Administrative preventive measures under the Vietnamese law

the law on each administrative preventive measure: the way of implementing, procedures and authority to apply, especially, recommendations to supplement further coercive measures. At the same time, previous studies have also presented recommendations to ensure 7 the implementation of administrative preventive measures such as training, disseminating and educating law; building a system of guiding documents, supervision and inspection, as well as mobilizing financial resources, human resources, regimes, polices and facilities. 1.2.2. The pending questions that need to be solved in this dissertation Theoretically: the study presents the concept of administrative preventive measures and clarifying the nature of administrative preventive measures. At the same time, the dissertation seeks to clarify the difference among groups of administrative preventive measures and the role of each group in the trend of building a rule-of-law state today. The study also analyzes issues related to human and citizen’s rights in the process of implementing administrative preventive measures including principles, competence, procedures for implementation of administrative preventive measures, as well as implementing these measures in practice; it also examines factors affecting the application of the law on administrative prevention. Regarding the reality of the law and applying administrative preventive measures in practice: it is necessary to clarify the provisions of the existing law on administrative preventive measures and point out the actual figures reflecting the advantages and disadvantages of the provisions on administrative preventive measures. Thenceforth, the study presents more comprehensive and insightful comments on applying these measures. Regarding solutions to improve the law on administrative preventive measures: the study presents recommendations to improve the law on administrative preventive measures. It also recommends solutions to ensure the application of the law on administrative preventive measures and guarantee social order, the benefit of state administrative management, and ensuring human and citizen’s rights. 1.3. Research questions and hypotheses 1.3.1. Hypotheses Administrative preventive measures under the Vietnamese law have been shaped but still have gaps and lack of realizing. With the changes of 8 social life and the need for administrative reform as well as ensuring the rule-of-law, the administrative preventive measures are showing inadequacies and limitations in terms of awareness and implementation in practice. Thus, it is necessary to be fully aware and ensure the implementation of administrative preventive measures as one of the decisive factors in the process of building and completing Vietnamese law, contributing to the success of renovation in Vietnam today. 1.3.2. Research questions (1) What are administrative preventive measures? What is the role of administrative preventive measures? What are the guarantees for implementing administrative preventive measures? What is the reality of the provisions of the law on administrative preventive measures, as well as the practice of applying these measures in Vietnam? What are the advantages and limitations of these measures? What are the causes of these limitations? (3) Which are the bases for improving the provisions of the law on administrative preventive measures and ensuring the application of these measures in Vietnam? What are solutions to improve the provisions of the law on administrative preventive measures and ensuring the application of these measures in Vietnam today? Chapter 2 THEORETICAL ISSUES ON ADMINISTRATIVE PREVENTIVE MEAUSRES 2.1. The concept, characteristics and role of administrative preventive measures 2.1.1. The concept of administrative preventive measures Administrative preventive measures are state coercive ones to be implemented by competent subjects under the provisions of administrative law to individuals and organizations to terminate law violations and prevent consequences caused by administrative violations and ensure the handling of administrative violations. 2.1.2. Characteristics of administrative preventive measures First, administrative preventive measure is a coercive one to be applied in the field of state administration; Second, the purpose of 9 administrative preventive measures is to terminate promptly acts of violating law, to prevent consequences and to handle effectively administrative violations; Third, the competent authorities in applying administrative preventive measures are only competent individuals of state agencies; Fourth, the social relations protected by administrative preventive measures are wide and abundant. Fifth, the basis for applying administrative preventive measures is full information of the subject’s violations; Sixth, administrative preventive measures have their own procedures of applying. 2.1.3. The role of administrative preventive measures First, administrative prevention is one of the measures to exercise the state’s power and its will in the fight against law violations by coercion. Second, administrative prevention is an auxiliary measure to improve the efficiency of state administrative management and ensure the order of state administrative management. Third, administrative prevention is a means to protect legitimate rights and interests of individuals and organization, and it has a great role in respecting and protecting human rights and the rights of citizens. Fourth, administrative prevention is a procedural measure to ensure the handling of administrative violations. Fifth, administrative prevention plays an important role in education the sense of law, preventing and limiting the ability to harm the interests of society, state, individuals and organizations so as to strengthening social order. 