Administrative decisions of the government of Vietnam

itoring mechanism for the exercise of state power in our country today" co-edited by Professor, Doctor of Science, Dao Tri Australia and Associate Professor Dr. Vo Khanh Vinh. Article Handling documents on state administrative management by Dr. Nguyen The Quyen Scientific research topic: The formulation, examination and decision on adjustment of law and ordinance formulation program - theory and practice of Dr. Vu Trong Hach Ministerial-level scientific project: Building a unified, synchronous, transparent and efficient legal system in the Vietnamese rule of law state, chaired by Associate Professor Dr. Nguyen Nhu Phat in the fourth part Article Effectiveness of State Administration Decision of Nguyen Minh Phu [98] mentioned that quality and feasibility are two factors that govern the effectiveness of state administrative decisions. Topics and articles focus on serving directions and solutions for completing legal documents, legal documents in general and state administrative decisions in particular, but Scientific arguments, orientations, solutions and proposals stated in the topic and articles are also suggestions for the dissertation to offer views and solutions to complete administrative decisions of the Vietnamese Government. South present. 1.2. GENERAL ASSESSMENT AND dissertation ISSUES NEED TO BE CONTINUELY RESEARCHED Firstly, the research results that the dissertation will continue to inherit (i) The research content is of fundamental theoretical nature such as: concept, role, position, characteristics, the factors to ensure the reasonableness and legality of the decision in general and the administrative decision in particular, the point of the Party and State in general and of the Government in particular on the promulgation of legal documents, administrative decisions. Although, each research project or scientific article can be approached under different angles, but comparing will help the dissertation clarify the theoretical basis suitable to the content of the research topic. (ii) Systematic studies and division of administrative decisions into decisions of local administrative agencies and central administrative agencies as well as the order and procedures of legal documents development in general and administrative decisions of state agencies in recent years. (iii) Assessment and review of the current situation of formulating, promulgating, implementing, and evaluating administrative decisions in the period before the 2008 Law on Promulgation of Legal Documents was passed and enacted. This is the foundation for comparing as well as recognizing the development of the law on the current government's administrative decisions. (iv) Perspectives, orientations and solutions to improve the organization, formation, promulgation, implementation and evaluation of administrative decisions and the government's administrative decisions are scattered in the research works. Secondly, the problems that scientific projects have not solved or must continue to be studied and completed Most of the research works in the country on general decisions and administrative decisions are mainly based on the Law on promulgating legal documents 9 in 2008 and guiding documents that are no longer appropriate. Currently, the most important legal documents are the 2013 Constitution and the Law on Promulgation of Legal Documents in 2015, which have the change in the name and expression of the government's administrative decision which is legal documents. Therefore, it is absolutely necessary to research and evaluate administrative decisions and decisions, especially the administrative decisions of the government in this new period. As such, there has not been any specialized work that has thoroughly, in-depth and fully researched the Vietnamese government's administrative decisions. In order to perfect this form of legal documents of the government, it is necessary to have in-depth and full research on the basis of inheriting the research results of domestic and foreign authors in general, but developing in a new research direction. More in-depth information on government administrative decisions will be clarified in the research chapters of the doctoral dissertation below. Conclusion of chapter 1 From the synthesis of scientific studies related to decisions in general and administrative decisions in particular in both domestic and foreign countries, we can confirm that scientific research on decisions in general and administrative decisions in particular is the topic that many scientists are interested in researching throughout the history with many different approaches, providing both universal and valuable specific research values as well as theoretical and methodological theory for the study of government