Ensuring the uniformity and feasibility of solutions of
improving the law and ensuring the application of administrative
preventive measures
The process of improving the law on administrative preventive
measures must have the consistency between the law stipulating the
administrative preventive measures and specific documents, guiding the
law enforcement in state management; the consistency and
synchronization between the legal system of administrative deterrence
and the application of such law in practice
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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
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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
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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
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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
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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,
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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.
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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
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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
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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
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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.
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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.
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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
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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
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