Summary of philosophy of law doctor’s thesis: Improving legals on state audit to meet requirements on building the socialist law state of Vietnam

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The purpose of the thesis: On the basis of theoretical research and assess the status of the state audit law, the thesis proposes perspectives and solutions to improve the law on state audit meet the requirements of building the Socialist law state today.

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Nội dung Text: Summary of philosophy of law doctor’s thesis: Improving legals on state audit to meet requirements on building the socialist law state of Vietnam

ACADEMY OF PUBLIC ADMINISTRATION NATIONAL POLITICS HOCHIMINH DANG VAN HAI IMPROVING LEGALS ON STATE AUDIT TO MEET REQUIREMENTS ON BUILDING THE SOCIALIST LAW STATE OF VIETNAM Specialisation : Theory and History of State and Law Code : 62 38 01 01 SUMMARY OF PHILOSOPHY OF LAW DOCTOR’s THESIS Hμ Néi - 2014
The work was completed at the Academy of Public Administration National Politics Ho Chi Minh Danh môc c«ng tr×nh cña t¸c gi¶ 1. Ch¨n Seng Phim Ma V«ng (2003), "Xu h−íng ph¸t triÓn th−¬ng m¹i Instructor: Pro, Sc.Ph.D. vÊn Tri Uc quèc tÕ hiÖn nay vµ nh÷ng Dao ®Ò ®Æt ra víi c¸c n−íc chËm ph¸t triÓn", T¹p chÝ Gi¸o dôc lý luËn, sè 4 (73), tr.34-36. Reviewer 1: 2. Ch¨n Seng Phim Ma V«ng (2003), "§Þnh h−íng vµ gi¶i ph¸p ®Èy m¹nh xuÊt khÈu cña Lµo trong nh÷ng n¨m tíi", T¹p chÝ Th−¬ng m¹i, (20), Reviewer 2: tr.12-13. 3. Ch¨n Seng Phim Ma V«ng (2003), "Quan hÖ th−¬ng m¹i song ph−¬ng Reviewer 3: Lµo - ViÖt Nam vµ vÊn ®Ò ®Æt ra", T¹p chÝ Quèc phßng toµn d©n, (7), tr.78-80 + tr.65. The thesis will be defended before the Board of Academy of Public Administration National Politics Ho Chi Minh 4. Ch¨n Seng Phim Ma V«ng (2003), "§µo t¹o, båi d−ìng ®éi ngò c¸n bé qu¶n lý nhµ n−íc vÒ hour On th−¬ng m¹i Lµo hiÖn nay - Ph−¬ng h−íng vµ gi¶i 2014 ph¸p", T¹p chÝ LÞch sö §¶ng, (7), tr.56-59. Thesis can be found at: National Library and Library of Academy of Public Administration National Politics Ho Chi Minh
1 INTRODUCTION 1. Nessity of topics Platform for national construction in the transitional period to socialism (supplemented and developed in 2011) has stated: "State power is unity; the assignment, coordination and control among the agencies in the implementation of the legislative, executive and judiciary". It has shown to be required to strengthen the Party's control of state power, in order to enhance effectiveness and efficiency enforcement of state power. To enhance the control of state power at the request of the party, should have the tools to control the effectiveness and efficiency, including the State Audit Office. With its position as the bodies of state financial inspection by the National Assembly to establish, operate independently and only obey the law, state audit testing tools will be most effective financing of the State for all agencies, organization, management units, funded, state money and property, particularly in terms of the Party and State are stepping up the fight against corruption and waste in Vietnam today. State audit activities in Vietnam over time there have been important developments, however, have yet to meet the requirements of the construction and development of the country, especially the construction requirements socialist law State of the people, by the people and for the people. One of the reasons for this situation is due to the provisions of the law on state audit in Vietnam are still many limitations and shortcomings. Therefore, the research on improving the legal auditing is matters urgency both theory and practice in Vietnam, in order to enhance the performance of the SAV. 2. Subjects and scope of the Thesis 2.1. Subjects of the Thesis The object of the thesis is legal on the state audit in Vietnam; principles, auditing standards of INTOSAI and the law on state audit of some countries around the world. 2.2 . Scope of the Thesis The thesis studied the provisions of the state audit law over time, and guidelines and regulations to implement the State Audit Law in the relevant legal documents from the State Audit Office was established (11/07/1994) to date. 3. The purpose and mission of the Thesis 3.1 . The purpose of the Thesis On the basis of theoretical research and assess the status of the state audit law, the thesis proposes perspectives and solutions to improve the law on state audit meet the requirements of building the Socialist law state today. 3.2. The mission of the Thesis Firstly: Analysis of the theoretical basis for improving the law state audit; establish criteria and conditions to improving state audit law; analysis required for improving the law in terms SAV building a socialist law state Vietnam and then justifying solutions for improving the state audit law in Vietnam; Secondly: Analyze and evaluate the state of the state audit law and practical implementation over time;
