Decree 43/2023/ND-CP guiding the Law on Inspection

On June 30, 2023, the Government issued Decree 43/2023/ND-CP guiding the Law on Inspection.

Full text of Decree 43/2023/ND-CP guiding the Law on Inspection promulgated by the Government

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Basic information of Decree 43/2023/ND-CP

Basic information about Decree 43/2023/ND-CP issued by the Government Guidance on the Law on Inspection includes:

Contents of guidance on the Law on Inspection under Decree 43/2023/ND-CP

Decree 43/2023/ND-CP was developed with 10 Chapters and 70 Articles detailing a number of articles of the Law on Inspection and measures to implement the Law on Inspection.

Subjects of application of the Decree

Decree 43/2023//ND-CP clearly states that the subjects of application of the Decree include the following subjects:

• State management agencies, heads of state management agencies;
• Agencies performing the inspection function, heads of agencies performing the inspection function;
• Heads of inspection teams, members of inspection teams, inspectors;
• Agencies, organizations and individuals that are subject to inspection and agencies, organizations and individuals involved in inspection activities;
• Heads of government agencies, public non-business units and persons doing internal inspection.

Regulations on inspectors

Decree 43/2023/ND-CP concretizes the provisions in the Law on Inspection on inspectors who are assigned to perform specialized inspection tasks, and at the same time inherits relevant provisions of Decree No. 97/2011/ND-CP regulates inspectors and inspection collaborators, a number of detailed regulations include:

• Inspector means a person appointed to the rank of inspector to perform tasks and exercise powers in inspection activities in accordance with law. Codes of civil servant inspection ranks include: Senior Inspector (code: 04.023), Chief Inspector (code: 04.024), Inspector (code: 04.025).
• Inspectors are entitled to a responsibility allowance according to the Inspector’s profession equal to 25% of the current basic salary plus the allowance for the leadership position and the allowance for overtimes beyond the bracket (if any); Principal Inspectors enjoy 20% and Senior Inspectors enjoy 15%.
• Ministers, heads of ministerial-level agencies, chairpersons of People’s Committees of provinces and centrally run cities shall appoint inspectors (Inspectors) and principal inspector (Principle Inspectors) ranks according to their competence; appointed Senior Inspector (Principle InspectorsC) after obtaining the consent of the Ministry of Affairs.

Consider raising the rank of Inspector

According to the provisions of Decree 43/2023/ND-CP, Inspectors who fully satisfy the criteria and conditions specified in Articles 39, 40 and 41 of the Law on Inspection shall be considered for rank promotion in the following cases:

• Having outstanding achievements in public service activities during the time of holding the current civil servant rank, recognized by a competent authority;
• Appointed to hold leadership and management positions in association with the requirements of the job position.

In addition, regulations on requirements for outstanding achievements in public service activities:

• For raising the rank from the rank of Inspectors to the rank of Principle Inspectors: to be rewarded with the Third Class Labor Medal or higher or to win the title of Emulation Soldier at the ministerial, branch, provincial or central mass organizations;
• For raising the rank from the rank of Principle Inspectors to the rank of Senior Inspectors: to be rewarded with the First-class Labor Medal or win the title of National Emulation Soldier.

Appointment of inspection ranks according to the transfer procedures

Decree 43/2023/ND-CP stipulates the appointment of inspection ranks according to the transfer procedure as follows: Persons who are working in inspection agencies and fully meet the conditions and professional standards specified in Article 39 , 40 and 41 of the Law on Inspection shall be considered for transfer of ranks for appointment to inspection ranks, specifically as follows:

• If you are an expert or an equivalent title, you will be considered for rank transfer and appointment to the rank of Inspectors;
• In case of being a main expert or equivalent title, consider transferring and appointing to the rank of Principle Inspectors;
• If you are a senior expert or an equivalent title, you will be considered for rank transfer and appointment to the rank of Senior Inspectors.

Examination to raise the rank of Inspector

Requirements for inspectors taking the exam for promotion to Principle Inspectors include:

