’s claims. Some scholars
want to upgrade this system to become a French administrative court type model, in which the top
Government Inspection Agency should become the Council of State. However, the proposed modelin fact does not much resemble the French model and holds some very Vietnamese characteristics,
such as: (i) the AJI only plays an intermediate role in the settlement process, (ii) it reviews bothrationality and legality of litigated decisions or actions, (iii) its “judgments” will be finally reviewed
by local people court system and SPC that makes the AJI not act as a real independent administrative
court.
The establishment of the AJB attached to Government in fact is the introduction of a newappellate system, which is totally unfamiliar in Vietnam. This dissertation supports its establishment
for the time being and agrees with the Vietnam-STAR Project stating that: “The change of taking
administrative lawsuits to independent AJB rather than courts is in accordance with the new trend of
the world that entrust the adjudication to a special body with high quality and familiar with its usual
works”427. Some foreign participants in the Symposium on Establishment of AJB in Vietnam held by
the Government Inspection (2006) also supported the given AJB model. John Bently, a senior
official of STAR project, suggests Vietnam should establish the AJB in parallel with the existing
ADCs428. Edwin Felter, the judge of Colorado State (US) introduced the system of AJB that was
adopted in 26 states in America that is located within the Executive Branch but is quite independent
from other executive bodies. He suggests that Vietnamese experts should not to be concerned about
the establishment of the new AJB leading to an increased expense for Government and also making
the mechanism more bulky. He provided evidence of the American experience that it may initially
increase expenses, but in the long term, its expense will be reduced because an effective model will
be conveniently operated429.Thus, in principal, this AJB model is strongly supported currently
among scholars. Nevertheless, how the AJB attached to Government is organized and how to
distinguish it from the courts of judicial review is still strongly debated. Further discussion will bepresented as personal views in the Recommendation Section of this Chapter.
2.2. Whether to Set Up Administrative Court Model like Current Military Courts
This model is proposed by scholars who do not support for the establishment of an AJB
attached to Government. The existing model should be maintained and located in the system of thepeople’s court. It would be the same model of the current military courts that consists of three levels:the central military court, the regional military courts and equivalents, and the area military courts430.
427

Vietnam-Star Project (2006), p.127

428

See Thanh tra Chinh phu (2006), p.96

429

Ibid, at 87

430

See Dang Xuan Dao, Mot so van de Vai tro cua Toa Hanh chinh trong Giam sat Quyen luc Nha nuoc, [Some Issues Regarding194

Thus, the Central Administrative Court is the branch within the SPC, and the Chief Justice of thiscourt will be a SPC’s Deputy Chief Justice431.
According to this model, Dang Xuan Dao432 considers that it can avoid making theexisting system more bulky and still guarantees the quality of settlement of administrative lawsuitsby means of judicial courts. His point of view is faithful to Article 127 of the Constitution (revised2002) and the Article 1 of LOPC (2002) stating that “The supreme people’s court, the local people’s
courts, the military courts as provided by laws are the adjudicative agencies of the Socialist
Republic of Vietnam”. Accordingly, in Vietnam, only the court holds the adjudicative function. Thismeans that if any other model is established, it must be under the name of the judicial court andlocated within the people’s court system. The only difference with other civil or criminal people’s
court divisions is that the administrative court would be divided into the region and area to avoid thestrong influence from local administration.
In nature, the scholars supporting this model do not want to change the current ADCs as
well as any provision of Constitution. It seems to be in line with Party’s points of views regarding
Judicial Reform Strategy analyzed in the last section, such as: (1) Re-organizing the local ADCs andthe Central Administrative Court as a more separated branch within SPC; (2) Enlarging step-by-stepthe administrative court’s jurisdiction to avoid the overload of administrative lawsuits as well as toconform with the judge’s capacity at the current time; (3) Improving the judge’s capacity.
In short, this proposed model is in nature the same as that proposed before 1996. Somescholars criticize that this model seems not serve the infringed people but only the convenience ofstate governance. It also does not conform with the contemporary administrative law theory andrestrains infringed people from other effective channels for impartial review. Since there are many
diversified opinions regarding what kind of model should be set up, it is really a challenge for the
existence of the ADCs model. The next section will further discuss whether the regional
administrative courts should be set up.
2.3. Whether to Establish a Model of Regional Administrative Courts
The idea of establishing regional administrative courts emerged in the early 2000s due tothe dependence of the local courts on the governing agencies at the same level, during the settlementof administrative lawsuits. Some scholars considered the choice of this model as the best way toguarantee judicial independence.433.
Role of ADCs in Supervising the State Power], in Thanh tra Chinh phu (2006), p.50
431

See LOPC, Art 34, 35

432

He was a SPC’s Administrative Judge, a Chief of Secretary Board of SPC of Vietnam

433

See Le Thi Nga, To Chuc Toa an Nhan dan Khu vuc – Nhung Van de Ly luan va Thuc tien, [Reorganizing the People’s Regional
Courts: Theoretical and Practical Issues], in 4 Legislative Study Journal, pp.51-57 (2003)

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According to this model, at the local level, some provinces would shared the same one
Regional Administrative Court. In the same way, some districts within one or more provinces would
share the same one Area Administrative Court. However, at the central level, the administrative court
would be either: (1) subordinated to the SPC as same as model of a central military court or (2)subordinated to the National Assembly and absolutely independent from the People’s Court System.
It is apparently realized that while the former (1) is a compromise between the ideas ofsetting up an independent administrative court and that of subordination to the SPC at the top, thelatter (2) is completely inspired from the German model. Scholars supporting the latter consider that
this court system should be absolutely separated from the judicial courts and review only the legalityof the litigated decision or action. If the system of Government Inspection were upgraded to become
an independent administrative court, it would hold only the adjudicative function without anadvisory function to the government. Thus, at the central level, the Administrative Court and theChief Justice would be formed and appointed by the National Assembly. At the locality, thepersonnel of the regional and area courts would be under the direct control of the Chief Justice of
the Central Administrative Court and would be required to hold independent status from the local
administrative agency.
To organize the model of the regional courts, Vietnamese scholars suggest that it should
not be base on the geographical (administrative) unit, but rather on the court’s adjudicating
jurisdiction. Deputy Chief Justice of the SPC, Dang Quang Phuong, based on the Strategy on
Judicial Reform initiated by the CPV’s Politburo, suggests that Vietnam should establish High
Courts (Toa thuong tham)434. Accordingly, the regional administrative court system would consist offour levels as follows:(1) Area Courts of the First-Instance (Toa so tham khu vuc). Each Area Court would
include some districts in one or more provinces and empowered to hear the case at the first-instance;(2) Regional Courts of Appeals (Toa phuc tham vung). Each Regional Court would include
one or some provinces that hear the appeal from area courts of the first-instance. Beside, this court
would also hear the case of the first-instance regarding the plaintiff as a central agency orcomplicated cases involving foreign factors;(3) Administrative High Court (Toa thuong tham) would number five upon the territorial
division of Vietnam, such as the North, the Middle, the South, the Central High-Lands and the
Mekong Delta. Each High Court would hear the appeal of the first-instance judgment of theRegional Court;(4) The SPC would hear the supervisory or review trials. Furthermore, the main importanttask of the SPC would be to make guidance to inferior courts in resolving the encountered issues,

434

See Dang Quang Phuong, Se Thanh lap Toa an Khu vuc, [Whether Regional Court Should be Set up], available at
http://vietbao.vn/An-ninh-Phap-luat/Se-thanh-lap-toa-an-khu-vuc/40108555/218/

196

publishing supervisory judgments.
This model seems to avoid the impact of local governments in the appointment anddismissal of judges. Under the present law, the judge’s term is five years from the date of
appointment. The appointment of local judges depends on the decision of the Provincial Judge
Selection Committee that consists of members of Provincial People’s Council, Local Government
Organizational Board, Fatherland Front and so on435. In practice, the limited term (5 years), thepressure of local government on the judge’s appointment as well as the dependence on the budget
and infrastructure are the main obstacles for administrative judges to act in an unbiased way towards
local governments as the defendants in a lawsuit. The Deputy Chief Justice suggests that judges in
the future should be appointed for a lifetime to make them more confident in their work. Thus, theidea of setting up regional courts along with the lifetime appointment of judges is a promising reform.
Nevertheless, some scholars still question whether it is feasible, because it may fail to fulfill theprinciple of the Party Ruling, the Democratic Centralism compulsorily binding for all statemechanisms. Surely, it may involve other issues, such as the budget, the infrastructure, contradicting
legal norms and so on.
To conclude, although still controversial, the establishment of regional administrative

courts is a worthy proposal. Excluding the establishment of a central administrative court that is
independent from the SPC like the German model, as it may be hard to consult, the setting up ofregional courts within the people’s court system in principle is in accordance with the current context.
In this case, the existing court model should be reconstructed to ensure its independence from local
governments. However, whether it becomes really independent from the Government and Party’s
Ruling is still likely to be a controversial topic for the long-termed process of state and judicial
reform in Vietnam.
2.4. Whether to Introduce a Model of Administrative Tribunals
Recently, some scholars who have studied in America, Britain, Australia and some othercommon law countries have introduced this model to Vietnam. Furthermore, some foreign experts
from the US, Singapore and so on are undertaking FLA projects and also suggest this model throughsymposiums and individual research.
The administrative tribunal is known as a hybrid between a court and administrative
agency. The term “tribunal” in English has diverse meaning. Tribunals are the creation of statutes
and they deal with various disputes and claims. In England, most functions of the welfare state, suchas health services, industrial insurance and national assistance, have led to a proliferation of tribunals.
According to the Report of the Committee of Administrative Tribunals and Enquiries (1957), the435

See Ordinance on Judges and People Assessors of the People’s Court, Art 24, Art 27 section 1

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administrative tribunal is best regarded as a supplement to the ordinary court structure.436 This
report also considered that the tribunal should properly be regarded as machinery provided by
Parliament for adjudication rather than as part of the machinery of administration.
In Australia, under the Administrative Appeals Tribunal Act 1975, the most significant
underlying changes introduced with the administrative tribunal are the availability of review on the
merits, and a right to obtain reasons for decisions. In greater detail, the Australian administrative
tribunal refers to the institution that belongs to the executive branch but is independent from otheradministrative agencies. It is not a court of law, but empowered to review the legality and rationalityof the litigated administrative acts. It is designed for review of merits, and consequently can be often
called “the merit review tribunal” for its distinction to the courts of law. In principle, the procedures
for access to administrative tribunals is less formal and less difficult than that of the courts of law. It
does not review only the legality as the court and is often regarded as the best choice for thedecision-making agency to recover its mistakes. The courts of law can give the final judgment to thedecisions made by administrative tribunals437.
In America, the model of administrative tribunals has been adopted in 26 of the 53 states.
Like any common law country, this tribunal is located within the executive branch but independent
from the other administrative agencies. Edwin Felter, a justice of Colorado, mentioned that this kindof tribunal was recently established in each state of the US438. In Colorado, it was created in 1976
and various tribunals have been established to redress people’s claims, such as the tribunals
regarding the control of land use, personal welfare, transportation, industry and employment,
immigration of aliens and so forth. Regarding in particular the public servant，there is also theappearance of the so-called Merit System Protection Board439.
Administrative tribunals are apparently welcomed in common law countries due to someadvantages, such as their ability to review both the legality and rationality of any litigated decisionor action; its proceedings are often simple and timely and it also provides a good opportunity for the
speedy completion of disputes. Another reason is that these countries lack mature administrative
courts which have historically existed in the civil law system. The establishment of administrative
tribunals in common law countries does not preclude the role of courts by means of judicial review
to any legal act. Thus, the advantage of these tribunals does not mean that it will be the same when it
is imported to a civil law system as well as to any transitional country like Vietnam. Some436
See Report of the Committee of Administrative Tribunals and Enquiries, 218 (1957). It is cited by North Holland, English andContinental System of Administrative Law, 23 (1978)
437

See Nguyen Van Quang (2006), pp.292-295

438
See Edwin L.Felter, Binh luan ve De an thanh lap Co quan Tai phan Hanh chinh, [Comments on the Project of Establishment of
AJB], in Thanh tra Chinh phu (2006), pp.150-155
439
See Dinh Van Minh, Co quan Tai phan Hanh chinh o Hoa ky va Suy ngam ve Co quan Tai phan Hanh chinh o Vietnam, [TheAJB in US and Some Consideration on this Model in Vietnam], in Thanh tra Chinh phu (2006), p.190

198

Vietnamese scholars introduce this model, but they still preserve other existing systems regarding thesettlement of administrative disputes. Supposing that administrative tribunals were adopted in
Vietnam, the ALRS in Vietnam would be in the hands of a wide range of state agencies, such as: (1)the first reconsideration by the original agency or authority and their superiors; (2) the advice andinspection by the government inspectorate agency; (3) the supreme supervision of the National
Assembly and the supervision of the Local People’s Councils toward all administrative activities; (4)the judicial review conducted by the ADCs; (5) the supreme control of Procuracy through its
participation in the administrative lawsuits or in case of its standing as a prosecutor (6) the
quasi-judicial review by administrative tribunals. Thus, this mechanism seems to make the state
apparatus more complicated, bulky and people would not know which the state agency could best
guarantee their infringed legal rights and interests.
Let us examine the two promising administrative tribunals as suggested by scholars mostin favor of each. The models are as follows: (1) the Model of Land Tribunals and (2) the Claim
Settlement Council within Ministry.
Firstly, regarding Land Tribunals, the Vice Minister of Ministry of Natural Resources andEnvironment recently proposed to the National Assembly to set up this kind of tribunal for effective
and complete settlement of lawsuits regarding land440. In fact, land lawsuits counted for about 50 %of the total number lawsuits, however many petitions were returned due to them being beyond thecourt’s competence or violating the legal time limits. The Vice Minister suggested that this tribunal
should possess the following traits:(1) it should be attached to either the National Assembly or Government, but absolutely
independent from the administrative agency system;(2) It should hold a quasi-judicial function and render its judgment to any dispute relative
to the issue of land management;(3) It should consist of one central tribunal and several regional or area tribunals. There
would no need to set up land tribunals throughout the country, rather they should be located inregions involved with “hot” land issues;(4) the adjudicators would have to equip themselves not only in legal knowledge relative
to litigation skill, but also regarding land administration and policy;(5) its judgments could be either annulment, upholding or revision and would have to berespectfully executed.
Vietnamese scholars consider that the establishment of such land tribunals would have thefollowing advantages:(1) It would share the burden of land lawsuits on local ADCs、of which, as mentioned in440
See Thanh Ngoc, Se co Co quan tai phan chuyen phan xu ve dat dai, [Whether the Land Tribunal Should be Set up], available at
http://vietbao.vn/Nha-dat/Se-co-co-quan-tai-phan-chuyen-phan-xu-ve-dat-dai/45170790/511/

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the above statistics, is about 50 % of its total number of cases every year;(2) Land lawsuits often involve land confiscation for various purposes as prescribed by law,land policy during the wars, dispute resolution on land-use rights and land compensation in theurbanization process. However, most of these lawsuits not addressed because existing laws limit the
court’s jurisdiction and disputes such as those without Land-Used Right Certificates are always outof court’s jurisdiction. Furthermore, reconsideration decisions by administrative agencies must
always be submitted before assessing lawsuits also hamper this process. In addition land disputes
mostly involve the factual matters, such as the calculation of land price for compensation, themeasure of land area for granting or acquisition, dispute settlements concerning inheritance, grants
or transfer during the wars and so on. In these cases, the administrative tribunal seems to be morefavorable than the court of law, since it can review both the legality and reasonableness of disputes.
In particular, it would also be possible to act as a good mediator for faster completion of disputes;(3) Following this tribunal, as Le Quang Binh, a senior expert of the National Assembly,
considers that it would not only end the exclusive rights of the administrative agency handling thesedisputes under non-transparent proceedings, but also create a good opportunity for lawyers to follow
such disputes from their outset. However, he also hesitates that this land tribunal is quite unfamiliar
to Vietnam and cannot avoid running into obstacles. He suggests that, instead of the establishment of
independent land tribunals, a Council for Settlement of Land Claims and Denunciation attached toGovernment should be established441.
Secondly, regarding the Claim Settlement Council, Vietnamese scholars point out that thismodel already exists in the Department of Intellectual Property of the Ministry of Science andTechnology, namely Advisory Council on Claim Settlement. This Council is headed by the Deputy
Chief of the Department of Intellectual Property and consists of three members. In nature, the claims
regarding the grant of license, the registration or revocation of trademarks and so on are brought to
the Chief of the Department of Intellectual Property for reconsideration, but this Council takes apreliminary examination of such a cases and consults with the Chief on the most appropriate solution.
Vietnamese scholars suggest that this Council should be strengthened further by expanding its
jurisdiction to become a real independent AJB. It should not merely give advice but also rendereffective judgments. The members of this Council should be appointed as lifetime members by the
Minister and receive payment directly from the Ministry of Finance442. It is emphasized that inVietnam this model is only a preliminary model and is absolutely subordinated to the administrative
agency (Department of Intellectual Property). In comparison with the model of the AJB attached toGovernment, introduced in the last section, some foreign experts (such as Edwin Felter, a senior
441

See Viet Phong, Can thiet thanh lap CQTPHC ve Dat dai, [The Necessity of Establishment of AJB Regarding Land], available at
http://vietbao.vn/Kinh-te/Can-thiet-thanh-lap-co-quan-tai-phan-dat-dai/10931559/87/

442
STAR-Vietnam, Bao cao va Khuyen khich ve viec Thanh lap Co quan Tai phan Hanh chinh Vietnam, [The Report and Proposal
on Establishment of AJB in Vietnam], in Thanh tra Chinh phu (2006), pp.131-133

200

justice of Colorado) consider that it seems to be less attractive because the members of this Council
still belong to the governing agency443. They are likely to be a member of a litigated agency for its
reconsideration rather than an independent adjudicator as in the case of America. Some Vietnamese
scholars also refer to the case of China for evidence that such kind of common law model ofadministrative tribunals. A tribunal system was at one stage suggested immediately after China
became a member of the WTO (2001). However, it was finally discarded due to its unfamiliar theory,inconvenience in terms of access and the existence of various channels for supervisingadministrative activities.
In short, the importation of common law administrative tribunals is not easy in the current

context of Vietnam. Reasons for this are as follows:(1) Common law legal theory, as well as the practice of administrative tribunals is quite
new to most Vietnamese scholars and law-makers;(2) The reviewing of administrative activities in Vietnam is conducted by various agencies.
Therefore, the establishment of this tribunal apparently makes this mechanism more complicated andbulky. It may give people more choice, but it does not provide the most effective model for theirprotection;(3) This establishment leads to obstacles regarding the budget, infrastructure and humanresources.
(4) The administrators do not appear to warmly welcome this tribunal.. It cannot avoid theforbearance and non-cooperation from the authority;(5) Vietnamese lawmakers traditionally have a tendency to learn from the experiences of
their neighbors, particularly from China, and some Asian countries, based on the principle “Take alook to the neighbor to know what they had done, then do it at home in accordance with its own
condition”444. If it is adopted and successful in China, it may be a good reference for Vietnam sincethese countries also share many commonalities. However, why certain items were refused and what
obstacles were faced in the adoption of such items in China also constitute a significant andbeneficial research topic for Vietnam.
Although a number of models for the ALRS have been proposed recently, eachof them also reveals both advantages and disadvantages. It is true that Vietnamese administrative law
theory lacks a fundamental background for the development of a judicial review system as well as anappellate system. The reform of the existing ADCs Model is not only essential to find a practicalsolution, but to improve the contemporary administrative law theory regarding ALRS in Vietnam.
The next part will analyze this important theoretical implication as well as give some443

Thanh tra Chinh phu (2006), p. 87

444

See Dinh Van Mau, Giai quyet tranh chap hanh chinh trong thuc hien Quyen hanh phap va Van de Tai phan hanh chinh,[Settlement of Administrative Dispute in Performing Executive Power and Issues of JRAA. See Ibid, at 23

