THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
185/2004/ND-CP
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Hanoi,
November 4, 2004
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DECREE
ON SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE
ACCOUNTING DOMAIN
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the June 17, 2003 Law on Accounting;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative
Violations;
At the proposal of the Finance Minister,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.-
Scope and subjects of application
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2. Administrative violations in
the accounting domain include:
a/ Violations of regulations on
accounting vouchers;
b/ Violations of regulations on
accounting books;
c/ Violations of regulations on
accounting accounts;
d/ Violations of regulations on
financial statements and disclosure of financial statements;
e/ Violations of regulations on
accounting examination;
f/ Violations of regulations on
preservation and archival of accounting records;
g/ Violations of regulations on
asset inventory;
h/ Violations of regulations on
organization of accounting apparatuses, arrangement of accountants or hiring of
accountants;
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j/ Violations of regulations on
application of accounting standards, accounting regime and other regulations.
Article 2.-
Principles for sanctioning of administrative violations in the accounting
domain
The principles for sanctioning
of administrative violations in the accounting domain shall comply with the
provisions of Article 3 of the July 2, 2002 Ordinance on Handling of
Administrative Violations (hereinafter referred to as the Ordinance on Handling
of Administrative Violations for short).
Article 3.-
Statute of limitations for sanctioning administrative violations
1. The statute of limitations
for sanctioning administrative violations in the accounting domain is two
years, counting from the date of commission of administrative violations.
2. Individuals against whom
criminal cases have been instituted, who have been prosecuted or got decisions
to bring them to trial according to criminal procedures but later got decisions
to stop investigation or criminal cases where their violation acts show signs
of administrative violation shall be administratively sanctioned under the
provisions of this Decree. In this case, the statute of limitations for
sanctioning is three months, counting from the date the persons with
sanctioning competence receive the decisions to stop the investigation or the
institution of the criminal cases together with their dossiers.
3. Within the time limits
prescribed in Clause 1 and Clause 2 of this Article, if individuals or
organizations commit new administrative violations in the accounting domain, or
deliberately shirk or obstruct the sanctioning, the statute of limitations
prescribed in Clause 1 and Clause 2 of this Article shall not apply; the
statute of limitations for sanctioning administrative violations shall be
re-counted, starting from the date when new administrative violations are
committed or the time when acts of shirking or obstructing the sanctioning
terminate.
4. If persons with sanctioning
competence fail to impose sanctions within the statute of limitations for
sanctioning administrative violations they shall be handled under the
provisions of Article 121 of the Ordinance on Handling of Administrative
Violations
Article 4.-
Time limit for being considered not having been administratively sanctioned
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Article 5.-
Forms of sanction of administrative violations in the accounting domain
1. For each act of administrative
violation in the accounting domain, individuals or organizations must be
subject to one of the following principal sanctioning forms:
a/ Caution;
b/ A fine of between VND 200,000
and VND 20,000,000.
2. Depending on the nature and
seriousness of their violations, violating individuals or organizations may be
also subject to the application of additional sanctioning forms specified in
Clause 4 of Article 7, Clause 5 of Article 8, and Clause 2 of Article 15 of
this Decree.
3. In addition to the sanctioning
forms prescribed in Clause 1 and Clause 2 of this Article, violating
individuals or organizations may be also subject to the application of one or
more than one of remedial measures specified in Clause 5 of Article 7, Clause 6
of Article 8, Clause 3 of Article 9, Clause 3 of Article 10, Clause 3 of
Article 14, Clause 3 of Article 15 and Clause 3 of Article 16 of this Decree.
4. When fines are imposed, the
specific fine level for an act of administrative violation shall be the average
level of the fine bracket prescribed in Chapter II of this Decree for such act;
if extenuating circumstances are involved, the fine level may be reduced but
must not be lower than the minimum level of the fine bracket; if aggravating
circumstances are involved, the fine level may be increased but must not be
higher than the maximum level of the fine bracket.