• Being graded at the level of completing tasks well or higher in the working year immediately preceding the year of competition for rank promotion; have good political and moral qualities; not within the time limit for disciplinary action, not during the implementation of regulations related to discipline as prescribed by the Law on Cadres and Civil Servants;
• Having the capacity, professional qualifications and skills to take on a job position corresponding to the rank of civil servant higher than that of the civil servant currently held;
• Having worked in the rank of Inspectors and the equivalent for at least 9 years, except for cadres, civil servants, public employees, officers of the People’s Army, officers of the People’s Public Security, people working on ciphers working in other agencies, organizations or units and holding the ranks of civil servants and public employees, or holding the same rank as Principle Inspectors, shall be transferred to the inspection agency. If the period is equivalent to the rank of Inspectors, the period of holding the rank of Inspectors shall be at least 01 year (full 12 months);
• During the time holding the rank of Inspectors and equivalent, has participated in the development and appraisal of at least 01 legal document or the subject, scheme, project, scientific research program at Inspectors level or higher that the institution the agency using and managing the plant, which is assigned to assume the prime responsibility for research and construction, has been promulgated or accepted by competent authorities;
• Have a university degree or higher; have a certificate of professional training in Principle Inspectors; have a certificate of state management knowledge training according to the standard of the main expert rank or have an advanced degree in political – administrative theory;
• Having basic information technology skills, using foreign languages at a level equivalent to level 3 of the Vietnamese Foreign Language Competency Framework or using ethnic minority languages for civil servants working in ethnic minority areas number required by the job position.

Requirements for Principle Inspectors to take the exam to raise the rank to Senior  Inspectors, in addition to meeting the conditions and standards for the level of task completion and capacity, professional and professional qualifications, also need to have worked time in the rank of Principle Inspectors and equivalent to at least 06 years, except for cadres, civil servants, public employees, officers of the People’s Army, officers of the People’s Public Security, people doing cipher work working in agencies or organizations, other units and are holding the rank of civil servant or public employee, the rank equivalent to the rank of Senior Inspectors shall be transferred to the inspection agency.

During the time holding the rank of Principle Inspectors and equivalent, he has presided over the development and appraisal of at least 02 legal documents or topics, schemes, projects, scientific research programs at the state, ministerial or branch levels or at the provincial level, which the agency using Principle Inspectors is assigned to lead the research and construction, which has been promulgated or accepted by a competent authority. Have a university degree or higher; have an advanced diploma in political theory or an advanced degree in political – administrative theory; have a certificate of professional training for Senior Inspectors; have a certificate of state management knowledge training according to the standards of the senior specialist rank. Having basic information technology skills, using foreign languages at a level equivalent to level 4 of the Vietnamese Foreign Language Competency Framework, or using ethnic minority languages for civil servants working in ethnic minority areas number required by the job position.

Grounds for re-inspection

Decree 43/2023/ND-CP stipulates that the specific re-inspection grounds are as follows:

• There were serious violations of the order and procedures during the inspection, leading to deviations in the contents of the inspection conclusions, including: Failure to develop and send the outline to request the inspected subjects to report; failing to collect information and documents related to inspection contents; failing to check or verify information and documents; there is no report on the inspection results of the inspection team.
• There are errors in the application of law when making inspection conclusions, including: Improper application of the law or application of an expired legal document, leading to a deviation in the content of the inspection conclusion.
• The contents of the inspection conclusions are not consistent with the evidences collected during the inspection, leading to an incorrect assessment, aggravation, mitigation or omitting illegal acts of the inspected subjects. Investigate or recommend handling that is inconsistent with the nature and extent of the detected violations.
• The person conducting the inspection intentionally falsifies the case file is the act of adding, removing, modifying, exchanging, destroying or damaging the information, documents and evidences of the inspection or by other tricks in order to falsify the contents of the case file.
• The superior inspection agency or other competent agency detects signs of law violation by the inspected subject but has not yet been fully detected through inspection according to the contents stated in the inspection decision, the plan to proceed with the inspection of the previous inspection team.

Regarding the authority to re-inspect, Decree 43 stipulates that the Government Inspector General shall decide to re-inspect the case with the conclusion of the Ministry Inspector, the inspection agency of the Government-attached agencies, and the Provincial Inspectorate upon discovery signs of breaking the law.

The Chief Inspector of the Ministry shall decide to re-inspect the case with conclusions from the Inspector General of the General Department, the Inspectorate of the Department and the equivalent, of other agencies of the Ministry assigned to perform the specialized inspection function; The case has been concluded by the Department Inspector under the ministry’s state management when detecting signs of law violation.

The Chief Inspector of the province shall decide to re-inspect the administrative inspection case which has been concluded by the Department Inspector, the Inspector of the district, town, provincial city, city under the central authority when detecting signs of law violation.

The time limit for re-inspection is no more than 45 days for an inspection conducted by the Government Inspectorate and not more than 30 days for an inspection conducted by the Inspectorate of the Ministry or the Inspectorate of the province.

Regulations on the inspection team

If an inspection team is established by the Chief Inspector of the Ministry, the Chief Inspector of an agency attached to the Government, or the Chief Inspector of a province, the head of the inspection team must be a principal inspector or higher.

