Resolving land complaints in Thanh Tri district, Hanoi city

Current status of law enforcement in resolving land complaints in Thanh Tri district.

4. Research situation

Land complaints and settlement of land complaints from the perspective of law and research are no longer new issues. There have been many research works on this issue published, some of which are typical: 1. Summary report: The issue of dialogue in settling administrative complaints by Dr. Nguyen Tien Binh - Deputy Head of the Department of Reception and Handling of Petitions of the Government Inspectorate, 2005; 2. Land law issues that foreign enterprises need to pay attention to when investing in Vietnam, Law Journal No. 11, 2009; 3. Building a process for settling administrative complaints by Dr. Ngo Manh Toan - Vice Principal of the School of Inspectorate Cadres, 2005;

However, the above works research and study the law on complaints in general and land complaints in particular...

5. Structure of the Thesis

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In addition to the introduction, conclusion and list of references, the thesis is divided into 3 chapters:

Chapter 1: Theoretical basis of complaints and complaint settlement in the land sector.

Chapter 2: Current status of applying the Law on resolving land complaints through administrative agencies in Thanh Tri district.

Chapter 3: Viewpoints and solutions to improve the law and improve the effectiveness of resolving land complaints through research on the current application in Thanh Tri district, Hanoi city.

Chapter 1‌‌

THEORETICAL BASIS OF COMPLAINTS AND COMPLAINT RESOLUTION IN THE LAND FIELD

1.1. COMPLAINTS AND RIGHTS TO COMPLAINT

1.1.1. Concept of complaint

Complaints are one of the basic rights of citizens as recognized in Article 74 of the 1992 Constitution:

Citizens have the right to complain and denounce to competent State agencies about illegal acts of State agencies, economic organizations, social organizations, people's armed forces units or any individual.

Complaints and denunciations must be considered and resolved by State agencies within the time limit prescribed by law.

Any act of infringement upon the interests of the State, the rights and legitimate interests of collectives and citizens must be promptly and strictly handled. The injured person has the right to material compensation and restoration of honor.

It is strictly forbidden to take revenge on complainants or denouncers or to abuse the right to complain and denounce to slander or falsely accuse others [12].

In addition to the Constitution, citizens' right to complain is specified in the Law on Complaints and many documents guiding its implementation. Regulations on complaints and complaint settlement have created a legal basis for people to protect their rights and interests.

Complaints are understood as a phenomenon arising in social life as a human reaction to a certain decision or behavior.

The complainant believes that the decision or action is inconsistent with the rules and standards of community life and infringes upon his or her legitimate rights and interests. Complaints are the rights and actions of entities such as state agencies, organizations and individuals.

From a legal perspective, Clause 1, Article 2 of the 2011 Law on Complaints stipulates: Complaints are when citizens, agencies, organizations or officials,

Civil servants, in accordance with the procedures prescribed by this Law, may request competent agencies, organizations or individuals to review administrative decisions, administrative acts or disciplinary decisions against civil servants when there is reason to believe that such decisions or acts are illegal and infringe upon their legitimate rights and interests [20, p. 96] .

Different from denunciation, complaint is a request of an individual, agency, organization or civil servant who is directly affected by an administrative decision, administrative act or disciplinary decision of a civil servant, requesting the competent agency, organization or individual to review the administrative decision or administrative act that is the subject of the complaint. This request comes from the subjective perception of the complainant towards the administrative decision or administrative act that directly affects them. That perception may be right or wrong, it can only be concluded when an individual or state agency with the authority to resolve the complaint conducts verification, objectively and carefully considers based on existing documents and evidence and draws a conclusion.

From the perspective of civil rights, complaints are the actions of citizens themselves to protect their legitimate rights and interests when they are violated by state agencies or competent individuals through administrative decisions or administrative acts they issue or perform. Similar to the rights to labor, study, ownership, freedom of belief and religion of citizens, the right to complain of citizens is recognized and guaranteed by the State.

The complaint has the following characteristics:

Regarding the subject: The subject of the complaint can be an agency, organization, individual, or civil servant who is dissatisfied with a decision or administrative act of a state agency. Previous legal documents only stipulate the right to complain of citizens but do not stipulate the right to complain of agencies and organizations. Through practical research, not only citizens but also economic and social organizations are affected by administrative decisions and administrative acts. At the same time, in the process of state management, state agencies also have administrative decisions and administrative acts that affect the activities of other state agencies. Therefore, Clause 4, Article 2 of the 2011 Law on Complaints stipulates that agencies and organizations with the right to complain include: state agencies, political organizations, socio-political organizations, social organizations, socio-professional organizations, economic organizations, and people's armed forces units. Complaints of agencies and organizations are made through the legal representative of that agency or organization.

As an individual citizen, every citizen has the right to complain, including those whose civil rights are restricted, except in cases where their citizenship is revoked. However, citizens can only complain when they are directly affected by the administrative decision or administrative act being complained about, and they must have full civil capacity as prescribed by law.

Regarding the subject being an agency or organization, not any subject being an agency or organization has the right to complain, but only the agencies and organizations specified in Clause 4, Article 2 of the Law on Complaints have the right to complain. The complaints of these subjects must be made through their legal representatives, not the entire agency or organization gathering together to complain. The regulation of the right to complain of the group of subjects being agencies and organizations aims to ensure the equality of this group of subjects in relation to other subjects.