Article 6.-
Extenuating and aggravating circumstances when sanctioning administrative
violations in the accounting domain
1. Extenuating circumstances:
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b/ Administrative violators
voluntarily report on their violations, showing honest remorse;
c/ Committing violations under
constraint or material or spiritual dependence;
d/ Unintentional violations;
e/ First-time violations;
f/ Committing violations due to
specially difficult situations not caused by violators themselves;
2. Aggravating circumstances:
a/ Committing violations in an
organized manner;
b/ Committing violations time
and again or recidivism;
c/ Inciting, dragging or
compelling those who are materially or spiritually dependent to commit
violations;
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e/ Taking advantages of war,
natural calamities or other special social difficulties to commit violations;
f/ Committing violations while
serving administrative sanctioning decisions or criminal sentences;
g/ Committing acts of shirking
or hiding administrative violations after committing such administrative
violations.
Chapter II
ACTS OF VIOLATION,
SANCTIONING FORMS AND FINE LEVELS
Article 7.-
Violations of regulations on accounting vouchers
1. A fine of between VND 200,000
and VND 1,000,000 shall be imposed for one of the following acts:
a/ Making accounting vouchers
with insufficient principal details as prescribed by the accounting legislation
(hereinafter referred to as according to regulations for short);
b/ Erasing, modifying accounting
vouchers.
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a/ Making accounting vouchers
without the sufficient number of duplicate copies according to regulations on each
type of accounting document;
b/ Signing accounting vouchers
which are not fully filled in the contents falling under the signatories’
responsibility;
c/ Signing accounting vouchers
when having no competence or authorization to sign;
d/ Making sale invoices but
failing to hand them to customers according to regulations.
3. A fine of between VND
5,000,000 and VND 20,000,000 shall be imposed for one of the following acts:
a/ Forging, or making false
statements in, accounting vouchers;
b/ Reaching agreement with or
compelling other persons to forge, or make false statements in, accounting
vouchers;
c/ Making accounting vouchers
with duplicate copies containing different contents, for cases of making
vouchers with more than one duplicate copy for one arisen economic or financial
operation;
d/ Selling goods or providing
services without making sale invoices according to regulations;
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f/ Deliberately making more than
once accounting vouchers for one arisen economic or financial operation;
g/ Destroying or deliberately
damaging accounting vouchers.
4. Additional sanctioning forms:
a/ Confiscation of accounting
vouchers, for violations prescribed at Point a or b, Clause 3 of this Article;
b/ Deprivation of the right to
use accountancy practice certificates, for accountants committing violations
prescribed in Clauses a, b, c, e, f and g, Clause 3 of this Article.
5. Application of remedial
measures:
a/ Forcible making of accounting
vouchers for arisen economic or financial operations, for violations prescribed
at Point e, Clause 3 of this Article;
b/ Forcible restoration of
accounting vouchers true to reality and according to regulations, for
violations prescribed at Points a and b of Clause 1, Points a, b and c of
Clause 2, and Points c, d and g of Clause 3 of this Article;
c/ Forcible destruction of
accounting vouchers made excessively for one operation, for violations
prescribed at Point f, Clause 3 of this Article.
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1. A fine of between VND 200,000
and VND 2,000,000 shall be imposed for one of the following acts:
a/ Making accounting books with
insufficient contents according to regulations, such as no name of the
accounting unit, no title and opening date of book; closing date of book; no
signature according to regulations; no page number, no overlapping stamps on
accounting book pages;
b/ Making entries in accounting
books with insufficient principal contents according to regulations;
c/ Violating regulations on
making entries in accounting books, such as making superimposed entries, making
entries on every other line; failing to cross out the blank space of a page;
failing to sum up figures at the end of a page; failing to transfer the sum in
the previous page onto the top of the following page;
d/ Failing to bind up separate
books for each accounting period and complete legal formalities after printing
out books on paper in case of computerized accounting.