2 Thirdly: On the basis of research and analysis of the theoretical issues, the status law for state audit; practical implementation of the law on state audit last time and reference experience selective state audit law of some countries around the world; perspective and propose solutions in order to improve the content and form of the law on state audit meet the requirements of building a socialist state law and international integration. 4. Research Methodology The Thesis using synthetic methods; methods which are mainly: Analysis, synthesis, history, statistics and comparison. 5. The new contributions of the thesis - Introduce concepts and adjust content, specify the characteristics and role of law in the state audit; establish criteria and conditions to ensure improving law on state audit. - The study required by socialist State law Vietnam for improving the law on state audit . - Research the state audit law of a number of countries around the world to draw the reference value for improving the law on state audit in Vietnam. - To study the formation and development of the law on state audit in Vietnam; assessing the situation and indicate the cause of the shortcomings of the state of the law on state audit of Vietnam. - Propose the views and the solutions completed law on state audit meet the requirements of building a socialist law state in Vietnam. 6. Structure of the Thesis Apart of the introduction, conclusion and references, the content of the thesis is structured into 4 chapters, 12 section, as follows. Chapter 1 OVERVIEW As an organizational models and new operations in Vietnam should research issues both theory and practice to use the valuable experience in Vietnam is a very important issue for the development of SAV. Scientific research activities on state audit in Vietnam was officially launched in 1995. To date, there have been a number of scientific research projects at State, Ministrial and unit level on the organization and operations of the state audit; much of the project documents, scientific papers, articles of scientists, managers and abroad presented in scientific conferences, professional journals and the mass media. Assistance from the Asian Development Bank, Audit conducting research on legislation and assist in capacity building, training of the two phases has contributed greatly to the deployment scientific research in many fields. Then there is the huge help of German GTZ project done for many years has made many important documents. The scientific works in domestic and foreign related thesis is divided into two main groups: Works on researching state audit and legislation on state audit and one related to improving law on state audit.
3 On the basis of researching the scientific work has been published in domestic and foreign - related topic of the thesis, comments can draw an overview of research results as follows: The research work was issues related to the thesis on certain aspects of the theory and practice of law enforcement in the state audit certain historical period, the study results have confirmed the position, the important role of SAV in the organization and operation of the state apparatus, in the preventing corruption, waste, and use effectively saving budget, public money and property; toxicity establishment of SAV in the public financial control and public property; constitutional basis of the legal status of SAV; classification, assessment and organizational models the mechanism of action of the State Audit Office as well as organizational issues functions, duties, powers, subjects and scope of the State Audit Office. However, not much research has focused on improving the law on state audit, the complete theoretical issues law on state audit has not been elucidated and has not been studied systematically, the status of state audit law and organizations perform audits of state law unclear to evaluate the strengths, limitations and only cause of the limitations of the law on state audit in Vietnam, there is not a complete master of the legal dissolution of the state audit to meet the requirements of building the rule of law in our country today. Based on the research results of scientific works mentioned above, the author will inherit thesis, using reasonable to implement my research, at the same time, the direction of dissertation research is to clarify and further elucidate the theoretical issues and practical completion of the state audit law in the context of building a socialist rule of law in Vietnam. - In terms of theories, the issue needs further study and solution include: concept, content adjustment, characteristics, the role of the law on state audit; proposed criteria and complete ensure perfect conditions the law on state audit; analysis requirements of state laws in Vietnam to complete the law on state audit, research and reference experiences selective law state audit of a number of countries in the world. - In terms of practical issues that need further research and resolve include: Analyze, evaluate comprehensive, systematic process of establishment and development of the state audit law, analysis, evaluation cost advantages, limitations and restrictions of the causes of the legal system of the state audit in Vietnam. Based on the research, comprehensive analysis of theoretical issues, the status of laws and law enforcement practices of the state audit last time, reference may experience selective law on state audit of a number of countries around the world, thesis proposals and views synchronized solutions in order to improve the legislation on state audit meeting the requirements of building the rule of law, strengthening the power control of state in Vietnam.