administrative decisions. Many works give directions, recommendations, and proposals to standardize the process of formulating and issuing administrative decisions of state administrative agencies in Vietnam. Specific solutions for completing legal documents and decisions on state administrative management, but the scientific arguments and proposals outlined in the topic and articles are also suggestions for the dissertation to make suggestions to complete administrative decisions of the Government of Vietnam today. Chapter 2 THEORETICAL ISSUES ABOUT GOVERNMENT ADMINISTRATIVE DECISIONS 2.1. CONCEPTS AND CHARACTERISTICS OF GOVERNMENT ADMINISTRATION DECISION 2.1.1. The concept of administrative decisions of the Government An administrative decision is a type of legal decision. To learn the concept of administrative decisions, first of all, it is necessary to find out the meaning of decision words. Decision is a term that can be understood in many different ways. There is a perception that a decision is an intentional act or action. Decision, in the European language comes from the latin word "actus", which means action, act. With this understanding, decision is a term that refers to the very specific manifestations of a certain subject. In English, a “decision” is the result of a will-show process. With this understanding, a Decision is a selective activity or sequence of activities with a number of selectable possibilities. Decision-making can be understood as the exercise of choosing an opinion or an activity from among the options. According to the Dictionary 10 of Vietnamese Literature and Dictionary, "decision" is "to be determined with certainty and to be done". [71, p.1515], with this understanding the condition of a decision is compulsion and power. It shows the purposeful and compulsive activity, even when it is an idea that has not yet become a specific behavior of the individual. 2.1.2. Characteristics of administrative decisions of the Government 2.1.2.1. Government administrative decisions are issued to perform state management tasks and functions nationwide, affecting all fields. According to the Law on Organization of the Government 2015, in addition to the 19 groups of tasks and powers of the government including specific fields and groups of activities, the government also has duties and powers with local governments. 2.1.2.2. Government administrative decisions contain primary regulation This is, one of the very specific characteristics of the government's administrative decisions that the administrative decisions of other entities do not have. Government administrative decisions to abide by and enforce the Constitution, laws, and legal documents. 2.1.2.3. Administrative decisions of the Government detailing the assigned articles, clauses and points in the law and legal documents In the position of executive agency, the executive agency of the National Assembly, the Government as prescribed in Clause 1, Article 6 of the Law on Government Organization 2015 has the task: “Promulgating promptly and fully legal documents to implement the Constitution, laws, resolutions of the National Assembly, ordinances, resolutions of Standing Committee of the National Assembly, orders and decisions of the President ... ”. 2.1.2.4. Government administrative decisions to promulgate policies within their competence assigned to the Government According to the authority defined for the government in Article 96 of the 2013 Constitution, there is an important function that is to propose, develop policies to submit to the National Assembly, the Standing Committee of the National Assembly for decision or to decide pursuant to their competence to perform duties and powers assigned to the government. 2.2. CLASSIFICATION OF GOVERNMENT ADMINISTRATIVE DECISIONS 2.2.1. Classification according to the nature of the legal authority 2.2.1.1. Government policy administrative decisions Policy administrative decisions are strategic decisions in the exercise of the government's rights granted by the Constitution. Administrative and policy decisions issue major and strategic undertakings, lines, policies, and tasks with a strategic orientation. Our Party also issued resolutions that contain key ideas and policies, however, these are not legal decisions. 2.2.1.2. Normative Administrative decisions of the Government According to Latin, "norm" is a rule, a pattern, is a standard of behavior which is necessary under certain conditions. According to the popular Sino-Vietnamese sense, "norm" is understood as the code of conduct, the pattern of behavior, what is done and what is not done and how. Legal regulations are general rules of conduct set by the state and are compulsory for all concerned individuals and organizations to comply with. 2.2.1.3. Particular administrative decisions of the Government 11 Specific administrative decisions of the government are issued on the basis of laws, resolutions of the National Assembly, resolutions, ordinances of the Standing Committee of the National Assembly or administrative decisions of policies or regulations of the government. 