THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom Happiness
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No.
35-CP
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Hanoi,
April 23, 1997
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DECREE
DEFINING SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS IN THE
FIELD OF STATE MANAGEMENT OVER MINERALS
THE GOVERNMENT
Pursuant to the Law on
Organization of the Government of September 30, 1992;
Pursuant to the Law on Minerals of March 20, 1996;
Pursuant to the Law on the Handling of Administrative Violations of July 6,
1995;
At the proposal of the Minister of Industry,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.-
Scope and objects of application
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2. Acts of administrative
violation of the regulations on the environmental protection in mineral
activities shall be sanctioned in accordance with the Government’s provisions
on administrative sanctions against violations in the protection of environment
(Decree No.26-CP of April 26, 1996). Acts of administrative violation in
ensuring the labor safety and hygiene in mineral activities shall be sanctioned
in accordance with the Government�s
provisions on administrative sanctions against the violations of the labor
legislation (Decree No.38-CP of June 25, 1996).
Acts of administrative violation
in the fields of storing, transporting, trading, exporting or importing
minerals related to the administrative violations in the field of State
management over minerals shall be sanctioned in accordance with the Government�s provisions on sanctions
against administrative violations in the field of trade (Decree No.01-CP of
January 3, 1996).
Acts of violating the obligation
to pay taxes, fees and charges in mineral activities shall be sanctioned in
accordance with the provisions of the legislation on taxes, fees and charges.
3. Foreign organizations and/or
individuals committing acts of administrative violation in the field of State
management over minerals on land territory, islands, internal waters,
territorial waters, exclusive economic zones and continential shelf of the
Socialist Republic of Vietnam shall also be sanctioned in accordance with the
provisions of this Decree, except otherwise provided for by international
treaties which Vietnam has signed or acceded to.
Article 2.-
Principles and statute of limitations for sanctioning administrative violations
in the field of State management over minerals
1. Principles for sanctioning
administrative violations in the field of State management over minerals shall
comply with the provisions of Article 3 of the Ordinance on the Handling of
Administrative Violations.
2. The statute of limitations
for sanctioning an administrative violation in the field of State management
over minerals shall be two years from the date when the administrative
violation is committed; beyond this timelimit, the violation shall not be
sanctioned but shall be subject to measures provided for in this Decree to
overcome consequences caused by that administrative violation.
3. The timelimit for being
considered as having not been sanctioned for an administrative violation in the
field of State management over minerals shall be one year from the date when
the administratively sanctioned organization and/or individual has already
executed the sanctioning decision or from the date when the sanctioning
decision ceased to be effective and the violation is not repeated.
Article 3.-
Application of the forms of sanction and other measures
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The extenuating and aggravating
factors shall be determined in accordance with the provisions of Articles 7 and
8 of the Ordinance on the Handling of Administrative Violations.
2. Forms of additional sanctions
and measures accompanying the main form of sanction shall be applied in
accordance with the provisions of this Decree.
3. The mineral activity permits
shall be withdrawn if the organizations and/or individuals commit acts of
administrative violation in the field of State management over minerals as
prescribed by the Law on Minerals and this Decree.
Chapter II
ACTS OF ADMINISTRATIVE
VIOLATION IN THE FIELD OF STATE MANAGEMENT OVER MINERALS, FORMS AND LEVELS OF
SANCTION
Article 4.-
Violations of the regulations on mineral prospection
1. A warning or fine of 50,000
VND to 200,000 VND for one of the following acts:
a/ Conducting mineral
prospection without permit as prescribed by law;
b/ Conducting mineral
prospection when the prospection permit has already expired, except in cases
where the application for the extension of the permit has been lawfully
submitted and is under consideration;
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d/ Conducting mineral
prospection by using permit of another organization and/or individual;
e/ Conducting mineral
prospection without informing the prospection plan to the State managing
agencies as prescribed by law;
f/ Applying for the extension of
the prospection permit after its expiry or its validity remains for less than
30 days, provided that the extension is allowed by the Ministry of Industry.