4 Chapter 2 RATIONALE OF COMPLETENESS OF THE STATE AUDIT LAW MEETING THE REQUIREMENTS ON BUILDING SOCIALIST LAW STATE OF VIETNAM 2.1. CONCEPTS AND CHARACTERISTICS OF STATE AUDIT 2.1.1. Audit Concept Auditing is the process of independent auditors and have the capacity to gather and evaluate evidence about the audit information to confirm and report on the degree of relevance between this information with the norm has been established. Based on the type of audit organizations, auditing is divided into: state auditing, internal auditing and independent auditing; in which state audit is the supreme financial examiner of country, carried out review and report on the management and use of public resources in agencies. 2.1.2. The concept and characteristics of the SAV State Audit Office has following characteristics: First, the state audit is an external financial review agency. Second, the activities of the State Audit Office and the independent naturally only comply with the law; honestly and objectively. Third, the object of the State Audit Office is the management and use of the budget, public money and property . Fourth, the state audit function including financial statement audits , compliance audits and audit activities for the management and use of the budget, state money and property . Fifth, the state audit activity carries very high professionalism . Sixth, subject to audit activities - the auditors is just public servants, both have specific regulations on standards, accountability, authority, have the right to an independence and obey only the law in the process of implementing audit. Seventh, auditing contains much risky on professional and moral qualities of auditors. From the analysis of the characteristics of the state audit activities mentioned above, can be drawn about the state auditing concept as follows : The state auditing is an financial examination body, operate independently under law, shall examine, evaluate and validate the accuracy and truthfulness of financial statements; compliance with laws; economy, efficiency and effectiveness in the management and use of the budget, public money and property. 2.2.CONCEPTS, CONTENTS OF ADJUSTMENT, CHARACTERISTICS AND THE ROLE OF LEGAL ON STATE AUDIT 2.2.1. The concept and content of the law adjusted state audit From the analysis of the characteristics of law in the field of legal on state audit, the thesis put a definition of the state audit as an integral part of the legal system as follows: Legislation on state audit as overall legal by the state agencies have the authority to issue and guarantee made to regulate social relations arising in the organization and operation of the audit for the purpose of
5 strengthening the control supervision of the State in the management and use of the budget, public money and property, contributing to practice thrift, combating corruption, loss, waste, detect and prevent violations of law, improve efficiency of using budgets, public money and property. Content governed by the laws of the state audit consists primarily of legal groups: legal status of SAV; functions, duties and powers of the state auditing; objectivity and scope of the SAV; mechanism of action of state audit; organizational models and staffing of SAV; monitoring activities and handling legal violations on state audit. 2.1.2 . Characteristics of the law on state audit First, Law on State Audit has just prescribed administrative in nature, both the procedural provisions of nature, also has many regulations identifiable professional career. Second, the law on state audit regulations implementing activities of state power in the inspection and supervision of the management and use of financial resources of public money and property, in order to avoid loss and waste and improve the efficiency of using resources. Third, the law of the state audit adjustments including legal relations arising in the organization and operation of the state audit . Fourth, sources of legal on state audit are comprehensive, including provisions in the Constitution of the State Audit, State Audit Law and guiding documents and the relevant laws. Fifthly, the law on state audit in Vietnam is quite new, are developed and gradually improved. 2.1.2. The role of the law on state audit First, to institutionalize the Party's policies on the development of the SAV. Second, the legal basis for external financial control activities is independent. Third, the means to strengthen supervision of the State for management activities, using public money and property . Fourth, contributing to the transparency of financial information and healthy national financial system. Fifth, contribute to enhance the effectiveness of law enforcement and perfect the legal system. Sixth, contributing to the strengthening of coordination relationship between components of national audit system. 2.3. COMPLETION CRITERIA AND CONDITIONS WARRANT THE COMPLETENESS OF LAW STATE AUDIT 2.3.1. Completion criteria 2.3.1.1. Criteria for the content Completing the State Audit Law has to meet the following criteria : - Have content in accordance with viewpoints and policies of the Party of the SAV development; - Compliance with the of political, economic and social conditions.
6 - Consistent with the principles and requirements to build a socialist law State of Vietnam . - Consistent principles, auditing standards and practices of the INTOSAI auditing legal of the countries in the world . 2.3.1.2. Criteria on form Formal criteria include: - Comprehensiveness of the legal system of the state audit . - The integrity of the legal system of the state audit . - Uniformity of the legal system of the state audit . - To ensure transparency, efficiency and feasibility . - Text form. - Legislative technique. 2.3.1.3 . Criteria for implementation - Propaganda, education on legals on state audit - Training staff - Check and supervise the implementation and handling of violations 2.3.2 . These conditions ensure complete legislation state audit 2.3.2.1. Ensurance on economy For the law on state audit is done strictly necessary to pay attention to the issues such as funding for the deployment of communication and dissemination, education on law; operating funds and facilities required in accordance with specific state activities are independent and compliance with the laws. 2.3.2.2 . Ensurance on politics To implement the State Audit functions and tasks assigned, the need to strengthen the leadership and guidance of the Party and State for the SAV, primarily for improving the State Audit Law . 2.3.2.3 . Ensurance on legal The legal guarantee for improving the law on state audit includes several basic elements: First, the legal system on state audit to ensure comprehensive, consistent and synchronized. Second, awareness of legal entities engaged in audits. Third, qualifications, capabilities and political, ethical staff, civil servants directly involved in audit work. Fourth, the coordination mechanism in performing the audit. Fifth, operational examination, preventive monitoring and preventing violations of law in audit activities. 2.4. REQUIREMENTS OF SOCIALIST LAW STATE OF VIETNAM FOR COMPLETION OF THE STATE AUDIT LAW Building Socialist law state of Vietnam according to the above viewpoints of the Party, set out the requirements for improving the law on state audit as follows: First, the principle of state power is unity , decentralisation, coordination and control among the agencies in the implementation of the legislative, executive and judiciary. One of the basic points of building a socialist law state