The Decree stipulates that the composition of the inspection team includes: Head of inspection team, deputy head of inspection team (if necessary), member of inspection team.

The head of the agency or unit assigned to preside over the inspection shall propose a person with professional qualifications suitable to the requirements of the inspection to be the head of the inspection team, deputy head of the inspection team, and the number of people participating in the inspection team for inspection decision makers to consider and decide.

The head of the agency or unit assigned to preside over the inspection shall discuss and reach an agreement with the person expected to be the head of the inspection team on who is expected to be the member of the inspection team. The proposal of the head and members of the inspection team must be notified to the unit managing and directly employing the proposed person, the unit in charge of organizational work, officials and persons expected to be members of the inspection team.

The head of the inspection team must meet some general criteria such as:

• Having good moral qualities, sense of responsibility, integrity, honesty, fairness and objectivity;
• Having professional qualifications suitable to the requirements and tasks of the inspection; knowledgeable about inspection operations;
• Ability to analyze, evaluate and synthesize issues related to the contents and areas to be inspected;
• Ability to organize, administer and guide members of the inspection team to perform assigned inspection tasks.

In addition, if an inspection team is established by the Government Inspector General, the head of the inspection team must be a principal inspector or higher; If an inspection team is established by the Chief Inspector of the Ministry, the Chief Inspector of an agency attached to the Government, or the Chief Inspector of the province, the head of the inspection team must be a principal inspector or higher; If an inspection team is established by the Chief Inspector of the General Department or Department of the Ministry, the head of the inspection team must be an inspector or higher; If the inspection team is established by the Chief Inspector of the department or the chief inspector of the district, the head of the inspection team must be an inspector or higher.

Thus, unlike the provisions of the 2010 Law on Inspection, civil servants who have not been appointed to the rank of inspectors at agencies performing the specialized inspection function are not allowed to be heads of inspection teams; A civil servant who is a department head or deputy or holds a higher leadership or managerial position at an inspection agency but has not been appointed to the rank of chief inspector, is also not allowed to be the head of an inspection team.

Persons not allowed to join the inspection team

Decree 43/2023/ND-CP stipulates that Persons in one of the following 04 cases may not participate in the inspection team:

• Persons who contribute capital to enterprises and hold shares in enterprises are subject to inspection, unless otherwise provided for by law;
• The person whose spouse, father, mother, child, brother or sister is the head, the deputy of the head, the person in charge of personnel organization, accounting, treasurer, storekeeper. in agencies, organizations and units being inspected;
• Persons being considered for disciplinary action or being examined for penal liability;
• Persons who are disciplined or criminally handled without the expiration of the time limit for disciplining or criminal record remission.

Handling of violations in the implementation of inspection conclusions

According to Decree 43, depending on the nature and seriousness of the violation, the person who commits violations in the implementation of inspection conclusions must be disciplined in one of the forms of reprimand, warning, dismissal towards officials; reprimand, warn, lower salary grade, demotion, dismissal or force termination of civil servants; reprimand, warn, dismiss or force quit public employees or be examined for penal liability. In case of causing damage, they must pay compensation in accordance with law when committing acts such as:

• Failing to monitor, urge and inspect the implementation of inspection conclusions or fail to fulfill the responsibility of monitoring, urging and inspecting the implementation of inspection conclusions;
• Failing to recommend measures to handle responsibility for agencies, organizations and individuals that commit violations in the implementation of inspection conclusions;
• Failure to perform, incompletely or untimely performance of their obligations and responsibilities are recorded in inspection conclusions and handling decisions on inspection.

If the violators are not cadres, civil servants or public employees, they shall, depending on the nature and severity, be administratively sanctioned or examined for penal liability in accordance with law.

Heads of agencies or organizations directly managing inspected subjects being cadres, civil servants or public employees who commit violations shall be disciplined in the following forms:

• Reprimand; warning, dismiss cadres;
• Warning, lowering salary grades, demotion, dismissal or forced resignation of civil servants;
• Warn, dismiss, force quit the public employees or be examined for penal liability. In case of causing damage, compensation must be paid in accordance with law.

If they are not cadres, civil servants or public employees, they shall, depending on the nature and severity of their violations, be administratively sanctioned or examined for penal liability. the law.

Other regulations

In addition to the above provisions, Decree 43 also provides specific instructions on the order and procedures for assessment, freezing of accounts, and recovery of assets that have been illegally appropriated, seized, used or lost. in inspection activities; Publicizing inspection conclusions, monitoring, urging and examining the implementation of inspection conclusions and handling decisions on inspection; The settlement of recommendations, reflection on inspection activities, settlement of complaints about the contents of the inspection conclusions.

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