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recommendations for the reforming of ADCs Model, Jurisdiction and training legal human resources
known as key factors to achieve success.
II. Theoretical Implications and Recommendations
1. Theoretical Implication for Future Development of Vietnamese Administrative Law
Vietnamese administrative law theory from the birth of DRV in 1945 until the end of
1980s was absolutely influenced by its Soviet mentor. Its influence peaked after the importation of
the Procuratura (Procuracy) system in 1960. Particularly, after the country’s unification in 1975,
Vietnam fully copied Soviet administrative law theory and institutions that served the task ofbuilding socialism throughout the whole country. Like its Soviet mentor, Vietnam’s administrative
law is always a reflection of “the cultural ethos of the polity in which it develops”445 and tends toemphasize the governing function rather than the adjudicating function which protects individual
rights through a judicial body.
The introduction of the ideology of Socialist ROL State since the early of 1990s, alongwith the birth of ADCs in 1996 marked an epoch-making step for the development of Vietnamese
administrative law. The previous mechanism for the settlement of administrative disputes known as
the “minister- judge” mechanism was replaced by Judicial Review in which people, for the first time,
were able to take powerful authorities as defendants to courts for better protection of their infringed
legal rights and interests.
Nevertheless, the administrative law theory regarding the JRAA in Vietnam is still underdeveloped causing embarrassment for scholars and lawmakers when it comes to choosing the bestmodel and promulgating effective legal norms grounded for settlement of recently arising disputes.
Some reasons can be identified as:Firstly, like any country deeply influenced by the Soviet legal system, Vietnam lacks not

only the contemporary administrative law theory but also the legal scholars who conduct detailed
research in judicial review, which is known as an interlocked part of administrative law. Let us takean overview of the development of administrative law jurisprudence in Japan. Although its
development is not the same as its German or French counterparts, Japan has experienced more than
one century of achievements, especially in the Post-War Era. Tatsukichi Minobe and Soichi Sasaki
were known as the founding scholars who strove to set the course for post-war administrative law inJapan446. The generations of Japanese administrative law scholars have been divided into a number

445

See H.B.Jacobini (1991), p.143

446
Dr. Tatsukichi Minobe was very famous with his Gyosei Joron (Introduction to Administrative Law- 1948), and Dr. Soichi
Sasaki was famous in his Nippon Koku Gyosei Ippan Horon (General Treatise on Japanese Administrative Law - 1952). See Itsuo
Sonobe, Comparative Administrative Law: Trends and Features in Administrative Law Studies, in John Owen Haley ed (1986),
pp.53-54202

of schools, including the Prewar School, Prewar/Wartime School, Wartime/Postwar School, Three
Generations of Postwar School and the Beyond Postwar School. Prof. Itsuo Sonobe comments “theadministrative law of Japan will continue to derive nourishment from the study of the foreign
administrative law”, and he quotes Prof. Yanase’s explanation that: “We have somehow learned theconclusions arrived at by Western learning, but it seems that we succeeded in absorbing that total
personality make-up that gives birth to those conclusions”447.
Secondly, Vietnamese scholars, excluding the compulsory study of Soviet laws andideology over the past 50 years, have gradually moved towards Western and some East Asian laws
since the early 1990s. Vietnamese scholars today still lack the skills for analyzing and selecting thebest theory or model in accordance with current contexts. A good experience from Japan is that
although it does not possess theories, it attempts a showing of consistency to be able “to achieve any
solid interpretation of confidence in such theories”448. Regarding the JRAA, Vietnamese scholars areoften embarrassed with the theory of adjudicative and active administration because the powerfuladministration was traditionally out of any adjudication by an impartial body, and was subject only
to reconsideration by itself. Under French colonialist rule, the administrative court and its theory
once appeared in Vietnam. Nevertheless, it was apparently not to serve Vietnamese people, and was
finally overthrown in the early years of DRV (1945). The judicial review theory absorbed by
French-influenced scholars was not strong enough to further develop until present due to historicalissues. Recently, French legal assistance, through the French Droit Mason, has had great influenceon the revival of French administrative law theory regarding the operation of administrative courts.
However, Vietnam has failed to study the French administrative court model and jurisdiction andcreated the ADCs model with limited jurisdiction in 1996. Evidence suggests that Vietnam studies
foreign experiences, however tries to follow its own theories and models. For such reason,
Vietnamese scholars cannot avoid facing difficulties in adopting contemporary theories relative to
judicial review, such as the theory of administrative acts, the discretion, state compensation, public
interest litigation and so on. Since diversified foreign administrative law theories and models haverecently been imported in to Vietnam, including those from unfamiliar common law countries, it has
become a great challenge for Vietnamese scholars to cautiously analyze, classify, and follow the bestmodels and build a system that is in line with the development of contemporary administrative law
around the world.
Thirdly, a reasonable state mechanism for the development of administrative law is also

has also come under considerable attention. It is undeniable that the study of JRAA, to a certain
extent, is facing obstacles from state mechanisms and the non-support from the administration.

447

Ibid, at 56-57

448
See Y.Yanase, Gakkai Tembo “Gyoseihou” (Academic Prospective Administrative Law), 7 Kohou (Public Law), 132 (1951). It
is cited by Itsuo Sonobe, See Ibid, at 57

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Recently, the CPV through the Judicial Reform Strategy up to 2020 has already established a good
policy for binding the powerful administration by ROL and Judicial Review. Nowadays, it is notstrange to see a chairman of a local people’s committee as a defendant at court for his illegal
decisions or actions. Also, scholars are able to presenting their points of view relative to thedemocratic mechanisms for protecting people’s legal rights and interests. Owning to FLA projects,
some selected SPC Supervisory Judgments (from 2004 to 2008) have just been published throughCollection Books. Nevertheless, the judgments regarding the administrative lawsuits in comparison
with those of criminal and civil are still limited. To improve the development of Vietnamese
administrative law, the best way is to allow all researchers to freely access court judgments and findout what mistakes have been made and what needs to be improved. The idea of how to improve theskills of Vietnamese researchers in making analyses and criticisms on court’s judgments attached totheoretical issues is an urgent requirement for the future development of Vietnamese administrativelaw.
Finally, Vietnamese administrative law cannot develop out of the orbit of thecontemporary administrative law around the world. As Tom Ginsburg comments, for transitionalcountries like Vietnam, the administrative jurisprudence has grown in recent years and the growth ofdomestic judicial review has been shown by an expanding body of administrative law449. How tomake Vietnamese administrative law develop in line with the rest of the world, but still retain its
identity, as in the case of Japan is a great challenge for Vietnam’s future development.

2. Recommendations on Improving the Court Model and Jurisdiction in Vietnam
2.1. The Ruling Party’s Role and the State Mechanism
In the Report to UNDP regarding the reform of ALRS in Vietnam, Prof. John Reitz said:“Vietnamese ALRS needs to be much more independent from the government and the ruling
Communist Party in order to have credibility and legitimacy”450.
Regarding the Ruling Party’s Role, it is true that the ruling CPV has played an importantrole in leading the whole country from its founding until now. Its leadership is one of thefundamental Constitutional principles (Article 4 of Constitution). Any state reform can be found tohave originated from the Official Party Documents, including the establishment of ADCs model andthe gradual expansion of its jurisdiction over the past ten years. The Resolution No 49 NQ/TW

449

See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases, 4 (2003)

450

John Reitz is a Comparative Law Professor of Law Faculty of Iowa University and also has taught at law schools and judicial
training centers in Germany, New Zealand, China, Poland, Russia, Ukraine and Vietnam. He currently studies comparative
administrative law with special interests in the development of the ROL Ideology in Eastern Europe and Asia, how new democracies
are influenced by foreign legal models and how the development of administrative law is related to the democratization. He studied
9 countries‘s ALRS at the request of UN Development Project (France, German, Sweden, the U.K, the U.S, Japan, Russia,
Indonesia and Vietnam) in formulating his recommendation for Vietnam. See Law Professor Reitz advising Vietnam on Reforming
its
Court
System,University
of
Iowa
News
Release,availableat
http://news-releases.uiowa.edu/2007/november/110207reitz_reform.html

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(2005) marked a turning point for reforming the current ADCs model451. Based on this guidance,some recent reforms relative to the court’s jurisdiction and proceedings have been made, including
the promulgation of the revised LOCD (2005), OSAC (2006), Law on Civil Judgment Execution(2008) and the drafts of a number of other laws.
However, one of the main issues criticized recently is the relationship between the
Executive Committee of the CPV and the local ADCs. The report made by the SPC frankly
recognizes that the leadership of the Party in many courts, in fact, has not promoted its roles and thus
ADCs don not match the characteristics required of judicial bodies. This can be seen in cases suchas: (1) In some localities, the Executive Committee of Party treats lightly the role of the court inresolving administrative lawsuits; (2) Some of them deeply intervened in to professional
performance of courts which violates the principle of legality and the principle of judge’s
independence in the adjudication; (3) the Executive Committee in some localities considers that, inorder to strengthen the court’s capacity, they prefer appointing those who aremembers of CPV

Executive Committee from other agencies rather than paying attention to the training of court’shuman resources. Furthermore, the relationship of the courts towards the Executive Committee hassome negative points. For example, many courts are too dependent on the Executive Committee andfear undertaking responsibility. As a result they often wait for the Party’s opinions for many mattersthat are even under their jurisdiction. Some local courts absolutely rely on the opinions of the CPV
Executive Committee toward complicated lawsuits regarding sensitive situations in localities452.
Dinh Van Mau, Deputy Director of the National Administrative Institution, comments that
Reform (Cai cach) is not Revolution (Cach mang)453. He emphasizes the imperative of the vigorous
reform of the existing ALRS based on reviewing its experiences over the past ten years and proposes
the setting up of a new AJB. For the achievement of the credibility and legitimacy of the ALRS,
some suggestions for reforming the Ruling Party are given as follows: (1) Guarantee theindependence of local judges during their dealing with lawsuits. The judges are forcibly made tofollow the CPV’s policy prescribed by law, but they can not be forced to follow any individual party
power; (2) Guarantee the independent status of the judges from the local governments upon the party
leadership principle. The problem is how to ensure impartially and objectivity in the appointment ofjudges or how to grant the judges lifetime tenure, at least up to a mandatory retirement age; (3)Guarantee the independence of the courts in relation to the party organizations and other agencies

451

Some remarkable issues can be emphasized such as: (1) Preparation for the establishment of the administrative regional courts;(2) Enlargement of the court’s jurisdiction; (3) Step by step publication of the court’s judgments through the mass media; (4)Establishment of an effective mechanism for the judgment’s execution; (5) Improvement of the substantive laws and the procedural
litigation laws for guarantee the transparency, publicity, democracy and human right protection. See Resolution No 49 (2005)byPolitburo of CPV on Judicial Reform Strategy up to 2020, in Official Documents by Party and State on Reform of State Apparatus],
pp.19-25 (2005)

452

See SPC of Vietnam, Report on Assessment of Current Legal and Institutional Framework for ADCs, pp.37-38 (2007)

453

See Dinh Van Mau, supra note 444, at 40

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within the state apparatus, such as the mechanism of making reports.
Regarding the State Mechanism, as Prof. John Reitz also comments, Vietnam is opening its

economy up more and more for international investment and it knows that to attract further foreign
investment, it needs to strengthen the legitimacy of its legal system and adopt stronger versions of
the ROL. As analyzed in the last sections, the CPV and the State have already welcomed to the ROL
ideology in Vietnam. However, in the current Vietnamese context, it would better to approach theinformal institution of the ROL. Any informal institution that is not against the basic ROL’s
components should be maintained and harmonized with the new imported elements. The principle ofPower Concentration and the principle of Democratic Centralism are also two fundamental
Constitutional principles governing all state apparatus’s activities. It cannot be denied the advantagesof ensuring the integration of the whole country for the development. However, in respect ofprotection to individual rights, it cannot avoid being criticized for less independence of the judiciary.
Vietnam, since the revision of Constitution in 2001, although retaining the principle of Power
Concentration, clearly divides power into legislative, executive and judicial branches, in which
judicial independence has gradually been improved. Nevertheless, much more independence fromother branches needs to be attained, so that in the future, the court will be able to review theconstitutionality and legality of any legislative norm and administrative activity. To avoid thesubordination of local courts to local governments, the solution of setting up regional administrative
courts is very reasonable. Furthermore, regarding the appointment of local judges, the legal
provisions relative to the Local Judges Selection Committees 454 should be replaced by thoseallowing the SPC to directly select and control its judges throughout the whole country with a strict
National Bar Examination System. When the local court is not dependent on the local government
for infrastructure, appointment, budget, administrative management, report duty and so on, it canachieve a truly independent status.
2.2. Legal Framework and Expansion of Jurisdiction
One of the goals of Vietnamese Socialist ROL State is for the supremacy of laws to beabsolutely respected by all organizations and individuals. To achieve this goal, the prerequisite
condition is that the State must have a perfect legal system to bind all fields of society. As a result, of
foremost the importance of improving ADCs Model and Jurisdiction is the perfection of the legal
framework, recovering all errors of law, such as the overlapping and contradictions among legal
regulations, ensuring the superiority of Constitution, law and the legal effect of other norms
stipulated by Law on Enacting Legal Norms. To be more concrete, the below issues should be454
See Article 27 of Ordinance on Judges and Assessors of the People’s Court (2002). According this article, the Judicial Selection
Committees for Judges of the provincial and district level People’s Courts shall include the Chairman or Vice Chairman of theprovincial People’s Council as the Chairperson, and the Chief Judge of the provincial level People’s Court and Representatives of
the Committee on the Personnel Government Organization, of the Committee of Vietnam Fatherland Front and the Executive
Committee of the Lawyers Association as Members.

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improved:Firstly, the court’s jurisdiction over administrative matters (with exception) should be

expanded to its maximum. LOCD (2005) allows people to make appeals to the competence stateagencies toward all administrative decisions or actions, whereas, the initiation of administrative
lawsuits is limited in enumerated matters. Although the OSAC (2006) has added up to 21 matters, it
has still left a considerable number of petitions to be returned because they were out of court’scompetence. Some examples of this include, land disputes arising before the enactment of the Land
Law (1991), land disputes without Land-Use Right Certificates, land disputes without the firstreconsideration made by the administrative agency and so on. Some others disputes include those
applying social policies during the wars, the war allowance for families of invalids and martyr’s, andveteran and other welfare policies refused by courts. The revised OSAC 2005 allows the disputes
related to the list of voters to be resolved by the administrative division rather than civil division(Article 11, sec.18), however, some others that not only violate the civil rights but freedom anddemocratic rights are also beyond judicial review, such as the refusal of the competent agency toregister inhabitation, the disclosure or supply of the wrong information to mass media that offends
certain individual’s honor and so on. Vietnamese law only allows people to bring to courts
administrative decisions made by the ministerial level downwards, whereas the decisions made by
the top level of central agencies, including Party decisions cannot be addressed. The French
experience shows that even decisions made by President can be judicially reviewed.
Regarding disciplinary decisions towards public servants, there should not be a limit only
on the decision on job dismissal but also others relative to the demotion of their status, the removalfrom one post and so on. To better protect people from any injury caused by the administration, theOSAC should provide what administrative matters are out of judicial review, such as thoseconcerning the state security, national defense or public interest, diplomatic policy or some “internal
control” activities and so forth455. Excluding those, people should be able to take any administrative
matter to courts. If such a provision were made, it would end the controversy regarding the stand-by
provision (Article 11, sec.22) that Government in some cases probably violate the judicial
independence by supplementing itself with a new lawsuit.
Regarding the inquiry in to legal norms, many Vietnamese scholars support the model of
an independent administrative court that is empowered to review both the constitutionality and thelegality of legal norms. In trial practice, the court has been faced with many difficulties when dealing
with cases that the litigated decisions were wrong or irrational, but based on the normative
documents made by competent agencies. In comparison with that of Japan, if the decision was basedon normative documents that violated statute laws, it was concluded illegal by the court. In Vietnam,

455

Nguyen Van Kim, Ban ve tham quyen cua Toa Hanh chinh ,[ Discussing on the ADCs’s Jurisdiction] in Thanh tra Nha nuoc
(1997), p.154

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the courts are often embarrassed to give final judgment to such illegal decisions or norms. According
to the Vice Chief Justice of the SPC Dang Quang Phuong, the court in this case should declare thelitigated decision illegal, then “make proposals to the administrative agency who issued thenormative document or to the upper agency to correct or annul such document”456. Article 9 of Law
on Enactment of Legal Norms says that “a certain normative document is only corrected, replacedor annulled by an agency that issued it or the upper competent agency”. The court is only allowed tomake a proposal to the competent agency to review such norms, not directly change or annul it. Thus,
to guarantee judicial independence, courts should be allowed to review the legality of legal norms
relative to a particular administrative lawsuit. In the case of such legal norm being found illegal, thedecision based on it is also determined to be illegal, consequently both must be annulled by thecompetent court.
Secondly, the content of court’s judgment should be clearly defined in a concrete legal

provision of the OSAC. Glancing at countries with different legal systems, largely, the law
empowers the court during the trial to either preserve or annul partly or entirely the litigateddecisions; to require litigated agencies to perform the mandatory duties in the limited time provided
by law. However, the regulation of remedies made by the court is different from country to country.
The ALL of China also divided the court’s remedies into four types: “upholding judgment”,“abrogating judgment”, “enforcing judgment”, and “changing judgment”. Chinese administrative
law thus allows the court to make another decision to change the illegal litigated decision, such as
the decision on penalizing administrative violation457. The law in Germany also allows the court tochange the litigated administrative decision apart from allowing the court to annul an illegal one458.
The revised ACLL (2004) of Japan supplements some new types of litigations requiring theadministrative agency to better perform their legal duties and some measures to force theadministrative agency to implement court’s judgments. The question emerges as to whether the court,
while reaching a final judgment to protect infringed people, encroaches upon the administration. In
the Vietnamese situation, when the court declares a decision on a fine sanction as illegal, or
concludes the amount of fine-money was not reasonable, the question remains as to whether the
court can revise it. In tax cases, whether the total amount of tax collection should be calculated by
the court or by the tax agency is also undecided. Vietnam should follow the Japanese experience thatthe courts have the authority when granting relief to the plaintiff to either order the specific terms of
the agency action or order the agency to grant plaintiff relief, while permitting it to determine thespecifics of that relief. For example, in a social security payment, the court could order the agency

456

Dang Quang Phuong, Mot so van de ve Tham quyen cua Toa Hanh chinh, [Some Issues concerning on the Competence of
ADCs], in Thanh tra Nha nuoc (1997), p.158

457

Chinese ALL, Art 54

458

Dinh Van Minh, Tai phan Hanh chinh So sanh, [Comparative Administrative Jurisdiction], 45 (1995)

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make payment, but permit it to calculate the payment rather than the court itself make thecalculation.
Thirdly, provisions concerning the compulsory pre-litigation period should be abandoned.

This means that people can freely take the option of either complaining to the original administrative
agency or taking a lawsuit. In nature, the reconsideration of original agencies or officials is
inevitably necessary, however, the existing regulation seems not to make administrative agencies
actively perform their duties to deal with complaints. Allowing people to have a choice may achievesome advantages such as: (i) ensuring the people’s rights to initiate the cases without being delayedby impatiently waiting for reply from such competent agencies; (ii) forcing administrative agencies
to perform well their duties at the first step of making decisions or actions if they do not want to betaken as defendants to court. If people choose administrative agencies as the first step, it means they
believe in them and hope that the settlement will be faster and simple. It also provides incentive foradministrative agencies to become more active and responsible to resolve the issue as well.
Fourthly, the time for initiating a lawsuit should be extended to be more than 30 days459,

especially for “complicated cases” or the cases happening in the “rural areas”. The revised ACLL
of Japan (2004), which extends the time for initiating lawsuits from three months to six months, is agood lesson to protect infringed people from the time restraints. In addition, the regulation
concerning the participation of litigated agencies in court proceedings must be compulsory. Some
enforceable measures should be provided to impose obligations to such agencies that they cannot be
absent for any reason.
Finally, legal norms regarding the ALRS should urgently be systemized and codified.