6 of Vietnam is the notion of state power is unified with the assignment, coordination and control among state agencies in the implementation the legislative, executive and judicial. Therefore, the requirements of completing the state audit law is to establish the legal status of the SAV position is consistent with the financial inspection agency by high most active independent and subject only to the law and to strengthen the inspection and control of the State in the management and use of the budget, public money and property . Second, strengthen supervision and monitoring of the National Assembly of People for the management and use of the budget, public money and property. As an agency inspection is the highest, SAV plays an important role in providing information for monitoring, budgeting decisions and approve the budget annual of Congress; at the same time, serve the people monitoring. Therefore, the requirements of completing the state audit law must meet the monitoring requirements of the National Assembly and People's supervision for the management and use of funds books , money and public property. Third, to contribute to ensuring transparency and soundness of economic relations, finance, improve efficiency of budget and state assets. In Vietnam, the establishment and development of state audit agency comes from the demanding requirements of the innovation and the development of market economy , make the process of democratization and state building socialist rule of law - state of the people, by the people and for the people. Development of state audit is an objective requirement of the macro-management of the national economy, especially strengthened inspection and control of the State to using savings, budget effectively and national assets, anti- corruption. Therefore, the requirements of State AuditLlaw requires socialist Vietnam completed legislation to state audit determined the role of state audit for the national economic development. Fourth, contributing to prevention of corruption, cleaning up the state apparatus in Vietnam today In the present context, the Party and State considered corruption as a "disaster" and the fighting against corruption is the task of the entire Party, people and the whole political system. With its position as the financial inspection agency, independent operation and compliance with the law, the SAV is one of the effective tools having an important contribution to the fight against corruption in Vietnam today. Therefore, the requirements of State law requires socialist Vietnam completed legislation to state audit identified the roles and responsibilities of the state audit office in the fight against corruption. 2.5. LEGALS ON STATE AUDIT OF OTHER COUNTRIES AND LESSONS FOR VIETNAM 2.5.1 . Legals on state audit of some countries 2.5.1.1 . Legal on state audit the Federal Republic of Germany a) Legal status: Legal status of federal court of audit is specified in the Constitution and independent of Congress and the Government. State Audit is a supreme body of the federal and is an agency independent financial examination, only in compliance with the law.
8 b) The functions, duties and powers: Federal Court of Audit function test report as well as the settlement of the compliance and effectiveness of the management of the budget and economic management. The mission of the Federal Court of Audit include : Auditing the entire management and use of the Federal budget; advise Parliament and Government, Federal Council; report the results of the annual audit to the National Assembly as the basis for release of government accountability, evaluation correctness and feasibility of the annual state budget bill, projects of national key works. Federal Court of Audit powers, including: Reviewing and providing unlimited information; involved in the process of promulgating regulations on settlement and auditing irregularities treatment recommendations. c) The object and scope of an audit agency under federal management, special assets and enterprises of the Federal; legal utilities under public law and federal level directly; the social insurance agency under Federal and State, if the agency receives federal grants or federal stood surety ; private enterprises under the Law of Federal capital contributions; organizations not under the management system of the Union if the management or organization receiving federal funds . d) Operating Mode: Audit the Federal Council operating under the mechanism, the Council decided to be in state audit agency. e ) Organizational structure and personnel: Federal Court of Audit including the regional audit offices and audit departments. At the State agency established its own audit. Federal Court of Audit’s Chairman of the National Assembly and the Federal Council elected by the Federal Government's proposal for a term of 12 years and no re-election . e ) Handling of violations : Federal Audit Law has one article concerning the handling of violations against members of Federal Court of Audit. 2.5.1.2. Legal on state audit of the People's Republic of China a) Legal status: Legal status of national audit office is specified in the Constitution, the state audit agency established by the State Council, under the leadership of Prime Minister of the State Council. National Audit Office is the highest organ of state, perform auditing tasks independently according to the law. b ) The functions, duties and powers - Functions and audit tasks: Perform audits on the implementation of the budget of the central government and the Prime Minister reported the results on their audit activities. - Powers auditing requirements to provide information, inspection, investigation, application of compulsory measures and propose rectifying mistakes, announced the results of audits, sanctions, transfer the files to the authorities ... c ) The object and scope of the audit: The revenues and expenditures of the agencies under the State Council, local governments at all levels, financial institutions and currencies of state agencies and enterprises. An audit by the military 's Central Military Commission regulations.
9 d ) Mechanism of action: The mechanism operating under the regime of leadership, the audit agency at the local level made the right equation independent audit in accordance with law, is responsible before the same level People's Committees and agencies superior audit. e ) Organizational structure and personnel: Audit was established at the central government level and at the district level upwards. General Auditor approved by the National Assembly, the President appointed. e ) Handling of violations: Sate Audit Law of PRC has 1 chapter provides for liability provisions quite adequate and specific measures to prevent and sanction (administrative , disciplinary, criminal) for violations . 2.5.1.3. Legal on State Audit of Korea a) Legal status: Board of Audit and Inspection of Korea (hereinafter referred to as BAI) is a constitutional agency, affiliated and independent President while performing the task. b ) The functions, duties and powers : the settlement tests , revenues and expenditures of the State and the other state settlement, the administrative activities of the state and its officials. c ) The object and scope of an audit of the State Accounts; account of the provincial government; account of the Central Bank and the account of the legal entity which has attracted more than half of the State; unit of account that under the provisions of other laws shall be subject to audit by the BAI. In addition to the mandatory audit object above, the BAI also objects voluntary audit. d ) Operating Mode: BAI mechanisms work colleagues, council members decided by a majority of the important work. e ) Organizational structure and personnel: BAI is organized on the principle of centralization and uniformity of services including functional, specialized audit and audit the regional unit. BAI chairman appointed by the President with the consent of Parliament, with the 04 year term and may be reappointed for one term. e ) Handling of violations : Law on State Audit of Korea, have one thing on punishment, specifying the level of imprisonment, fined or disciplined for violations. 2.5.2. The lessons for improving the state audit law of Vietnam Fisrt, whether organized under the SAV model is also designed to control the system from the external to the auditees. Second, independent objectivity is vital issue of principles in audit activities. Third, to ensure the independence of the State Audit Office, General- Auditor of the National Assembly elected for a term longer than the term of the National Assembly; SAV operating funds by the National Assembly at the proposal of the General-Auditor. Fourth, the State Audit Office to audit the financial statements, audit compliance and audit activities for all agencies and organizations involved in the management and use of budgets, money and property.