2.2.2. Classification by legal form 2.2.2.1. Resolution of the Government Previously, according to Circular 33 / BT dated December 10, 1992 of the Minister, Chief of the Government Office guiding the form of documents and the promulgation of documents by State administrative agencies, the Government issued resolution “to adopt the project plan and state budget before submitting it to the National Assembly; evaluating the results of implementation of laws, state plans, state budget, and policies of the Government; decide other important tasks within the authority of the Government ”. 2.2.2.2. Government decree The Government's Decree is a normative Administrative Decision, issued to regulate mainly social relations arising in management activities. This form of legal documents is also consistent with the laws of countries around the world on the government's authority to issue administrative decisions. 2.3. REQUIREMENTS FOR LEGALITY AND REASONABILITY FOR GOVERNMENT ADMINISTRATIVE DECISIONS 2.3.1. Requirements for legality Government administrative decisions are a type of legal document, so when formulating and promulgating, they must comply with legal requirements. Legality guarantees the legal validity of administrative decisions. An administrative decision by a government that does not uphold a legal requirement has no legal effect to enforce. The legal requirement of a government administrative decision requires: 2.3.2. Requirements for reasonablity The reasonableness of government administrative decisions is tied to the management of state agencies. To ensure feasibility and efficiency, government administrative decisions must meet the requirement of rationality 2.4. ROLE AND RELATIONSHIP BETWEEN THE GOVERNMENT'S ADMINISTRATIVE DECISIONS AND LEGAL DECISIONS 2.4.1. Administrative decisive role of the Government 2.4.1.1. Administrative decisions of the Government provide great guideline and policies in the field of state management 2.4.1.2. Administrative decisions of the Government guide and ensure the observance of the Constitution, laws and resolutions of the National Assembly, ordinances and resolutions of the National Assembly Standing Committee, orders and decisions of the President for specific purposes and detailing those documents 2.4.1.3. Government administrative decisions regulate practical issues 2.4.1.4.Government administrative decisions contribute to stabilizing social order, creating opportunities for good management and social development 2.4.2. Correlation between the Government's administrative decisions and other legal decisions 12 2.4.2.1. Correlation of administrative decisions of the Government with legal documents of the National Assembly, the Standing Committee of the National Assembly, and the President 2.4.2.2. Correlation between administrative decisions of the Government and legal decisions of courts and procuracies 2.4.2.3. Correlation between the Government's administrative decisions and the decisions of Ministers, Heads of ministerial-level agencies and of the provincial authority 2.5. FACTORS AFFECTING GOVERNMENT ADMINISTRATIVE DECISIONS Government administrative decisions are considered both as a means of state management at the national level, and as a product of state management. Government administrative decisions are influenced by many factors that affect the quality of governance. Therefore, in order to improve the effectiveness and efficiency of state management, it is necessary to consider factors affecting the administrative decisions of the government. 2.5.1. Internal factors 2.5.1.1. The capacity of the subject formulating administrative decisions 2.5.1.2. The goal of administrative decisions 2.5.1.3. Subjects of administrative decisions 2.5.1.4. The content and format of the decision 2.5.2. The external factors 2.5.2.1. The problem for administrative decisions 2.5.2.2. Authority Factor 2.5.2.3. Resource factor 2.5.2.4. Information factor 2.5.2.5. Political factors 2.5.2.6. Legal factors 2.5.3. Other relevant factors 2.5.3.1. Factors of culture, customs and habits 2.5.3.2. Facility factors in decision making 2.5.3.3. International environment factors Conclusion of chapter 2 Through the study of chapter 2, the author draws out the following basic problems: 1. There are many different ways to understand and name the law decisions of the highest state administrative body. According to the author's opinion, an administrative decision of the government is a type of administrative decision, the result of the expression of