Vietnam has a great number of normative documents originating in all fields of administrative
management, but the number of laws is limited. Most of them are enacted as under law460documents,
such as ordinances461, decrees462, resolution463, circulars464, directives465 or regulatory decisions466.
The legal provisions concerning settlement of administrative disputes, apart from the LOCD, andOSAC are mostly scattered amongst various legal norms, even overlapping and contradicting eachother. As a result, there needs to be a systematization of existing normative documents that creates a
459

OSAC, Art 30

460

This document named “Van ban duoi luat” (Under law documents) and has legal effect lower than law. See Giao trinh Luat Hanh
chinh Vietnam, [Textbook of Vietnamese Administrative Law] by Hanoi Law University, pp 41-51 (2000)

461“ Phap lenh” is made by National Assembly‘s Standing Committee. See Law on Enacting Legal Norms, Art 21

462“Nghi dinh ” is made by Government. See Law on Enacting Legal Norms, Art 56

463“Nghi quyet” is made by National Assembly, National Assembly Standing Committee, Government. See Law on Enacting Legal
Norms, Art 20, 21, 56
464“Thong tu” is made by Ministry. See Law on Enacting Legal Norms, Art 58

465“Chi thi” is made by Prime Minister, Ministry, Local People Committee. See Law on Enacting Legal Norms, Art 57, 58

466“ Quyet dinh ” is made by Prime Minister, Ministry, Local People Committee, Ibid

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legal framework for administrative agencies to better perform their functions as well as to makejudges to deal with the cases precisely and effectively. During the systematizing process, errors oflaw such as overlapping, contradiction or formality will be recovered. The fields that have not been
regulated will be supplemented in a timely fashion, such as the central fields where disputes
commonly arise, newly emerge in the international integration context, or those relative to foreign
partners.
In addition, the codification regarding administrative remedy should be made soon sinceVietnam lacks the fundamental laws relative to this field. There should be a continuous revision of
the present LOCD as well as an upgrading of the OSAC (2006) in to an ALL to ensure the legal
effect of law documents higher than that of under- law documents.
2.3. Court Model and Institutions
The reform of the court model and institutions for ALRS in Vietnam should be in line withcivil law thinking and focus the on French theory on the distinction between active and adjudicating
administration. Consequently, Vietnam needs to have an independent AJB attached to Government tohold an adjudicative function. Furthermore, it also necessary to improve the ADCs to guarantee theeffect of the judicial review system toward all administrative activities.
2.3.1. AJB attached to Government and New Appellate System
Under the academic points of view, this dissertation supports the establishment of the
Independent AJB attached to Government due to the following main reasons:Firstly, would ensure the French administrative law theory on the distinction between

active and adjudicating administration to be well applied in Vietnam. Although being attached to the
Executive Branch (Government), this AJB must be independent with other governing agencies andhold quasi-judicial power to impartially review the legality of any administrative decision or action
including any legal norm made by administrative agencies. Apart from the judicial review conductedby courts, the administration itself needs to have an appropriate institution, like a quasi-judicial
independent body for judging and recovering the mistakes through people’s appeals toward its
governing activities.
Secondly, Vietnam already possesses a Government Inspectorate System since the birth of

DRV in 1945. It cannot be denied that this system has had significant experience in dealing withadministrative disputes and providing consultation to the government. The inspectorate officers arealso well equipped with legal capacity not only in the field of legal disputes resolution but also ingoverning policy. This is a characteristic and imperative for administrative judges. Under the present
LOCD, excluding the General Inspectorate holding the function of settlement of complaints in alimited case467, most of the inspectorate agencies hold only the function of making inspection,
467

See LOCD, Art 26. According to this article, the General Inspectorate has competence to settle the complaint that has been210

consulting, and proposing to administrative agencies of the same level. Thus, the role of this system
regarding settlement of administrative disputes has recently becomes less appreciated in spite of its
long experience over history. Consequently, there should be a reorganization of the system ofgovernment inspectorate and strengthen its jurisdiction to become a quasi-judicial organ handlingadministrative lawsuits. Thus, it aims to specialize and professionalize the claim settlement within
administration and make the administrative agencies centrally perform their governing functions
better.
Thirdly, it ensures the requirement of transplanting the ROL in Vietnam. One of the corerequirements of the ROL is to guarantee the independence of judiciary and the social
democratization in which all people’s legal rights and interests must be well protected. As analyzed
in the Chapter I, the existing ADCs model fails to fulfill the requirement of Judicial Independence as
it depends too much on local governments and the CPV Executive Committees within the same
territory. This can be recovered by organizing an AJB system that is totally separated from governing
agencies at the local level and dividing it into the regions and areas rather than according to theadministrative units. Furthermore, as analyzed in Part I of this Chapter, to be in accordance with thecurrent context, Vietnam should approach an informal institution of the ROL that is not against thecore ROL, which should remain and be supplemented with some new elements. The advantage is to
avoid any shock or obstacle, to reduce transaction costs as a major force inducing change ininstitution, and to guarantee the gradual harmonization of existing informal institutions with newly
imported ones. Thus, the establishment of an independent AJB attached to Government based on theexisting Inspectorate System is the best way to achieve these goals. Another key factor is the humanresource or the quality and standard of adjudicators will be discussed further in the next
recommendation.
Finally yet importantly, the establishment of an AJB attached to Government by nature is

the proposal of setting up an appellate system, which is still unfamiliar in Vietnam. However, thissystem is seen as being appropriate with the contemporary development throughout the world. Thisidea is also supported by many foreign donors including the Vietnam-STAR project who shares thenecessity of establishing an AJB that can independently and impartially review all administrativedecisions and actions protested by any individual and entity including foreign partners. Nevertheless,the ideal of the foundation of the independent AJB has faced some difficulties, including: (1) whatkind of AJB’s organization should be set up, (2) whether the existing ADCs model is completely
abandoned or hopefully re-organized for improving the judicial review by courts, (3) how should the
new appellate system be made to conform with the Constitution, the fundamental principles of State
Power Concentration, of Democratic Centralism and the CPV’s Ruling.
Firstly, this section answers question (1) and gives the recommendation on thealready resolved by the Head of the Agency belonging to Government at the first-instance but still protested.

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organization of AJB attached to Government:This dissertation principally supports the idea of setting up parallel systems known as thegoverning and adjudicating directly controlled by Prime Minister. There is no need to name such
adjudicating system “Administrative Jurisdiction Institute” (Vien Tai phan Hanh chinh), since inVietnamese language, the term of Institute (Vien) is easily confused with the Research Center as
opposed to an adjudicative body. It can be arranged into three levels throughout the country under
the names of Central AJB (Co quan Tai Phan Trung uong), Regional AJB (Co quan Tai phan Vung)and Area AJB (Co quan Tai phan Khu vuc). This classification is consistent with therecommendation of restructuring the people’s court system laid down in the Judicial Reform
Strategy up to 2010.
The Central AJB would be led by the Prime Minister, but he would not be the Head of thisagency. The Head would be recommended by him, but approved by the National Assembly. Thereneeds to be a guarantee of the independent status of the Head in his adjudicating works.
The Head of the Regional and Area AJB would be designated by Prime Minister and also
approved by the National Assembly. The tenure of office would the same as the tenure of the
National Assembly (five years). The Adjudicators would be appointed and dismissed by the Prime
Minister upon the promotion of the Adjudicator Selection Advice Council formed by him with afive-year tenure. The Regional AJB amalgamates some provinces and cities belonging to the centre
and would be divided according to the natural geographical units, such as the North, the Middle, theSouth, the Central High-Lands and the Melkong Delta and so on. It could give judgment toward thelitigated decisions or actions by the Chairman of Provincial People’s Committee or by the central
agency or authority, such as the minister, the head of the equal-ministerial agencies and so on. The
Area AJB amalgamates some districts and cities belonging to the provinces and gives its judgments
toward all the governing activities from district level downward.
Except for the Central AJB, which holds a consultative function to Government, all the
Local AJB would be real adjudicating bodies at the localities and would be establishedindependently from the local people’s committees and people’s councils. It aims to guarantee theindependence of the AJB in relation to the local government as well as the local Party Executive
Committees. In cases where people do not agree with the settlement of the Chairman of Provincial
People’s Committee, they can take their claims to the Regional AJB without hesitation that thisChairman or the Provincial Party Executive Committee can apply any pressure or obstacle, since theRegional AJB would be quite an independent and upper-level body, a major difference to the current
dependent status of the existing provincial ADCs.
2.3.2. ADCs and Judicial Review System
This section continues to answer two remaining questions (i) whether the existing ADCs

model should be completely abandoned or re-organized to improve the judicial review system; (ii)212how to make the new system conform with the current Constitution:
Regarding the improvement of judicial review by courts, this dissertation supports theidea of replacing existing ADCs by a model of regional courts in line with the Judicial Reform
Strategy up to 2020. This means that the establishment of the AJB attached to Government cannot
replace the role of courts for judicial review. Taking an administrative lawsuit to courts is the final
step for protecting all people’s legal rights and interests. It is also in conformity with the requirementof judicial independence – known as a key element of the ROL.
To be equivalent to the Regional and Area AJB, the Regional and Area ADCs should be set
up within the People’s Court System to perform judicial review. The Administrative Division within
SPC will hold supreme supervision toward all judgments made by the AJB system and the lower
ADCs. If the new system of AJB and the model of regional courts are set up, the mechanism forsettlement of administrative disputes in Vietnam would follow the below three periods:
Firstly, is the mediation or self-reconsideration period carried out by the original orupper-level administrative agency or authority. This is known as the pre-litigation period as fully
analyzed in Chapter II and regarded as an obstacle for accessing a lawsuit. This period is necessary
for the competent agency or authority to self-determine and rectify its mistakes. Nevertheless, it
should not be compulsory, but optional for the infringed people to take their claims either to the
independent AJB (the new appellate system) or to the court (judicial review). In principle, if theclaim were completely resolved during this period, it would reduce the burden of cases on AJB or
courts as well as save time and money for the litigated parties. In the case of the settlement being
disagreed, the claim can be taken to the Area or Regional AJB.
Secondly, is the quasi-judicial proceedings carried out by the system of AJB. The Area or

Regional AJB would review both the legality and rationality of litigated decisions or actions, evenconsider the compensation of damages caused by state agency or authority. To protect people fromany malpractice by the administration, the AJB would be able to review all fields of administrative
activities. The central AJB would hold the quasi-judicial power to inquiry in to legal norms made bygoverning agencies and propose the Prime Minister to annul or revise it. As a result of judgment, theAJB could uphold, annul or revise the litigated decisions, determine the level or the amount ofmoney for compensation of damages and propose the competent agency to annul or correct illegal or
irrational norms. The settlement by the AJB system would hold the distinct feature with that ofself-reconsideration by administrative agency as well as the judicial review by courts, such as its
professionalism, convenience and simplicity. If the litigation is completed within this period, it also
would reduce the burden to the court and complete the long and complex disputes regarding the land,or compensation policy in the urbanization process. If the settlement is still protested, people would
have a final chance to take a lawsuit to the Area or Regional ADCs.
Finally, is the judicial litigation proceedings performed by the people’s court system that is213

CALE Discussion Paper No.4

restructured into the Area or Regional ADCs. These ADCs would review only the legality of litigateddecisions or actions and review whether the AJB fails to apply the correct laws in its settlement
proceedings. The ADCs could confirm the legality or revoke the illegal decisions by the litigatedagency or the judgments by AJB at the same level. However, to avoid its encroachment upon theadministrative functions, as with the Japanese experience, the court should require the competentagency to revise or calculate the amount of money within a specific time. The SPC has the final
judgment toward all judgments made by the lower courts. In the future, the SPC should be allowed
to review the legality and constitutionality of any norm including those made by the government
system (the delegate legislation) and the National Assembly (the highest legislative body). Thus, theadjudicative period by courts guarantee the most important requirement of the WTO that alladministrative claims must be reviewed by an independent judicial body regardless of whether the
final settlement has been made by a certain governing agency or AJB.
Regarding the fundamental Constitutional principle, it should be emphasized that theestablishment of AJB attached to Government is not against the Constitutional principles or the
principle of State Apparatus Organization at present. Article 127 of the Vietnamese Constitution
states that: “The SPC, the Local People’s Courts, the Military Tribunals and Other Tribunals
provided by the law are the judicial bodies of the SRV. Under special circumstances, the National
Assembly may decide to set up Special Tribunals”. Thus, the establishment of an AJB attached toGovernment can be regarded as the establishment of the other tribunal or special tribunal under the
majority determination by National Assembly. It has clearly been predicted within the current
Constitution. In addition, since the SPC can review the legality of all judgments, including
judgments made by the Central AJB through the supervisory proceedings, it guarantees Article 134of the Constitution and the Article 18 of LOPC providing that “The SPC is the highest adjudicatory
body of the SRV. It shall supervise the proceedings of local people’s court, military courts and othertribunals”.
The establishment of the AJB and the reconstruction of ADCs also would not contradict
the principle of Party’s Ruling. Resolution 49 by CPV Politburo (2005) on Judicial Reform Strategy
up to 2020 has already confirmed the preparation for establishment of the Regional Courts.
Resolution 48 (2005) also emphasizes the necessity of improving the legal system in accordancewith the requirement of WTO’s accession and the international integration.
In short, the establishment of an AJB and the model of Regional ADCs may require someappropriate revisions of the Constitution, but it is not totally against it. The greatest advantage to begained would be the avoidance of being dependant on the local governments and the CPV Executive
Committees within the same territory, achieving judicial independence in line with the requirementof post-WTO Accession. Regarding the theoretical perspective, it also makes Vietnamese ALRS
develop towards the international mainstream of today, that apart from the necessity of improving214judicial review by the courts, there it is essential to entrust the adjudication to a special body (anindependent AJB) with high quality and familiar with its usual works. For this system to perform
well, Vietnam needs skillful and highly-educated administrative judges (and adjudicators), which is
known to be a key factor in achieving success. The next section will provide recommendations on
the issue of legal human resources that mainly focus on training administrative judges.
2.4. Legal Human Resources
2.4.1. Appointment and Training Administrative Judges
Legal human resources regarding the settlement of administrative lawsuits currently
consist of administrative judges, people assessors, court’s clerks, procurators and lawyers. Thissection first focuses on the appointment and training of administrative judges, the treatment policy
and so on. Other legal posts, particularly the adjudicators serving at the new proposed AJB attached
to Government will be mentioned in the next section.
Firstly, regarding the appointment of administrative judges, there should be adevelopment of human resources for judge’s appointment. As prescribed by the Ordinance on
People’s Judges and Assessors (OPJA), apart from the court’s clerks, inspectors are a humanresource for judge’s appointment. There are also lawyers, persons working in other legal protection
agencies and so on468. However, judges appointments come, in fact, mainly from the court staff
instead of being extended to other sources. As a result, the current judge’s appointment has displayed
certain inadequacies, such as failure to attract talented and skillful individuals, the a lowering insocial status and competitiveness for potential candidates of positions traditionally high, importantand very honorable within society. It is highly desirable that the selection of judges be extended toinclude those in the circle of lawyers, legal and administration experts as well as law teachers who
have been trained in adjudicative skills.
Judges are currently appointed and dismissed by the Chief Justice of the SPC (except
SPC’s Judges by State President) and limited to five years 469 , but the proposal of lifetime
appointment of judges with some stricter requirements to assure that they devote their whole lives tothis service remains open for discussion.
According to the current OPJA, the conditions for judge’s appointment are: (1) General
Criteria, such as morality, health, having high spirit of safeguarding socialist legality (Art 5.1 of
OPJA), (2) Having LL.B Degree, (3) Experiences (Having four years or more serving in legal sector
as District Judges, ten years as Provincial Judges, 15 years as SPC’s Judges, five years for those
who used to be a judge of District or Provincial Level). In selecting judges, the Judge Selection
Committee is set up at each level in which at the localities, the participation of a local representative468

See OPJA, Art 5

469

OPJA, Art 26 & Art 27

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body, made up of the local government organization representatives and the personnel committee,
the Fatherland Front Committee and so on is regarded as the main obstacle for the independence ofadministrative judges in their judgments toward local government decisions. In addition, although
the judges in their adjudicative role are independent and subject only to the law (Constitution, Art130), they are also expected to follow Party regulations. In fact, most judges are members of CPV,
trained at Ho Chi Minh Political Institute and strictly follow the local CPV’s Executive Committees.
Thus, in the case of the model of Regional Administrative Courts being set up, it may help to avoid
the extreme dependence of judges on local government or CPV at the same level.
If the proposed model of quasi-judicial AJB attached to Government is set up at threelevels (Area, Regional and Center), it also can avoid this dependence. Accordingly, all adjudicators
will be appointed and dismissed by the Prime Minister based on the recommendation of the
Adjudicator Selection Committee formed by the Prime Minister. To be appointed, the adjudicators
should be strictly required to possess a deep knowledge and practical experience on adjudicating andvarious administrative fields rather than only fulfilling a political requirement.
Secondly, regarding the training administrative judges, the judges of different court levels

should be strictly standardized upon the OPJA and their quality should be continuously improved
through the effective training courses.
Training the legal profession in general and administrative judges in particular is one maintask for improving human resources, regarded as a key factor to bring about the success of theoverall judicial reform as well as the reform of the ALRS in Vietnam. To fully understand training
administrative judges,

firstly, it is essential to identify the structure of current legal education andtraining involving the three below types:

216

Chart 4: Types of Current Legal Education and Training in Vietnam

RE-EDUCATION & STRENGTHENING LEGAL KNOWLEDGE TO CURRENT LEGAL POSTS

Law Teacher

Researcher

Experts

Judge

BASIC LEGAL EDUCATION AT GRADUATE

Procurator

LawyerExecutor& other

LEGAL PROFESSION TRAINING

BASIC LEGAL EDUCATION AT LL.B DEGREE

Legal profession training (including training judges) is mainly designated to the Judicial
Academy founded by the Prime Minister in 2004, and attached to Ministry of Justice470. Up until
now, the Judicial Academy has conducted nine training courses with a total of 2.156 graduates (the10th course has been updated). The number of students enrolled in the judges training course isshown below471:

Chart 5: Number of Students of Judge Training Course (From 1998-2007)
500
450
400
350
300
250
200
150
100
50
0

Course 9: 153
Course 8: 408
Course 7: 449
Course 6: 247
Course 5: 250
Course 4: 234
Course 3: 190
Course 2: 121
1

2

3

4

5

6

7

8

9

Course 1: 104

To be a candidate for this course, they must be civil servants with LL.B degrees,470

Its former name is The School of Legal Posts (Truong Dao tao cac chuc danh Tu phap), established in 1998, attached to MOJ.
See Introduction to Judicial Academy and the Legal Profession Training Program , Judicial Academy, 9 (2005)

471

See Pham Hong Quang, The Current Legal Education and Legal Profession Training in Vietnam, in Sugiura ed, Foreign Legal
Assistance and Judicial Reform, [法整備支援と司法改革], Vol 7, 205 (2007). Some update data, see http://www.judaca.edu.vn

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experience of at least four years serving in any local people courts, and in the list of judge
appointments approved by the Chief Justice of the SPC. The Judicial Academy applies both an
Entrance Examination, which is held every July and a nomination472 process to select the candidates.
There is no discrimination between the course for administrative judges and others, and the entrance
exams consists of two subjects, namely Civil and Civil Procedure Law, and Criminal and Criminal
Procedure Law. The successful candidates are enrolled in a course lasting 12 months in which thefirst six months consists of study in basic courses at the Judicial Academy, the following threemonths they are sent to various local courts to act as a probationer officer, and the final three months
they attend specialized course and sit graduation exams.
Regarding the quantity of judges, it is estimated that by 2010, there needs 4,100 judge
candidates to be trained at Judicial Academy. However, according to above statistics, the number ofgraduates is still limited. To achieve this goal, Judicial Academy needs to train at least 500 judge
candidates per year. Therefore, the SPC must expand their goal of judge appointments and increase
the candidate number for training at the Judicial Academy in the coming years.
In respect to the quality of judges, the Judicial Academy, from 2007, aside from setting up
a common training program for all judges, prosecutors and lawyers, they have continuously
improved the training program for each legal profession. Nevertheless, this program should focus
much more on legal professional skills and morality. There should be an improvement in themethods, so that a theoretical lecturer and a practical instructor can simultaneously control the classin order to avoid formality. The quality of practitioners in a variety of local judicial organs needs tobe reported frequently to the Judicial Academy and they must be fully informed about the real
activities of judges. The content of the judge training program consists of four main elements: (1) the
special subjects consisting of six parts, including general substantive and procedural law (for both
civil and criminal law), skills of judges, and special topics; (2) Five types of skill sets for dealing
with a specific lawsuit - criminal, civil, economic, labor and administrative lawsuits; (3)Performance in a model court; (4) Secondary subjects such as English, IT…etc.
Looking at the training program, the training of administrative judges is quite similar toother judges while the contents regarding the ALRS as well the skill requirements of administrative
judges seem to be less catered for than the civil or criminal law fields. For this reason, it is necessary
to establish more subjects for training administrative judges, such as those related to administrative
management, emerging disputes such tax, land, intellectual property, and competition as arequirement of Vietnam’s WTO’s Accession. It is also essential to train particularly in skill ofstudying and exchanging legal views through SPC and local ADCs’s judgments. Strict National Bar
Examinations should also be organized to select judge candidates, including strict requirements for472

The candidates are nominated from the local judicial organs and approved by Supreme Courts. They do not need to take entrance
exam.

