The petitioner withdraws the lawsuit petition or appeal before the appellate court of the administrative case

In practice, problems arise in the decision to terminate the settlement of an administrative case that is appealed or protested against, then the plaintiff withdraws the lawsuit petition, the appellant withdraws the appeal petition, the Procuracy withdraws the protest, the Court shall grant the appellate court shall base on which law provisions to settle appropriately.

                                    Image for illustration purposes only (Internet source)

The withdrawal of the lawsuit petition before the court hearing or at the appellate court hearing of an administrative case is specified in Article 234 of the Law on Administrative Procedure 2015. Accordingly, the case where the plaintiff withdraws the lawsuit petition before opening the hearing the appellate court and is agreed by the defendant, and at the same time the appellant also withdraws the appeal, the appellate trial panel shall issue a decision to cancel the first-instance judgment and stop the settlement of the case.

However, if the decision to suspend the settlement of an administrative case is appealed or protested against, then the petitioner withdraws the lawsuit petition, the appellant withdraws the appeal petition, and the Procuracy withdraws the protest, then problems have arisen in the settlement. decide.

The author points out and analyzes the following specific case to clarify the shortcomings of the 2015 Law on Administrative Procedures in this regard.

On April 7, 2017, Ms. Hoang Thi C sent a petition to the People’s Court of District T asking the Court to order the People’s Committee of Commune V, District T to stop the violation and to organize a land dispute mediation for Ms. Thi C and Mr. Nguyen Van M in accordance with the law.

Ms. C’s petition was accepted and settled by the People’s Court of District T. On June 30, 2017, the People’s Court of District T, based on Point dd, Clause 1, Article 123 of the Law on Administrative Procedures, suspended the settlement of the case on the grounds that Ms. C did not have the right to initiate a lawsuit. The decision to suspend was appealed by Mrs. C.

At the appellate level, Ms. C made an application to withdraw the lawsuit petition, withdrew the appeal and was accepted by the defendant. However, according to the provisions of Clause 5, Article 243 of the Law on Administrative Procedures on appellate procedures for the first-instance Court’s decision which is appealed, the Trial Panel has only one of the following rights: (a) Uphold the decision decision of the Court of First Instance; b) Amendment of the first-instance court’s decision; c) Cancel the decision of the first-instance court and transfer the case file to the first-instance court for further settlement of the case.

Because Clause 5, Article 243 of the Law on Administrative Procedures does not stipulate the right of the Trial Panel to annul the first-instance decision and suspend the settlement of the case (similar to the provisions in Clause 1, Article 234 for the appealed first-instance judgment). , protest) so when meeting the above case, the Court has no legal basis to apply the settlement. In this case, the Appellate Trial Panel shall apply the provisions of Clause 1, Article 234 of the Law on Administrative Procedures to cancel the first-instance decision and terminate the settlement of the case or based on Ms. C’s withdrawal of the appeal to terminate the trial. Appeal? Or based on point c, Clause 5, Article 243 of the Law on Administrative Procedures to cancel the first-instance decision, transfer the file to the first-instance level for re-handling the case, and then suspend the settlement of the case at the first-instance stage?

In essence, all three cases above are suspension (terminal termination) for the case, but the legal consequences of these suspension cases are completely different.

In the first case, annulling the first-instance decision and suspending the settlement of the case, Ms. C is entitled to re-initiate the administrative case if the case still has a statute of limitations for initiating a lawsuit; in the second case, based on Ms. C’s withdrawal of the appeal to suspend the settlement according to appellate procedures (that is, determining the first-instance’s suspension decision on the grounds that Ms. C has no right to initiate a lawsuit against administrative law is grounded), Ms. C has no right to initiate a lawsuit again; In the third case, canceling the first-instance decision, transferring the file to the first-instance level for re-handling and then suspending it at the first-instance stage, the procedure both drags on, prolongs the time to settle the case, and affects the case at the same time. to the work performance of the Judge because it is related to the rate of judgment cancellation and correction when considering re-appointment as well as the annual emulation performance.

According to the author’s point of view, the right to decide and self-determination of the plaintiff is stipulated in Article 8 of the Law on Administrative Procedures, the Court only accepts to settle the administrative case when there is a lawsuit petition. During the settlement of the case, the plaintiff has the right to change, supplement or withdraw the lawsuit claim at any stage of the proceedings, whether it is a judgment or decision being appealed or protested against. But the Law on Administrative Procedures does not stipulate that the Trial Panel is entitled to annul the first-instance decision and suspend the settlement of the case, which is incomplete, causing difficulties and confusion for the Court in the settlement process for the case mentioned in the case above. example above.

Therefore, it is thought that the Supreme People’s Court and the Supreme People’s Procuracy should soon have specific instructions for the uniform application of the law.

Source: According to kiemsat.vn

 

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Post Author: Nguyen Thi Tam