the will of state power issued by the government on the basis and to enforce the legal documents of the National Assembly, the National Assembly Standing Committee, the President and in order to exercise the authority of the Government, have the contents, procedures and forms prescribed by law. 2. Administrative decisions of the Government are a type of legal decision, they have the same common characteristics as legal decisions that express the will of the state; state power; legal; issued according to the order and procedures prescribed by law and 13 also has its own characteristics such as sub-law; to perform the Government's State management tasks and functions on a national scale and in all fields; contain the primary code; stipulating in detail the articles, clauses and points assigned in the law and legal documents; issue policies according to their competence. 3. Administrative decisions of the Government are classified according to different criteria such as according to their legal competence to consider administrative decisions of the Government including policy administrative decisions, administrative and normative decisions and individual administrative decisions. When considered according to the legal form, the Government's administrative decisions include resolutions to decide: (i) tasks and solutions for each period; (ii) approve programs, schemes and decree development; (iii) approve the constituency, number of members of the People's Council of the province; approve the results of the provincial People's Committee election; (iv) decide on other matters. The resolution has a policy resolution; normative resolutions; individual resolution. The law states that resolutions are not legal documents, this is also a limitation. It is necessary to differentiate policy, normative or specific resolutions from resolutions of the “minutes of the Government's regular meeting”. Chapter 3 STATUS OF LEGAL REGULATION AND ADMINISTRATIVE DECISIONS OF THE GOVERNMENT OF VIETNAM 3.1. STATUS OF LEGAL REGULATIONS ON ADMINISTRATIVE DECISIONS OF THE GOVERNMENT OF VIETNAM 3.1.1. Legal provisions on the legal status of the Government 3.1.1.1. Legal status of the Government according to the 1992 Constitution The country building platform during the transition to socialism was clearly stated by the 7th Congress of the Communist Party of Vietnam in 1991: “The State of Vietnam unifies three legislative, executive and judicial powers with clear assignment of those three rights ”. 3.1.1.2. Legal status of the Government under the 2013 Constitution The 2013 Constitution stipulates the tasks of the Government: Organizing the implementation of the Constitution, laws and resolutions of the National Assembly, ordinances, resolutions of the National Assembly Standing Committee, orders and decisions of the President; To propose and develop policies and submit them to the National Assembly or the National Assembly Standing Committee for decision or decide according to their competence to perform the tasks and exercise the powers specified in this Article; submitting law projects, State budget projects and other projects to the National Assembly; submit draft ordinances to the Standing Committee of the National Assembly (Article 96). 3.1.2. Current status of legal regulations on administrative decisions of the Government of Vietnam 3.1.2.1. Provisions on administrative decisions of the Government of Vietnam prior to the Law on Promulgation of Legal Documents in 2008 From 1996 to 2007, the Government passed and issued many decrees to implement the management and administration according to its functions and duties. 14 Table 3.1. Number and classification of Government decrees in 1996 - 2007 period Year The Decree guiding the implementation of laws, ordinances and resolutions Decree providing for organization, charter and regulations Decree establishing, adjusting the boundaries of administrative units The Decree regulating fields or other specific issues The Decree approving the number of election lists of People's Council deputies 1996 09 13 10 51 0 1997 06 22 27 29 0 1998 16 14 19 40 0 1999 09 11 42 43 57 2000 09 08 18 35 0 2001 12 09 16 57 0 2002 17 11 33 41 0 2003 19 38 47 60 0 2004 28 19 34 63 66 2005 19 16 30 81 0 2006 35 20 25 60 0 2007 28 19 39 101 04 Total 207 200 340 661 127 Source: Summary of decrees issued by the Government from 1996 to 2007, section on Legal documents from the Government website (www.chinhphu.vn) 3.1.2.2. The law provides for the Government's administrative decisions from 2008 to present On June 22, 2015 XIII Congress, session 9 approved the Law on Promulgation of legal documents 2015 No. 80/2015 / QH1315. This Law has supplemented the concept of "Legal regulations" and completed the concept of "Legal documents" and affirms that the joint resolution between the Government and the Presidium of the Central Committee of the Vietnam Fatherland Front is legal documents. 