THE GOVERNMENT
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SOCIALIST REPUBLIC OF
VIET NAM
Independence - Freedom – Happiness
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No. 54/1998/ND-CP
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Hanoi, July 21, 1998
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DECREE
AMENDING AND
SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE No. 16-CP OF MARCH 20, 1996 OF THE
GOVERNMENT ON THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF
STATE MANAGEMENT OVER CUSTOMS
THE GOVERNMENT
Pursuant to the Law of September 30, 1992 on
Organization of the Government;
Pursuant to the Ordinance of July 6, 1995 on the Handling of Administrative
Violations;
Pursuant to the Ordinance of February 20, 1990 on Customs;
At the proposal of the General Director of the General Department of Customs,
DECREES:
Article 1.- To amend and supplement a
number of articles of Decree No. 16-CP of March 20, 1996 of the Government on
the sanctioning of administrative violations in the field of State management
over customs.
Article 2.- To amend and supplement
Article 1 and Article 5 of Chapter I of Decree No. 16-CP.
1.- Article 1 is amended and supplemented as
follows:
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1. The administrative violations in the field of
State management over customs include:
a/ The violations of regulations on customs
procedures;
b) The violations of regulations on customs
supervision, inspection and control;
c/ The violations of regulations on export,
import or transit of goods, baggage, mails and parcels, foreign currencies,
Vietnamese currency and other articles (hereafter collectively referred to as
goods and articles) and transport means on entry, exit or transit in Vietnam.
d/ Acts of smuggling or illegal transportation
of goods and/or articles across the Vietnamese border, which are not so serious
to be examined for penal liability.
2. Individuals and organizations prescribed in
Article 5 of the Ordinance on the Handling of Administrative Violations that
commit administrative violations in the field of State management over customs
shall be sanctioned in accordance with the provisions of this Decree and the
Ordinance on the Handling of Administrative Violations promulgated on July 6,
1995.
3. Any mistakes made during the process of
sending exported or imported goods and/or articles shall not be considered
administrative violations if the senders or their lawful representatives fully
notify the customs authorities thereof before the latter examine such exported
or imported goods and/or articles. This provision shall not apply to goods and
articles which are narcotics, weapons or reactionary documents."
2.- Article 5 is amended and supplemented as
follows:
"Article 5a.- Cases which shall not be
handled as administrative violations:
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Article 5b.- Imposition of fines and forms of
additional sanctions
1. The concrete amount of fine imposed on an
administrative violation is the average level of the fine frame prescribed for
such violation; if a violation involves an extenuating factor the fine amount
may decrease but not lower than the minimum level of the fine frame; if it
involves an aggravating factor the fine amount may be increased but not higher
than the maximum level of the fine frame.
The consideration and imposition of a concrete
fine amount must be based on the extenuating or aggravating factor(s) specified
in Article 7 and Article 8 of the Ordinance on the Handling of Administrative
Violations according to the principle that it is in favor of the involved
parties.
2. Forms of additional sanctions and other
administrative measures must be taken together with the principal
sanctions."
Article 3.- To amend and supplement
Articles 6, 7, 8, 9, 10, 11 and 12 of Chapter II of Decree No. 16-CP.
1.- Article 6 is amended and supplemented as
follows:
"Article 6.- Violations of the time limit
for customs declaration and procedure clearance
1. To receive a warning or be fined from 50,000
VND to 200,000 VND for failure to complete the customs procedures according to
the time limit prescribed by law;
2. To be fined from 200,000 VND to 500,000 VND
for one of the following violations:
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b/ Failure to conduct temporary import for
re-export; or temporary export for re-import, of goods, articles and/or
transport means according to the time specified in the licenses, customs
declarations or other papers as prescribed by law."
2.- Article 7 is amended and supplemented as
follows:
"Article 7.- Violations of the regulations
on customs sealing and escort:
1. To be fined from 200,000 VND to 1,000,000 VND
for failure to keep intact the customs seal on the goods warehouse, goods,
packages, articles and/or transport means which are under customs control and
inspection.
2. To be fined from 500,000 VND to 2,000,000 VND
for acts of unauthorized breaking of the customs seal or displacement of
transport means, goods and/or articles which are being escorted by customs
authorities or which, according to regulations, must not be displaced when
being sealed..
3. To be fined from 10,000,000 VND to 15,000,000
VND for acts of unauthorized breaking of the customs seal to replace sealed
goods and/or articles with those of different category, quantity, weight,
quality, industrial design, origin and/or trademark, which are not so serious
to be examined for penal liability. Unauthorized sale of replaced goods and/or
articles shall not only result in a fine and but also the reimbursement of a
sum of money equal to the value of goods and/or articles sold without permission.
4. Any violations of the provision in Clause 3
of this Article that cause losses of export or import tax shall be sanctioned
in accordance with the provisions of the Law on Export Tax and Import
Tax."
