In the process of international integration taking place in all fields of socio-economic life in our country, administrative procedures law must have improvements to be more suitable with all fields of life. Specifically, the Administrative Procedure Law with many new and progressive points compared to the Ordinance on Administrative Procedures has overcome the limitations and inadequacies of the previous administrative procedure law, including regulations on conditions for initiating lawsuits against VAHC. Individuals and organizations initiating lawsuits must satisfy the conditions for initiating lawsuits prescribed by the administrative procedure law. The lawsuit condition is a mandatory requirement for the involved parties when exercising the right to initiate a lawsuit. Initiating a lawsuit according to the requirements ensures that the involved parties are convenient in exercising their rights to protect their legitimate rights and interests.

I. Some theoretical issues about initiating administrative cases

1. Concepts

Initiating an administrative case means an individual, organization or state agency that, according to the provisions of the administrative procedure law, requests a court to settle an administrative case in order to protect their legitimate rights and interests. be infringed by administrative decisions, administrative acts, disciplinary decisions forcing dismissal.

2. Characteristics

First, the purpose of initiating an administrative case is to request the competent court to accept and settle the administrative case.

Second, the subjects of administrative lawsuits are administrative decisions, administrative acts, disciplinary decisions on dismissal, decisions on settlement of complaints about decisions on handling of competition cases, lists of voters to elect deputies to the National Assembly, the list of voters to elect deputies to the People’s Council in accordance with law.

II. Contents of legal provisions on conditions for initiating administrative lawsuits

The initiation of an administrative case shall be carried out when the following conditions are fully satisfied:

1. About the subject of the lawsuit

The petitioner or the person they represent has their legitimate rights and interests infringed by an administrative decision (QDHC), an administrative act (HVHC), a disciplinary decision on dismissal (QDKLBTV), a settlement decision appeals about decisions on handling of competition cases or the preparation of voter lists.

First of all, the plaintiff must directly have legitimate rights and interests infringed by administrative decisions or acts. The plaintiff includes individuals, agencies and organizations. For individuals, they must have sufficient administrative procedure legal capacity and administrative procedure act capacity. If you are in the case of limited administrative procedure capacity, you must initiate a lawsuit through your legal representative. Agencies must be agencies in the State apparatus established and operating in accordance with law, with functions, duties and powers, and legal person status. The initiation of lawsuits by State agencies shall be carried out through their legal or authorized representatives. For organizations, it includes socio-political organizations, socio-political-professional organizations, social organizations, socio-professional organizations, economic organizations, non-business units, business units, etc. people’s armed forces. These organizations must be established and operate in accordance with the law, have legal status or have all the signs of an organization (with organizational structure, headquarters, seal, etc.). The organization’s lawsuit is also carried out through its legal or authorized representative.

In short, the petitioner must be the person directly affected by an administrative decision, an administrative act, a disciplinary decision on dismissal or a decision to settle a complaint about a decision on handling a competition case.

Individuals, agencies and organizations must prove that their legitimate rights and interests are directly affected by administrative decisions, administrative acts, disciplinary decisions on dismissal or decisions on settlement of complaints. If they complain about the decision on handling the competition case, they have the right to initiate an administrative lawsuit to request the Court for protection.

Example: The People’s Committee of District B issues a land use right certificate to Mr. Nguyen Van A with an area of ​​150 m2. Ms. Nguyen Thi C, the house is adjacent to Mr. A’s land, thinks that the People’s Committee of District B has granted a part of the land under her family’s use right to Mr. B, so Ms. C has sued to ask the Court to cancel the certificate. receive the land use right granted to Mr. A. In this case, Ms. C must prove that the issuance of the land use right certificate to Mr. A has infringed on her legitimate rights and interests.

2. About the object of the lawsuit

Objects of lawsuits are administrative decisions, administrative acts, disciplinary decisions on dismissal and decisions on settlement of complaints about decisions on handling of competition cases, the list of voters to elect National Deputies. Assembly, list of voters to elect deputies to the People’s Council.

However, with an administrative decision, it must be a separate decision and at the same time an administrative decision for the first time. Which decision is an administrative decision for the first time must have a legal basis prescribed by the administrative procedure law. individual administrative decisions are issued in the form of documents with the name of decisions such as sanctioning decisions, decisions on dismantling illegal construction works, etc. administrative decisions are also issued in the form of Notices, conclusions and official dispatches as prescribed are also subject to lawsuits. In addition, decisions on settlement of complaints about decisions on handling of competition cases are also subject to lawsuits.