3.2. PRACTICE ENSURING THE LEGALITY AND REASONABILITY OF ADMINISTRATIVE DECISIONS OF THE GOVERNMENT OF VIETNAM 3.2.1. Practices to ensure the legality of administrative decisions of the Government of Vietnam 3.2.1.1. Administrative decisions of the Government must be issued within the competence of the Government 3.2.1.2. Administrative decisions of the Government must be issued in accordance with the content and purposes of the Constitution, laws and other legal documents. 3.2.1.3. The content of an administrative decision of the Government must be in line with the interests of the state and the society 15 3.2.1.4. Administrative decisions of the Government must be issued in the correct forms prescribed by law 3.2.2. Practices to ensure the rationality of administrative decisions of the Government of Vietnam 3.2.2.1. The Government's administrative decisions to be issued must ensure the general consistency and suitability 3.2.2.2. Administrative decisions issued by the Government must be close to reality and clear according to groups of issues and subjects 3.2.2.3. Government administrative decisions must use clear, easy-to- understand, concise, and accurate language. 3.3. STATUS OF PUBLICATION OF ADMINISTRATIVE DECISIONS OF THE GOVERNMENT OF VIETNAM 3.3.1. Status of issuing administrative decisions of the Government of Vietnam in t2010 – 2020 period Table 3.2. The number and structure of the Government's administrative decisions in 2010 – 2020 period Year Decree Resolution Total 2010 116 66 182 2011 123 84 207 2012 102 40 142 2013 210 101 311 2014 122 43 165 2015 128 25 153 2016 163 33 196 2017 151 53 204 2018 162 91 253 2019 99 38 137 10/2020 130 61 191 Total 1506 635 2141 Source: Summary of administrative decisions of the Government issued from 2010 to 10/2020, section on legal documents from the website of the Government (www.chinhphu.vn) 3.3.2. Situation of delay, lack and overlap in the Government's administrative decision-making 3.3.2.1. Situation of delay and lack of the government in administrative decision issuance Table 3.3. Number of laws and ordinances that need to be issued with a guiding decree from 2010 to June 2020 Year Number of laws and ordinances issued The number of laws and ordinances that must include issued decrees 2010 19 laws 19 2011 08 laws 08 2012 21 laws, 02 ordinances 23 2013 17 laws, 02 ordinances 18 16 2014 29 laws, 01 ordinances 27 2015 27 laws 23 2016 10 laws, 01 ordinances 11 2017 18 laws 15 2019 18 laws 16 6/2020 10 laws 08 Source: Summary of data from the website: August 20, 2020 3.4. LIMITATION AND CAUSE OF THE STATE OF GOVERNMENT'S ADMINISTRATIVE DECISION ISSUANCE 3.4.1. Limitation 3.4.1.1. General limitations in the formulation and promulgation of administrative decisions of the Government Firstly, grasping, institutionalizing and issuing action plans and programs to implement the Party's undertakings and policies, implementing the Constitution, laws, and Resolutions of the National Assembly and Standing Committee of the National Assembly in some fields and in some ministries and branches is still slow. Secondly, in terms of making a request for document formulation according to the policy process under the Law on Promulgation of Legal Documents in 2015, the Government's decree is one of the 06 types of documents, the agency that proposes to build legal documents is responsible for making a proposal to build according to the policy process (development, impact assessment, appraisal, and approval of the policy) before drafting some types of documents. Thirdly, the responsibilities of the head of the agency drafting the Government's administrative decisions according to Article 7 of the 2015 Law on Promulgation of Legal Documents only generally stipulate that the head of the agency or organization presides over drafting agency, appraisal body, submission agency, verification agency and legislative document-issuing body within the scope of their duties and powers are responsible for their failure to fulfill their duties and depending on the extent, they shall be handled according to the provisions of law on cadres and civil servants and other relevant laws in case the draft document is not of sufficient quality, delayed, or not guaranteed or not ensure the constitutionality, legality and consistency of the legal documents assigned to implement but there are no specific regulations to determine the responsibilities of agencies, organizations and individuals in the verification stage of law, ordinance and decree formulation projects. It is recommended to supplement specific provisions on this issue, especially the responsibilities of the concerned agencies and individuals in case of errors in the