(PLO)- With the current situation of slow execution of judgments, it is necessary to amend Decree 71 on administrative judgment execution; have a specialized agency in handling, monitoring and urging judgment execution.
The situation of delay/non-implementation of an effective judgment and the judgment debtor being a state agency or leader of a state agency makes people, even if they win, still cannot claim their rights. day by day “painful”.
Ho Chi Minh City Law had an interview with Dr. Cao Vu Minh, University of Economics – Law (National University of Ho Chi Minh City), about the cause, as well as looking for solutions to solve the above situation.
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| The people’s land was recovered for road construction, the compensation decision was canceled by the court, but many years later the judgment has not been implemented. Photo: HUU Dang |
Self-execution mechanism inefficient
. Reporter: Sir, Decree 71/2016 stipulates the time, order and procedures for administrative judgment enforcement. It even stipulates disciplinary sanctions for cadres and civil servants who commit violations in administrative judgments. So why are administrative judgments still slow to execute?
+ Dr. Cao Vu Minh: In recent years, the Judiciary Committee of the National Assembly, the Ministry of Justice, and law enforcement agencies have strengthened supervision, monitoring, urging and recommending to handle many cases of administrative delay. However, in fact, up to now, no officials and agencies have been disciplined.
The reason comes from the fact that the provisions of the Law on Administrative Procedures 2015 and Decree 71/2016 only stop at the level of principles, generalization, not specificity. For example, these documents do not stipulate a specific time limit for judgment enforcement after a decision to force judgment is issued from the court.
Recently, reporting at the supervision meeting of the Legal Department of the People’s Council of Ho Chi Minh City on the situation and results of the execution of judgment enforcement, the Ho Chi Minh City Civil Justice Department said from October 1, 2022 to April 30. In 2023, there are 235 administrative judgments and decisions to be executed, but only 37 judgments and decisions have been implemented.
In addition, in some cases, Decree 71 stipulates that acts of non-compliance, improper or incomplete execution of a sentence must cause serious, very serious or particularly serious consequences before being prosecuted. Disciplinary action against cadres, civil servants and public employees in severe forms such as demotion, dismissal, forced dismissal…
However, assessing the consequences is not easy when violators hold leadership positions, managers, even heads of local government. Therefore, in fact, the sanctions in Decree 71/2016 are only of the nature of putting pressure on the person to be released, but not of a coercive or compulsory nature.
. Execution of a valid court judgment is mandatory and cannot be avoided. So how do you evaluate the current execution of administrative sentences?
+ Both the Law on Administrative Procedures and Decree 71 clearly stipulate that if the judgment debtor does not voluntarily perform, the judgment debtor has the right to request the court to issue a decision to force administrative judgment.
However, as mentioned, the law has not specified a time limit for enforcement after this decision is issued. Along with that, in order to handle the crime of not serving the sentence as prescribed in Article 380 of the Penal Code, it must be accompanied by the condition that coercive measures have been applied (or have been administratively sanctioned), but now There is no regulation stating whether the decision to force administrative judgment is a coercive measure or not. Therefore, it is also very difficult to handle criminally.
Therefore, I think that the current court’s decision to force administrative judgment enforcement has not yet brought about a high deterrent and binding effect. The current administrative judgment enforcement is still mainly carried out according to the “self-execution” mechanism of the judgment debtor. Due to the “self-execution” mechanism, inertia and ignoring became common. Therefore, it is necessary to resolutely and strictly handle a number of cadres and civil servants who do not execute judgments to set an example.
The civil judgment enforcement agency is assigned the task of monitoring administrative judgment enforcement, but this is perhaps a difficult task because this agency does not have a relationship in terms of personnel and organization with the agency subject to administrative enforcement.
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Dr. Cao Vu Minh, University of Economics and Law |
It is urgent to amend and supplement the law
. In order to treat the current administrative inertia, in your opinion, how should we find a solution?