2. A fine of between VND
2,000,000 and VND 5,000,000 for one of the following acts:
a/ Opening accounting books not
in accordance with general principles applicable to one of accounting book
forms according to regulations;
b/ Making entries in accounting
books without using the method prescribed in the accounting standards and
accounting regime;
c/ Making entries in or closing
accounting books not in time according to regulations;
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3. A fine of between VND
5,000,000 and VND 10,000,000 shall be imposed for one of the following acts:
a/ Failing to open accounting
books at the beginning of the annual accounting period or from the date of
establishment of the accounting unit;
b/ Failing to keep accounting
vouchers evidencing information and figures recorded in accounting books or
figures recorded in accounting books failing to match accounting vouchers;
c/ Information, figures recorded
in accounting books of the accounting year failing to succeed information and
figures recorded in accounting books of the preceding year or failing to make
continuous entries in accounting books from the time of opening to the time of
closing;
d/ Failing to close accounting
books in cases where accounting books must be closed according to the
accounting legislation;
e/ Failing to print out
accounting books on paper after closing computerized books.
4. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed for one of the following acts:
a/ Opening accounting books
outside the system of official accounting books of the unit;
b/ Forging accounting books;
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d/ Deliberately leaving out of
accounting books property of, or related to, the unit;
e/ Destroying accounting books
ahead of time or deliberately damaging them.
5. Additional sanctioning forms:
a/ Confiscation of accounting
books, for violations prescribed at Points a, b and c of Clause 4 of this
Article;
b/ Deprivation of the right to
use accountancy practice certificates, for accountants committing violations
prescribed at Points a, b, c, d and e, Clause 4 of this Article.
6. Application of remedial
measures:
a/ Forcible completion of the
contents of accounting books, for violations prescribed at Points a, b and c,
Clause 1 of this Article;
b/ Forcible restoration or
compliance with law provisions, for violations prescribed at Point d of Clause
1, Clause 2, Clause 3, and Points b, c, d and e of Clause 4 of this Article.
Article 9.-
Violations of regulations on bookkeeping accounts
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a/ Keeping accounts not
according to the prescribed contents of bookkeeping accounts;
b/ Modifying accounting contents
and methods of bookkeeping accounts promulgated by the Finance Ministry or
opening additional bookkeeping accounts within the system of grade-I
bookkeeping accounts without the approval of the Finance Ministry.
2. A fine of between VND
5,000,000 and VND 10,000,000 shall be imposed for one of the following acts:
a/ Failing to correctly apply
the system of bookkeeping accounts prescribed for the unit’s branch or domain
of activity;
b/ Failing to adhere to the
system of accounts already approved by the Finance Ministry.
3. Application of remedial
measures:
a/ Forcible keeping of accounts
with the right contents, method and system of bookkeeping accounts, for
violations prescribed at Point a of Clause 1, and Clause 2 of this Article;
b/ Stoppage of the use of
bookkeeping accounts, for violations prescribed at Point b of Clause 1 of this
Article.
Article
10.- Violations of regulations on financial statements and disclosure
thereof
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a/ Making financial statements
with insufficient contents according to regulations;
b/ Making and presenting
financial statements without observing the prescribed method; with unclear or
contradictory contents according to regulations;
c/ Submitting financial
statements to competent State bodies between one and three months later than
the set deadline;
d/ Disclosing financial
statements with insufficient contents according to regulations;
e/ Disclosing financial
statements between one and three months later than the set deadline.
2. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed for one of the following acts:
a/ Submitting financial
statements to competent State bodies more than three months later than the set
deadline;
b/ Making financial statements
at variance with the figures on accounting books and accounting vouchers;
c/ Forging financial statements,
falsifying figures in financial statements;
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e/ Deliberately providing or
certifying untrue information, accounting figures; reaching agreement with or
compelling other persons to provide or certify untrue information, accounting
figures;
f/ Disclosing financial
statements more than three months later than the set deadline;
g/ Using untrue information and
figures in the disclosed financial statements.
3. Application of remedial
measures: Forcible compliance with the accounting law provisions, for
violations prescribed in Clause 1 and Clause 2 of this Article.
Article
11.- Violations of regulations on accounting examination
A fine of between VND 5,000,000
and VND 10,000,000 shall be imposed for one of the following acts:
a/ Failing to observe the
accounting examination decisions of competent bodies;
b/ Obstructing the examination
by the accounting examination teams;
c/ Failing to supply or
supplying insufficiently to the examination teams accounting records related to
the examination contents;
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e/ Failing to conduct accounting
examinations of subordinate accounting units for three consecutive years.