2. A fine of 500,000 VND to
1,000,000 VND for one of the following acts:
a/ Failing to submit the final
report on the prospection results to the Ministry of Industry or submitting it
30 days or more later than the date when the permit becomes invalid;
b/ Bringing out of the
prospected area specimens with the volume and types not in conformity with the
evaluated prospection plan or contrary to the conditions prescribed in the
permit.
3. Forms of additional sanctions
and other measures applied to administrative violations defined in this
Article:
a/ Stripping off the right to
use (withdrawing) permit for acts stipulated in Point d, Item 1 of this
Article;
b/ Forcing the announcement of
the prospection plan as prescribed by law for acts stipulated in Point e, Item
1 of this Article;
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Article 5.-
Violations of the regulations on mineral exploration
1. A fine of 200,000 VND to
500,000 VND for an act of failing to inform exploration plan to the State
managing agencies as prescribed by law.
2. A fine of 500,000 VND to
1,000,000 VND for one of the following acts:
a/ Conducting mineral exploration
without exploration permit as prescribed by law;
b/ Conducting mineral
exploration after the expiry of the exploration permit, except in cases where
the application for the extension of the permit has been lawfully submitted and
is under consideration;
c/ Conducting mineral
exploration outside the area prescribed in the exploration permit;
d/ Conducting mineral
exploration without informing the exploration plan or failing to observe the
regime of periodical reporting to the State managing agencies as prescribed by
law;
e/ Applying for the extension of
the exploration permit after its expiry or its validity remains for less than
30 days, provided that the extension is allowed by the Ministry of Industry.
3. A fine of 1,000,000 VND to
5,000,000 VND for one of the following acts:
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b/ Failing, within the
time-limit prescribed by law, to level and fill the exploration site or to
fulfil all requirements on the protection of mineral resources and environment
upon the expiry of the exploration permit;
c/ Bringing out of the explored
area specimens with their volume and types not in conformity with the evaluated
exploration plan or contrary to the conditions prescribed in the permit.
4. Acts defined in Points a, b,
c and d, Item 2 and in Item 3 of this Article, if committed in an organized or
repeated manner or committed by abusing one�s
position or power may be fined up to 10,000,000 VND.
5. Forms of additional sanctions
and other measures applied to acts of violation stipulated in this Article:
a/ Stripping off the right to
use (withdrawing) permit for acts stipulated in Point d, Item 2 and for
corresponding acts stipulated in Item 4 of this Article;
b/ Forcing the announcement of
the exploration plan as prescribed by law for acts stipulated in Point d, Item
2 of this Article;
c/ Forcing the performance of
tasks to overcome acts of violation stipulated in Points a and b, Item 3 of
this Article.
Article 6.-
Violations of the regulations on mineral exploitation
1. A fine of 200,000 VND to
500,000 VND for one of the following acts:
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b/ Failing to register the date
of commencing the capital construction of a mine or the date of starting the
mineral production, exploitation and processing;
c/ Failing to submit the mine�s design or to inform the
plan on the mineral exploitation and processing tempo to the competent State
agency as prescribed by law;
d/ Failing to declare the
Executive Director of the mine to the State agency in charge of the management
of minerals as prescribed by law.
2. A fine of 500,000 VND to
1,000,000 VND for one of the following acts:
a/ Conducting mineral
exploitation without the Executive Director of the mine, except otherwise
provided for by the Government;
b/ Failing to observe the regime
of periodical reporting on mineral exploitation activities as prescribed by law
or irregular reporting at the request of the competent State managing agencies;
c/ Extracting minerals to be
used as common construction materials without permit or by using the expired
permit or a permit of another organization and/or individual;
d/ Applying for the extension of
the mineral exploitation permit after its expiry or its validity remains for
less than 90 days, provided that the extension is allowed by the permit issuing
agency.
3. A fine of 1,000,000 VND to
5,000,000 VND for one of the following acts:
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b/ Conducting the exploitation
of minerals (except for the valuable, rare and hazardous minerals) when the
expired mineral exploitation permit has already expired, except in cases where
the application for the extension of the permit has been lawfully submitted and
is under consideration;
c/ Conducting the exploitation
of minerals (except for the valuable, rare and hazardous minerals) outside the
precsribed area or the exploitation of other minerals not prescribed in the
exploitation permit.