The administrative act (HVHC) subject to the initiation of an administrative lawsuit must be an act of a State administrative agency, other agency or organization or of a competent person in that agency or organization to perform or failing to perform their duties or public duties as prescribed by law. Pursuant to the provisions of law on the competence and time limit for performance of official duties to determine the performance or failure to perform such tasks or official duties is of the State administrative agency, the state administrative agency. , organization, or authority in a State administrative agency, agency or organization. If according to the provisions of law, the performance of a specific task or official duty is by a state administrative agency, another agency or organization, the act of performing or failing to perform the task or official duty within the time limit then such act is administrative conduct of a state administrative agency, another agency or organization, but not the administrative act of the person who has performed such administrative act as assigned or authorized or authorized. If according to the provisions of law, the performance of a specific task or official duty is performed by a competent person in a state administrative agency, other agency or organization, the performance or non-performance of such task or public duties shall be determined by a competent person. A specific task within that time limit is the administrative responsibility of the competent person, regardless of whether they directly perform or assign, authorize or authorize others to perform.

3. Conditions of statute of limitations

The initiation of administrative lawsuits shall be carried out in the cases and the statute of limitations prescribed by law.

The statute of limitations for initiating a lawsuit is the time limit within which the subject is entitled to initiate a lawsuit. If that statute of limitations expires, the subject loses the right to initiate a lawsuit. The initiation of lawsuits must be carried out within the time period prescribed by law, except in cases of objective obstacles, the time of objective obstacles shall not be included in the statute of limitations for initiating lawsuits. At the end of the specified time period, if the person does not initiate the lawsuit, it is considered to have waived his or her rights. The statute of limitations for initiating a lawsuit against an administrative decision, an administrative decision, or a decision is one year from the date of receipt of that decision. For decisions on settlement of complaints about decisions on handling of competition cases, the statute of limitations for initiating lawsuits is 30 days from the date of receipt of such decisions. If a lawsuit is filed against the list of electors to elect deputies to the National Assembly or the list of electors to elect deputies to the People’s Council, the statute of limitations for initiating a lawsuit is from the date of receipt of the notice of complaint settlement results from the election list-making agency. voter or the time limit for complaint settlement expires without receiving notice of complaint settlement results from the voter list-making agency until 05 days before the election.

4. Conditions on the method of lawsuit

The method of lawsuit can be understood as the fact that the subjects have the right to choose different ways to initiate a lawsuit.

If the object of the lawsuit is an administrative decision, administrative officer, or a disciplinary decision on dismissal, according to Clause 1, Article 115, the individual or organization may choose one of the following three methods:

• File a lawsuit right after receiving the administrative decision, or being violated by the administrative law.
• Initiate a lawsuit when receiving the 1st complaint settlement decision without agreeing or the 1st complaint settlement time has expired without being resolved.
• To initiate a lawsuit when receiving the 2nd complaint settlement decision without agreeing or the 2nd complaint settlement time has expired without being resolved.

If the object of the lawsuit is a decision on settlement of a complaint about a decision on handling of a competition case, according to Clause 2, Article 115, individuals or organizations have the right to initiate lawsuits against this decision, but not have the right to complain.

If the object of lawsuit is the list of voters, according to Clause 3, Article 115, “Individuals have the right to initiate a lawsuit about the voter list in case they have complained to the competent agency for settlement, but the time limit expires. the time limit for settlement as prescribed by law but the complaint has not been resolved or has been resolved, but disagrees with the settlement of such complaint”.

Thus, the provisions of the law have created more “openness” in terms of methods of initiating administrative lawsuits for people to choose more methods of lawsuits, but we can see if the object of the lawsuit is the list of voters, although the law creates conditions to protect the interests of the people, in reality this condition is very difficult and seems to tighten the people’s right to sue about the voter list.

5. Request for filing of lawsuits with the Court of first-instance trial jurisdiction of the Court

The case being instituted falls under the jurisdiction of the court to adjudicate the administrative case. The petitioner has the right to initiate a lawsuit only within the scope of the types of cases that are prescribed by law as falling under the jurisdiction of the court to adjudicate the VAHC. This is a condition of course that the petitioner must comply, because if it is not within its jurisdiction, the court will not accept the petition.

Above is Khoa Tin‘s advice on “Initiating an administrative case”.

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