218

foreign languages, IT, and the expansion of some other subjects for entrance and graduation exams
appropriate for administrative judges. To develop better quality judges, it requires not only the goodeducation in the adjudicative field, but also experience in state management, economy, technology,
and importantly the morality and strong sense of honesty to avoid pressures from local governments
and CPV during adjudicative works.
Apart from training judges at the Judicial Academy as a professional course, there-education and strengthening of legal knowledge of judges is also undertaken by the National
Administration Institution, the Ho Chi Minh Political Institute or the Court Staff Training School
subordinated to the SPC which offers a short-term course and grants certificates of participation.
Hanoi Law University also holds this task under the commission of the MOJ, and opens
service-training courses for those lacking LL.B Degrees in some provinces or runs courses for
updating participants in new fields of legal disputes. To fulfill the requirement of developing quality
administrative judges who possess the ability to deal with all lawsuits including those newly
emerging, it is essential that both a short-term and long-term training strategy be established. For ashort-term strategy, the court should continuously develop a plan to train on-service judges who stilllack LL.B Degrees and other certificates, so that these judges may improve their professional
capacity and meet the full requirements set for them. Judges are expected to be trained in someshort-training courses on some necessary and urgent issues emerging in the new context of thecountry473. In the long run, the courts at all levels should set up a tentative personnel scheme, fromwhich the court’s clerks or inspectors are selected and sent for training at the Judicial Academy. As
mentioned above, the judge-training program of the Judicial Academy should be improved to meetthe demands of training professional administrative judges. Despite the fact that there are about 400
judges per training course, which has doubled in comparison to the initial courses (from 1998 to2000), there remains a lack of judges at all levels, especially judges in district courts. The training
program for judges of each court level should be different since the OPJA provides different
requirements relative to the quality and professional skills for judges of each court level.
Thirdly, regarding the treatment policy, it is essential to improve the payment policy andother security conditions for judges. For the time being, subject to the Inter-Circular No 04/2005
with the SPC, the Ministry of Home Affairs, Ministry of Finance guiding the Decision No 171/2005
by the Prime Minister on regulating the duty allowance policy for judges, court’s clerks andinspectors, the allowance is between 20% and 30% of the existing salary, plus an allowance ofleadership and work duration (if any). As such, there has been some progress in salary for judges.
Nevertheless, to encourage and enhance the judge’s responsibilities at work and independence, the473Such as the courses relative to the open-door policy and international economic integration, civil transaction and co-operation,
trading and commercial relations between a party with nationality, headquarter or property in Vietnam and a party who is foreigner
or foreign-involved and so on. These courses also aim to improve the judge’s knowledge in the field of foreign laws, internationallaw, custom and international practices and so on.

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following measures should be further promoted: (1) the implementation of a new salary policy which
better reflects the nature of the judge’s work; (2) there is a need to set up a preferential treatment
policy to encourage people to take positions at courts in remote and mountainous areas and islands.
At present, the Official Document No 152/2003 by the SPC establishes the policy on selecting
full-time law university graduates who volunteer to work in far and remote areas with a condition ofseven years working in the indicated locations from the recruitment decision coming into effect.
However, to attract more young and talent graduates to work in such places, the government should
render more attractive payment packages, for example, the first allowance which is equivalent to atleast three months of salary. Work duration in remote areas should be regulated and judges shifted
after a set period.

A policy of training human resources for the courts in the remote areas should

also be established. Other treatment policies for judges, court clerks and inspectors must be to betransparent and fair. Allowance for the indicated court staff is to be allocated depending on thenumber of cases they have settled rather than on the number of regular staff involved. And finally, it
is suggested that the policy of “public housing” for judges should be made in line with themechanism of rotating court staff as guided by the CPV’s Resolutions.
To improve the quality of administrative judges in Vietnam, this section finds necessity todraw some lessons from foreign experiences:
Regarding French experiences, Vietnam should learn from their model of training

professional administrative judges and their way of appointment and recruitment. For example,
students who graduate with perfect results from the National School of Administration474 aredesignated as administrative judges and can take a job in the Conseil d’Etat. Each year, the ENA
trains and produces 90 graduates who have completed an 18- month course, passed the very strict
competitive Entrance Exams (held every September) with two main parts, namely Written and Oral,in which the later is only taken by those with the highest marks in the former. The applicants cantake the entrance exams for ENA only three times and the age for admittance is 27 years or younger.
The number of applicants is around 200 each year, and the success rate is only about 10%475. Thisschool was created in a move to make the recruitment for various high administrative bodies morerational and democratic. By having a system solely based on academic proficiency and competitive
examinations, its recruitment to top positions was successfully made more transparent, without
suspicion of political or personal preference. Under French law, civil servants who are elected or
appointed to a political position do not have to resign their position in the civil service. Thus, there isa clear distinction between those who pursue administrative or adjudicating careers and those who
pursue a political career. The recruitment of administrative judges in France, is traditionally of those

474

475

L’ecole Nationale d’Administration (ENA) was founded by the Provisional Government of General de Gaulle in 1945 that aims
to train all high rank civil servants of the French administration. See L.Neville Brown & John S. Bell (1998), p.82
See Reform of Legal Training System , available at http://www.unafei.or.jp/english/pdf/PDF_indonesia/session3.pdf

220graduated from ENA, however, cope with the demand of an increasing need for judges recently,
another means of recruitment through a Special Competition held once a year to select new judges
among lawyers, high-quality civil servants has been implemented. This is a good reference toenlarge the human resource base for the appointment of judges in Vietnam that is not only limited in
the court clerks and those in the CPV’s membership. In addition, to guarantee the independent statusof judges in France, any promotion or transfer of judges is presided by an Independent Council
formed by the Vice-President of Conseil d’Etat and their judge career is notably irremovable.
Regarding Japanese experiences, it should first be emphasized that there is nodiscrimination between administrative judges and other judges. However, with respect to theappointment of judges, training as well as the treatment policy, Vietnam can learn a great deal fromJapan’s practices:
In Japan, since the courts are vested with authority and assume heavier responsibilities
under the Constitution, it is required that a judge must possess “broad insights as well as extensive
knowledge of law” 476 . The Japanese Constitution is specific in granting judges independence.
According to Article 76, judges are bound only by their conscience, the Constitution and Laws.
Article 78 says “No disciplinary action can be taken against judges by the Executive Branch”. To
guarantee their independence, the Executive Branch is prohibited from dismissing judges who may
only be removed by impeachment or a judicial finding of mental or physical inability to performtheir duties. Article 64 also provides that in the case of impeachment, the Diet must establish a
special impeachment court consisting of members of both Houses and these proceedings must be
public.
In respect to the appointment of Judges, unlike France, judges are not appointed for alife-time and have a limited appointment tenure. The Chief Judge of the Supreme Court is appointed
by the Emperor as designated by Cabinet. All judges of the Supreme Court are appointed by Cabinet,
however this appointment is reviewed by the people477 at the first general election of the membersof House of Representative following their appointment 478 . The judges of inferior courts areappointed by the Cabinet from a list of candidates prepared by Supreme Court, and the term forwhich the judges of inferior courts hold office is limited to ten years, with eligibility forreappointment for an additional ten-year term. Mandatory retirement is required at the ages of 70 for
Supreme Court Justices and 65 for other judges479. It can be compared with the retirement age of 60

476

Supreme Court of Japan, Justice in Japan, 37 (1995)

477

See Law on the Court Organization of Japan, Art 39

478

In addition, the judges of Supreme Court are also subject to review at decennial plebiscites at the time of general election of themembers of House of Representatives. A justice of Supreme Court shall be removed if the majority of voters favor his dismissal

479

Randall Peerenboom (2004), p.464

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for men and 55 for women under Vietnamese Laws480.
Like France, the judiciary in Japan is career or civil service. Judges are required not tobecome parts of a local community, or represent a distinct set of religious, political or social beliefs
or a particular constituency. Nevertheless, as commented by Carl F. Goodman, the judge’s
appointment by Cabinet, a popularly elected political branch of government, with a ten-year tenuremakes the courts less independent and requires it to be insulated from politics481. The lifetime tenureof judges would be recommendable.
For a justice system to support Japan in the 21st Century, upon the Recommendations of theJustice System Reform Council since 2001, Japan has diversified the sources of supply for
professional judges. Accordingly, judges are drawn not just from among assistant judges, but also
from a variety of sources including lawyers and prosecutors. Regarding the promotion andappointment of lawyers, the Supreme Court and the Japan Federation of Bar Associations build aconstant and close cooperative framework. Furthermore, the process of judge appointment by which
the Supreme Court nominates candidates, is required to be transparent and the people can penetratethat process482.
In Japan, the Supreme Court Judicial Secretariat administers the Judicial Branch on behalfof the Supreme Court and under the authority of the Chief Justice. It can decide the transfer ofjudges to different local courts (every three years) to avoid any bureaucratic behavior, corruption,
close or relative relationship as well as to guarantee the judge’s independence. This is an area fromwhich Vietnam can learn, since the local judges are deeply influenced by local relationships,
particularly by pressure from local authorities. Carl F. Goodman, however, still wonders about
whether it can guarantee independent judgments of individual judges since the Supreme Court
Secretariat’s authority sets salaries and transfers judges and he strongly calls for no interference.
In respect to the training of judges, the legal training for candidates of judgeships in Japanis professional and systematic. The requirement of being a full-fledged judge is very strict. In order
to be appointed, it is necessary for a candidate to have practical experience of not less than ten years
as an assistant judge. Assistant judges are appointed from among those who have first passed thevery strict National Bar Examination (Shiho Siken), then completed a one-year course of training at
the Legal Training and Research Institute as an affiliate of the Supreme Court and passed the final
qualifying examination. Based on the reformation of the legal professional training system, the Law
School system started in 2004 and a new National Bar Examination is to be implemented from 2006.

480

See Law on Cadres and Public Servants (Newly Approved by National Assembly on Nov, 13th 2008), Art 31; Vietnamese Labor
Code (June, 23rd 1994, Latest Amendment in 2007), Art 145

481

Carl F. Goodman (2003), p.114

482

See Recommendations of Justice system Reform Council: For A Justice System to Support Japan in 21st century, available at
http://www.kantei.go.jp/foreign/policy/sihou/singikai/990612_e.html

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New judicial training at the Legal Training and Research Institute will be conducted for those who
pass that examination. Initiated by the Justice System Reform Council (2001), the system now, rather
than focusing only on a “single point” of selection through the National Bar Examination,organically connects legal education, the National Bar Examination and legal profession training as a
Process.
Firstly, it is worthy mentioning the new establishment of Law Schools providing education,

especially for training legal professionals in 2004. Law Schools are established as Post-Graduate
Schools under the School Education Law where practical education, especially for fostering legal
professionals will be provided. The applicants are not limited to students from law faculties but
others, such as economics, science, mathematics, medicine and also working people are selectedunder the principle of securing fairness and diversity through both entrance exam results, university
grades achieved and actual performances. After two or three years of training, if successful inpassing the new National Bar Examination, they officially follow their own legal professions as
judges, lawyers, prosecutors or police. It should be considered whether Vietnam should follow Japanto establish a Law School System for preparing the legal human resources including theadministrative judges in the future. The Judicial Academy in Vietnam is a legal professional school,
but not like the model of Law School in Japan since the applicants are not from diverse backgrounds.
As for the judge training course, candidates must be on the list of judge’s appointment and approvedby the SPC. In the future, Vietnam should set up this kind of Law School attached to Law
Universities or reorganize the current Judicial Academy to fill the gap between legal education andactual legal practice and prepare quality personnel through a strict and transparent process ofeducation, training and appointment. Up until now, JICA has been the most active donor to cooperatewith the Judicial Academy to set up a long-term project for improving the training programs andcontents for all legal posts including judges, as well as teaching methods such as replacing theone-way lectures by bi-directional and multi-directional lectures with parallel instruction by both
Practitioners and Teachers. However, there should more focus on improving the program, documents
and methods for training administrative judges, including the way of accessing and analyzing
judgments, legal knowledge relative to governing policy, new disputes emerging, and other specificskills, since the objects of these are always powerful authorities who can apply pressure or obstacles
to their adjudicative works.
Secondly, Vietnam should study the way Japan has organized its National Bar Examination.

The current National Bar Examination began in 1949483. The new National Bar Examination has
been held since 2006 upon the Justice System Reform in the 21st century of Japan484. It abolished the483
Historically, the First Pubic Examination called Daigen-nin Examination started in 1876, the First National Examination inregard to Judges held in 1884 in Meiji Period484

Law concerning Promotion of Justice System Reform came in to effect on December, 1st 2001

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priority system for determining successful candidates and those who complete the course at theabove mentioned Law School can be awarded a qualification of candidacy for the new National Bar
Examination. From the standpoint of switching from the selection system based only on a single
point in to a new legal training system based on a process, the National Bar Examination takes into
account the educational program at Law Schools. It is held once a year, aims at the candidates to firstcomplete the courses at Law Schools and when the system was first designed expected a pass-rate of
70-80%. In 2006, of the 6,261 people who took the New Bar Exams having completed programs at
the nation's 74 Law Schools, 2,065 passed (33%), fewer than the 2,100-2,500 originally projected. In
2007, 1,851 passed, accounting for 40.2% of the 5,401 total 485 . The Japanese National Bar
Examination is public, transparent, and very strict. Under the revamped legal education system,
those who complete programs at the Law Schools are entitled to take bar exams but can only takethem three times within five years of completion. If they are unsuccessful, they are no longer entitled
to take the exam.
Thirdly, the Legal Training and Research Institute established in 1947 and attached to theSupreme Court is a good reference for Vietnam in Apprenticeship Training. Based on thereformation of the legal professional training system486, the new judicial training will be conductedhere for those who pass strict Bar Exams and aims to improve the cooperative relationship among
the three branches of training the legal profession, including judges in Japan. It carries out training
for judges, assistant judges, and Summary Court Judges throughout the year. In recent years, a totalof more than l,000 judges have participated in the training annually. The Supreme Court appoints
legal apprentices out of those who have passed the National Bar Examination. Under the new
judicial training system, from 2006, a one-year course (instead of previous the 18 month-course)
consists of an eight-month field-specific training, a two-month optional field training, and a
two-month collective training. For first eight months, the legal apprentices are sent to district courts,
district public prosecutors offices, and bar associations nationwide, where legal apprentices learn
about actual cases through practical experience. During this time, they spend two months training in
the four areas of civil litigation, criminal litigation, public prosecution, and advocacy. In litigation
training, legal apprentices attend the court to closely observe the directions of judges, exchange
opinions on judgments with judges by reviewing records of pending cases, and create drafts of trial
documents to ask for comments from judges. For the following two months at optional field training,it has been introduced in the new judicial training system that individual legal apprentices can makevoluntarily selections according to their own future career plans, interests, and concerns. Thus, tobecome a judge, especially those handling administrative lawsuits, the legal apprentices have an
485

According to the statistic data of 2007, Law School of Nagoya University is on the top five with the final pass rate of 63.1% inwhich the thesis pass rate accounted for 82% stand at the top. See Pass Rate of New National Bar Examination 2007, available at
http://homepage.mac.com/gen_0404/blog/shinshiho_h19_passrate.pdf

486

The Law School system started in 2004 and the New National Bar Examination is to be implemented from 2006

224

opportunity to experience field training in areas not covered by the last field-specific training. For
the last collective training, the legal apprentices mainly focus on guidance on making drafts throughusing case records for training made from actual case records and are required to take a Final
Qualifying Examination.
Thus, regarding the training judges, Vietnam should learn from this systematic,
professional and transparent training course, particularly focusing on the apprentice’s skills andspecific career field. In Japan, in most District Courts, judges in ordinary civil divisions handle cases
brought under ACLL seeking review of administrative dispositions. However, as required by the
specialty of ACLL cases, presently three divisions of District Courts in Tokyo, two in Osaka, andone in each District Court in Nagoya, Yokohama, Saitama, Chiba, Kyoto and Kobe are established tohandle administrative cases. Thus, the judges specializing administrative lawsuits are required to bemuch more standard. As a general rule, the Court Organization Law provides that the District Courtsits a single-judge court except when the court itself decides that a collegial court of three judges
should hear the case or when statute requires a collegial court. Assistant judges with less than five
years experience may not try cases on their own. Recently, due to the shortage of judges, assistantjudges with more than five years experience may try cases assigned as single judge court. According
to Judicial Reform Initiative since 2004, the assistant judge may work for two years in a Bar
Association to gain experience and this time is possibly counted as part of judicial training andconsidered as a condition for handling a case.
Regarding the treatment policy, to guarantee judge independence, under Article 80.2 of

the Constitution, their salary is adequate compensation and well protected, it shall not be decreased
during their term of office and judges shall not be removed except by public impeachment unlessjudicially declared mentally or physically incompetent to perform official duties. Japanese judges
generally live together in apartment buildings that in effect form judicial compounds. The Chief
Justice of Supreme Court has an official residence but is quite separate in an inconspicuous
residential precinct.
As mentioned above, Vietnamese judges are the civil servants and receive a salary upon
the standard prescribed by law with a small duty allowance. However, to further promote their
responsibility for work and independence, the salary policy should continue to be improved as laid
down in Resolution 08/NQ-TW (January, 2nd 2002) of the Central Committee of CPV on Judicial
Reform: “There should develop an appropriate policy on salary and allowance and otherappropriate treatment for judges”.
Finally yet importantly, lessons regarding material and technical facilities including thedevelopment of IT for judge’s activities can be learned from Japan to improve the judge’s
adjudicative function in Vietnam. It is essential to reconstruct the court buildings in some provinces,
especially in rural areas. Like other professional activities, the application of IT needs to be carried

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out on the base of relating data and information, such as receiving the cases, making case dossiers,
reviewing facts and evidence, studying legal provisions (law database), organizing trials andpronouncing judgment, accessing all SPC’s judgments through Internet and so on. Some recent
projects carried out by Japan Legal Information Institute (Nagoya University), such as A Common
Translation

Dictionary,Translation

Memoryande-Legislation

includingaJapanese-English-Vietnamese Legal Dictionary487, and a Japanese Law Database in English arereally useful experiences for Vietnam to improve IT in adjudicative works in the new period of
post-WTO Accession.
2.4.2. Other Legal Posts
This section gives some recommendations regarding some other legal posts:
Regarding the people’s assessors, it is important to improve the quality of people’s

assessors during litigation proceedings. To this end, people’s assessors should be chosen from among
the experienced persons in both the state management and other legal fields. People‘s assessors
should be allowed to take reasonable time to examine cases, and when dealing with complicatedlitigations, they should be able to propose to the judge to suspend opening the trial in order to fully
research the issues. In particular, they should perform the rights as well as the duties in court toensure the equality with judges in giving a vote for judgment as provided by the Constitution.
Regarding the procurators, the participation of procurators during the administrative trials

in Vietnam, like the people’s assessors, is a compulsory Constitutional principle488. Under theamended Constitution (2002), the “general supervision function” of procurators has beenabolished489 in order to avoid confusing it with the supervision of the National Assembly, theinspection of the Government Inspectorate and some other entities. Deriving from the characteristics
of administrative litigation, the discussion of whether the participation of procurators in thisproceeding should be cancelled, excluding it from performing as a litigant to initiate the case on
behalf of the minor or the disable persons, has emerged. In cases where the participation of
procurators is necessary to perform the function of “supervising the judicial activities”490 , itsparticipation must be more objective to supervise the legality of litigation proceedings, not in favorof the court as well as the litigated administrative agencies. The way of putting the question in the“interrogative step”491 in litigation proceedings should be redefined. It cannot be the same with thatof civil or criminal cases and the procurator cannot be regarded as a “third judge”.