4. A fine of 6,000,000 VND to
30,000,000 VND for one of the following acts:
a/ One of the acts stipulated in
Item 3 of this Article, regarding the case of exploiting valuable, rare and
hazardous minerals or the case of exploiting minerals which are not valuable,
rare or hazardous and the violation is committed in an organized or repeated
manner or committed by abusing one�s
position or power;
b/ Failing, within the
time-limit prescribed by law after the expiry of the exploitation permit, to
perform or to fulfill the tasks of putting mines to safety, restoring land,
environment and ecology and protecting the unexploited mineral resources.
c/ Failing to submit or
submitting insufficiently and not in time the results of exploitation
activities and other related documents to the State agency in charge of the
management of minerals or failing to perform other tasks as prescribed by law
regarding the closure of mines.
5. A fine of 30,000,000 VND to
100,000,000 VND for one of the acts stipulated in Item 3 of this Article,
regarding the case of exploiting valuable, rare and hazardous minerals and the
violation is committed in an organized or repeated manner or committed by
abusing one�s position
or power abusing one�s
position or power.
6. Forms of additional sanctions
and other measures applied to the acts stipulated in this Article:
a/ Forcing to perform tasks
prescribed by law so as to overcome the consequences of acts of violation
defined in Item 1, Points a and b, Item 2 and Points b and c, Item 4 of this
Article;
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c/ Confiscating means used to
commit the violation in accordance with the provisions of law for acts defined
in Point a, Item 3 and other respective acts in the case of exploiting the
valuable, rare and hazardous minerals;
d/ Stripping off the right to
use (withdrawing) mineral exploitation permits for acts stipulated in Point d,
Item 3 of this Article and for corresponding acts in the case of exploiting the
valuable, rare and hazardous minerals.
Article 7.-
Violations of the regulations on mineral processing
1. A fine of 200,000 VND to
500,000 VND for one of the following acts:
a/ Failing to observe the
reporting regime or to inform the mineral processing plan to the competent
State managing agencies as prescribed by law;
b/ Conducting the processing of
minerals (except for the valuable, rare and hazardous minerals) when the
mineral exploitation or processing permit has expired, except in cases where
the application for its extension has been lawfully submitted and is under
consideration;
2. A fine of 500,000 VND to
2,000,000 VND for mineral processing activities (except for the valuable, rare
and hazardous minerals) without mineral exploitation or processing permit as
prescribed by law.
3. A fine of 2,000,000 VND to
10,000,000 VND for one of the acts stipulated in Item 2 of this Article in the
case of processing valuable, rare and hazardous minerals.
4. Stripping off the right to
use (withdrawing) mineral processing permits for acts stipulated in Point b,
Item 2 of this Article and for corresponding acts in the case of processing the
valuable, rare and hazardous minerals.
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1. A fine of 200,000 VND to
1,000,000 VND for one of the following acts:
a/ Obstructing the lawful basic
geological surveys of mineral resources or mineral activities of other
organizations and/or individuals;
b/ Obstructing or inciting
others to obstruct the protection of the unexploited mineral resources, but not
seriously enough for being examined for penal liability.
2. A fine of 2,000,000 VND to
10,000,000 VND for one of the following acts:
a/ Failing to remit or remitting
insufficiently or not in time fees for the use of the State�s data and information on
mineral resources in accordance with the provisions of law;
b/ Causing mineral losses in the
process of building and/or liquidating drilling, digging and mining works
serving basic geological surveys of mineral resources or the mineral
prospection, exploration and exploitation activities;
c/ Causing mineral losses that
exceed the permitted level (according to the design) in the mineral
exploitation and processing activities;
d/ Using high-valued minerals as
common construction materials, which are, under the provisions of the Ministry
of Industry, not categorized as minerals used as common construction materials;
e/ Concealing, deevaluating or
unlawfully trading particuparly valuable and rare geological and mineral
specimens, which, under the Government�s
provisions, must be sold or handed over to the State, but not seriously enough
for being examined for penal liability;
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g/ Releasing information on
mineral resources classified as the State�s
secrets, but not seriously enough for being examined for penal liability;
h/ Obstructing the mineral
examination and inspection activities conducted by competent State officials
and agencies.