Thus, the general characteristics of the subject of the complaint are that he must have full capacity for action and must be the subject directly affected by the administrative decision, administrative act or be a person legally authorized by the subject of the complaint. Special subjects authorized to make complaints include complainants who are sick, old, have physical disabilities or for objective reasons cannot make a complaint themselves, then authorize their parents, spouses, brothers, sisters, adult children or other people to make a complaint. For complainants who are minors, people with mental illness or diseases that prevent them from being aware of or in control of their behavior, their legal representatives are authorized to make complaints on their behalf. Authorized subjects when participating in complaints have full rights and obligations of complainants.

Subject of complaint: Article 2 of the 2011 Law on Complaints stipulates that the subject of complaint is an administrative decision or administrative act of a state administrative agency, of a competent person in a state administrative agency, or a decision to discipline a civil servant.

If an illegal decision or action of a state agency or state employee in the performance of his or her duties causes direct damage to the rights and interests of anyone, that person has the right to file a complaint with a competent state agency to request a review of that decision or action.

An administrative decision is understood as a document issued by a State administrative agency or by a competent person in a State administrative agency, applied once to one or several specific subjects on a specific issue in State management activities. Clause 1, Article 3 of the Law on Administrative Procedures stipulates: An administrative decision is a document issued by a State administrative agency, another agency or organization, or a competent person in such agencies or organizations, deciding on a specific issue in State management activities.

Administrative management is applied once to one or more specific subjects.

Thus, an administrative decision must include all three elements:

- About the form of expression in written form

- The issuing entity is the state administrative agency or the competent person in the issuing state administrative agency.

- In terms of legal effect, it is a decision that is applied once to one or several specific subjects. In other words, an administrative decision is an individual decision, with a specific, clear and individual scope of regulation and subject of regulation. The validity of this decision will end when the subject of regulation implements the decision [31].

It can be seen that, compared with the provisions of the 1998 Law on Complaints and Denunciations, amended and supplemented in 2004 and 2005, the provisions of the 2011 Law on Complaints on administrative decisions have different understandings. According to the old Law on Complaints and Denunciations, administrative decisions must be in writing. The provisions of the 2011 Law on Complaints on administrative decisions have a broader connotation, including not only documents issued in the form of a decision but also documents that, although not in the form of a decision, contain provisions affecting the rights and legitimate interests of individuals, agencies and organizations. Thus, administrative decisions under the provisions of the Law on Complaints can be decisions, notices, conclusions, official dispatches. In essence, administrative decisions express the unilateral will and power of individuals and state agencies with the authority to decide on a certain issue while performing state management activities. These decisions are issued in accordance with the procedures prescribed by law.

Administrative acts: according to the provisions of Clause 9, Article 2 of the 2011 Law on Complaints: "Administrative acts are acts of state administrative agencies.

"Administrative acts are acts of state administrative agencies, other agencies and organizations, or of competent persons in such agencies and organizations, when performing or failing to perform their duties and public services as prescribed by law." Clause 2, Article 3 of the Law on Administrative Procedures stipulates: "Administrative acts are acts of state administrative agencies, other agencies and organizations, or of competent persons in such agencies and organizations, when performing or failing to perform their duties and public services as prescribed by law." Thus, unlike administrative decisions that must be expressed in writing, administrative acts are expressed by actions that are incorrect or contrary to the provisions of law, and can also be acts of failure to perform public services that they must perform according to the provisions of law. Compared to the Law on Complaints and Denunciations 1998, the provisions on administrative acts of the Law on Complaints 2011 have added provisions on administrative acts. According to current regulations, administrative acts include the performance or non-performance of duties and public services by state administrative agencies or competent persons in state administrative agencies, not just the performance of duties and public services as stipulated in the old Law on Complaints and Denunciations.

An act is an administrative act when it has the following characteristics:

- Behavior is expressed in the form of action or inaction. State administrative agencies or competent persons in state administrative agencies act in a manner inconsistent with the provisions of law or they do not act in a manner inconsistent with the provisions of law regarding the duties and responsibilities they must perform when performing their assigned duties and public services.

- The subject performing the administrative act is the administrative agency or the competent person in the state administrative agency.

- Administrative acts are the subject of complaints when they are made by state administrative agencies or competent persons in administrative agencies.

The state performs while performing duties and public services as prescribed by law.

- Administrative acts are only legally effective once and are not applicable in other cases.

A disciplinary decision is “a written decision of the head of an agency or organization to apply one of the forms of discipline to a cadre or civil servant under his or her management in accordance with the provisions of the law on cadres and civil servants” [20, p. 97]. These decisions do not include disciplinary decisions against salaried employees in accordance with the provisions of the Labor Code, disciplinary decisions in agencies and units of the People's Public Security Forces, the People's Army, as well as disciplinary decisions of political organizations and socio-political organizations.

Thus, the subject of a complaint is an illegal decision or action that directly causes damage to the complainant when an individual or competent state agency performs state management activities. When a citizen exercises his or her right to complain, the citizen is actually providing the competent state agency with documents and evidence proving the violation of the state agency or the competent person in the state agency against the citizen. The competent agencies resolve the complaint based on the documents and evidence provided by the complainant and at the same time verify and collect information from different sources as a basis for resolving the complaint.

However, not all administrative decisions and administrative acts that are complained about are accepted for settlement. They are only accepted for settlement by competent state agencies when such administrative decisions and administrative acts do not fall into the following cases: administrative decisions and administrative acts within state agencies to direct and organize the implementation of tasks,

Resolving land complaints in Thanh Tri district, Hanoi city - 2

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