10 Fifth, to state audit operate effectively it should define the legal status of SAV in the Constitution. Depending on the specific conditions of each country, the provisions of the State Audit Institutions can be defined in a chapter, section, or part separately cataloged common or independent institutions located in the same program with the branch agencies the authority , and the principle of independence and Supreme of agency is still constitutional content are most popular. Sixth, there should be specific provisions for handling violations of state audit law, especially those failing to perform or not perform fully the conclusions and recommendations of the State Audit Office. Chapter 3 HISTORY AND DEVELOPMENT AND CURRENT SITUATION LEGAL ON STATE AUDIT IN VIETNAM 3.1. HISTORY AND DEVELOPMENT OF LEGAL ON STATE AUDIT IN VIETNAM 3.1.1. Generalizing the process of formation and development of the State Auditor in Vietnam State Audit Office of Vietnam was established by Decree No.70-CP of July 11, 1994 of the Government and from 01/01/2006 operating under the provisions of the State Audit Law. After nearly 20 years of operation, the SAV has gradually affirmed its position, its role in the structure of the state apparatus; affirmed the necessity and indispensable for the operation of the agency as one of the effective tools of the State in the inspection and control operations budget management, money and state assets in the economy socialist-oriented market . 3.1.2 . The process of formation and development of the law on state audit in Vietnam 3.1.2.1. Period from inception until the National Assembly passed the State Audit Law In the first phase, SAV organized and operated under two legal documents is 07.11.1994 Decree No.70-CP dated 11 July, 1994 of the Government on the establishment of state audit office and Decision 61 dated 24 January, 1995 of the Prime Minister promulgating the Charter on organization and operation of the SAV. To ensure the legal basis for state audit activity in conditions no State Audit Law, in the process of finalizing the legal system, the Socialist Republic of Vietnam has added a number of legal in the law governing the operation other areas of the relationship arising audits to ensure full legislative audit activity in those areas, namely: the State Budget Law, the Law on State Owned Enterprises, Law on the State Bank of Vietnam... However, it is easy to see the system prescribed in the early stages of a new state audit established several regulations scattered in different documents, are generally lacking and inconsistent. Adjustment directly on the organization and operation of the SAV is only available Decree of the Government and the decision of the Prime
11 Minister should review the written forms, the legal value is not high, not inclusive of problems of organization and operation of the SAV. Content of legal on state audit in this stage is also very limited: The legal position of the State Audit of Government agencies, state audit activities under the leadership of Prime Minister; SAV only performed the function assigned tasks auditing financial statements; objects are audited accounting data and accounting statements are only object of its financial statement audit, not covering all subjects of the State Audit activities related to management use of budget, public money and property. To overcome the above limitations; simultaneously, a complete step legal basis for the organization and operation of the SAV in accordance with the requirements of the public administration reform state government dated 13 August, 2003 issued Decree No. 93/2003 / ND - CP regulating functions, tasks, powers and organizational structure of the SAV. Decree No. 93/2003/ND-CP of the Government amending and supplementing a number of functions, tasks, powers and organizational structure of the state audit, namely: Audit is an agency of the Government; defined relatively complete and comprehensive state audit function of the audit of financial statements; audits assess compliance with the laws, economic management, budget and use of public property; additional task of state management sectors; continue to assert centralized organizational model, unified SAV, defined organizational structure of SAV has 19 units, including 16 units to help implement the General Audit functions, tasks and 3 public utilities; have a separate articles on the General- Auditor. However, through practical activities, Decree 93/2003/ND-CP and legal documents on the organization and operation of SAV in this period has revealed the inadequacies and limitations: First, there is no legal documents stipulating the organization and fully operation of SAV. Directly regulating activities of the SAV is the by laws. Second, the legal status of the SAV is low, is not commensurate with the functions and duties assigned. Third, more specific issues related to the activities of the SAV has not been fully defined, uniform or not fully meet international integration requirements for building a sound financial background, public and transparency as principles for audit activities; auditing activities; validity of reports of audit results; The auditees’s responsibilities and audit rules on disclosure of audit results... Fourth, many issues related to the State Budget Law and the State Audit Office in legal documents related only at the general rules, has not been concretized lead to difficulties in the process implementation as prescribed submission deadlines State budget settlement reports; audit budget settlement after the National Assembly approved; SAV’s responsibilities for audit reports... 3.1.2.2. State Audit Law has come into effect today State Audit Law was approved by National Assembl on 7th Session, adopted on 14/6/2005 and have effect from 01/01/2006. This is an important law in the legal system of the State, as a legal instrument to strengthen inspection and control of state financial resources, and the legal basis highest