3. Forms of additional sanctions
and other measures applied to the acts stipulated in this Article:
Temporarily suspending
activities related to the violation, forcing to perform tasks prescribed by law
to overcome consequences of the violation with regard to the acts defined in
Points a, b, c and d, Item 2 of this Article.
Chapter
III
COMPETENCE, PROCEDURES
FOR SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE FIELD OF STATE MANAGEMENT OVER
MINERALS
Article 9.-
Competence of the People’s Committees of various levels to sanction
administrative violations in the field of State management over minerals
1. The President of the People’s
Committee of the commune, ward or township shall have the right to apply forms
of sanction against administrative violations prescribed in Article 26 of the
Ordinance on the Handling of Administrative Violations with regard to the
violations of the provisions of this Decree according to the local
administration’s competence for the State management over minerals, more
concretely:
a/ To issue warnings;
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c/ To confiscate material
evidences and means valued at up to 500,000 VND which are used in the
administrative violation;
d/ To force the compensation of
up to 500,000 VND for damages caused by the administrative violation.
2. The President of the People�s Committee of the district
or equivalent level shall have the right to apply forms of sanction against
administrative violations prescribed in Article 27 of the Ordinance on the
Handling of Administrative Violations (except for the right to strip off the
right to use mineral activity permit) with regard to the violations of the
provisions of this Decree according to the local administration’s competence
for the State management over minerals, more concretely:
a/ To issue warnings;
b/ To impose fines of up to
10,000,000 VND;
c/ To confiscate material
evidences and means used in the administrative violation;
d/ To confiscate the unlawfully
exploited minerals;
e/ To force the compensation of
up to 1,000,000 VND for damages caused by the administrative violation.
3. The President of the People’s
Committee of the province or city directly under the Central Goverment shall
have the right to apply forms of sanction against administrative violations
prescribed in Article 28 of the Ordinance on the Handling of Administrative
Violations (except for the right to strip off the right to use mineral activity
permit granted by the Ministry of Industry) with regard to the violations of
the provisions of this Decree according to the local administration’s
competence for the State management over minerals, more concretely:
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b/ To impose fines of up to
100,000,000 VND;
c/ To strip off the right to use
(withdraw) the mineral exploitation permit the grant of which falls under the
competence of the provincial People�s
Committee;
d/ To confiscate material
evidences and means used in the administrative violation;
e/ To confiscate the unlawfully
exploited minerals;
f/ To force the application of
measures to overcome consequences caused by the administrative violation;
g/ To force the compensation of up
to 1,000,000 VND for damages caused by the administrative violation.
Article
10.- Competence of the State agencies managing minerals to sanction
administrative violations in the field of State management of minerals
1. Specialized minerals
inspectors, while on duty, are entitled to exercise the rights stipulated in
Item 1, Article 34 of the Ordinance on the Handling of Administrative
Violations with regard to acts of administrative violation in the field of
State management over minerals, labor safety and environmental protection in
mineral activities, more concretely:
a/ To issue warnings;
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c/ To confiscate material
evidences and means valued at up to 500,000 VND used in the violation;
d/ To force the cessation of the
violation, the overcoming of consequences caused by the violation.
2. The specialized mineral chief
inspector, the head of the agency performing the function of specialized
mineral inspection of the provincial/municipal Service of Industry are eligible
for the rights stipulated in Item 2, Article 34 of the Ordinance on the
Handling of Administrative Violations with regard to acts of administrative
violation of the provisions of this Decree, more concretely:
a/ To issue warnings;
b/ To impose fines of up to
10,000,000 VND;
c/ To confiscate material
evidences and means valued at up to 1,000,000 VND used in the violation ;
d/ To force the cessation of the
violation and the overcoming of consequences caused by the violation;
e/ To force the compensation of
up to 1,000,000 VND for damages caused by the administrative violation.