487

See Y.Matsuura, Beyond the Global Sharing of the Statutory Text, ALIN International Academic Conference, (October, 2008)

488

Vietnamese Constitution 1992, Art 129, 130489

See Amended Constitution (2002), Art 137

490

Ibid

491

See OSAC, Art 46

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Regarding lawyers, Article 6 of OSAC provides that: “The parties may authorize inwriting their lawyers or other persons to participate on their behalf in the proceedings”. In fact, therole of lawyers in administrative lawsuits is still weak since written evidence is the most required
while the lawyers find difficulty in cooperating with litigated agencies or authorities. The
Vietnamese Lawyers Association is a professional social organization, but it is not completely
independent in contrast to the status of Japanese Federation of Bar Association. To become a lawyer
in Vietnam, a candidate must obtain a LL.B Degree, then be trained for six months in the Judicial
Academy, and then taking a legal apprenticeship for at least 18 months at any Local Lawyer
Association. Finally they may achieve the Lawyer Certificate issued by Minister of MOJ based on
the promotion by that association492. This mechanism seems to ensure the independence of lawyers
toward the powerful administration after they are granted the Certificate as well as there is no such a
so-called re-appointment like judges. Nevertheless, it does mean that they can achieve an absoluteindependent status because Lawyer Association where they work has a close and influential
relationship with local governments and MOJ as prescribed by the principle of Democratic
Centralism and Party Ruling in the current Vietnamese Political System. Furthermore, the obstacles
in finding the written evidence from the litigated authorities also limits their independence. Thus, it
is essential to improve the independent status of Vietnamese lawyers as well as the cooperation ofadministrative agencies. In addition, the lawyers themselves need to improve their quality to well
protect infringed people and entities including foreign partners in the context of international
integration. Since foreign lawyers are not allowed to participate in the litigation process with the
exception of consultative services, as is similar with Japanese experiences in protecting theirmonopoly position within the Japanese law market. However, according to Recommendation of theJustice System Reform Council in Japan (2001), it suggested that cooperation and coordination
between Japanese lawyers and foreign law solicitors should be promoted. Japan presently allows
foreign lawyers, under conditions, to practice as foreign law specialist in Japan, provided reciprocity
is given to Japanese lawyers in the foreign lawyer’s licensing jurisdiction. It is a good experience forVietnam to improve the quality of lawyers in cooperation with foreign partners to succeed in casedefense relative to the growing fields of intellectual property, technology transfer, and competition.
Regarding the adjudicators who serve for the proposed AJB attached to Government, theyshould be appointed and dismissed by the Prime Minister based on the promotion of an Independent
Adjudicator Selection Committee formed by him. To be appointed, the adjudicators should be strictly
required to possess a deep knowledge and practical experience on adjudicating and various
administrative law fields rather than only a political requirement. Like administrative judges, theyneed to experience the strict National Bar Examination, to be well-trained in the professional school,
and appointed as a lifetime member with adequate payment.
492

See Law on Lawyers (June, 29th 2006), Art. 10, 11, 12

227

CALE Discussion Paper No.4

For short-term measures, some current government inspectors, lawyers, law teachers or
judge candidates should be retrained at the National Administration Institute. This Institute is now
attached to the Government and needs to add the functions of training adjudicators. The Prime
Minister will appoint the candidates as adjudicators upon three levels. They would be sent toperform their adjudicating function within the AJB system at the Area, Regional or Central Level.
For the long-term measures, the National Administration Institute should be upgradedlike the French ENA which trains all high-ranking civil servants including administrative
adjudicators. A long with the system of Judicial Academy and Law School supplying humanresources for the judicial branch, this Institute should organize the National Examination for
selecting adjudicator candidates. The number of applicants can be expanded for not only thosegraduating from Law Universities, but also from this Institute and universities of economy, trade,banking and so on. Like both the French and Japanese experiences, the applicants should be allowed
to take the exam up to three times within an age limit..Due to the characteristic of administrative
disputes, to be member of the CPV should not be a prerequisite condition for appointment. Salaries
and expenses of AJB system should be directed from the state budget to avoid any impact of central
or local governing agencies. The lifetime tenure, appropriate salaries and public housing are also
worthy recommendations for its absolute independence to effectively guarantee the infringed people
from the malpractice of a powerful administration.
Concluding Remarks
The reform of the ADCs Model needs to be in line with the transplantation of the ROL inthe 21st century, the contemporary administrative law development as well as the Judicial Reform
Strategy promoted by the CPV. To achieve this goal, Vietnam needs to set up in parallel the appellate
system (AJB attached to Government) and judicial review system (the reconstruction of Regional
ADCs). Apart from the improvement of the legal framework regarding the jurisdiction, legal humanresources are regarded as a key factor to determine the success or failure of the overall ALRS reform.
Training legal professions including administrative judges should follow some valuable overseas
experiences, such as the Japanese model upon Justice System Reform in the New Century which issystematic, professional and defined as a Process rather than Single Point of Selection or
Appointment.

228

CONCLUSION“[W]hile human rights is a universal term for all human beings, it is at thesame time a term for the whole of Vietnamese nationals in their long structure forindependence, freedom and happiness…Things really began to change with the adventof China and Vietnam calling for “reforms and openness” and their adoption of thepolicy of “developmentalism” after 1989. At this time, the need to maintain socialism
and the occurrence of various problems thereof became obvious in Asian socialist
countries”493(Aikyo Masanori, Human Rights and Democracy in Vietnam:
Some Thoughts on Philosophy of Legal Assistance, 2005)“Building and Improving the legal system regarding the guarantee of humanrights, freedom and democracy; Improving Administrative Law Review System thatguarantees all illegal decisions and actions are timely discovered and absolutely taketo the courts”494.
(Resolution No 48 NQ/TW (2005) of the CPV Politburo
on Improving Vietnamese Legal System up to 2020)

Although the Vietnamese ADCs Model and Jurisdiction has revealed many defects andbeen involved in many legal controversies as have been outlined and analyzed in this dissertation,
it cannot be deniedthat over the past ten years, the CPV and the State have poured a great deal ofeffort into improving the mechanisms for settlement of people’s claims. This can be said to be
one of the most important missions of a Socialist Law-Based State – a State of the People,
working for and serving the People495.
The reform of ADCs and its jurisdiction is nowadays, related closely to the process oftransplanting the elements of the ROL in Vietnam – a socialist country with an emerging,
dynamic market economy. As a result, the difficulties and obstacles during the reform process are
obviously unavoidable. The success of reforming the ADCs Model surely has a direct impact on
the speed of the process of transplanting the core ROL with some Vietnamese characteristics.
The Vietnamese contemporary legal system has been constructed by legal
493
Aikyo Masanori, Human Rights and Democracy in Vietnam: Some Thoughts on the Philosophy of Legal Assistance, in
Y.Matsuura ed, The Role of Law in Development: Past, Present and Future, pp.72-74 (2005)
494

Resolution No 48 NQ/TW dated on May, 24th 2005 by Politburo of CPV on Strategy on Improving Vietnamese Legal
System to 2010, orientation up to 2020, in Official Documents of Party and State on Reform of State Apparatus, pp. 5-7 (2005)

495

Vietnamese Constitution, Art 2iCALE Discussion Paper No.4

transplantation historically derived from China, France, the Former Soviet Union and more
recently East Asia and Western countries. Mainly after the 1990s, the assistance received fromthe West had complicated influences that led to many conflicts between traditional thinking andthe new perceptions. The introduction of the ADCs Model in 1996 and the strict criticisms
associated with it are clearly demonstrate this. During the conducting of this critical research, thefollowing conclusions have been drawn:
Firstly, the existing ADCs Model is not an ideal model for protecting individuals andentities including foreign partners residing in Vietnam in the new period of post WTO’s
Accession.
This model is strongly criticized among scholars and people due to the following
reasons:(1) It fails to fulfill the requirement of a clear distinction between the adjudicative andgoverning functions within the administration, between the administrative jurisdiction andjudicial jurisdiction as well as the appellate system and judicial review system recognized incontemporary administrative law theory.
(2) It does not guarantee the requirement of Judicial Independence known as one of thecore elements of the ROL. As such, this model makes the local ADCs heavily dependent on thelocal governments as well as the CPV Executive Committees at the same level.
(3) It does not meet the recent demands of the Judicial Reform Strategy promoted by
the Party and State, such as the requirement of international integration after Vietnam’s Accession
to the WTO, of the Vietnam-America BTA, which requires an independent model that canguarantee all people’s legal rights and interests with transparent and impartial proceedings.
This dissertation supports the idea that the existing model is only an interim solution in
the transitional period and is no longer appropriate in the current context.
Secondly, the current ADCs Jurisdiction is very limited and harshly criticized, although

it has been gradually improved through two revisions of OSAC (1998, 2006).
This jurisdiction is criticized because of the below reasons:(1) People cannot take any administrative matter to the ADCs except for thoseenumerated in Article 11 of OSAC (2006). The standby provision that allows people to take otherlawsuits provided by other laws and treaties is considered as a threat to Judicial Independence
since in many practical cases, the National Assembly’s Standing Committee or Government can
decide what kinds of administrative matters could be handled by courts.
(2) People are not allowed to sue an illegal, even unconstitutional norm or regulation.
In fact, there have been a number of such norms and regulations enacted against people’s legal
rights and interests. Furthermore, public interest lawsuits are also unfamiliar and always out of
the court’s jurisdiction.
(3) To be resolved by ADCs, the claims must be experienced the compulsoryiipre-litigation period taken by the original agency or authority creating obstacles for accessing
lawsuits.
(4) Many errors of law, such as contradictions, overlapping, the lack or the slowness of
issuing detailed guidance regulations by ministries or other agencies are major factors infringing
people’s legal rights and interests.
(5) Due to the lack of concrete provisions regarding the content of judgment, the local
ADCs often make mistakes in issuance of extreme discretionary judgments. In some cases, theyalso encroache upon the administration and create damages for people concerned.
For such above criticism, this dissertation supports for the necessity of expanding thecourt’s jurisdiction to its maximum (with exception, such as those relative to national defense,
diplomatic relations and so on). This dissertation assumes that the effectiveness of judgment
what is most required since whatever model is adopted, it will be meaningless if its judgments
fail to be strictly performed.
Thirdly, to reform the ADCs Model and Jurisdiction in the context of international

integration, Vietnam needs to learn from foreign experiences by means of FLA. This dissertation
supports the idea that borrowing other foreign laws and institutions can be regarded as a good
method of speeding up the process of finding legal solutions to similar problems. Nevertheless,the borrowing without deep consideration into its own condition may have the opposite effect on
the reform process.
Some remarks should be given as below:(1) The reform of the ADCs Model in Vietnam needs to be in line with civil law
thinking and in accordance with some Asian legal traditions and domestic factors.
(2) Vietnam can study some valuable experiences from France, China and Japan sincethese three countries have already significantly influenced Vietnam, such as long periods ofcolonial rule (China, France), Asian values (China, Japan), early and enthusiastic FLA donors(France, Japan), political, cultural and social commonalities (China), and a mature experience ofimporting foreign laws with “total personality make-up that give births to those conclusions
arrived at by Western learning”496(Japan)(3) Vietnam can study some relevant experiences form each of the above countries,
particularly those related to the expanded jurisdiction (France, Japan), controversies regarding
limited jurisdiction (China), contemporary reform regarding ALRS and training legal humanresources (Japan, China). Nevertheless, Vietnam cannot totally follow any single model, due to:(i) the differences in political structure and State Power (France, Japan); (ii) the defect similar
ADCs (China); and (iii) the immaturity of contemporary Vietnamese administrative law theory.
(4) To avoid constructing Vietnamese ALRS from a mishmash of borrowed theories
496

Itsuo Sonobe, Comparative Administrative Law: Trends and Features in Administrative Law Studies in Japan, in John
O.Haley ed, 19 Law in Japan, p.56 (1986)

iii

CALE Discussion Paper No.4

and models, Vietnamese lawmakers need to cautiously analyze and find out the best solutions
that are compatible with the current context of Vietnam. For the above requirements, it is hightime to receive FLA regarding ALRS. In addition, to avoid political pressure, Vietnam needs tobe more active in FLA Projects and gradually promote the Projects of Legal Cooperation,
guaranteeing equal status and mutual benefits among partners.
Fourthly, to reform the ADCs Model, its Jurisdiction as well as the whole ALRS,

Vietnam needs to improve in parallel both the appellate system and judicial review system toeffectively protect all individuals and entities from any misconduct of the powerfuladministration. The improvement of legal human resources, particularly the role, appointment
and training administrative judges in the time being is regarded as a key factor to achieve thesuccess of the overall reform.
This dissertation gives the below main recommendations:(1) Regarding the new appellate system, this dissertation supports the idea of setting up
an independent AJB attached to Government that is organized upon the three levels of Area,
Regional and Central. Such kind of organization can avoid its dependence on local governments
and CPV Executive Committees at the same level as the existing ADCs. This AJB should review
both the legality and rationality of litigious administrative decisions or actions. It should deal
with the cases related to State Compensation. In some cases, it should also decide whether a legal
norm or regulation is illegal and propose to the competent agencies for annulment. People
resolving the cases can be called Adjudicators (Tai Phan Vien) and trained at the current National
Administration Institute belonging to the Government.
(2) Regarding the judicial review system, this dissertation supports the idea of replacing
the existing ADCs Model by the Model of Regional Courts in line with the Judicial Reform
Strategy up to 2020 promoted by CPV recently.
According to above models, the settlement of administrative disputes in Vietnam would
possibly go through three periods as follows: (i) the mediation or self-reconsideration period,
carried out by the original or upper administrative agency or authority; (ii) the quasi-judicial
proceedings performed by Regional Model of AJB attached to Government; (iii) the judicial
litigation proceedings performed by Regional Model of ADCs. The main difference of the (iii)with (i) and (ii) is that the Regional ADCs will review only the legality of litigious decisions or
actions and review whether the AJB fails to apply the correct laws in its settlement proceedings.
The SPC has the final judgment toward all judgments made by the lower courts andquasi-judicial AJB system.
Thus, for these proposed models, it can ensure the theory of distinction between
adjudicative and active administration, the new trend of the world that entrust the adjudication toa special body with high quality and familiar with its usual work. Furthermore, it is also in
conformity with the requirements of improving the judicial review system to guarantee theiv

independence of the judiciary as well as the current Vietnamese Constitution stating that “SPC is
the highest judicial body in SRV”497.
(3) In respect to jurisdiction, the courts and AJB’s jurisdiction should be extended totheir maximum to ensure: (i) any claim to be impartially and transparently reviewed; (ii) any final
settlement to be reviewed by judicial courts (upon the requirement of Vietnam-America BTA andWTO membership regulation). In addition, the legal framework, codifying some fundamental
laws regarding the Administrative Remedy needs to be improved, such as Administrative
Litigation Law, Appellate Law, State Compensation Law, Administrative Procedural Law and soon.
(4) In respect to human resources, Vietnam should reform the mechanism of judge
appointment to ensure its independent status. In addition, Vietnam should follow Japaneseexperiences on the Justice System Reform initiated in 2001, that not only focuses on a Single
Point of selecting legal human resources through National Bar Examination but also closely
connects the Legal Education, the National Bar Examination and Legal Training as a Process.
Accordingly, a Law School for preparing legal human resources needs to be established, a strict
National Bar Examination for selecting career candidates needs to be organized and the training
program for legal professions including administrative judges in the current Judicial Academy
needs to be reformed. The improvement of Legal Human Resources must be regarded as along-term strategy and is a key factor to determine the success or failure of the overall
contemporary judicial reforms.
(5) In respect to FLA, Vietnam should be more active to set up plans, budgets andpersonnel (not always in mind that co-operation means sponsorship in money) in FLA and Legal
Cooperation Projects regarding ALRS: (i) improving the legal framework (the codification of
fundamental administrative remedy laws, the revision of some substantial and procedural laws
concerned); (ii) constructing institutions (the reconstruction of Regional Court Model, theestablishment of AJB, the publication of more administrative judgments); (iii) legal training andexchange of legal information (training judge program, training skills of studying judgments,
Camera Network Conference and Lecture, Japanese law database in English, e-dictionary
Projects, dispatch graduate students of Law Faculty to Research and Education Center forJapanese Law in recipient countries and so on)
Finally,

since Vietnam cannot immediately adopt all substantive elements of ROL, thereform of ADCs Model should be conducted concurrently with the transplanting of the Informal
Institution of ROL to avoid any shock through sudden change and gradually achieve democraticvalues set forth by State governed by ROL. The sole ruling of CPV is a historical and Confucian’s
inheritance, and a Constitutional principle recognized by the Vietnamese people. It has actively
changed policies recently to pursue the goals of ROL and democracy. However, regarding the497

Vietnamese Constitution, Art 134v

CALE Discussion Paper No.4

ALRS, it needs to make the courts and other institutions (like the proposed AJB attached toGovernment) more independent and eliminate those who abuse the Party leadership to interfere
the adjudicative functions.
To reform the administrative law system in transitional developing countries like
Vietnam, it is essential to approach the basic theory and paradigm, particularly those relative tothe mechanisms of institutional change in respect to economic study. All political obstacles need
to be overcome, as do complex administrative procedures to achieve the success of FLA andCooperation projects and to build up a real State governed by ROL. This reform should be
gradualism and definitely a continuous learning process.

vi

SURVEY QUESTIONS & RESULT
Number of Survey:
Objects:

70
Graduate Students of Nagoya University, Graduate Schoolof Law, Graduate School of International Development,
Law Teachers in HLU, Judicial Academy, Legal Experts in
SPC, MOJ, Government Office, NA’s Office, Government
Inspection, State and Law Institution…etc.

Question 1:
Administrative Court has been already established in Vietnam (one choice)a.

Yesc. Yes/Nob.

No

d. No Idea

Yes:

32 – 46%No:

22 – 31%

Yes/No:7 – 10%No Idea:

9 – 13%

Yes
No
Yes/NoNo Idea

Question 2:
People can take any administrative decision or action considered illegal to Administrative
Division Courts in Vietnam (one choice)a.

Yesc. Yes/Nob.

No

d. No Idea

35
30
25
20
15
10
5
0

Yes

No

Yes/Novii

No ideaCALE Discussion Paper No.4

Question 3:
Which country below shares the most common with Vietnamese Court Modelfor Judicial Review of Administrative Action (one choice)a. Francec. Japanb. China

d. No Idea

France:20 – 29%

Japan:

10 – 14%China:

29 – 41%

No Idea:

11 – 16%

Fr an c e
C h in aJapan
No Ide a

Question 4:
Which below model is the best consulted for Vietnam in the time being (any choice)a.

Administrative Jurisdiction Body Attached to Governmentb.

Semi-Independent Administrative Courts like the current Military Courtsc.

Independent Administrative Court Formed by National Assemblyd.

Maintaining Administrative Division Court Modele. No Idea
 A = AJB Attached to Government

25 = 36%

 B= Semi-Independent Administrative Courts

10 = 14%

 C= Independent Administrative Court Formed by N.A

13= 19%

 D= Maintaining ADCs

10= 14%

 E= No Idea

12= 17%

25
20
15
10
5
0

East
A

B

C

D

viii

No
Idea

Question 5:
So far which Foreign Legal Assistance Project has involved Reform of Administrative Law
Review System (any choice)a. Publishing Supervisory Judgments of Supreme People Court’s Judges Councilb. Drafting Administrative Procedure Law
c. Drafting Administrative Litigation Law
d. Drafting State Compensation Law
e. Drafting Judgment Execution Codef. Reforming Administrative Division Court’s Organization
g. No Idea

 A = Publishing Supervisory Judgments of SPC’s Judge Council(20)

 B= Drafting Ad. Procedure Law(22) C= Drafting Ad. Litigation Law(11) D= Drafting State Compensation Law(10) E= Drafting Judgment Execution Code(10)

 F= Reforming ADCs’s Organization(14) G= No Idea

(11)

25
20
15
10
5
0

A

B

C

D

E

F

Thank you very much for your kind help!

ix

G

Nagoya, October, 2008

x

xi

(COMMUNE LEVEL)(COMMUNE LEVEL)PEOPLE’S COUNCIL(DISTRICT LEVEL)(DISTRICT LEVEL)PEOPLE ‘S COMMITTEEPEOPLE’S COUNCIL(PROVINCIAL LEVEL)PEOPLE’S COUNCILPEOPLE‘S COMMITTEE(PROVINCIAL LEVEL)PEOPLE‘S COMMITTEEGOVERNMENT

N.A STANDING COMMITTEE(DISTRICT LEVEL)PEOPLE‘S COURT(PROVINCIAL LEVEL)PEOPLE‘S COURTPEOPLECOURT

SUPREME

STATE PRESIDENTNATIONAL ASSEMBLY(N.A)

PEOPLE

APPENDIX 1: THE FRAMEWORK OF THE STATE OF VIETNAM(DISTRICT LEVEL)PEOPLE‘S PROCURACY(PROVINCIAL LEVEL)PEOPLE‘S PROCURACYPEOPLE’S PROCURACY

SUPREMＥ

xii

COMMITTEESEXECUTIVE

COMMITTEECENTRAL

POLITBURO

OF VIETNAMCOUNCILSPEOPLELOCALCOMMITTEEPEOPLE

LOCAL

COURT

PEOPLEPROCURACYPEOPLELOCAL

PROCURACY

COURT

LOCAL

PEOPLEPEOPLE

SUPREMEPRESIDENT OF STATE

GOVERNMENT SUPREMEN.A STANDING COMMITTEENATIONAL ASSEMBLY

THE STATE OF VIETNAM

POLITICAL AND ADMINISTRATIVE STRUCTURE OF VIETNAM

COMMUNIST PARTY

APPENDIX 2:LEAGUEYOUTHHO CHI MINHASSOCIATIONSWOMEN’S

ORGANIZATIONSOCIALVARIOUS

UNION

LABOR

FATHERLAND FRONT

xiii

CIVIL

CRIMINAL

JUDGESDIVISION

DIVISIONJUDGESCIVIL

DIVISION

DIVISION

CRIMINALCIVIL

CRIMINAL
DIVISIONLABORDIVISIONLABORJUDGESECONOMICJUDGESDIVISION

DIVISIONSAPPEALJUDGESADMINISTRATIVEDIVISIONADMINISTRATIVEADMINISTRATIVELABORDISTRICT PEOPLE’S COURTDIVISION

ECONOMICJUDGE COMMITTEEPROVINCE PEOPLE’S COURTSDIVISION

ECONOMICJUDGE COUNCIL

SUPREME PEOPLE’S COURT

APPENDIX ３: STRUCTURE OF VIETNAMESE PEOPLE’S COURT SYSTEMAPPENDIX 4:
THE DIVISION OF ADMINISTRATIVE COURT IN FRANCE497

CONSEILD’ETAT

6 COURSADMINISTRATIVES
D’APPEL
Appeal

31 TRIBUNAUX ADMINISTRATIFSFirst-Instance

APPENDIX 5:

ORGANIZATION OF CONSEIL D’ETATPRIME MINISTERMINISTER OF JUSTICEPRESIDENT OFFICEATTRIBUTIONSVICE PRESIDENT OF CONSEIL D’ETAT
GENERAL SECRETARY OF C.d’E