Article
12.- Violations of regulations on preservation and archival of accounting
records
1. A fine of between VND
2,000,000 and VND 5,000,000 shall be imposed for one of the following acts:
a/ Putting accounting records
into archives more than 12 months later than the set deadline;
b/ Archiving insufficient
accounting records according to regulations;
c/ Insecurely preserving
accounting records, causing damage or loss to accounting records during the
archival duration.
2. A fine of between VND 5,000,000
and VND 10,000,000 shall be imposed for one of the following acts:
a/ Using accounting records in
the archival duration not according to regulations;
b/ Failing to carry out
procedures to restore lost or damaged accounting records.
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a/ Destroying accounting records
before the expiry of the prescribed archival duration;
b/ Destroying accounting records
without setting up a destruction council, without strictly observing the method
of destruction and without making destruction reports according to regulations.
Article
13.- Violations of regulations on property inventory
1. A fine of between VND
1,000,000 and VND 3,000,000 shall be imposed for one of the following acts:
a/ Failing to make reports
summing up the inventory results according to regulations;
b/ Failing to identify the cause
of discrepancies; failing to reflect in accounting books discrepancies between
figures obtained from actual inventory and those of accounting books and the
results of handling such discrepancies.
2. A fine of between VND
3,000,000 and VND 5,000,000 shall be imposed for acts of failing to inventory
property at the end of the annual accounting period or failing to inventory
property in other cases according to regulations.
3. A fine of between VND
5,000,000 and VND 10,000,000 shall be imposed for acts of forging, or making
false statements on, property inventory results.
Article
14.- Violations of regulations on organization of accounting apparatuses,
arrangement of accountants or hire of accountants
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a/ Failing to organize an
accounting apparatus; failing to arrange accountants or hire accounting
service-providing organizations or individuals to perform the accounting work
according to regulations;
b/ Arranging accountants who are
banned by law from working as accountants;
c/ Arranging accountants who
fail to satisfy the prescribed criteria, conditions;
d/ Hiring organizations or
individuals that fail to meet the criteria, conditions for practicing
accountancy or fail to register business according to regulations to provide
accounting services for the units.
2. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed for one of the following acts:
a/ Persons who are responsible
for managing the accounting units concurrently working as accountants,
storekeepers, cashiers or purchasing or selling property, except for private
enterprises and individual business households;
b/ Arranging chief accountants
who fail to meet the prescribed criteria or conditions;
c/ Hiring chief accountants who
fail to meet the prescribed criteria or conditions.
3. Application of remedial measures:
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b/ Forcible transfer and
arrangement or hiring of substitute accountants or chief accountants, for
violations prescribed at Points b, c and d of Clause 1 and Points a, b and c of
Clause 2 of this Article.
Article
15.- Violations of regulations on practicing accountancy
1. A fine of between VND
5,000,000 and VND 10,000,000 shall be imposed for one of the following acts:
a/ Organizations or individuals
practicing accountancy without registering the accounting service business;
b/ Representatives at law of the
accounting service-providing enterprises having no accountancy practice
certificates;
c/ Accountancy-practicing
enterprises or individuals failing to ensure operation conditions according to
regulations but still providing accounting services;
d/ Individuals practicing
accountancy without accountancy practice certificates;
e/ Hiring persons having no
accountancy practice certificates to work as accountants or persons having no
chief accountant-training certificates to work as chief accountants;
f/ Parents, spouses, children or
siblings of the persons responsible for management of the accounting units,
including chief accountants, accepting to work as hired accountants for such
accounting units, or persons having economic, financial relations or inadequate
professional capability accepting to work as hired accountants, or accepting to
work as hired accountants when the accounting units have requests running
counter to the accountancy ethics or against the accounting operations;
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2. Additional sanctioning forms:
Deprivation of the right to use
accountancy practice certificates, for violations prescribed at Points f and g
of Clause 1 of this Article if being intentionally committed.
