Thus, determining the authority of the agency handling denunciations is different from complaints. While in state administrative agencies, the competent person in the competent agency issuing the administrative decision or the administrative act being complained about is the person with the authority to handle the complaint for the first time. In case of denunciations, the person with the authority to handle denunciations is always the head of the agency managing the organization for the civil servant whose behavior is being denounced or the person whose behavior is violating the state management field of the state administrative agency.
Regarding the specific authority to resolve denunciations of violations of the law by cadres and civil servants in the performance of duties and public services in state administrative agencies [34]: The Chairman of the People's Committee at the commune level has the authority to resolve denunciations of violations of the law in the performance of duties and public services by cadres and civil servants under his/her direct management.
The Chairman of the District People's Committee has the authority to resolve denunciations of violations of the law in the performance of duties and public duties by the Chairman and Vice Chairman of the Commune People's Committee, the head and deputy head of a specialized agency under the District People's Committee, and the cadres and civil servants appointed and directly managed by him/her.
Similarly, the authority to resolve denunciations of: Heads of specialized agencies under the People's Committees of provinces and centrally run cities; Chairmen of People's Committees of provinces and centrally run cities; General Directors, Department Directors and equivalent levels; Ministers, Heads of ministerial-level agencies; Prime Minister are all specifically regulated under Article 12 of the 2011 Law on Denunciations.
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Third, the order and procedures for handling denunciations are very strictly regulated, but in general include the following basic steps: Step 1 - Receiving and processing denunciation information; Step 2
– verify the content of the denunciation; step 3 – conclude the content of the denunciation; step 4 – Handle the denunciation of the denouncer; publicly announce the conclusion of the content of the denunciation, decide to handle the denounced behavior.
The procedure for handling denunciations is quite similar to the procedure for handling complaints, the only difference is in the resolution results (in complaints, it is the Decision and organization).
implement the Decision to resolve complaints; in denunciations, it is the Conclusion, Notification of results and issuance of a Decision to handle the denounced behavior if the content of the denunciation is correct).
Fourth, the results of handling denunciations can lead to legal consequences: the first consequence is that if the behavior of the accused has violated the law, he/she must be subject to sanctions decided by the person with authority to handle denunciations or recommended to the competent person to handle according to the provisions of law and at the same time consider being rewarded materially and spiritually [34]. If the conclusion of the denunciation is incorrect, the person handling the denunciation must notify in writing this conclusion to the accused, the agency where the accuser works and restore the legitimate rights and interests of the accused (in case of infringement, preventive measures are applied) and at the same time recommend handling the person who intentionally makes false denunciations. [34]. The person who makes false denunciations must compensate for damages [34].
Thus, denunciation is different from complaint in that the complainant's legitimate rights and interests are restored when the complaint is well-founded. The complainant is not legally responsible if the complaint is false or unfounded because this is the right to self-defense, the right to protest. As for denunciation, when the complainant uses his/her right to participate in state management activities, he/she must bear legal responsibility.
Fifth, similar to complaints, the handling of denunciations requires: timeliness, accuracy, objectivity, correct authority, order, procedures and time limits according to legal regulations; in addition, there is the principle of ensuring the safety of the denouncer; protecting the rights and legitimate interests of the denounced person during the process of handling denunciations [34].
1.1.3 Principles in handling complaints and denunciations of state administrative agencies
Principles are basic rules set by organizations based on certain ideological viewpoints that require organizations and individuals to follow. Principles for handling complaints and denunciations are basic rules that complaint handlers and denunciation handlers must follow in the process of handling complaints and denunciations. These principles are stipulated in the Law on Denunciations and sub-law documents.
The first principle of handling complaints and denunciations must be in accordance with the provisions of law: correct authority to handle; correct order and procedures (receiving, classifying and processing information on complaints and denunciations for handling; the next step is to collect documents, verify the content of complaints and denunciations; the next step is to conclude the content of complaints and denunciations; issue a settlement document; the next step is to send and publicize the document resolving complaints and denunciations; and the final step is to organize implementation) ; within the time limit for handling (Complaints, the normal time limit is 30 days from the date of receipt, for denunciations it is 60 days).
The basis for concluding the legality and reasonableness of administrative decisions, administrative acts or the correctness or incorrectness of the accused acts must be based on the solid foundation and basis of the applicable law according to the results of strict, objective and scientific verification.
Second, handling complaints and denunciations must ensure objectivity, that is, correctly identifying the nature of the case, clearly identifying the details and developments of events, based on objective documents so that the person handling complaints and denunciations can compare legal provisions to issue a settlement document. The law itself is objective.