12 current regulations quite adequate for a comprehensive and systematic organization and operation of the State Audit . 3.2. LEGAL STATUS OF STATE AUDIT IN VIETNAM TODAY 3.2.1. Current status of legal forms for state audit State Audit Law was approved by National Assembl on 7th Session, adopted on 14/6/2005 and have effect from 01/01/2006. This is the highest legal basis for the organization and current activities of the State Audit. Along with the State Audit Law, Law Practice thrift and combat waste, the Anti- Corruption Law, the Law on Promulgation of legal documents, Civil Laư... were issued during this period was also prescribed content related functions, duties and powers of the state audit office in the system of inspection and control of the Party and State. On the basis of the State Audit Law, SAV has active collaboration with other agencies of the Government and the National Assembly building the competent authorities promulgated and issued under the authority of documents guiding the implementation of the State Audit Law. So far, 10 Resolutions of the Standing Committee of the National Assembly, three Decrees of the Government, 01 Decision of the Prime Minister, 01 Decision of the Minister of Public Security, 04 Circulars and cross – sectional Circular has been issued joint direction detailed and comprehensive State Audit Law. Within the scope of its competence, the General Auditor issued 36 legal documents in the form of decisions to guide detailing the State Audit Law. On Sat 19/4/2010 Standing Committee of the National Assembly through Resolution No. 927/2010/NQ-UBTVQH12 on the issuance of Development Strategy of SAV to 2020 , creating a legal basis for the promotion of SAV growth to meet the requirements of the national renewal, construction of socialist rule in our Vietnam. However, even in the form of power law above state audit showed many problems arise and inadequacies, limitations require further study to complete. The shortcomings and limitations shown on the following key aspects: First, the legal status of SAV has not been defined in the Constitution as in most countries around the world . Second, there is no consistent and uniform in the middle of some provisions of the State Audit Law with relevant laws, including the Law on Organization of the National Assembly, Government Organization Law, Law on State Budget ... Third, guidelines under laws to guide the implementation of the State Audit Law and incomplete sync, there are no specific provisions on sanctions for violations of state audit law. Fourth, auditing standards, procedures, audit methodology was focused and improving, is developing fast in comparison with other state audit offices in the world and the region; however, still did not meet the requirements of the state audit activities. 3.2.2. Current status of legal content of state audit With the promulgation of the State Audit Law, the current legal system in our country on the State Audit of content has positive aspects as stipulated
13 operating principle independent audit and compliance with the law, secondary real objective; enhanced legal status of SAV; quite adequate regulations and comprehensive functions, duties, powers, organization and operation of the SAV; first, the problem of the validity of the audit report (Article 9), and shall submit the audit report provided (Article 15), publication of audit results, performance results the conclusions and recommendations audit (Article 58, Article 59) and audit oversight activities (Article 72) are defined in the State Audit Law is an important legal basis for the organization and operation control of financial state, enhance the effectiveness and management of the state audit activities. However, through the practical application of the State Audit Law and related documents have revealed some of the limitations and shortcomings. It make judgments reality content legislation through state audit of the following major contents: 3.2.2.1. In terms of legal status, functions, tasks, powers and organization of the SAV a) The legal status of the SAV With the provisions of Article 13 of the State Audit Law, SAV’s legal status has been enhanced by a step, basic overcome SAV legal status is low, is not commensurate with its functions and duties. However, regulation of the legal status of the SAV is not true to the nature of the supreme financial examination body. b) The functions, duties and powers of the SAVt As stipulated in Article 14 of the State Audit Law: SAV functions financial statement audits, compliance audits, performance audits of the agencies, organization management, using budget, public money and resources. To carry out the above functions, the SAV has responsibilities and powers defined in Article 15, Article 16 of the State Audit Law, which has many important new tasks. However, past practices have revealed shortcomings and problems: The task of the SAV not cover all of the inspection and control of the financial resources of state and public property; not to audit the management and use of State capital and assets in enterprises in which the State does not hold a controlling stakeholder; not obliged to conduct an audit of the state budget remittances economic organizations in all economic sectors; not specified task of preventing, detecting corruption... c) Model and organizational structure of the State Audit Through practical activities in the past years SAV confirmed organizational model and structure of the current state audit is appropriate and effective in accordance with the regulations on the management and administration of the state budget in accordance with the State Budget Law and consistent with international practices. However, the organizational structure of the state audit is still in the process of continuous completion. 3.2.2.2. Subjects and scope of audit Article 5 of the State Audit Law states: "The object of SAV is the activities related to the management and use of the budget, public money and property."Such regulations already distinguish the object of SAV are audited
14 agencies, organizations and units managed, funded, public money and property. However, existing primarily of state auditlaw the current audit is to determine the scope and object audit is incomplete, not covering all the financial resources of state and public property. 3.2.2.3 . About the General- Auditor, Deputy General- Auditor Along with provisions on the legal status of SAV, it is the first time the legal status of the General-Auditor has been prescribed clearly and fully. However, to increase independence for the General Auditor in accordance with international practices, meet the requirements of the administrative reform, there should be provisions to ensure the independence of the General Auditor, decentralization and strengthening responsibility of the General Auditor of setting up the system's organizational structure and the appropriate specific activity of SAV. - Regarding Deputy General Audit (Article 20) State Audit Law stipulates: Deputy General Auditor recommended by the National Assembly Standing Committee appointment, dismissal, demotion; Deputy General Auditor tenure is seven years (Article 20). Through practical application showed that the mechanism appointed deputy state audit in accordance with the current regulations are not very clear, cumbersome procedures, inconsistent with common practices and requires administrative reforms in Vietnam today. 3.2.2.4 . Provisions on State Auditor State Audit Law has devoted a separate chapter (Chapter III) and a number of other provisions in the relevant regulations of the state auditors, as specified in state auditor title (Article 27), general standards of state auditor and responsibility of the state audtior (Article 29, Article 30); regulations the case was not to audit (Article 31); specified duties and powers of the state auditors in the auditing (Article 48); regulations prohibited acts for State Auditors (Clause 1, Article 12). However, state auditors reserve quota regulations far inconsistent with the provisions of the Civil Law classified staff, civil servants and practices of the SAV. 3.2.2.5 . Regulations on operation of state audit State Audit Law has devoted a separate chapter (Chapter IV) includes 7 categories with 30 articles concerning the activities of the SAV. A new feature of the State Audit Law is relatively specific provisions on procedures and conduct audit activities, creating uniform legal basis for the implementation of the SAV’s tasks. However, through practical application, the provisions of the Law on State Audit on audit work has revealed a number of shortcomings in the audit team members (Article 44); not yet fully defined the responsibilities of the Head of Specialized Units in directing audit activities; no regulations on quality control activities of the SAV. 3.2.2.6. Regulations on Auditees State Audit Law has prescribed a separate chapter of the auditees, rights and obligations of the auditees (Chapter V). Thus, from the State Audit Law come into effect, the auditees were to raise awareness and responsibility in the