3. The specialized mineral chief
inspector, the head of the agency performing the function of specialized
mineral inspection of the Ministry of Industry are entitled to exercise the rights
stipulated in Item 3, Article 34 of the Ordinance on the Handling of
Administrative Violations with regard to acts of violating the provisions of
this Decree, more concretely:
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b/ To impose fines of up to
20,000,000 VND;
c/ To confiscate material
evidences and means used in the administrative violation;
d/ To confiscate the unlawfully
exploited minerals;
e/ To for the cessation of
violation, the ovecoming of consequences caused by the administrative
violation;
e/ To force the compensation of
up to 1,000,000 VND for damages caused by the administrative violation.
Article
11.- Authorization and principles for determining the competence for the
handling of administrative violations in the field of State management over
minerals
1. The authorization of the
competence for the handling of administrative violations in the field of State
management over minerals shall comply with the provisions of Article 36 of the
Ordinance on the Handling of Administrative Violations;
2. The principles for
determining the competence for the handling of administrative violations in the
field of State management over minerals shall comply with the provisions of
Article 37 of the Ordinance on the Handling of Administrative Violations;
Article
12.-
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2. All sanctioned administrative
violations in the field of State management of minerals must be filed in
dossiers and kept fully at the sanctioning agency.
3. The fined organizations
and/or individuals must pay fines at the place stated in the sanctioning
decision. The collection of fines by the sanctioning person in any form is
strictly forbidden.
4. If the confiscation of
minerals, material evidences and violation means is applied, the competent
sanctioning person shall have to abide by the provisions of Article 51 and Item
1, Article 52 of the Ordinance on the Handling of Administrative Violations.
Article
13.- The execution of sanctioning decisions and coercive execution of
sanctioning decisions against administrative violations in the field of State
management of minerals
1. The organization and/or individual
administratively sanctioned under this Decree shall, within the prescribed
time-limit, have to strictly abide by the sanctioning decision of the competent
sanctioning agency or person. If the sanctioned organization and/or individual
fails to execute the sanctioning decision or deliberately dodges the execution,
they shall be forced to execute it in accordance with Article 55 of the
Ordinance on the Handling of Administrative Violations.
2. When applying coercive
measures for the execution of sanctioning decisions against administrative
violations in the field of State management over minerals, the competent agency
or person shall have to follow the coercive order and procedures as prescribed
by law.
Chapter IV
COMPLAINTS AND
DENUNCIATIONS ABOUT THE HANDLING OF VIOLATIONS
Article
14.- Complaints and denunciations about sanctioning decisions against
administrative violations in the field of State management over minerals
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2. Citizens have the right to
file denunciations to the competent State agencies about administrative
violations in the field of State management of minerals, that are committed by
organizations and/or individuals as well as the violations by persons competent
to sanction against administrative violations in the field of State management
over minerals.
3. The procedures, order,
time-limit and competence for making complaints or denunciations and settling
the complaints and denunciations shall comply with the provisions of Articles
87, 88 and 90 of the Ordinance on the Handling of Administrative Violations of
July 6, 1995 and the provisions of the Ordinance on the Settlement of
Administrative Cases of May 25, 1996.
Article
15.- Handling of violations committed by the persons competent to sanction
against administrative violations in the field of State management over
minerals
If a person competent to
sanction against administrative violations in the field of State management of
minerals, extorts, tolerates, covers up violations, failing to handle or handle
the violations not in time, improperly or not in accordance with his/her
competence, appropriates, illegally uses fines, minerals, material evidences
and violation means, he/she shall, depending on the nature and seriousness of
his/her violation, be handled administratively or examined for penal liability;
if any damage is caused, compensation must be made.
Chapter V
IMPLEMENTATION PROVISIONS
Article
16.- This Decree takes effect from July 1st, 1997. The earlier provisions
on sanctioning administrative violations in the field of State management over
minerals which are contrary to this Decree, are now annulled.
Article
17.- The Minister of Industry, the other Ministers, the Heads of the
agencies attached to the Government, the Presidents of the People’s Committees
of the provinces and cities directly under the Central Government shall have to
implement this Decree.
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ON
BEHALF OF THE GOVERNMENT
THE PRIME MINISTER
Vo Van Kiet