Third, we must ensure transparency because if complaints and denunciations are handled objectively and in compliance with the law, they must be made public for people to monitor. Only then can we ensure the principles of compliance with the law and objectivity. However, in the process of handling complaints, in addition to making the results of the handling public, we must also comply with the principle of protecting the confidentiality of the complainant.
Fourth, the settlement of complaints and denunciations must be democratic, ensuring the rights of the complainant and the denouncer. The complainant has 11 rights as prescribed in Clause 1, Article 12 of the Law on Complaints: to file a complaint himself/herself; to seek legal advice from a lawyer or authorize a lawyer to file a complaint to protect his/her legitimate rights and interests; to participate in dialogue or authorize a legal representative to participate in dialogue; to know, read, photocopy, copy documents and evidence collected by the person handling the complaint to resolve the complaint, except for information and documents classified as state secrets; to request relevant individuals, agencies and organizations that are storing and managing information and documents related to the content of the complaint to provide such information and documents to him/her within a time limit.
07 days from the date of request to submit to the complaint handler, except for information and documents that are state secrets; to request the complaint handler to apply urgent measures to prevent possible consequences due to the implementation of the complained administrative decision; to provide evidence of the complaint and explain one's opinion on that evidence; to receive a written response on the acceptance of the complaint, to receive the decision on the complaint handling; to have the infringed rights and legitimate interests restored; to be compensated for damages according to the provisions of law; to make a second complaint or initiate an administrative lawsuit at the Court according to the provisions of the Law on Administrative Procedure; to withdraw the complaint.
The whistleblower has 06 rights as stipulated in Clause 1, Article 9 of the Law on Denunciation: to submit a petition or directly denounce to competent agencies, organizations and individuals according to the provisions of law; to keep confidential his/her full name, address, handwriting and other personal information; to request competent agencies, organizations and individuals to notify about the acceptance of the denunciation, to notify the transfer of the denunciation to competent agencies for settlement, to notify the results of the denunciation settlement; to continue denouncing when there is reason to believe that the settlement of the denunciation by competent agencies, organizations and individuals is not in accordance with the law or the denunciation has not been settled within the prescribed time limit; to request competent agencies, organizations and individuals to protect him/her when being threatened, retaliated against, or persecuted; to be rewarded according to the provisions of law.
In summary, complaints and complaint settlement must be carried out in accordance with the provisions of law; ensuring objectivity, publicity, democracy and timeliness. [33]. The settlement of denunciations must be timely, accurate, objective, in accordance with the authority, order, procedures and time limits prescribed by law; ensuring the safety of the denouncer; protecting the rights and legitimate interests of the denounced during the process of resolving denunciations [45].
1.1.4 The role and significance of administrative complaint and denunciation settlement activities of state administrative agencies
Complaints and denunciations are a group of political rights of citizens guaranteed and protected by the state through recording those rights in the Constitution and laws and settlement mechanisms.
- Complaints are a way for citizens to use their “rights to protect their rights”, to react and defend themselves against what is considered an infringement of their rights. “Everyone has the right to be protected by law against such interference and infringement”[60]. Citizens use the right to complain to officially request state administrative agencies and competent persons in state agencies to protect their legitimate rights and interests through complaint settlement.
Exercising the right to complain is also a way for citizens to: participate in state management, supervise the implementation of executive power; the situation of administrative complaints and lawsuits also partly reflects the reality of the implementation of public duties by agencies implementing executive power; is an information channel reflecting people's attitudes towards the implementation and administration of state administrative agencies; through the activities of handling administrative complaints, superior agencies have the conditions to inspect, supervise, and evaluate the management activities of subordinate administrative agencies; through the activities of handling administrative complaints, judicial agencies supervise the activities of executive agencies.
In denunciation, citizens use the right to denounce to participate in state management activities. The purpose of denunciation is to detect and prevent illegal acts that infringe upon the rights and interests of the State, collectives, and individuals, and to protect legal order, discipline, and the law of the country. “The denouncer exercises the right to denounce to detect illegal acts, demonstrating the responsibility of a citizen to the common interest” [59, p.248].
1.2. Factors affecting the effectiveness of handling complaints and denunciations and the significance of handling complaints and denunciations
As we know, “The right to participate in state and social management is one of the important political rights that ensures citizens exercise their right to master the state and society according to the viewpoint of “people know, people discuss, people do, people inspect” ... along with the right to directly participate in state management work, citizens have the right to complain and denounce violations of the law by state agencies and civil servants. Complaints and denunciations must be made by state agencies.
The State shall consider and resolve within the time limit prescribed by law (Article 74 of the 1992 Constitution)" [81, p.161]. The right to complain and denounce belongs to the group of political rights of human rights. "It can be seen that the nature of the political regime, political line, and political culture of the ruling party have a great impact on the development or elimination of human rights" [81, p.53).