3. Application of remedial
measures:
a/ Forcible registration of
accounting service business, for violations prescribed at Point a of Clause 1
of this Article;
b/ Forcible suspension from
practicing accountancy, for violations prescribed at Points b, c, d, f and g of
Clause 1 of this Article;
c/ Forcible termination of the
contracts on the hire of accountants or chief accountants, for violations
prescribed at Point e of Clause 1 of this Article.
Article
16.- Violations of regulations on application of accounting standards,
accounting regime and of other regulations
1. A fine of between VND
5,000,000 and VND 10,000,000 shall be imposed for one of the following acts:
a/ Failing to register or notify
the accounting regime applied in the unit within the prescribed time limit, for
cases subject to registration or notification to competent State bodies;
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2. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed for acts of letting other
subjects use the bank deposit accounts or State treasury deposit accounts of
the units for receipt and transfer of money for monetary activities in
violation of the regulations on financial, budget and capital use management.
3. Application of remedial
measures:
a/ Forcible registration of the
applied accounting regime, for violations prescribed at Point a, Clause 1 of
this Article;
b/ Forcible compliance with
regulations, for violations prescribed at Point b of Clause 1, and Clause 2 of
this Article.
Article
17.- Violation acts in the accounting domain resulting in tax evasion and
fraudulence
1. Administrative violation acts
in the accounting domain prescribed from Article 7 thru Article 16 of this
Decree shall, apart from being subject to sanctions prescribed in Article 7
thru Article 16 above, shall be also sanctioned under the Government’s decree
on sanctioning of administrative violations in the tax domain if they have
resulted in tax evasion or fraudulence.
2. When deeming that
administrative violation acts in the accounting domain have resulted in tax
evasion or fraudulence, persons with competence to sanction administrative
violations must, after having sanctioned such administrative violations,
immediately transfer the dossiers to the tax offices of the same level for
handling administrative violations in the tax domain.
Chapter III
SANCTIONING COMPETENCE,
PROCEDURES
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1. Financial inspectors of all
levels on duty shall have the powers:
a/ To serve a caution;
b/ To impose fines of VND
200,000;
c/ To apply remedial measures
prescribed in Clause 3, Article 5 of this Decree.
2. The chief inspectors of the
provincial/municipal Finance Services shall have the powers:
a/ To serve a caution;
b/ To impose fines of up to VND
20,000,000;
c/ To impose additional
sanctioning forms and apply remedial measures prescribed in Clause 2 and Clause
3, Article 5 of this Decree.
3. The chief inspector of the
Finance Ministry shall have the powers:
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b/ To impose fines of up to VND
20,000,000;
c/ To impose additional
sanctioning forms and apply remedial measures prescribed in Clause 2 and Clause
3, Article 5 of this Decree.
Article
19.- Sanctioning competence of the People’s Committees of all levels:
1. The presidents of the
commune, ward and township People’s Committees (referred collectively to as the
commune-level People’s Committees) shall have the powers:
a/ To serve a caution;
b/ To impose fines of VND 500,000;
c/ To apply remedial measures
prescribed in Clause 3, Article 5 of this Decree.
2. The presidents of the
People’s Committees of rural districts, urban districts and provincial towns
and cities (referred collectively to as the district-level People’s Committees)
shall have the powers:
a/ To serve a caution;
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c/ To impose additional
sanctioning forms and apply remedial measures prescribed in Clause 2 and Clause
3, Article 5 of this Decree.
3. The presidents of the
People’s Committees of provinces and centrally-run cities (referred
collectively to as the provincial-level People’s Committees) shall have the
powers:
a/ To serve a caution;
b/ To impose fines of up to VND
20,000,000;
c/ To impose additional
sanctioning forms and apply remedial measures prescribed in Clause 2 and Clause
3, Article 5 of this Decree.
Article
20.- Authorization of the sanctioning of administrative violations in the
accounting domain
In cases where the persons with
administrative violation-sanctioning competence prescribed in Clause 2 and
Clause 3 of Article 18, Clause 1, Clause 2 and Clause 3 of Article 19 of this
Decree are absent, their authorized deputies shall have competence to sanction
administrative violations corresponding to the competence of the authorizers
and must be responsible for their decisions.