ATTRIBUTIONSLITIGATIONADMINISTRATIVESSERVICES OF C d’E

ASSEMBLY OF LITIGATION (12 MEMBERS)

270 FONCTIONARESSECTION OF LITIGATIONCOMMISSIONPERMANENT (20)

GENERAL ASSEMBLY

GENERAL LITIGATION
2 PDTS ADJITSPLENARY(105 MEMBERS)PDTFISCAL LITIGATION
1 PDT ADJITGENERAL ASSEMBLY
ORDINARY (35 MEMBERS)INTERIOR FINANCE TRAVEL PUBLIC SOCIAL REPORT 1SUB 2SUB 3SUB 4SUB 5SUB 6SUB 7SUB 10SUB 8SUB 9 SUBSECTION SECTION SECTIONSECTION SECTION SEC SEC SEC SEC
SEC SEC SEC SEC
SEC SEC

497

Sources from L.Neville Brown & J.Bell, French Administrative Law, pp.306-308 (1998)

xiv

APPENDIX 6:ADMINISTRATIVE CASE LITIGATION LAW (JAPAN)498
I. KOKOKU LITIGATION (Art 3)

1. Revocation of Disposition (Art 3.2)

CASE

STANDING

2. Revocation of Decision (Art 3.3.)
3. Affirmation of Nullity (Art 3.4)
4. Confirmation of Illegal Forbearance

EXCLUSION OF(In action) (Art 3.5)

INJUNCTION

5. Demand of Legal Obligation AttachedAGAINST(Art 3.6) (New Revised)

TOGETHER WITH
AUTHORITATIVE

6. Demand of Suspension of an action

OTHER
ACTS (Art 44)(Art 3.7) (New Revised)

PREREQUISITES

II. PARTY LITIGATION (Art 4)
1. Litigation relative to legal relation
ARGUABILITY OF THE OBJECT OF

of public law

LITIGATION WHERE IT FAILS UNDER A

2. Affirm or Constitute legal relations

CATEGORY OF “AYTHORITATIVE” ACTS

between the parties(ART 3.1)

III. PUBLIC LITIGATION (Art 5)
1. Confirm election results void by the

TIME LIMIT (Art 14)
election candidates or the electorate
2. Taxpayers suits on local government
finance

ONLY ONE TYPE OF INTERLOCUTORY PROCEDURE,
CALLED “SUSPENSION ORDER OF EXECUTION” (ARTIV. AGENCY LITIGATION (Art 6)25.2), IS EXCEPTIONALLY AVAILABLE AGAINST

Litigation confirm the existence of

AUTHORITATIVE ACTS, THROUGH IT WILL BE

legal powers between administrative
agencies or administrative entities

QUASHED IF A MINISTER RESPONSIBLE OFFICIALLY
PROTESTS BY REASON OF PUBLIC INTEREST (Art 27)

498

This source is cited from Toshiro Fuke, Judicial Review in England and Japan, in Yong Zhang ed, Comparative Studies on Judicial
Review System in East and South East Asia, 42 (1997). The author supplements the type 5 and 6 of Kokoku Litigation upon the New Revised
ACLL 2004, Art 3, sec.6 & 7

xv

APPENDIX 7: REFERENCE ON HOW INSTITUTIONS EVOLVE499
TYPE 1: COMMUNITY EMBEDDEDNESS THAT FACILITATES ADAPTATION TO A NEW OUTSIDE OPPORTUNITY

D0s D0s
D0s

D0s

D0t

D1t

D1t

D0s denotes the domain of social exchange, D0t, D1t denote the domains of economictransactions with different game-form characteristics whose sets of agents are partially overlapped with thatof D0s. It is supposed D0s embedded D0t in the beginning, D0t subsequently incorporates “newaction-choice opportunities” and transforms itself in to D1t. D1t though continuously embedded by D0s as
the old, but it may evolve and become emancipated from D0s by generating a new institution that
autonomously governs transactions in that domain.

TYPE 2:

TRANSFER OF SOCIAL CAPITAL ACROSS DIFFERENT TRANSACTION DOMAINS

D0s

D1s

D0t

D1t

D1t

Being contrast with Type 1, the agent of D1t, after emerging outside D0t (with the partial
immigration of agents from D0t), continuously participates in a new social exchange domain D1s. In
response to the shock or crisis, a mechanism to regulate agent’s choice in D1t may eventually evolve in D1s
as the same (“isomorphic”) manner as D0t was embedded by D0s, though the set of agents of D1s and thoseof D0s are not identical (albeit partially overlapped). This type emphasizes the harmonization of the new
institution and the avoidance of any shock or crisis by sudden changes.

499This source is cited from Aoki Masahiko, Toward A Comparative Institutional Analysis, pp. 250-253 (2001)

xvi

APPENDIX 8
SUMMARY OF OPINIONS FROM PROVINCIAL PEOPLE’S COMMITTEES500

Number of Questionnaires sent:

64;

Number of Questionnaires received:

27

Question 1:
Has your agency had a legal co-operation programme, plan or project with a foreign counterpart?
Number of
Received
Questionnaires

Numberof “Yes”
Answers

Number of“No”
Answers

Main Contents of thePrograme/Plant/Project

Name of
Foreign
Counterparts

Name ofVietnameseCounterpart

27

5

22

Activities relating to legal aid and

Sida,

Legal

birth registration: Yen Bai, Binh

(Netherlands)

Novib

Phuoc, Dong Thap, Quang Tri,

Aid

Agency(MOJ)

Khanh Hoa Province

SUMMARY OF OPINIONS FROM PROVINCIAL DEPARTMENTS OF JUSTICE
Question 1:
Has your agency had a legal co-operation programme, plan or project with a foreign counterpart?
Number of
Received
Questionnaires

Numberof “Yes”
Answers

Number of“No”
Answers

Main Contents of thePrograme/Plant/Project

Name of
Foreign
Counterparts

Name ofVietnameseCounterpart

52

24

28

Strengthening capacity of legal aids

Sida,

Legal

(21)

(Netherlands),

AgencyAssistance for legal information

France,(MOJ)

activities (3)

UNDP

Novib

SDC,

Aid

Project

Assistance for the implementation of

VIE/02/015

bird registration (1)Department

Computerization of the public notary

Administrative

(1)

and

Assistance for implementation of

Law

Treatybetween

VN-Franceof

Criminalon

Adoption

500
This is cited from Uong Chung Luu ed, Assessment of the Current Status of International Legal Cooperation Activities in Vietnam with
Respect to Management and Coordination, pp.254-260 (2007)

xvii

BIBLIOGRAPHY & OTHER SOURCES OF INFORMATION
I. OFFICIAL LEGAL DOCUMENTS AND DRAFTS
Vietnam Sources
Constitution of Vietnam 1946, 1959, 1980, 1992 (Latest Amendment on Dec, 25th 2001)
Civil Code (October, 1995; Latest Amendment June, 14th 2005)
Law on Cadres and Civil Servants (Approved by XI National Assembly on Nov, 13th 2008)
Law on Civil Judgment Execution (Approved by XI National Assembly on Nov, 14th 2008)
Law on Complaint & Denunciation on Nov, 2nd 1998 (June, 15th 2004; Latest Amended Dec, 29th 2005)
Law on Enacting Legal Norms (November, 12th 1996, Latest Amendment Dec, 26th 2002)
Law on Inspection (June, 15th 2004)
Law on Land (1988, Amendment 1993, 1998, 2001.Latest Amendment on Dec, 26th 2003)
Law on Lawyers (June, 29th 2006)
Law on Legal Assistance (June, 29th 2006)
Law on Organization of Government (Dec, 25th 2001)
Law on Organization of People’s Courts (Oct, 28th 1995, Latest Amendment April, 2nd 2002)
Law on Organization of Procuratorate Agency (April, 2nd 2002)
Laws on Organization and Operation of National Assembly (Dec, 25th 2001)
Ordinance on Cadres & Civil Servants (Feb, 26th 1998; April, 28th 2000; Latest Revised July, 1st 2003)
Ordinance on Enforcement of Civil Judgments (April, 17th 1993)
Ordinance on Judges and People’s Assessors (October, 4th 2002)
Ordinance on Personal High Income Tax, (OPHIT came in to effect on April, 1st 1994)
Ordinance on Resolving Administrative Violation (July, 2nd 2002, Revised Mar.8th 2007, Latest May, 6th 2008)
Ordinance on Settlement of Administrative Cases (May 21st 1996; Dec, 25th 1998, Latest One April, 5th 2006)
Decree 05/CP on Guiding Implementation of OPHIT (enacted on January, 20th 1995)
Decree 103/1998/ND-CP on the Management of Legal Cooperation with Foreign Countries
Decree 17/2001/ND-CP on Promulgation of Regulation of the Management and Use of ODA
Decree 63/CP (1996) & Decree 06/CP (2001) on Administrative Sanction Regarding Intellectual Property
Decree No 103/ND-CP on Management of Foreign Legal Cooperation (December, 26th 1998)
Resolution 03 /2003/NQ-HDTP (April, 18th 2003) by SPC’s Judge Council
Resolution 04/2006/NQ-HDTP (April, 8th 2006) by SPC’s Judge Council
Draft Law on State Compensation (2008)
Draft Administrative Procedure Law (2008)
Draft Law on Administrative Court Organization, 1995
Circular No 27/TC/TCT by Ministry of Finance (enacted on March, 30th 1995) guided OPHIT (April, 1st 1994)
Joint Circular (Thong tu lien tich) No 01(April, 1st 2003) by SPC, Ministry of Defense, Ministry of Home
Affair, Central Committee of Vietnamese Fatherland Front

xviii

Foreign Sources
Japanese Constitution (November, 3rd 1946)
Constitution of Empire of Japan (1889)
Administrative Case Litigation Law of Japan, 行政事件訴訟法、Law No 139, May 16, 1962. Amendments:
Law No 91, Dec 22nd 1989 & Law No 110, Jun 26th 1996. Latest Amendment on June, 19th 2004)
Administrative Appeal Law, 行政不服審査法, Law 160, Sep,15th 1962. Latest Amendment June, 8th 2006
Administrative Procedure Law (Law No 88 of 1993. Amendment 2005, Latest Amendment June, 14th 2006)
Court Organization Law of Japan (Law No 59 April 16th 1947; Law No 82 of 1982; Law No 36 of 2006)
City Planning Law (Amendment by Law No.160 of 1999)
Public Officer Election Act (Law No.100, April, 15th 1950, Revised 2000, 2005)
Law for Regulation of Nuclear Source Materials, Nuclear Fuel Materials and Reactors (Law No 166, June 10th
1957, Latest Revision Law No 179, December 18th 2002)
Land Expropriation Act (Law No 219 of June, 9th 1951, Revised 2002, 2005, 2006)
Land Basic Law (Law No 84 of December 22nd 1988, Revised Law No 102, 106 of 1999)
Local Autonomy Law (Law No 67, April 17th 1947, Revised 2002, 2005)
State Compensation Law of Japan (Law No 125, October 27th 1947)
School Education Law of Japan (Law No 26, March 31st 1947, Revised 2004, 2006)
Tokyo Environmental Impact Assessment Ordinance No 96 of 1980 (Amended by Ordinance No.107 of 1998)
Constitution of People Republic of China 1982 (the latest revised on March, 14th 2004)
Administrative Litigation Law of PRC (April, 4th 1989)
State Compensation Act of China (May, 12th 1994)
Administrative Reconsideration Law of China (1990)
Administrative Procedure Law of China (Draft)
Constitution of France (Constitution of the Fifth Republic, October, 4th 1958, Latest amendment in 2007)
Law of Conseil d’Etat and Tribunaux Administratifs (Law of 16-24 August 1790, Law of 24 May 1872, Law of
1953, Law of December, 31st 1987)
Law of July, 26th 1996 on Post and Telecommunication
Law of July, 6th 1987 on Competition
Law of August, 2nd 1989 on Financial Market
Law of September, 9th 1986 on Terrorism
Law of December, 31st 1991 on Compensation for Aids Victims
USSR Constitution 1977
USSR Statute on Procedure for Appealing to Court Illegal Acts of Officials that Infringe the Rights of Citizens
dated on July, 1st 1987
European Convention of Human Rights (1950)
Vietnamese-American Bilateral Trade Agreement (Come in to Effect on December, 10th 2001)
Vietnam-Japan Trade Agreement on Tax Imposition (Come in to Effect on January, 1st 1996)xix

II. BOOKS AND TEXTBOOKS
Aikyo Masanori, The History of Vietnamese Constitution, [ベトナム憲法史], 日本評論社, 1993
Alan Watson, Legal Transplants: An Approach to Comparative Law, the 2nd Ed, Athens and London, 1993
Alan Watson, Society and Legal Change, Scottish Academic Press, 1977
Albert Hung-yee Chen, An Introduction to Legal System of the PRC, Butterworths Asia, 1993
Alfred C. Aman, Jr, Administrative Law in a Global Era, Cornell University Press, 1992
Andrew Harding & Eosin Orucu, Comparative Law in the 21st Century, Kluwer Academic Publishers, 2002
Attila Racz, Courts and Tribunals: A Comparative Study, Akademiai Kiado Budapest, 1980
Baldwin, Rules and Government, Clarendon Press, Oxford, 1995
Beverley Lang Q.C Eds, Administrative Court: Practice and Procedure, Sweet and Maxwell, London, 2006
Bryan A.Garner et al, Black’s Law Dictionary, 7th Edition, St. Paul, Minn, United State of America, 1999
Bui Xuan Dinh, Nha nuoc va Phap Luat Phong Kien Vietnam, [Vietnamese Feudalism: State and Law], Justice
Publisher, 2005
C.T. Emery & B. Smythe, JR – Legal Limits of Official Power, Sweet & Maxwell Publisher, London, 1986
Carl F. Goodman, The Rule of Law in Japan, Kluwer Law International, 2003
Carl F.Goodman, Justice and Civil Procedure in Japan, Ocena Publication New York, 2004
Carl Schmitt, Legality and Legitimacy, Duke University Press, 2004
Chan.Kerkvliet.Unger, Transforming Asian Socialism, Rowman & Littlefield, 1999
Dai Viet Su Ky Toan Thu, Volume 1, Social Science Publisher, 1983
Dao Tri Uc ed, Model and Operation of Vietnamese Socialist Law-Based State, Justice Publisher, 2007
Dao Tri Uc eds, Dai hoi VIII Dang Cong san Vietnam va Nhung van de cap bach cua khoa hoc ve Nha nuoc va
Phap luat, [The VIII Congress of CPV & Urgent Issues on State & Law], Social Science Publisher,
1997
David Nelken & Johannes Feest, Adapting Legal Cultures, Hart Publisher, 2001
David Rene & Brierley J.E.C, Major Legal System in the World today, Trade Paperback Publisher, 1978David S.G.Goodman, Communism and Reform in East Asia, Frank Cass, 1988
Denis J.Galligan & Daniel M.Smilov, Administrative Law in Central and Eastern Europe 1996-1998, Central
European University Press, 1999
Dinh Van Mau & Pham Hong Thai, Tai phan Hanh chinh in Vietnam, [Administrative Jurisdiction in Vietnam],Giao duc Publisher, 1995
Dinh Van Minh, TPHC so sanh, [Comparative Administrative Jurisdiction], National Politic Publisher, 1995
Doan Trong Truyen, Cai cach hanh chinh va cong cuoc xay dung Nha nuoc phap quyen Xa hoi chu nghia
Vietnam, [Administrative reform and the process of building State governed by ROL], Justice
Publisher, 2006
Doan Trong Truyen, Ve Cai cach Bo may Nha nuoc, [On the Reform of the State Apparatus], Tu phap
Publisher, 1991
Douglas Pike, Vietnam and the Soviet Union, Westview Press, 1987xx

Douglass C.North, Institutions, Institutional Change and Economic Performance, Cambridge University, 1990
Eero Palmujoki, Vietnam and the World: Marxist-Leninist Doctrine and Changes in IR, Macmillan Press, 1997
Frank E. Cooper, Administrative Agencies and Courts, William S.Hein &Co.INC Publisher, Newyork, 1982
George Ginsburgs, Soviet Administrative Law: Theory and Policy, Martinus Nijhoff Publishers, 1989
Gordon B. David & Clyde A.Parker, Writing the Doctoral Dissertation: A Systematic Approach, Barron’s, 1997
Gustave Peiser, Administrative Law, (Vietnamese translation), Chinh tri Quoc gia Publisher, Hanoi, 2000
H.B. Jacobini, An Introduction to Comparative Administrative Law, Ocean Publications, 1991
Harold M.Stephens, Administrative Tribunals and Rules of Evidence, Lawbook Exchange Ltd Clark New
Jersey, 2003
Hashimoto Hiroyuki, Comments for Revised Administrative Case Litigation Law, [解説：改正行政事件訴訟法], 弘文堂, 2004
Hideo Tanaka, The Japanese Legal System, 10th ed, University of Tokyo Press, Japan, 2000
Hoang Van Sao ed, Giao trinh Luat to tung hanh chinh Vietnam, [Textbook of Vietnamese Administrative
Litigation Law], Police Publisher, 2007
Hoang tho Khiem, Doi moi to chuc co quan thi hanh an, [Reform of the Organization of Judgment Execution
Body], Justice Publisher, 2006
Hugh Collins, Marxism and Law, Clarendon Press, Oxford, 1982
Ishikawa Toshiyuki et al, Introductory Administrative Law, [はじめての行政法]、有斐閣アルマ, 2007
J. Beatson & M.H.Matthews, Administrative Law: Cases & Materials, 2nd ed, Clarendon Press, Oxford, 1989
J.W.F. Allison, A Continental Distinction in the Common Law, Clarendon Press, 1996
Jack Knight, Institutions and Social Conflict, Cambridge University Press, 1992
Jean Rivero et al, French Administrative Law, [フランス行政法]、東京大学出版会、1980
John Morison ed, Judge, Transition and Human Rights, Oxford, 2007
John Owen Haley ed, Law in Japan: An Annual, University of Tokyo Press, 1986
John Owen Haley, Authority without Power, Oxford University Press, 1991
John.N.Hazard, The Soviet Legal System: Law in the 1980s, Oceana , 1984
Jose Maria Maravall & Adam Przeworski eds, Democracy and Rule of Law, Cambridge University Press, 2003
Joseph W.S David, Dispute Resolution in Japan, Kluwer Law International, 1996
K.Zweigert & H.Kotz, An Introduction to Comparative Law, 1998
Kamino Kenji & Ichihashi Katsuya, Teaching Materials Contemporary Administrative Law, 3rd ed, Law andCulture Publisher, 2008 [資料現代行政法, 紙野健二 & 市橋克哉, 第３版、法律文化社、日本,
2008]
Kanishka Jayasuriya ed, Law, Capitalism and Power in Asia, Routledge, London & NewYork, 1999
Karen G.Tunner ed, Limits of the Rule of Law in China, University of Washington Press, 2000
Keiko Sakurai & Hiroyuki Hashimoto, The Modern Administrative Law, [現代行政法], 有斐閣, 2006
King C.Chen, Vietnam and China: 1938-1954, Princeton University Press, 1969
Konrad Zweigert & Hein Kotz, Introduction to Comparative law, 3rd ed, Clarendon Press, Oxford, 1998

xxi

Law in Japan, University of Tokyo Press, An Annual, Vol 2 (1968); Vol 19 (1986); Vol 25 (1995)
Le Binh Vong, Some Problems on Administrative Jurisdiction in Vietnam, National Politic Publisher, 1994
Lich Trieu Tap Ky, Volume 2, 1975
M.B.Hooker, A Concise Legal History of South East Asia, Clarendon Press, Oxford, 1978
M.Barry Hooker, Law and the Chinese in Southeast Asia, ISEAS Singapore, 2002
Marc Frey Ed, The Transformation of Southeast Asia, M.E.Shaepe Inc, New York, 2006
Mark Aronson & Bruce Dyer, Judicial Review of Administrative Action, 2000
Marxist-Leninist Philosophy, The World Materialistic Dialectics, (Vietnamese), Education Publisher, 1999
Masahiko Aoki, Toward A Comparative Institutional Analysis, The MIT Press, Cambridge, 2001
Meryll Dean ed, Japanese Legal System, 2nd ed, Cavendish Publishing Limited, London, 2002
Michael Bogdan, Comparative Law, the 1st ed, Kluwer Law and Taxation Publishers, Norstedts Jurikdik, 1994
Michael C.Williams, Vietnam at the Crossroard, Royal Institute of International Affairs, London, 1992
Michael Harris and Martin Partington eds, Administrative Justice in the 21st Century, Hart Publishing – Oxford
and Poland, Oregon, 1999
Miyazaki Yoshio, Administrative Litigation and Administrative Law Study, [行政争訟と行政法学], 弘文堂,
2004
Muroi Tsutomu, Introduction to Contemporary Administrative Law, 2005, [室井 力, 新現代行政法入門、法律文化社,日本, 2005]
National Administrative Institution, Ba muoi tinh huong cap co so ve Quan ly Nha nuoc, [Thirty of Local
Practices in State Management], Statistic Publisher, 2002
Neil Hawke, An Introduction to Administrative Law, ECS Publishing Limited Publisher, Oxford, 1989
Neville Brown and John S. Bell, French Administrative Law, 5th ed, Clarendon Press, Oxford, 1998
Ngo Huy Cuong, Dan chu va Phap luat Dan chu, [Democracy and Democratic Law], Justice Publisher, 2006
Nguyen Dang Dung, Nha nuoc va Trach nhiem cua Nha nuoc, [State & State Responsibility], Justice Publisher,
2006
Nguyen Duy Gia, Cai cach nen Hanh chinh Quoc gia o nuoc ta, [Public Administration Reform in Vietnam] ,National Political Publisher, 1996
Nguyen Duy Gia, Thiet lap Tai phan Hanh chinh o nuoc ta, [The Establishment of Administrative Jurisdiction
in Vietnam], Education Publisher, 1995
Nguyen Thanh Binh, Tham quyen xet xu khieu kien hanh chinh cua Toa an Nhan dan – Su bao dam cong ly
trong quan he giua Nha nuoc va cong dan, [Jurisdiction over Settlement of Administrative Lawsuits– Guarantee of Justice in the Relationship between State and Citizens], Justice Publisher, 2004
Nguyen Van Thanh & Dinh Van Minh, Issues on Reforming Mechanism for SAC, Justice Publisher, 2004
Norman Lewis and Patrick Birkinshaw, When Citizens Complain, Open University Buckingham, 1993
Otto Kahn-Freund, Selected Writings, Stevens & Sons, London, 1978
Patrick Neill, QC, Administrative Justice – Some Necessary Reforms, Oxford, 1988
Per Sevastik, Legal Assistance to Developing Countries: Swedish Perspectives, Kluwer Law Inter’nal, 1997xxii

Perry Keller ed, Chinese Law and Legal Theory, Dartmouth, 2001
Peter de Cruz, A Modern Approach to Comparative Law, Kluwer Deventer Boston, 1993
Pham Hong Quang, Nguyen Manh Hung, Tran Thi Hien, Administrative Litigation Law as a Legal Scienceand An Independent Law Branch in Vietnam, in Hoang Van Sao ed, Textbook of Vietnamese
Administrative Litigation Law, Police Publisher, 2007
Pham Hong Thai, Giao trinh Luat HC va To tung Hanh chinh, [Textbook of Administrative Law andAdministrative Litigation Law], Giao duc Publisher, 2006
Phan Dang Thanh, Tu tuong lap hien Vietnam nua dau the ky 20, [The Ideology of Constitutionalism in
Vietnam in the first half of 20th Century], Justice Publisher, 2006
Pierre Legrand & Roderick Munday, Comparative Legal Studies: Traditions & Transitions, Cambridge
University Press, 2003
Randall Peerenboom, Asian Discourses of Rule of law, London & New York, 2004
Rene David and John E.C. Brierley, Major Legal Systems in the World today, 3rd ed, Stevens & Sons Publisher,
London,1985
Robert E. Goodin, The Theory of Institutional Design,, Cambridge University Press, 1996
Robert Stevens, Independence of the Judiciary, Clarendon Press, 1993
Shuichi Sugai & Itsuo Sonobe, Administrative Law in Japan, Japan, Gyosei Publisher, 1999 [須貝 脩一 &園部 逸夫、日本の行政法、ぎょうせい, 1999]
Siri Gloppen ed, Democratization and the Judiciary, London, 2003
State Inspectorate, Vietnam – America BTA and Mechanism for Settlement of Administrative Litigation in
Vietnam, Justice Publisher, 2004
Sypnowich, The Concept of Socialist Law, Clarendon Press Oxford, 1990
Ta Van Tai & Nguyen Ngoc Huy, The Le Code-Law in Transition Vietnam, Ohio University Press, 1987
Tom Ginsburg, Judicial Review in New Democracies, Cambridge University Press, 2003
Tran Minh Huong ed, Dictionary of Explaining the Legal Terms, Police Publisher, 1999
Vo Van Tuyen et al, Giao trinh Lich su Hanh chinh Nha nuoc Vietnam, [Textbook of Vietnamese State
Administration History], Giao duc Publisher, 2005
Vu Dinh Hoe, Lich su Nha nuoc va Phap luat Vietnam, [History of Vietnamese State & Law], Laodong
Publisher, 1967
W.E. Butler, Perestroika and the Rule of Law, NewYork, 1991
W.E. Butler, Soviet Law, London Butterworths, 1983
Y. Matsuura ed, Role of Law in Development: Past, Present and Future, CALE Book 2, 2005
Yong Zhang (張勇), The Birth and Development of Chinese Administrative Law, [中国行政法の生成と展開], 信山社, 1996
Yong Zhang, Comparative Studies on JRS in East and Southeast Asia, Kluwer International Publisher, 1997
Yongnian Zheng, Globalization and State Transformation in China, Cambridge University, 2004
Z.M.Nedjati & J.E.Trice, English and Continental Systems of Ad. Law, North-Holland Publishing, 1978

xxiii

Zamir & Woolf, The Declaratory Judgment, Sweet & Maxwell, London, 1993,
Zentaro Kitagawa, The Identity of German and Japanese Civil Law in Comparative Perspectives, 2007

III. SCHOLARLY ARTICLES, JOURNALS & MONOGRAPHS
Aikyo Masanori, Constitutionalism in Vietnam: Establishment of the Rule of Law & Legal Assistance,
International Symposium on The ROL, Legal & Judicial Reform & Legal Assistance in Vietnam,
2005
Aikyo Masanori, Human Rights and Democracy in Vietnam: Some Thoughts on the Philosophy of Legal
Assistance, in Y.Matsuura ed, Role of Law in Development: Past, Present and Future, CALE Book 2,
2005
Aikyo Masanori, International Transmission of Legal System through Legal Assistance Activities, [法整備支援活動による法制度の国際発信], 法律の広場(Law Square), Volume 59, No 8, 2006

Aikyo Masanori, Nagoya University and Legal Assistance Projects Study, [名古屋大学と法整備支援事業。
研究], in Jurist No.1358 [ジュリスト

特集：アジアンにおける法整備支援と日本の役割], 有斐閣 Publisher, 2008
Alan Watson, Aspects of Reception of Law, 2 The American Journal of Comparative Law, Vol.44, 1996
Anh Tuan, Mot so y kien xung quanh Vu an Hanh chinh da qua 2 cap xet xu, [Some Views about An
Administrative Lawsuit Experiencing Two Trial Proceedings], in Democracy and Law Journal, 2004
Bui Ngoc Son, Su doc lap cua Toa an trong Nha nuoc Phap quyen, [The Independence of Courts in State
Governed by ROL], 4 Nghien cuu Lap phap (Legislative Studies), 2003
Bulletin of Government Inspection Review Institution (GIRI), 14 (2006)
China Labor Bulletin, Public Interest Litigation in China: A New Force for Social Justice, Research Report,
2007
Dinh Van Minh, Ban ve tham quyen va doi tuong xet xu hanh chinh, [Some Discussions on Jurisdiction andObjects of Administrative Lawsuits], Inspectorate Journal No 1, 2 (2003)
Dinh Van Minh, Co quan Tai phan hanh chinh: Nhan thuc moi, Giai phap moi cho mot van de khong moi,
[Administrative Jurisdiction Body: New Perception and Solution for Old Issues], 6, 7 Inspection
Journal, 2005
Ernst K.Pakuscher, Administrative Law in Germany: Citizen v.State, 3 The American Journal of Comparative
Law, Vol.16, 1968
Georg Nolte, General Principles of German and European Administrative Law: A Comparison in Historical
Perspective, 2 The Modern Law Review, Vol.57, 1994
George Ginsburgs, Local Government and Administration in North Vietnam, 1945-1954, The China Quarterly,
No.10, 1962
George Ginsburgs, Soviet Sources on the Law of North Vietnam, 7 Asian Survey, Vol.13, 1973
George Mousourakis, Towards a Comparative Theory of Legal Change, Kansai University Review of Law and
Politics, No.27, 2006xxiv

Hoang Van Sao, Can lam ro khai niem Khieu nai, Khieu kien de giai quyet cac quyen ay lam sao cho dung,[The Necessity of Conceptualization of Administrative Claim and Litigation for Better Protection to
the Rights thereof], 3 Tap chi Luat Hoc (Jurisprudence Review), 2005
I.CON International Journal of Constitutional Law, New York NYU Law School, US, No 2, 2007
IDE Asian Law Series No 15, Dispute Resolution Process in China, Institute of Developing Economies
IDE-JETRO, 2002, JapanIDE Asian Law Series No 20, The Alternative Dispute Resolution in Vietnam, Institute of Developing
Economies IDE-JETRO, 2002, JapanIDE Asian Law Series No 23, Doing Legal Research in Asian Countries, Institute of Developing Economies
IDE-JETRO, 2003, JapanIDE Asian Law Series No 23, Legal and Judicial Reforms in Vietnam, Institute of Developing Economies
IDE-JETRO, 2001, Japan
Ichihashi Katsuya, Basic Theory for Administrative Law Reform and Legal Assistance thereof in Market
Economy Transitive Countries, [市場経済移行国における行政法改革及びその支援のための基礎理論], Symposium on Legal Assistance Strategy Study (CALE), December 2008
Ichihashi Katsuya, Preparation for Implementation of Administrative Procedure Law of Japan, International
Symposium on ROL, Judicial Reform and Legal Assistance in Vietnam, 2005
Itsuo Sonobe, Comparative Administrative Law: Trends and Features in Administrative Law Studies (Japan),Law in Japan: An Annual, Vol.19, 1986
James W.Garner, French Administrative Law, 6 The Yale Law Journal, Vol.33, 1924
Jean Michel Galabert, Influence of Conseil d’Etat outside France, 3 The International and Comparative Law
Quarterly, Vol 49, 2000
Jean Michel Galabert, The Influence of the Conseil d’Etat outside France, 3 The International and Comparative
Law Quarterley, Vol.49, 2000
John O.Haley, Judicial Independence in Japan Revisited, Law in Japan: An Annual, Vol.25, 1995
John O.Haley, The Japanese Judiciary: Maintaining Integrity, Autonomy and the Public Trust, Washington
Uni. in St.Louis, Faculty Working Papers No.05-10-01, 2005
John Ohnesorge, Chinese Administrative Law in the Northeast Asian Mirror, University of Winsconsin Legal
Studies Research Paper No 1030, 2006
Kahn-Freund, On Uses and Misuses of Comparative Law, 1 The Modern Law Review, Vol 37, 1974
Kansai University Review of Law and Politics, No 27, 2006
Kenji Urata, The Judicial Review System in Japan, Waseda Bulletin of Comparative Law, Vol 3, 1983
Kevin J.O’Brien and Lianjiang Li, Suing the Local State: Administrative Litigation in Rural China, 51 The
China Journal, 2004
Kyoto Journal of Law and Politics, Kyoto University Press, No 1 (2004); No 2 (2005)
Law Study Seminar, No 321, 2007, [法学教室、No 321, 2007 行訴法改正、その後]
Le Minh Tam, He thong Co quan tu phap Vietnam tu sau Cach Mang Thang Tam den nay, [Vietnamesexxv

Judicial Body System since August Revolution to date], 1 Tap chi Luat Hoc (Jurisprudence Review),
2003
Le Thi Nga, To chuc Toa an Nhan dan Khu vuc: Nhnung van de ly luan va thuc tien, [Set up Regional People
Courts: Theoretical and Practical Issues], 4 Legislative Study Journal, 2003
Le Xuan Than, Mot so y kien ve to chuc va hoat dong cua Toa hanh chinh, [Some Ideas on the Organization
and Operation of Administrative Courts], 7 State and Law Journal, 2007
Ly Cong, Phan Quyet cua Toa Hanh chinh ve Hanh vi Trai Phap luat trong Quan ly Dat dai o Uy ban nhan dan
xa Tay Luong, Tien Hai, Thai Binh, [The Judgment on Illegal Action concerning the Land
Management in Tay Luong District People’s Committee in Tien Hai, Thai Binh Province],
Democratic and Law Journal, 2001
MOJ of Vietnam, Chuyen de ve Tai phan Hanh chinh, [Special Subject on Administrative Jurisdiction],
Research Institution for Legal Science, Hanoi, 1993
MOJ of Vietnam, Journal of Democracy and Law, So chuyen de to tung hanh chinh va viec giai quyet khieu
kien cua to chuc va cong dan, [Special Subject on Administrative Court & the Settlement of the
Citizens and Organization’s Complaints], 2001
Malcolm Smith, Globalization of Law and Identity of Japanese Law, Waseda Proceedings of Comparative Law,
Vol 7, 2004
Mark Sidel, The Re-Emergence of Legal Discourse in Vietnam, 1 International and Comparative Law
Quarterly, Vol.43, 1994
Matsuo Hiroshi, Law and Development: Theory and Practice No 1-10, [法と発展の理論と実践]，法学セミ
ナー No 622-631, 日本評論社, (Oct.2006 – July.2007)
Michael J. Remington , The Tribunaux Administratifs: Protectors of the French Citizen, 51 Tul. L. Rev. 33,
1976
Minxin Pei, Citizen v.Mandarins: Administrative Litigation in China, 152 The China Quarterly, 1997
Ngo Ngoc Tinh, Mot so van de Vuong mac trong Giai quyet Vu an Hanh chinh, [Some Troublesome in Dealing
with Administrative Cases], Law and Democracy Journal, 1999
Nguyen Dinh Loc, Su Giup do cua Nhat Ban doi voi Vietnam ve mat Phap luat, [The Help of Japan to Vietnam
in the field of law] in International Symposium held in Tokyo in Oct, 2007
Nguyen Hoang Anh, Hoat dong xet xu hanh chinh o nuoc ta, [Settlement of Administrative Lawsuits in
Vietnam], Nghien cuu Lap phap (Legislative Studies), 2006
Nguyen Van Quang, Ve xac dinh can cu tinh hop phap cua Quyet dinh hanh chinh trong xet xu hanh chinh,[Defining the Grounds for Review of Legality of Administrative Decisions in Resolving
Administrative Cases], 5 Tap chi Luat hoc (Jurisprudence Review), 2004
Nguyen thi Mai, Ky nang phan dinh Vu an Hanh chinh va Vu an Dan su, [Skills for the Delimitation between
Administrative Cases and Civil Cases], 8 Legal Profession Journal, 2004
Nguyen thi Thuy, Quyen khoi kien & Van de Xac dinh Nguoi khoi kien trong VAHC, [Right of Initiating A
Lawsuit & Determination of Litigant’s Standing], 4 Tap chi Luat Hoc (Jurisprudence Review), 2005xxvi

Pham Hong Quang, Kinh nghiem Giai quyet tranh chap Hanh chinh o Nhat Ban, [Some Experiences on
Settlement of Administrative Disputes in Japan], 4 Tap chi Luat Hoc (Jurisprudence Review), 2003
Pham Hong Quang, Luat Kien tung hanh chinh Nhat Ban va Mot so van de can sua doi , [Administrative Case
Litigation Law of Japan and Some Necessities of Revision], 3 Tap chi Luat Hoc (Jurisprudence
Review), 2005
Pham Hong Quang, Tai phan Hanh chinh theo Quan niem cua mot so nuoc tren the gioi, [Some Views on
Administrative Jurisdiction in the World], 1 Tap chi Luat Hoc (Jurisprudence Review), 2005
Pham Tuan Khai, Suggestions on Administrative Courts in Vietnam, 9 Vietnam Law and Legal Forum, 1995
Pierre Legrand, Fragments on Law as Culture, 4 International and Comparative Law Quarterley, Vo.49, 2000
Pierre Legrand, Impossibility of Legal Transplants, in Maastricht Journal of Euro & Comparative Law, 1999
Pip Nicholson, Roots and Routes: Comparative Law in Post Modern World, The Asian Law Center’s “Brown
Bag Lunch” Seminar Series, 2001
Randall Peerenboom, Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and
ROL in the People’s Republic of China, 19 Berkeley Journal of International Law 161, 2001
Ritsumeikan University Law Review, No 20, 2003
Roger Warren Evans, French and German Administrative Law with Some English Comparisons, 4 The
International and Comparative Law Quarterley, Vol.14, 1965
Rolf Knieper, Pulls and Pushes of Legal Reform Along the Silk Road, A Paper handed out in his Lecture in
Nagoya University (CALE) in December, 2007
Shigeaki Tanaka, A Perspective on the Reconstruction of the Japanese Legal Ordering in the 21st Century,
Kyoto Journal of Law and Politics, Vol.1, 2004
Tap chi Luat hoc, [Journal Jurisprudence], Hanoi Law University, No 4 (2003); No 5 (2004)
Tap chi Nghien cuu Luat phap, [Journal of Law Research ], Ministry of Justice, No 7 (2001)
Tap chi Quan ly nha nuoc, [Journal of State Management], National Administrative Institution, No 2, 4, 5,(1996) & No 1, 4, 5 (1997)
Tran Van Son, The Model of Administrative Jurisdiction Body in the Context of Building the State governedby Rule of Law in Vietnam, in 9 Review of Inspection Science and of Anti-Corruption, 2006
Truong Khanh Hoan, Nang cao hieu qua hoat dong cua Toa hanh chinh, [Improvement of the Effect ofAdministrative Court], The Journal of Law Research, 2001
Vietnamese Government Inspection Review Institute, Administrative Tribunal and Regulation on Operation ofInspection Mission, Bulletin on Inspection Science and Anti-Corruption, No 9, 2006
Vu Thu, Mot so khia canh cua viec nang cao hieu suat hoat dong cua Toa hanh chinh trong Giai quyet cac
Khieu kien hanh chinh, [Some Issues on Improving Capacity of ADCs in Settlement of
Administrative Lawsuits], 8 State and Law Journal, 2003
W.Garner, French Administrative Law, 6 Yale Law Journals, Vol 33, 1924
Walter Gellhorn, Review of Administrative Acts in the Soviet Union, 6 Columbia Law Review, Vol.66, 1966
Waseda Bulletin of Comparative Law, Vol 23 (2003); Vol 24(2004); Vol 25 (2005);

xxvii

Waseda University Proceedings of Comparative Law, Vol 7, Institute of Comparative Law, 2004
William Eward, Comparative Jurisprudence (II): The Logic of Legal Transplants, 4 American Journal ofComparative Law, Vol.43, 1995
XiaoHong Yu, Administrative Litigation as a Function Substitute Revisiting the Constitutional Review System
in China, Mini-APSA Paper, 2007
Yasutaka Abe, Toward a New Framework of Administrative Law, Kobe University Law Review No.27, 1993
William Bishop, A Theory of Administrative Law, 2 The Journal of Legal Studies, Vol.19, 1990