15 observance of law, has done better than the obligation to provide information, serve documentation for the audit and fully implemented, more timely conclusions and recommendations of the audit. However, through the auditing practices, a specified number of units to be audited has revealed the inadequacies and shortcomings, namely: auditees are not covering all subjects tested range SAV is math related operations management and use of the budget, public money and property; not specify the duration units perform the audit petitions; states: "The head of the auditees to sign audit records", does not guarantee the accuracy legally and affect the independence and objectivity of the SAV’s activities. 3.2.2.7. Regulations on ensuring the operation of the SAV Stat Audit Law is one of a handful of law in the legal system of the State has its own regulations on the activities of assurance (Chapter VI). But the offices of SAV has been built to meet part of the task, but generally the facilities, equipment, vehicles are still lacking. On the other hand, mechanisms, policies and remuneration for state auditors (subsidy and integrity...) has initially improved, but the state does not have preferential policies according to the nature of particular characteristics (such as mobile allowance and certain other allowances). 3.2.2.8. No provisions on sanctions for violations of the state audit law of auditees and other agencies State Audit Law and guiding documents virtually had no regulations on financial institutions, except for some very general rules such as: "responsible under the law"; "Propose competent agencies dealt with according to law"... so, the validity of audit activities and the strictness of the law has not achieved as expected, affecting the quality of operation and effect of the SAV. 3.2.2.9. Inconsistent in the State Audit Law and relevant laws Due to the legal status of SAV has not been defined in the Constitution, so the current situation is still not a consistent and uniform in a number of provisions between the State Audit Law with the relevant laws, especially the governing law of the state apparatus and the state budget. 3.2.3 . Current status of implementation With the legal framework gradually perfected, enhanced capacity, the state audit activities expanding in size, type and diversity of auditing methods, improving the quality of public audit and the audit in accordance with the provisions of the State Audit Law. After more than 7 years of implementation of the State Audit Law, activities of the SAV has made strides as follows: - Audit Quantity Since the State Audit Law has effect, each year SAV to audit some 100 audits (ministries, central agencies, provinces, cities, corporations, companies...), increase 2 times compared with the period before the State Audit Law. - Type and methodology audit Since the State Audit Law, SAV has fully implemented all three types of audits: financial statement audits, compliance audits and performance audits,
16 evaluation focused on the implementation of the Law on Anti-Corruption, Law practice thrift and combat waste. Besides the post- audit, the SAV has made evaluation and presented comments on the annual state budget, the national key projects submitted to the National Assembly for consideration and decision. - Audit Quality Audit quality increasing, more and better meeting the practical requirements. The recommendations of the Audit increasingly better quality, the Government and the National Assembly, ministries, branches and localities increasingly used in the review, approval and final estimated budget, budget monitoring and implementation of policies and laws; in construction management and fiscal policy, budget; the auditees to overcome the weaknesses and shortcomings, improving the system of internal control. - Audit results Through operational audit, SAV found multiple policy violations, regime of economic management, finance and financial proposals handling totaling 90,093 billion. For only 5 years after the effective State Audit Law, has proposed financial settlement 70,597 billion, or 78.36 % of the total financial proposals handling in the 16 years of establishment and operation activities, in which: increased tax revenues and other revenues 17,078 billion, decreased 10,806 billion state budget expenditures, accounts payable, reimbursement and budget management through 29,133 billion increase over the findings reported by authorities 7,871 billion of revenue, financial proposals handling another 9,344 billion. Summary of audit activities SAV 15 years (1994-2008) showed that the for one dong funding for SAV, which saved 58 dong, including increase of 36 dong and decrease of 22 dong for state budget. - Public audit results Every year, the SAV publicize audit results in a number of audits in the form of a press conference and posted on electronic information and Auditing Journal prescribed. The public audit results to ensure compliance with the law, taking direction, is widely agreed and appreciated. However, besides the achieved results, the implementation of the law on state audit also some limitations, the following exist: First, the size of the SAV is very limited compared with the requirements, the control subjects using budget, public money and property according to the functions assigned, especially in the field of control State budget. Second, the quality and progress of audit gaps against the requirements of the State Audit Law, unanswered due to pressing issues of the negative phenomena as well as effective management and use of budget money and state property. Third, the low effective audit, the implementation of the conclusions and recommendations audit, especially handling the responsibility of organizations and individuals for violations incomplete, strict and timely. Quality of financial management, budgeting, cash and assets the state has been strengthened and perfected a level appropriate in auditees. Fourth, facilities, equipment, are very lack.
