A decision is sued while the old law is in effect, a decision is sued after the new law comes into effect.
In 2007, Mr. N. (born in 1942, living in Binh Thanh District, Ho Chi Minh City) applied for a permit to repair his house and raise the third floor of his house. But during construction, Mr. N. discovered that the width of the house is 3.6 m, while the actual width of the house is 3.7 m. Therefore, Mr. N. redrawn the drawing with a width of 3.7 m and continued to build but did not adjust the construction permit he applied for earlier.
Transfer case because of additional lawsuit
During the construction and repair of the house, Mr. N. also received a complaint from the adjacent owner, claiming that his construction encroached on the space of other people’s houses. After receiving handling and inspection results, in September 2008, Binh Thanh District People’s Committee issued Decision No. 6441 on administrative sanctions against Mr. N. and forced demolition of the new construction area. wide beyond the licensed boundary at the third floor with an area of 0.55 m 2 .
Disagreeing with the decision of the District People’s Committee, Mr. N. did not demolish the area deemed illegal by the committee. Therefore, in August 2014, the People’s Committee of Binh Thanh District continued to issue Decision 6209 with the content of enforcing Decision 6441. A month later Mr. N. sued to ask the court to cancel Decision 6209 of the District People’s Committee and the People’s Court of Binh Thanh District. handled the administrative case. The case was in the process of being resolved. On 5-7-2017, Mr. N. filed an additional request to cancel Decision 6441 on administrative sanctions and forced demolition of the extension.
In the recent court hearing on July 28, the People’s Court of Binh Thanh District commented that: On 5-7-2017 (after the effective date of the Administrative Procedure Law 2015), Mr. N. had an additional request. sue to cancel Decision 6441. According to the provisions of Article 32 of the 2015 Law on Administrative Procedures, the authority to settle complaints about administrative decisions of the district-level People’s Committees is that of the provincial-level People’s Courts (different from the 2010 Law on Administrative Procedures, to complain about decisions of the district-level People’s Committees. jurisdiction of the district-level People’s Court).
From the above assessment, the District People’s Court suspended the trial and transferred the case file to the HCMC People’s Court according to Clause 3, Article 165 of the 2015 Law on Administrative Procedures. Specifically, this law stipulates: In case the involved parties present a decision If the new administrative decision is related to the decision under which the lawsuit is instituted and is not within the jurisdiction of the court that is conducting the first-instance trial of the case, the trial panel shall suspend it and transfer it to a competent court.
The district court moved right?
In this case, there are two different views, one opinion is that it is wrong for the district court to transfer the case, while another is that it is right and beneficial for the petitioner.
Lawyer (LS) Trinh Van Hiep (Deputy Chairman of the Quang Nam LS Union) and a procurator of the People’s Procuracy of Ho Chi Minh City shared that this case must continue to be resolved by the District People’s Court according to common procedures.
Pursuant to Clause 5, Article 1 of Resolution No. 104/2015 dated November 25, 2015 of the National Assembly on the implementation of the 2015 Law on Administrative Procedures: “For complaints about administrative decisions and administrative acts of the district-level People’s Committees, If the chairperson of the district-level People’s Committee has been accepted by the district-level People’s Court for settlement before July 1, 2016, the accepted court shall continue the settlement according to general procedures without transferring it to the provincial-level People’s Court for settlement.
According to the above regulations, the People’s Court of Binh Thanh District to suspend the trial and transfer the case file to the City Court for settlement is not in accordance with the law. Because this administrative case was accepted by the People’s Court of Binh Thanh District before the effective date of the Administrative Procedure Law.
LS Hiep analyzed: “It is impossible to understand that the involved parties have additional requirements on 5-7-2017 after the effective date of the 2015 Administrative Procedure Law, then transfer the case. Not to mention that Mr. N.’s addition to the lawsuit claim does not change the first-instance court’s jurisdiction to settle the case.”
However, Mr. Pham Cong Hung (former judge of the Supreme People’s Court) affirmed that transferring the case was not wrong. Because Clause 5, Article 1 of Resolution No. 104/2015 of the National Assembly only applies to a “round” case, that is, the acceptance and settlement does not arise new circumstances and disputes over jurisdiction. This case is quite rare because there are two administrative decisions being sued by the court at two times before and after the 2015 Law on Administrative Procedures took effect.
Therefore, in terms of jurisdiction, there is a conflict of dispute over jurisdiction under one of the cases in Article 34 of the 2015 Administrative Procedure Law (transfer of the case to another court, settlement of disputes over jurisdiction). In addition, it is clear that Mr. N. filed an additional lawsuit asking the court to cancel another decision at the time under the jurisdiction of the provincial People’s Court. At this time, there are two litigants in the case, which are two decisions under the jurisdiction of two different courts. Therefore, there is a basis for transferring to a higher court to accept the settlement.
“I think in this situation the first-instance court applying Clause 3, Article 165 of the 2015 Law on Administrative Procedures to transfer the case to a higher level is correct and reasonable because a new administrative decision has appeared related to the defendant’s decision and does not fall under the jurisdiction of the first instance court,” said Mr. Hung.
Source: According to plo.vn
For support and advice on Business, Investment, Intellectual Property, etc., in the best way, please contact us with the following information:
DHP LAW
Address: L4- 09.OT06 Landmark 4 Building Vinhomes Central Park, 720A Dien Bien Phu, Ward 22, Binh Thanh District, Ho Chi Minh City