2.2. Classifying administrative preventive measures 2.2.1. Preventive measures to terminate violations or preventing consequences and damages caused by violations The coercion of this measures shows that the State requires persons stop violating, in some cases, the state may use force or weapon to stop violating. 2.2.2. Preventive measures to ensure the sanctioning of administrative violations The coercion of this measure shows that it impacts on the violators to force them complying with the requirements and will of the state, for example, they are not allowed to travel within a certain time, they must 10 stay in a certain campus or impact on the subject with signs of violations through inspection to detect information as evidence for the violation. 2.2.3. Mixed preventive measures These measures are applied for different purposes such as ending administrative violations and ensuring the handling of violations or administrative preventive measures with 3 purposes such as stop violating, prevent consequences of the violation for society and ensuring the execution of sanctioning. 2.3. The adjustment of the law on administrative preventive measures 2.3.1. Principles of applying administrative preventive measures Principles of applying administrative preventive measures should come from the following reasons: First, the nature of administrative prevention is the administrative coercive measures and coercive monopoly of the state. Second, arising from the issue of “administrative discretion”. Third, arising from the nature of human of the state. Fourth, arising from the consequences of a violent society. Fifth, arising from the new awareness of the role and value of the law. Principles of applying administrative preventive measures including legal principles; Strict and timely principles; Principles of publicity and transparency; Principles just apply administrative preventive measures for violations occurring in state administrative management activities; Principles of accountability; Principles of ensuring human rights, civil rights and values of justice and humanitarian in the process of applying administrative preventive measures. 2.3.2. Competence of applying administrative preventive measures individuals empowered by the state. Individuals who are competent to apply administrative preventive measures including: Chief, deputy chief or people on duty such as general competent agencies, people's police forces, foresters, customs, border guards, courts. The chiefs are allowed to use administrative preventive measures including President of communal People’s Committee; Ward police chief; district police chief; captain of market management; the judge of a court. In a certain condition, the competence can be delegated to subordinates. In addition, 11 in order to apply immediately administrative preventive measures, the competence of applying these measures is empowered to the competent person on duty. 2.3.3. Procedures for applying administrative preventive measures In general, procedures for applying these measures based on ground, authority, and purpose of each specific administrative preventive measure, and going through the stages of administrative procedures such as initiating the case, reviewing and issuing a decision to resolve the case, enforcing the decision, appeal, resolving the complaint and reviewing the issued decision. 2.4. Guaranteeing the implementation of administrative preventive measures 2.4.1. Legal guarantee The dissertation focuses on the most basic elements in the legal system to implement administrative preventive measures, which are (1) Administrative preventive procedures; (2) Competence to prevent administrative violations; (3) Organizational structure and coordination mechanism to implement administrative prevention among agencies; (4) Capacity and professional qualifications of the competent persons in formulating and enforcing the law on administrative prevention; (5) Monitoring and inspection mechanism; (6) Liability and mechanisms for handling of violations while implementing administrative prevention. 2.4.2. Other guarantees Other guarantees including assurance of awareness, economy and facilities. 12 Chapter 3 THE REALITY OF ADMINISTRATIVE PREVENTIVE MEASURES IN VIETNAM 3.1. The reality of the law on administrative preventive measures 3.1.1. The law on administrative preventive measures from 1945 to the promulgation of Law on handling of administrative violations 2012 3.1.1.1. Administrative preventive measures between 1945 and 1954 The administrative preventive measures of this stage were formed in wartime condition, so the building of law is still quite new. Moreover, the awareness of lawmakers is still simple. There is no clear distinction in applying administrative preventive measures and sanctions 3.1.1.2. Administrative preventive measures between 1954 and 1986 The administrative preventive measures of this stage are full, coherent and more uniform. However, the law does not have a unified document on administrative preventive measures. There is also not clear distinction between administrative preventive measures and criminal preventive measures, and they are stipulated in a document similar to the previous preventive system. 3.1.1.3. Administrative preventive measures from 1986 to the promulgation of the law on handling of administrative violations The issue of the Ordinance on sanctioning of administrative violations on December 7, 1989 marked an importance progress in the legal system of administrative preventive measures as a premise for creating the legal documents on administrative preventive measures later. On June 20, 2012, the National Assembly passed the Law on handling of administrative violations, marking an important milestone in the history of regulations on administrative preventive measures. Accordingly, the administrative preventive measures are distinguished from preventive measures in criminal proceedings and are more specific, clear and complete. 3.1.2. The existing law on administrative preventive measures 3.1.2.1 Principles, competence and procedures of applying administrative preventive measures 13 In four principles of the law on handling of administrative violations, the second principle is generally stipulated by law. The content of this principle aims to prevent competent persons use casually the law, leading to the infringement of legitimate rights and interests of objects who violate administration. In terms of content, “if necessary” or “if not necessary” is quite general, leading to apply randomly regulations may violate the principle of ensuring human rights while applying administrative preventive measures. Restrictions on procedures and competence to prevent administrative violations are expressed in each specific measure. 3.1.2.2. The detention of people The provisions of the existing law on the detention of people according to administrative procedures have some limitations such as the current provisions have supplemented acts as basis for detaining people but still not enough. The provisions of the law are not specific and it is hard to apply them in practice. A number of contents are not feasible. The law does not stipulate responsibility of higher authorities when their subordinates violate the law. 3.1.2.3. Escorting violators There are still limitations of the law on administrative preventive measures such as the existing law does not have full provisions on measures of escorting violators. Although Article 25 of Decree 112/2013/ND-CP has clearly mentioned competence to escort violators, this mention is not really comprehensive. The existing law does not have specific regulations on procedures for escorting violators and it also does not have specific regulations for cases of using weapons and supported instruments when escorting violators. 3.1.2.4. Confiscating material evidences, means, licenses and certificates of people violating administration Compared with the 2002 Ordinance on handling of administrative violations, the law has expanded the scope of applying measures of confiscating material evidences and certificates under the administrative procedures. In addition to the progress, the law still has some 14 shortcomings such as some contents are not specific and clear, the provisions are still not consistent with reality. 3.1.2.5. Body cavity searches If it is necessary to conduct body cavity searches, the competent person won’t need to issue a written decision but he/she then must submit report to his/her leader who has the right to apply measures of taking person into custody. However, the law does not specify the period of time to submit this report. In addition, when officers and soldiers of the Border Guard Command perform body cavity searches under administrative procedures, they must immediately submit report to their leader. The leader of a group, the department head or commanders have rights to sanction of administrative violations but they are not people who specified in Clause 1, Article 123 of the law on the handling of administrative violations. 3.1.2.6. Searching transport means and objects according to administrative procedures. The authority of applying this measure is for those who are competent to body cavity searches. The law also extends the authority to search transport means and objects in case of urgency “if the search is not conducted immediately, the material evidence will be dispersed and destroyed”. However, it can be seen that a limitation of the current law is that there is not specific regulation on the period of time to search and whether the authority has the right to search transport means and objects at night or not. 3.1.2.7. Searching places where material evidences and means of administrative violations are hidden Limitations and inadequacies of this law are that the law has not specified clearly where is hidden material evidences and means of administrative violations. In addition, regulations on the consent of the Chairman of the District People’s Committee for a search of place is not feasible, in many cases, it may be considered an obstacle to a search. 3.1.2.8. Managing foreigners who have violated Vietnamese law during the time of carrying out the expel procedures 15 The existing law expresses humanity in the provisions on the rights of expelled-persons. However, the Government’s Decree No. 112/2013/ND-CP stipulates further measures of forcing them stay at the accommodation managed by the Ministry of Publish Security is contrary to the provisions of the law on the handling of administrative violations. In addition, one of the conditions for applying the above management measures to foreigners during the time of carrying out the expel procedures is that when there are grounds to believe that such persons will escape or hinder the execution of the decisions. However, the existing law has not specific regulations which subjects will have authority to prove this evidence. In addition to the above administrative preventive measures, there are also a number of administrative preventive measures that not specified by the law such as forcing to stop the violations. The law does not recognize this measure as an administrative preventive one showing a lack of current regulations of Vietnam on coercive measures to prevent administrative violations. 3.2. Practical application of administrative preventive measures in Vietnam 3.2.1. Practical application of preventive measures to terminate violations and prevent consequences caused by violations The detention of people according to the administrative procedures: There are not many data on this preventive measure. In fact, this measure is rarely used due to the law on handling of administrative violations has limited acts of violations. The fact also shows that the law enforcement forces are not enough and there are still inadequacies in the propagation and dissemination of the law on the detention of people according to the administrative procedures. In addition, another inadequacy is that the compliance with the provisions of the law on detention of people. To ensure the time of detention, the authority “must arrest people in the morning but making a record in the afternoon”. In many localities, conditions for detainees and facilities for this work, as well as the rights of detainees has not been paid attention. 16 Escorting violators: The application of measures of escorting violators according to administrative procedures does not ensure proper procedures and processes. In fact, with the characteristics of the border guards, they must work regularly in the locality, so there are places where detect violations often far from their units. When violators fail to voluntarily comply with the requests of border guards, they must apply measures of escorting the violators. In order to carry out this authority, the border guards on duty must issue a decision to escort the violators in writing and must deliver a copy to the escorted person. In fact, the issuance of this decision is not effective because the border post is far away from the place that violator was detected, so it could not get the unit’s seal in time to escorting violators. Forcing to terminate violations: in fact, when organizations and businesses violating administration, they just pay fines but do not comply with the temporary termination of contract, as well as overcoming consequences, this leads to the state’s goal has not yet achieved effectively. The current regulations do not have measures of enforcing administrative prevention, in such cases, the law enforcement agencies must stop supplying electricity and water. However, this measure has not been prescribed in current legal documents. 3.2.2. Practical application of preventive measures to ensure the sanctioning of administrative violations Body cavity searches; Searching transport means and objects according to administrative procedures; Searching places where material evidences and means of administrative violations are hidden The biggest obstacle is the overlap, contradiction, and lack of tightness in regulations on competence, procedures, subjects of application, and the application of competent authorities also affects human rights and the rights of citizens. While conducting this work, there are also many obstacles on authority and procedures, not in compliance with the provisions of the law that is to ensure the sanctioning of administrative violations. 17 Managing foreigners who have violated Vietnamese law during the time of carrying out the expel procedures: the data on the management of foreigners during the time of carrying out the expel procedures are almost unavailable. This is because the application of expulsion sanction is also limited by many reasons. 3.2.3. Practical application of mixed preventive measures Regarding the handling of material evidences and transport means, currently, there are many unsettled dossiers, the parking lots to be increasingly overloaded and lasting for many years, causing great waste for society. There is not software in handling of administrative violations in the field of traffic order and safety so as to monitor and connect the sanctioning of violations with vehicle registration, and it does not have the connection among police units nationwide. In addition, some localities do not meet properly the paperwork procedures for detention under the law. 3.3. General assessment of the law and practical application of administrative preventive measures in Vietnam today The amendment of the law for administrative preventive measures is increasingly completed for both bases, authority, and application procedures. This demonstrates the basic rights of citizens and increasingly ensure democracy, openness and transparency in the state administrative management. However, there are still some defects, namely: In the provisions of the law on administrative preventive measures: First, some provisions are not consistent with the reality, leading to the application of the law is not feasible. Second, some provisions are not specific and clear, leading to many different interpretations. Third, the administrative preventive measures are poor and do not have enough grounds of application as well as the applied authority. Fourth, there is no clear-cut between administrative preventive measures and other coercive measures. Fifth, the provisions of the existing law on administrative preventive measures are quite arbitrary, especially the authority to prevent administrative violations. Sixth, the provisions are contradictory and inconsistent. Seventh, the provisions of 18 the existing law do not have a specific division of preventive measures that apply for different subjects. In fact, the competent agencies have not strictly complied with the principle “they just apply preventive measures when they have necessary evidences”, and the application of administrative preventive measures is not right for the purpose of each specific measure. The reality of the provisions and the application of the above measures, the author thought that there are the following causes: first, the awareness of competent people. Second, the issues of management and institutions. Third, organizational work and people. Fourth, due to economic constraints. Chapter 4 IMPROVING THE LAW AND ENSURING THE APPLICATION OF ADMINISTRATIVE PREVENTIVE MEASURES IN VIETNAM TODAY 4.1. The demand for improving the law and ensuring the application of administrative preventive measures 4.1.1. Strengthening management and administration reform Administration reform is a general trend of many countries in the world. this requires firstly institutional reform of administrative coercion including administrative prevention. 4.1.2. Stemming from the reality of the law and the application of administrative preventive measures in Vietnam today The need of improving the law also comes from the intrinsic inadequacies of coercive measures which require changes to overcome those inadequacies. 4.1.3. Guaranteeing human rights and the rights of citizens in applying administrative preventive measures It is necessary to improve the provisions of the law and ensuring the law enforcement associated with civil rights and human rights in building a so