1.2.1 Factors affecting the effectiveness of handling complaints and denunciations
One is the political regime that affects the effectiveness of complaint settlement activities. "The political regime is considered in relation to the way state power is organized. The political regime is understood as a legal institution or a system of legal norms proposed to solve the problem of organizing and implementing state power (solving problems of state organization and society in general in terms of politics ...)" [40, p.121]. According to Professor Pham Hong Thai: The form of the state (or form) of the state is created by three factors: the form of government, the form of structure and the political regime.
Politics must be linked to human rights, human rights must be given priority in planning and implementing political policies. In contemporary society, politics must be "measured" by social values, especially humanitarian values. ... Therefore, social values themselves require that political power must be limited ... any political measure that violates individual freedom is considered a violation of human rights, illegal and contrary to social ethics.
Thus, in order to protect democracy, political power and state power must be limited and controlled. "State power is unified, with division, coordination and control among state agencies in the implementation of legislative, executive and judicial powers." [21]. "Restraining the potential use and abuse of state power is a challenge for any country. What is even more difficult is to do this without making state agencies lose the flexibility necessary to carry out state work" [18, p.52]. Therefore, "controlling state power is a system of mechanisms implemented
by the state and society to keep the exercise of state power for the right purpose and effectively" [85, p.36].
In Vietnam, the work of handling complaints has always been considered a political task of the entire political system. A clean, strong, effective and efficient political system, especially at the grassroots level, is a condition to prevent social conflicts, complaints and denunciations. In fact, the causes of complaints and denunciations in recent times show that: "Many competent agencies do not promptly and objectively handle complaints and denunciations. Some agencies or officials even deliberately handle wrong policies and regimes, deliberately cover up and show leniency to violations of subordinate organizations and officials for their own motives and purposes. The situation where people have to go to Party and government agencies many times to make complaints and denunciations and complaint and denunciation petitions and letters are pushed around and sent beyond their level is still common. The work of reconciling and handling conflicts and disputes that occur between individuals or groups in the community or village is often left alone by the authorities and organizations, leaving them to “deal with” each other. In some cases, the resolution is not considered and objective, leading to haste and prolonged procrastination.” [83, p.122].
Second, a synchronous, fair, and transparent legal system ensures that citizens and organizations exercise their right to complain and denounce, and that state administrative agencies fulfill their obligation to resolve complaints and denunciations.
Law is a social value, modeled from standard and typical social behaviors. Law recognizes, guarantees, and protects human values, interests, and human freedoms, including citizens' right to complain and denounce. Law on complaints and denunciations is considered to meet the requirements of regulating legal relations between subjects in an effective and efficient manner, reflected in some basic aspects as follows:
The right to complain and denounce must be recognized in the Constitution and laws. Legislative, executive and judicial agencies must respect, guarantee and protect these rights in practice.
The Law on Complaints and Denunciations clearly defines the subjects of complaints and denunciations; clearly defines the authority of the settlement agency. Clearly stipulates the difference between administrative complaints and administrative proceedings; fully stipulates the rights and obligations of complainants and denouncers, as well as the person handling complaints and the person handling denunciations. Fully stipulates the rights and obligations of the person being complained about and the person being denounced; clearly and coherently stipulates the order and procedures for handling complaints and denunciations; and the responsibilities of state agencies in managing the handling of administrative complaints and denunciations. In particular, specific sanctions are provided for violations of rights and obligations in handling complaints and denunciations for strict handling.
Third, economic factors affect the exercise of the right to complain and denounce and the settlement of complaints and denunciations. Economy is the foundation that determines development and has a strong impact on the political and social stability of the country and the conditions for enjoyment of each person, so economic security is one of the important guarantees for citizens to exercise the right to make administrative complaints. When the level of economic development is low and not enough to meet the needs of citizens, then the rights of citizens, even if recognized by law, only exist on paper and are difficult to implement in reality. If the economy develops at a high level, the society is democratic, fair and civilized, the causes of administrative complaints and lawsuits are limited to the lowest level. According to Professor Vo Khanh Vinh, economic causes are the main cause of social conflicts: “Social conflicts in our country originate from and are associated with internal contradictions leading to prolonged and fierce complaints and disputes, mainly about economic and social rights and interests among different segments of the population; between residents and officials in Party organizations and authorities; between local people and agencies, organizations and enterprises related to the rights and interests of the community...” [83, p.88]. Economic and social benefits are concentrated in the following areas: land management and use (the area with the most complaints); management and use of finances, budgets and funds of villages and communes; in mobilizing people's contributions.