Article
21.- Division of competence to sanction administrative violations in the
accounting domain
1. The commune-level,
district-level and provincial-level People’s Committees shall have competence
to sanction administrative violations in the accounting domain in their
respective localities.
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Where an administrative
violation in the accounting domain falls under the sanctioning competence of
many persons, the person that is the first to receive the case shall sanction
such violation.
2. The sanctioning competence of
persons prescribed in Article 18 and Article 19 of this Decree is the
competence applied to one act of administrative violation in the accounting
domain.
3. Where a person or an
organization commits many acts of administrative violation, the sanctioning competence
shall comply with the provisions of Clause 3, Article 42 of the Ordinance on
Handling of Administrative Violations.
Article
22.- Statute of limitations for execution of administrative
violation-sanctioning decisions
The statute of limitations for
execution of administrative violation-sanctioning decisions is one year,
counting from the date of issuance of sanctioning decisions; past this time
limit, if such decisions have not yet been executed, they shall not be executed
but the remedial measures stated therein must still be applied. Where the
sanctioned individuals or organizations deliberately shirk or delay the
execution, the aforesaid statute of limitations shall be recounted, starting
from the time of termination of the shirking or delaying acts.
Article
23.- Procedures for sanctioning administrative violations in the accounting
domain
1. Upon detecting acts of
administrative violation in the accounting domain, the persons with sanctioning
competence must issue decisions to immediately stop such acts.
2. The procedures for
sanctioning administrative violations in the accounting domain shall comply
with the provisions in Chapter IV of the Government’s Decree No. 134/2003/ND-CP
of November 14, 2003 detailing a number of articles of the Ordinance on
Handling of Administrative Violations.
Article
24.- Coercion of execution of administrative violation-sanctioning
decisions
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Article
25.- Transfer of dossiers of administrative violations in the accounting
domain for penal liability examination
When deeming that acts of
administrative violation in the accounting domain show criminal signs, the
persons with administrative violation-sanctioning competence must immediately
transfer the dossiers to State bodies with crime- handling competence for
settlement.
Chapter IV
COMPLAINTS,
DENUNCIATIONS AND HANDLING OF VIOLATIONS
Article
26.- Complaints, denunciations
1. Individuals or organizations
that are sanctioned for administrative violations in the accounting domain or
their lawful representatives have the right to complain about the
administrative violation-sanctioning decisions or decisions on the application
of measures to prevent and secure the handling of, administrative violations.
2. Citizens shall have the right
to denounce illegal acts committed in the handling of administrative
violations.
3. The competence, procedures
and time limit for the settlement of complaints and denunciations shall comply
with the law provisions on complaints and denunciations.
Article
27.- Initiation of administrative lawsuits
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Article
28.- Commendation
Individuals and organizations
that make achievements in the prevention and fighting of administrative
violations in the accounting domain shall be commended and/or rewarded
according to law provisions.
Article
29.- Handling of violations
1. If persons handled for
administrative violations commit acts of resisting people on duty, delaying or
shirking the execution of the decisions issued by the persons with sanctioning
competence, they shall, depending on the nature and seriousness of their
violations, be administratively handled or examined for penal liability; and
pay compensation if causing damage.
2. If persons with competence to
handle administrative violations commit acts of hassling, tolerating, covering
up violations, fail to handle or handle violations belatedly, improperly or
ultra vires; fail to handle violations within the statute of limitations or
time limits for handling administrative violations in the accounting domain due
to their faults, they shall, depending on the nature and seriousness of their
violations, be disciplined or examined for penal liability, and pay
compensation according to law provisions if causing damage.
Chapter V
IMPLEMENTATION PROVISIONS
Article
30.- Implementation provisions
1. This Decree takes effect 15
days after its publication in the Official Gazette and replaces the
Government’s Decree No. 49/1999/ND-CP of July 6, 1999 on sanctioning of
administrative violations in the accounting domain.
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3. The Finance Minister shall have
to guide the implementation of this Decree.
ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Phan Van Khai