17 Fifth, addressing the relationship between expansion and improve audit quality and preserve the moral requirements, quality staff, state auditors is always a challenge. 3.2.4 . The cause of the limitations and shortcomings 3.2.4.1 . The objective reasons - Audit activity in general, the state audit activities in particular is a new field of operations in Vietnam. - The establishment of SAV legal status in our country are bound by existing legal environment of Vietnam, especially the Constitution and the laws of the state apparatus with the institutional capital that the laws of this institution can not quickly adjust to change in accordance with the conditions of life and activities of the SAV. 3.2.4.2 . The subjective reasons - Auditing is new activity, organization and operation of the SAV unprecedented in the organization and operation of our state apparatus; new state audit agency was established, so experience in construction law, organization and implementation of audit work is limited. - Awareness of all levels and sectors of the lawmakers on the state auditing is limited. - Audit established after Congress passed the 1992 Constitution should not be defined legal status in the Constitution of the SAV. Chapter 4 VIEWPOINTS AND SOLUTIONS FOR COMPLETING LEGAL ON STATE AUDIT IN VIETNAM 4.1. VIEWPOINTS FOR COMPLETING LEGAL ON STATE AUDIT IN VIETNAM 4.1.1. To improve the legal on state audit must thoroughly understand and institutionalize the Party's views on the development of the SAV. 4.1.2. Upgrade the legal on state audit have to determine appropriate organizational model of the SAV 4.1.3. To improve the legal on state audit in order to ensure the independence of the SAV. 4.1.4. To improve the law on state audit in order to build the SAV actually become a tool to examine the financial state effectively and efficiently. 4.1.5. To improve the legal on state audit in order to meet the requirements of international integration, in accordance with the principles and international practices and the actual conditions of Vietnam. 4.2. SOLUTIONS FOR COMPLETION OF LEGAL ON SATE AUDIT IN VIETNAM 4.2.1. Group of solutions for content law 4.2.1.1. The legal status of the SAV
18 Legal on state audit firstly determine the legal status of the SAV in the organizational structure of the state system. The problem defined legal status and independence of the State Audit agency affirmed in Article 5, Declaration of Lima: "The establishment of the supreme audit institutions and its independence must be guaranteed in the Constitution and other statutes". This is an important principle in the state audit office established in all countries over the world. 4.2.1.2. Functions, duties and powers of the SAV a) The functions of the SAV Law on state audit must clearly define the functions of the Audit on both aspects of auditing and consulting. Regarding the audit function, the SAV to simultaneously perform three types of audits: financial statement audits, compliance audits and performance audits. On advisory functions, the SAV is responsible for auditing the results reported to National Assembly, the Standing Committee of the National Assembly and submit an audit report to the government and other agencies, related organizations, through which advise the agencies about measures to improve the management, budgeting, management and use of assets, capital and funding; to supplement and amend the policy mechanisms, financial and budgetary regime, accounting, settlement accordingly. b) Duties and powers of the SAV - SAV shall have access to all documents related to financial activities and may request the auditees provide information, documents and settlement statements also as other documents related to the audit. - SAV can make decisions in each case that the audit conducted at the headquarters of the audiees or offices at the headquarters of the SAV. - In a time prescribed by law, the audit unit must have an opinion on these comments, the findings of the Supreme Audit Office and must be disclosed, given the remedy, repair the errors on the basis of that conclusions. - For the Supreme Audit Offices are not concluded by offering other forms of legally required to take action, the supreme audit agency should have the right to petition the competent bodies the right to take necessary measures and binding. - SAV may submit to the National Assembly, the Government reporting critical appraisal through his work experience, including comments on the laws and regulations of the problem general finance will be issued. The acceptance or rejection depends on the organ of State power, however, the task may not lead to influence, the audit conclusions and operation of the SAV. - The rules on the settlement process is only allowed with the uniform issued by the Supreme Audit Institutions. 4.2.1.3. Audit Object and scope of the SAV From the orientation of the Lima Declaration, it can summarize the scope and object of SAV on the following main features: