SOME ISSUES IN VIETNAMESE ADMINISTRATIVE LAW ON ADMINISTRATIVE SANCTIONS

ABSTRACT

The Law on Handling of Administrative Violations 2012, amended and supplemented in 2020, is an important legal basis for handling administrative violations and protecting security, order and social safety. However, in practice, some provisions of the Law still have many shortcomings, affecting the quality and effectiveness of law enforcement on handling administrative violations. Especially in some provisions on cases where administrative violations are not handled. Therefore, in this article, the author has made a number of recommendations and proposals to improve the above regulations.

АННОТАЦИЯ

Закон о рассмотрении административных правонарушений 2012 года, измененный и дополненный в 2020 году, является важной правовой основой для рассмотрения административных правонарушений и защиты безопасности, порядка и социальной защищенности. Однако на практике некоторые положения Закона все еще имеют много недостатков, влияющих на качество и эффективность правоохранительной деятельности по рассмотрению административных правонарушений. Особенно в некоторых положениях о случаях, когда административные правонарушения не рассматриваются. Поэтому в данной статье автор сделал ряд рекомендаций и предложений по улучшению вышеуказанных положений.

Keywords: Vietnam, administrative, administrative violations, person, urgent situations, legitimate defense.

Ключевые слова: Вьетнам, административный, административные нарушения, лицо, чрезвычайные ситуации, законная защита.

The 2012 Law on Handling of Administrative Violations of Vietnam, amended and supplemented in 2020, is an important legal basis for handling administrative violations and protecting security, order and social safety. In practice, handling administrative violations is a complex activity that occurs in many management areas and affects many aspects of social life and the rights and interests of individuals and organizations. However, the implementation of the Law on Handling of Administrative Violations shows that some provisions of the Law are still inadequate, affecting the quality and effectiveness of the enforcement of the law on handling administrative violations. Among these provisions are provisions on some cases where administrative violations are not handled.

Article 11 of the Law on Handling of Administrative Violations indicates: “Administrative violations shall not be sanctioned in the following cases: Committing an administrative violation in an emergency situation; Committing an administrative violation due to legitimate self-defense; Committing an administrative violation due to an unexpected event; Committing an administrative violation due to a force majeure event; The person committing the administrative violation does not have the capacity for administrative responsibility; the person committing the administrative violation is not old enough to be sanctioned according to the provisions of Point a, Clause 1, Article 5 of this Law”.

Thus, according to the provisions of Article 11 of the Law on Handling of Administrative Violations, the following cases are not subject to administrative sanctions:

Firstly, persons who commit acts in urgent situations: An urgent situation is a situation that contains a real risk (natural disaster, fire, technical incident, etc.), threatening the interests of the State, organizations, rights, and legitimate interests of individuals. Acting in an urgent situation is sacrificing a small benefit to protect a large benefit. This is not an administrative violation. This regulation is designed to encourage individuals to perform beneficial acts that are in accordance with social requirements. Therefore, this is considered an act that does not violate administrative regulations.

Second, he person performing the act of legitimate defense: Legitimate defense is an action performed by an individual, in accordance with the interests and demands of society. It is an act of protecting the interests of the State, of an organization, the legitimate rights and interests of an individual or of another person, so the person performing the act in this situation is considered not to have committed an administrative violation. If legitimate defense is considered an administrative violation, it contradicts Clause 12, Article 2 of the Law on Handling of Administrative Violations. Accordingly, in this provision, it is determined that this is a legal act of an individual to protect the interests of the State, of an organization, to protect his or her legitimate rights and interests or those of another person...

Third, force majeure event: Force majeure event is an event that occurs objectively, cannot be foreseen and cannot be overcome even though people in that situation have applied all necessary measures within the conditions and capabilities allowed for this unintentional event (flood, earthquake, volcano, war...). This is an objective event that occurs beyond the will of people, under those conditions, the human act is completely without fault.

Fourth, people without administrative responsibility capacity; people under the age of being punished for administrative violations: 1) People without administrative responsibility capacity are people with mental illness or another disease that causes them to lose the ability to perceive and control their behavior (without fault), even though they are of the age to be held administratively responsible; 2) According to the provisions of Point a, Clause 1, Article 5 of the Law on Handling of Administrative Violations, people from 14 to under 16 years old are subject to administrative sanctions for intentional administrative violations; people from 16 years old and above are subject to administrative sanctions for all administrative violations. Thus, people who are under the age of administrative sanctions are those under 14 years old. Determining the age of responsibility for administrative violations is based on the subject's limited ability to perceive and control behavior. Accordingly, the age of administrative responsibility must be consistent with the ability to perceive and control behavior. People under 14 years old are limited in their ability to perceive and control behavior (not at fault), so when committing illegal acts, they will not be punished.

The provisions of Article 11 of the Law on Handling of Administrative Violations are consistent with the legal policies of our State. However, the technique of expressing the content of this Article still has some unreasonable points as follows:

Firstly, the Article uses the phrase “not to impose administrative sanctions for cases... committing administrative violations...”. This means that the person committing the act is considered to have committed an administrative violation but for certain reasons is not subject to administrative sanctions. This understanding is not consistent with the scientific concept of administrative violations, signs constituting administrative violations, administrative responsibilities... Accordingly, administrative violations are always identified as acts that cause damage or threaten to cause damage to the interests of the State, collectives, interests of individuals, common interests of the entire community... this is a harmful act that needs to be eliminated in social life. Thus, it is unreasonable to determine that efforts to avoid a real risk that threatens the interests of the State, of an organization, one's own legitimate rights and interests or those of others, or efforts to protect the interests of the State, of an organization, to protect one's own legitimate rights and interests or those of others but violate the provisions of the law on state management but are not crimes, as administrative violations that need to be eliminated in social life.

Second, when determining an administrative violation, one of the important factors affecting the composition of the violation is the fault factor. Clause 1, Article 2 of the Law on Handling of Administrative Violations indicates: “An administrative violation is an act of fault committed by an individual or organization, violating the provisions of the law on state management…”. Thus, if someone commits an illegal act, is completely normal in terms of cognitive ability and behavioral control, then he or she is considered to be at fault, that illegal act is an administrative violation. On the basis of this principled provision, when prosecuting an individual for administrative liability (punishment), the competent authority must not only rely on the objective act of being illegal, causing damage to society, but must also pay attention to and consider the fault factor of the individual who committed that act.

Without the fault factor, an important element of the subjective aspect constituting the violation, there is no violation. In addition, Clause 13, Article 2 indicates: An unexpected event is an event that an individual or organization cannot foresee or is not required to foresee the consequences of a socially harmful act caused by them; Clause 14, Article 2 indicates: A force majeure event is an event that occurs objectively, cannot be foreseen and cannot be overcome despite the application of all necessary measures and capabilities; Clause 15, Article 2 indicates: A person without administrative responsibility is a person who commits an administrative violation while suffering from a mental illness or another disease that causes loss of cognitive ability or ability to control his or her behavior. Thus, an individual in this state (loss of capacity for conduct) who commits an illegal act is also considered a violation because of the lack of a fault element. An act that is illegal to administrative law is not the same as an administrative violation. An administrative violation must be illegal in nature, causing damage to society, and committed by a subject with capacity for conduct. In theory, administrative responsibility capacity is made up of cognitive ability, behavioral control, and age of responsibility. Without one of these conditions, there can be no administrative responsibility capacity.

Therefore, the provisions of Article 11 of the Law on Handling of Administrative Violations have not yet reflected the following requirements: 1) An act that a person is allowed to perform when there is a legal basis confirming the legality of that act cannot be considered an administrative violation. In other words, legally, any act that is not against the law and is allowed to be performed is not an administrative violation; 2) Objectively, an act performed by a person, although it may cause damage in reality, but in terms of subjective factors, that person has chosen a way of behaving that is appropriate to the requirements and demands of society as prescribed by law, so there is no fault. These are circumstances that eliminate the danger to society of the act; 3) An administrative violation is against administrative law, but not every act that is against administrative law is an administrative violation if the person performing the act loses the ability to perceive and control the act. From the above sections, it can be seen that administrative acts stipulated in Article 11 of the Law on Handling of Administrative Violations are acts that are in accordance with social interests, are not dangerous, and therefore, in terms of form, are not against the law.

Proposal to improve the Law on Handling of Administrative Violations of Vietnam:

First, amend clauses 1, 2, 3, 4, Article 11 of the Law on Handling of Administrative Violations in the direction of not defining the acts in these clauses as administrative violations. Accordingly, clauses 1, 2, 3, 4 are rewritten as follows: “No administrative sanctions shall be imposed in the following cases: 1. Committing an act in an emergency situation; 2. Committing an act due to legitimate self-defense; 3. Committing an act due to an unexpected event; 4. Committing an act due to a force majeure event”.

Second, amend clause 15, Article 2, clause 5, Article 11 of the Law on Handling of Administrative Violations to ensure consistency with the provisions of clause 1, Article 2 on the fault element in administrative violations. Accordingly, Clause 15, Article 2 is rewritten as follows: “A person without administrative responsibility capacity is a person who commits an act while suffering from a mental illness or other illness that causes loss of ability to perceive and control his or her behavior”; Clause 5, Article 11 is rewritten as follows: “A person who commits an act without administrative responsibility capacity; a person who commits an act under the age of being administratively sanctioned according to the provisions of Point a, Clause 1, Article 5 of this Law”.

References:

1. Law on Handling of Administrative Violations of the Socialist Republic of Vietnam 2012 / URL: https://www.wipo.int/wipolex/en/legislation/details/17209  (date of application: 23.08.2024);
2. Law amending and supplementing a number of articles of the Law on Handling of Administrative Violations of the Socialist Republic of Vietnam, 2020/ URL: https://english.luatvietnam.vn/law-no-67-2020-qh14-amending-and-supplementing-a-number-of-articles-of-the-law-on-handling-of-admini-195559-doc1.html  (date of application: 23.08.2024);
3. Textbook of Vietnamese Administrative Law, Truth Publishing House, 2022.