+ Regarding the long-term solution, it is necessary to amend and supplement the provisions of the law, specifically amending and supplementing Decree 71/2016 in the direction of clearer regulations on principles, competence, order and procedures. related to the disciplinary handling of civil servants and public employees who commit violations in administrative judgments. Currently, Decree 71/2016 has not yet provided for, but takes disciplinary action in accordance with the law on disciplinary action against civil servants and public employees.
In addition, these amendments should aim to examine the disciplinary responsibility of both the head and the immediate superior of the head of the agency that has administrative enforcement obligations but does not comply. Accordingly, the head and the immediate superior of the head of the agency responsible for judgment enforcement, if he is irresponsible in directing, inspecting and urging administrative judgment enforcement, must also bear disciplinary responsibility.
. In addition to amending the law in the direction of strictly handling cadres and civil servants who are inactive in administrative judgments, what other solutions are there to improve the enforcement of administrative judgments?
+ Another solution that also needs to be implemented is the need for a specialized agency, mainly responsible for handling, monitoring and urging administrative judgments.
Because at present, when executing an administrative judgment, the participation and responsibility of many agencies are determined, but it is not clear which agency is responsible for organizing the implementation. For example, the court issued a decision to force administrative judgment; civil judgment enforcement agencies shall monitor judgment enforcement, propose competent agencies to inspect, urge and handle responsibilities; the head of the immediate superior agency of the judgment debtor shall direct, inspect, urge and handle the responsibility; People’s Committees at all levels direct the THA…
If the criminal judgment is absolutely guaranteed by the authority of the criminal judgment agency under the Ministry of Public Security; While civil judgments are effectively enforced by the prompting of the civil judgment enforcement agency under the Ministry of Justice, administrative judgments are quite difficult to enforce because there is no specialized agency in charge.
The civil judgment enforcement agency is assigned the task of monitoring administrative judgment enforcement, but this is perhaps a difficult task because this agency does not have a relationship in terms of personnel and organization with the agency subject to administrative enforcement. Meanwhile, the responsibility of the non-administrative judgment enforcement agency, if any, is the type of disciplinary responsibility carried out by the head or immediate superior, so the current civil judgment enforcement agency cannot handle it.
Given the above inadequacies and omissions in the provisions of the law, in order for the court’s ruling to be strictly implemented, the Ministry of Justice should soon propose to the Government to request the National Assembly to add it to the law-making program. order to amend the law to suit reality.
. Thank you Sir.
Many agencies are involved but still “Stuck in place”
Like Ho Chi Minh City Law Pham Van Tuan (living in Vinh Hoa Ward, Nha Trang City) sued the Chairman of Khanh Hoa Provincial People’s Committee, Nha Trang City People’s Committee, Chairman of Nha Trang City People’s Committee related to the acquisition of his family’s land. .
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Mr. Pham Van Tuan. Photo: TL |
The appellate judgment of the High People’s Court in Da Nang on December 25, 2020 annulled four decisions of the People’s Committee of Nha Trang City, a decision of the Chairman of the People’s Committee of Nha Trang City, and a decision of the Chairman of the People’s Committee of Khanh Hoa Province.
However, after the appellate judgment was issued, the defendant did not declare judgment. Therefore, Mr. Tuan has repeatedly sent an application to the Provincial People’s Court to request a decision to force judgment. In December 2021, the Supreme People’s Procuracy issued an official dispatch instructing Mr. Tuan to request the People’s Court of Khanh Hoa province to issue a decision to force judgment. At the same time, the Supreme People’s Procuracy also transferred Mr. Tuan’s application to the People’s Court of Khanh Hoa province for consideration and settlement of the request for judgment enforcement.
In addition, the General Department of Civil Judgment, the Ministry of Justice also sent an official request to the People’s Committee of Khanh Hoa Province to direct the People’s Committee of Nha Trang City to strictly implement the content of the appellate judgment. At the same time, the People’s Committee of Khanh Hoa province is requested to consider and handle the liability of the judgment debtor in case of delayed judgment, non-compliance, incorrect or incomplete compliance with the contents of the court’s judgment or decision according to the provisions of law. regulations.
However, up to now, the appellate judgment has not been completed.
TAN LOC
HUU DANG