IV. CASES AND JUDGMENTS
Vietnamese Case-Studies and Judgments
Can Tho Province Land-Use Rights Dispute Case (Supervisory Judgment No.01/2006/HC-GDTdated February,
2nd 2006; Mrs Ho Xuan Van sued Omon District People’s Committee in Can Tho Province)
Dong Nai Province Land Dispute Case (Mr Nguyen Van Cuong sued Vinh Cuu District People’s Committee inDong Nai Province, February 10th 1999)
Hai Phong City Tax Sanction Case (Supervisory Judgment No.02/UBTP-HC dated March, 28th 2000, Mrs Lai
Thi Xuan Vinh sued Vinh Bao Tax Department in Hai Phong City)
Hanoi City K.S Japanese Personal Income Tax Case (Appeal Judgment No.112/HCPT dated on November, 7th
1998; Mr K.S (Japanese) sued Hanoi Tax Office)Hanoi City Land Recovery Case (Appeal Judgment No.03/HCPT dated on June, 12th 1999, Mr Mai The Hiensued Hanoi City People’s Committee, Supervisory Judgment (2004) upheld all judgments)
Ho Chi Minh City Intellectual Property Sanction Case, (Supervisory Judgment No.02/HC-GDT dated April,
26th 2005, Mr Hoang Quoc Dinh – Lan Huong Comesty Manufacture issued HCM City People’s
Committee)
Phu Yen Province Land-Use Certificate Case (Appeal Judgment No.06/HCPT dated December, 29th 2004, Mr
DNP sued T.H District People’s Committee in Phy Yen Province)
Phy Yen Province Land Disputes Settlement Case (Appeal Judgment No.04/HCPT dated December, 20th 2004,
Mr T.B sued T.H District People’s Committee in Phu Yen Province)
Thai Binh Province Land Management Case (Supervisory Judgment No.04/GDT-HC dated June, 5th 1999, Mr
Nguyen Van Thanh sued Tay Luong Commune People’s Committee in Thai Binh Province)
SPC’s Judge Council, Supervisory Judgments (Quyet dinh Giam doc tham) in 2003, 2004, (2005)
SPC’s Judge Council, Supervisory Judgments (Quyet dinh Giam doc tham) in 2005, 2006, (2008)
Japanese Case-Studies and Judgments
Beltway Ruling Snubs Land Claim Case (Tokyo District Court rejected the request by local residents for an
injunction to prevent building roads on April, 27th 2004)
Hayashi Ken Zosen K.K vs Director of Marine Accidents High Board of Inquiry Case, (15 Minshu 467,
Supreme Court, Grand Bench, March 15th 1961)
Hiroshima SMON Case (Hanrei Jiho No.920, Hiroshima District Court, February 22nd 1979)

xxviiiMonju Case (Case No. 12of 2000, 1818 Hanrei Jiho 3, Appellate Nagoya High Court, Kanazawa Branch
January, 27th 2003)
NHK Censorship Case (Case No.800 of 1986, Supreme Court, Petty Bench, April, 17th 1990)
Nakatani vs Tokyo Case (39 Minshu 989, Supreme Court, July 16th 1985)
Novo Industri A/S vs Japanese Fair Trade Commission Case (29 Minshu 1592, the second Petty Bench,
November 28th 1975)
Odakyu Line Case (Minshu Vol 59, No.10, Supreme Court, Grand Bench, December, 7th 2005)
Okinawa Governor Mandamus Case (Case No. 90, Supreme Court, Grand Bench, August 28th 1996)
Pharmacies Hiroshima Case (Judgment upon Case of Constitutionality of the Act to Regulate Location of
Pharmacies, No 120, 40/4/1975
Food Sanitation Case (Case to Seek Revocation of Disposition for Violation of the Food Sanitation Law,
Minshu Vol.58, No.4, April, 26th 2004)
Osaka International Airport Case (Minshu No.395 of 1976, Judgment on December, 16th 1981)
French Cases
Cadot Case (CE December, 13th 1889)
Prince Napoleon Case (CE, February, 19th 1875)
Association Greenpeace France Case (CE, September, 29th 1995)
Prefet de la Gironde vs Mhamedi Case (CE, December, 18th 1992)
Petalas Case (CE, November,18th 1955)
French Silk Schoolboys Lose Turban Case (CE, April, 19th 2005)
Rognant Case (CE June, 22nd 1987)
Blanco Case (February, 8th 1873)
Rault Case (CE March, 14th 1934); Beauge Case (CE July, 4th 1924)
Chinese Cases
Hepatitis B Carriers Case (Mr Zhang sued the Personnel Affair Bureau of Wuhu District, Anhui Province on
December, 19th 2003)
Qiao Zhangxiang vs Ministry of Railways Case (Lawyer Qiao Zhangxiang sued Ministry of Railways at
Beijing Court for raising the ticket prices during Spring Festival on July, 3rd 2001)
Jiangtao Case (Jiang Tao, a senior undergraduate student sued People’s Bank of China on January, 7th 2002 to
Wuhou District ADC on the ground that the minimal height requirement in its regulation violated
constitutional right of equal protection. It was considered as the first constitutional litigation in
China).

V. SOURCES ON THE INTERNET
Ap luc cua Tham phan trong viec Giai quyet Vu an hanh chinh, [Pressure on Judges in dealing theAdministrative Lawsuits], http//www.vnexpress.net/Vietnam/Phap-luat/2002/02/3B9B93751
Beltway Ruling Snubs Land Claim, http://search.japantimes.co.jp/cgi-bin/nn20040427a1.html

xxix

Bo LI, What is Rule of Law, http://www.oycf.org/perspectives/5_043000/what_is_rule_of_law.html
Dang Quang Phuong, Se Thanh lap Toa an Khu vuc, [Whether Regional Court should be set up],
http://vietbao.vn/An-ninh-Phap-luat/Se-thanh-lap-toa-an-khu-vuc/40108555/218/
Douglass C.North, NIE & Development, http://www.econ.iastate.edu/tesfatsi/NewInstE.North.pdf
Execution of Decisions of the Administrative Court”, General Report of VIII Congress of International
Association of Supreme Administrative Jurisdiction, Madrid, 9 (2004)
Fair Fare for Rail Passengers, available at http://en.cnta.gov.cn/gl/2_view.asp?id=172
French Sikh Lose Turban Case in France, http://news.bbc.co.uk/2/hi/europe/4461905.stm
Gan 6.900 Van ban trai Phap luat da duoc ban hanh, [About 6.900 Illegal Norms or Regulations were enacted],
http://vnexpress.net/GL/Phap-luat/2008/11/3BA08CB1/
George S. P, Law at War:Vietnam 1964-1973, http://www.history.army.mil/books/Vietnam/Law-War/law-fm.htm
High Court Backs Elevated Odakyu Line, http://search.japantimes.co.jp/cgi-bin/nn20031219a4.html
Law Professor Reitz advising Vietnam on Reforming its Court System, University of Iowa News Release,
http://news-releases.uiowa.edu/2007/november/110207reitz_reform.html
Legal Institution of a Market Economy, WB, http://www.1.worldbank.org/publicsector/legal/index.html
Lua chon Dong A hay Dong Nam A cho tuong lai cua Vietnam, [Choice of East Asia or South East Asia for the
Future], http://www.vietnamnamreview.com/modules.php?name=News&file=print&sid=7400
Luat Thi hanh An dan su duoc Quoc Hoi thong qua co nhieu dot pha, [Law on Civil Judgment Execution
newly approved by NA have some break changes],
http://www.moj.gov.vn/p/render.userLayoutRootNode.uP
Nam 2002: So luong Kien tung Hanh chinh gia tang, [In the year of 2002, Number of Administrative Case isincreasing], http://www.vnexpress.net/Phap-luat/2002/3B9B8F2/
Nguyen Duc Lam, Vietnam Culture, http://vietnamese-law-consultancy.com/english/content/browse.php.action
Nguyen Hoang Anh, Hoat dong xet xu hanh chinh o nuoc ta, [Settlement of Administrative Lawsuits in
Vietnam], Nghien cuu Lap phap (Legislative Studies), 2006
Official Documents of CPV, http://www.cpv.org.vn
Pham Diem, The People’s Democratic Constitutional Ideology in Vietnam in the early 20th Century,
Public Internet Litigation in China: A New Force for Social Justice (2007), http://www.clb.org.hk
Railway Ministry Taken to Court for Spring Price Hikes, People’s Daily Newspaper,
http://english.peopledaily.com.cn/english/200107/04/eng20010704_74140.html]
Randall Peerenboom, China and The Rule of Law, Perspectives, Vol 1, No 5
http://www.oycf.org/Perspectives/5_043000/china_and_the_rule_of_law.htm
Reform of Legal Training System, http://www.unafei.or.jp/english/pdf/PDF_indonesia/session3.pdf
Roland Rich, Rule of Law in East and Southeast Asia: A Research Approach,
http://www.cdi.anu.edu.au/_research/1998-2004/research_publications/research_downloads/R.Rich.RuleOfLa
wE&SEA_Feb02.doc
Supreme Court of Japan, http://www.court.co.jp

xxx

Ta Van Tai, The Rule of Law in Traditional China and Vietnam, Havard Law School,
http://www.taivanta.com/china/the-rule-of-law-in-china-and-vietnam/
Thanh Ngoc, Se co Co quan Tai phan Chuyen Phan xu ve Dat dai, [Whether the Land Tribunal Should be Setup], http://vietbao.vn/Nha-dat/Se-co-co-quan-tai-phan-chuyen-phan-xu-ve-dat-dai/45170790/511/
Truong Trong Nghia, The Rule of Law in Vietnam: Theory and Practice,www.mansfieldfdn.org/programs/program_pdfs/10nghia.pdf
Tsuyoshi Yamada, Daiwa Bank Case, http://www.columbia.edu/cu/asiaweb/v15n2Yamada.htm
Terri Marsch, The Rule by Law in China today, http//www.cecc.gov/pages/roundtables/090803/marsh.php
Viet Phong, Can thiet Thanh lap Co quan Tai phan Hanh chinh Dat dai, [Necessity of Establishment of AJBRegarding the Land],http://vietbao.vn/Kinh-te/Can-thiet-thanh-lap-co-quan-tai-phan-dat-dai/10931559/87/
Vietnam’s Legal Culture in the New Era (2005), http://vietnamese-law-consultancy.com/english/content/
Xac dinh Nhu cau Phat trien Phap luat den nam 2010, [Determination of Demands for Improving Legal
System up to the year of 2010], http://www.vnexpress/Vietnam/Phap-luat/2002/02/3B9BAEFA
http://news.vnanet.vn/vietnamlaw/service.asp?Category_ID=7&Subcategory_ID=12&New
s_ID=49
John Gillespie, Globalization and Legal Transplant: Lessons from the Past,
http://www.austlii.edu.au/au/journals/DeakinLRev/2001/5.html
Carol V.Rose, The New Law and Development Movement in the Post Cold War Era: A Vietnam Case Study,
http://myweb.uiowa.edu/sidel/Rose%20Law%20Society%20Review.pdf
International Association of Supreme Administrative Jurisdictions, Execution of Decisions of Administrative
Court, The VIII Congress, Madrid 2004, http://www.iasaj.org/publi/doc/congres%20VIII%20va.pdf
Giai quyet Khieu nai, to cao ca Trung uong va Dia Phuong deu lung tung, [Both Central and Local
Government Agencies are embarrassed with the settlement of claims and denunciation], 2008/12/19
http://www.baomoi.com/Home/XaHoi/2008/10/2051518
Gan 98% Khieu nai lien quan den dat dai nam 2007, [ Nearly 98% People Claims regarding the Land in 2007],
http://www6.thanhnien.com.vn/Vanhoa/2008/7/16/250722.tno
Xu lai mot loat vu Dan kien Quan, [Re-opening a range of lawsuits that Infringed People sued Authority],
2008, http://www.vnexpress.net/GL/Phap-luat/2008/06/3BA031E1/
Bac don kien Chu tich Phuong cua cac ho dan, [The Dismissal of Resident’s Petitions toward the Chairman ofWard People’s Committee, 2008, http://www.vnexpress.net/GL/Phap-luat/2007/10/3B9FB089/
Hoang Khue, 12 ho dan dong loat khoi kien Chinh quyen dia Phuong, [12 of Residents coincidentally takes
local governmentss to courts], http://www.vnexpress.net/GL/Phap-luat/2007/09/3B9FA98D/
Dang Cong San Vietnam, Vietnamese Communist Party website, www.cpv.org.vn
Quoc Hoi Vietnam, National Assembly website, www.na.gov.vn
Chinh phu Vietnam, Vietnamese Government website, http://www.chinhphu.vn
Hoc vien Tu phap, Judicial Academy website, http://www.judaca.edu.vn

xxxi

TANDTC, So tay tham phan, [SPC of Vietnam, Judges’s Memorandum], http://sotaythamphan.gov,vn
Bo tu phap Vietnam, MOJ, http://www.moj.gov.vn …..etc.
M.Patrick Frydman, Administrative Justice in France,
http://www.aat.gov.au/SpeechesPapersAndResearch/speeches/frydman/AdministrativeJusticeInFrance2008.htm
Pashukanis Selected Writings, The Marxist Theory of State and Law, http://home.law.uiuc.edu/~pmaggs/
Adam Day, Legal Reform and Economic Development in Vietnam and China, 2004 http://fletcher.tufts.edu
Gia Linh, Chu tich huyen bi kien vi Quyet dinh cuong che Hanh chinh, [Chairman of District People
Committee was sued for his Forcible Measure Decision],
http://www.vietnamnet.vn/xahoi/2008/05/781949/
Recommendation of The Justice System Reform Council: For A Justice System to Support Japan in the 21stCentury, http://www.kantei.go.jp/foreign/policy/sihou/singikai/990612_e.html
Jerome A.Cohen, Chinese Legal System in Transition, 2005
http://english.peopledaily.com.cn/200508/15/eng20050815_202556.html

VI. OTHER SOURCESCPV Politburo, Resolution No 48 (May, 24th 2005) on Strategy on Improving Legal System up to 2010
CPV Politburo, Resolution No 49 (May, 24th 2005) on Judicial Reform Strategy up to 2020
Dai hoi Dang 8 va Mot so van de cap bach ve Nha nuoc va Phap luat, [The VIII CPV’s Congress and Some
Urgent Issues on State and Law], Khoa hoc Xa hoi Publisher, 1997
East Asia Administrative Law Study Association, [東アジア行政法学会、弟８回学術総会], 2008
Execution of Decisions of the Administrative Court, General Report of VIII Congress of International
Association of Supreme Administrative Jurisdiction, Madrid, 2004
Ho Chi Minh National Politic Institute, Official Documents of Communist Party on State Reform, Hanoi, 2005
Hoang Van Sao, De cuong mon hoc: Lich su Nen hanh chinh Vietnam, [Law Subject Outline: The History of
Public Administration of Vietnam], Hanoi, 2004
Inter-Agency Steering Committee for Vietnam’s Legal System Development Needs Assessment, Report on
Comprehensive Needs Assessment for the Development of Vietnam’s Legal System to the year 2010
Judicial Academy, Nhu cau Hoan thien va Phat trien cong tac dao tao Phap luat o Vietnam den nam 2010, [TheDemand for Improvement and Development of Legal Training in Vietnam up to 2010, 2002
Nagoya University (CALE) and Hanoi Law University, Hoi thao Quoc te ve gia nhap to chuc thuong mai thegioi WTO va tinh minh bach trong thu tuc hanh chinh, [International Symposium on WTO’s
Accession & The Transparency in Administrative Procedure], 2007
Nagoya University (CALE) and Institution of State and Law of Vietnam, The Rule of Law, Legal and Judicial
Reform and Legal Assistance in Vietnam, 2005
Nagoya University (CALE), International Cooperation in the Field of Legal Studies and an Agenda for
Comparative Law Studies, Nagoya University, 2005

xxxii

Nagoya University (CALE), Study on Legal Assistance Strategy, [名古屋大学、法整備支援戦略の研究 - 全体会議報告書], 2007
Nagoya University (CALE), Study on Legal Assistance Strategy, [名古屋大学、法整備支援戦略の研究 - 全体会議報告書], 2008 (Focus on Administrative Law Reform & Comparative Administrative Law
Study and Rule of Law Project)
Nagoya University, Asian Forum for Constitutional Law 2007, Asian Constitutionalism in 21st Century, 2007
Nagoya University, Inter’nal Symposium on State, Social Transformation and Legal Reform, December, 2006
Nguyen Hoang Anh, Moi quan he giua Khieu nai va Khieu kien hanh chinh: Tiep can duoi goc do Luat so sanhva Bao ve quyen cong dan, [Relation between Administrative Complaints and Administrative
Litigation – An Approach from Comparative Law and Citizens Rights Perspectives], Law Faculty,
National University, 2006
Nguyen Van Quang, Comparative Study of System of Review of Administrative Action by Courts and Tribunal
in Vietnam and Australia, 2006
Per Bergling et al, Vietnamese Legal System, sponsored by SIDA Project, Hanoi, 1998
Pham Hong Quang, Improving Mechanism for Settlement of Administrative Disputes: An Important
Contribution to Public Administration Reform in Vietnam today, Master Thesis of Nagoya University,
2002
Pham Hong Quang, The Current Legal Education and Legal Profession Training in Vietnam, in K.Sugiura ed,
FLA and Judicial Reform [法整備支援と司法改革], Vol 7 CALE (Nagoya University), March 2007
SPC of Vietnam, Bao cao tong ket cong tac nganh Toa an 1996 -2006, [Annual Report on Adjudicative Worksof Courts 1996-2006]
SPC of Vietnam, Nang cao Hieu qua giai quyet Khieu kien Hanh chinh theo tinh than Cai cach Tu phap,[Finding Solutions to Improve Settlement of Administrative Cases in line with Judicial Reform],
2005
SPC of Vietnam, Report on Assessment of Current Legal and Institutional Framework for Administrative
Court funded by Government of Vietnam-UNDP-Danida -Sida, Project VIE/02/015, 2007
SPC of Vietnam, So tay trao doi nghiep vu giai quyet cac vu an hanh chinh, [Notebook of Exchange
Experiences in Settlement of Administrative Cases], Hanoi Publisher, 2001
SPC of Vietnam, Tang tham quyen giai quyet cac VAHC: Nhung van de ly luan va thuc tien, [Enlarging the
Court Jurisdiction in Settlement of Administrative Cases: Theoretical and Practical Issues], 2001
SPC of Vietnam, Thuc tien giai quyet vu an hanh chinh: Nhung ton tai, vuong mac va huong giai quyet,[Practice of Settlement of Administrative Cases: Remains and Solutions], 2001
Thanh tra Chinh phu, Hoi thao Quoc te ve thanh lap Co quan tai phan hanh chinh o Vietnam, [Symposium on
Establishment of Administrative Jurisdiction Body in Vietnam], 2006
Thanh tra Nha nuoc, Bao cao Khao sat kinh nghiem nuoc ngoai ve Tai phan hanh chinh, [Report on Foreign
Experiences on Administrative Jurisdiction], in Project on Drafting Law on Administrative Court
submitted to National Assembly IX, 1995

xxxiii

Thanh tra Nha nuoc, Bao cao tong ket viec thuc hien Phap lenh khieu nai to cao cua cong dan nam 1991,[Report on Implementation for OSCCD promulgated in 1991], 1998
Thanh tra Nha nuoc, De tai khoa hoc cap Nha nuoc: Toa an Hanh chinh – Nhung Van de Ly luan va Thuc tien,[National Scientific Project, Administrative Court: Theory and Practice], No 95-98-406/DT, 1997
The Eight International Academic Symposium of The East Asia Administrative Law Association, [東アジア行政法学会], Taiwan, May, 2008
Uong Chung Luu ed, Assessment of Current Status of International Legal Cooperation Activities in Vietnam
with Respect to Management and Coordination, Justice Publisher, 2007
Van kien Dai hoi Dang VIII, [Official Document of the VIII Congress of CPV], Chinh tri Quoc gia Publisher,
Hanoi, 1997
Vietnamese Government, Project of Drafting Law on Organization of Administrative Court, 1995
Vietnamese Government, Report on Comprehensive Needs Assessment for the Development of Vietnamese
Legal System to 2010
Vietnamese National Assembly Office, Phap luat va Chinh sach ve Trach nhiem Boi thuong Nha nuoc o mot
so nuoc, [Laws and Policy on State Compensation in some countries], International Symposium, 2007
Vietnamese National Assembly’s Standing Committee, Resolution No 132/2002 dated on April, 4th 2002

Personal Communication and Survey
While conducting this research, some information is gathered by personal communications with a number ofVietnamese experts when the author had study-trips in Vietnamese SPC, Ministry of Justice,
Government Inspectorate, State and Law Institution as well as the Vietnamese delegation had abusiness trip in Nagoya, Japan. Besides, Survey Questions delivered to Vietnamese collages andlegal experts in HLU, SPC, MOJ, NA’Office, Government Office, Judicial Academy, State and Law
Institute, and Graduate Students in GSL, GSID (Nagoya University) are also useful for gathering
information relative to discussed issues.

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Pham Hong Quang
Mr Pham Hong Quang was born in 1973 in Haiphong City of Vietnam
right after the Vietnamese War ended. He sucessfully completed his Ph.D
Dissertation at Nagoya University, Graduate School of Law in March, 2009. He
now is the official lecturer of Administrative Law and Administrative Litigation
Law in the Constitutional and Administrative Law Department of Hanoi Law
University, Vietnam. He is also the Coordinatior of Japanese Law Center in
Hanoi Law University. He can use both English and Japanese for the academic
law field and converasion. His research intersests include the administrative
appeal law, the administrative litigation law, the inspection law, the laws on state apparatus, the public
servants law, the comparative law and the foreign legal assistance projects in the public law field. His
published works covered all of the above-mentioned areas.

CALE Discussion Paper

No.4

ADMINISTRATIVE DIVISION COURT IN VIETNAM: MODEL, JURISDICTION AND
LESSONS FROM FOREIGN EXPERIENCES
AuthorDr. Pham Hong Quang

Published byCenter for Asian Legal Exchange (CALE)
Nagoya University464-8601 Furo-cho, Chikusa-ku, Nagoya, JAPAN
Tel: +81 (0)52-789-2325
Fax: +81 (0)52-789-4902
http://cale.law.nagoya-u.ac.jp/

Issue date

1, May, 2010

Printed by

Nagoya University Co-operative Association© All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by anymeans, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher.

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CA L E D i s c u s s i o n P a p e r N o . 4 ( Ma y, 2 0 1 0 )N a g o y a U n i v e rrs
s i ttyy
C e n ttee r ffoo r A sis i a n L e g a l Ex c h a n g e