3.- Article 8 is amended and supplemented as
follows:
"Article 8.- Violations of the regulations
on exchange of exports and/or imports among border population:
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a/ To carry across the border goods and/or
articles other than those already declared to the customs authorities;
b/ To carry across the border goods and/or
articles not through the designated routes and border gates;
c/ To carry across the border goods and/or
articles in excess of the quotas set by the State without declaring them to the
customs authorities.
c/ To carry across the border goods and/or
articles banned from exchange by the State;
2. To be fined from 200,000 VND to 500,000 VND
if the excess amount of goods and/or articles transported across the border
without declaring them to the customs authorities, which is valued at over
10,000,000 VND.
3. To be fined from 500,000 VND to 1,000,000 VND
for acts of carrying across the border goods and/or articles banned from import
or export, which are not so serious to be examined for penal liability.
4. Violations of the provisions in Points b, c
and d of Clause 1, Clause 2 and Clause 3 of this Article shall be subject to
not only a fine but also confiscation of the goods and/or articles which are material
evidences in the violations.
Goods and/or articles in a violation which cause
environmental pollution shall be forced to be taken out of Vietnam or
destroyed."
4.- Article 9 is amended and divided into two
articles.
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1. To receive a warning or be fined from 50,000
VND to 200,000 VND for acts of importing or exporting gifts other than those
declared with the customs authorities.
2. To be fined from 500,000 VND to 2,000,000 VND
for acts of exporting or importing gifts in contravention of the State's
regulations on export and import.
3. Individuals and/or organizations that violate
the provisions in Clause 2 of this Article shall be not only fined but also
forced to take out of Vietnam or forbidden to export the goods and/or articles
which are imported or exported in contravention of the State's regulations;
material evidences and/or means involved in a violation which are goods or
articles banned from export and/or import or conditional imports or exports
shall be confiscated.
4. In cases where a gift recipient has not been
informed in advance or is doubtful about the real content of the goods and/or
article(s) sent to him/her, he/she may, at his/her request, be shown such goods
by the customs authorities before making the customs declaration. Such a prior
look at the goods must be under the supervision by the customs authorities.
Article 9b.- Violations of the regulations on
exported or imported baggage.
1. To receive a warning or be fined from 20,000
VND to 200,000 VND for acts of exporting or importing baggages without making
declarations or making incorrect declarations according to customs regulations
on declaration.
2. To be fined from 500,000 VND to 2,000,000 VND
for one of the following acts:
a/ Failure to make the customs declaration when
exporting baggages in contravention of the State's regulations on export;
b/ Failure to make the customs declaration when
importing baggages which are banned from import by the State.
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5.- Article 10 is amended and supplemented as
follows:
"Article 10.- Violations of the regulations
on export or import of displaced and inherited property:
To receive a warning or be fined from 100,000
VND to 500,000 VND for failure to make the customs declaration when exporting
or importing displaced or inherited property which are banned from export or
import by the State.
Exporting or importing displaced and inherited
property which are foreign currency(ies), precious metal(s) or precious stones
shall comply with the regulations of the State Bank of Vietnam."
6.- Article 11 is amended and supplemented as
follows:
"Article 11.- Violations of the regulations
on customs control:
1. To receive a warning or be fined from 200,000
VND to 500,000 VND for one of the following violations:
a/ Unauthorized embarkation on or disembarkation
from the transport means which is under customs inspection;
b/ Failure to stop the transport means on exit
from, entry into or in transit through Vietnam at the designated checkpoints
for customs procedure clearance.
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3. To be fined from 3,000,000 VND to 5,000,000
VND for one of the following violations:
a/ Unauthorized docking of vessels or boats
transporting exported or imported goods which are under customs inspection and
supervision;
b/ Failure to obey orders of the customs
authorities when driving the transport means in the area under customs control;
c/ Failure to obey requests to open goods stores
for customs inspection.
4. To be fined from 5,000,000 VND to 10,000,000
VND for one of the following violations:
a/ Taking into the areas under customs control
exported or imported goods and/or articles or displacement of transport means
carrying exported or imported goods and/or articles in the area under customs
control without sufficient valid papers;
b/ Harboring, trading in or transporting
illegally imported goods and/or articles in the area under customs control;
c/ Failure to drive the transport means on exit
or entry or in transit through Vietnam on the designated routes and through the
designated gateways.
d/ Loading or unloading goods at a destination
port other than the one designated in the bill of lading without a plausible
reason.
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a/ Dispersing or jettisoning goods and/or
articles to evade customs inspection and control;
b/ Hindering the customs authorities to take
preventive administrative measures or replacing or removing material evidences
detected and seized in administrative violations of customs regulations, which
are not so serious to be examined for penal liability;
c/ Unauthorized loading or unloading of goods,
unauthorized trans-shipment, removal of goods from one ship or car to another,
car detachment or sale of goods and/or articles which are exported, imported or
in transit and under the customs inspection and control.
6. Apart from fines, additional sanctions or
other administrative measures shall be imposed on one of the following
violations:
a/ To be forced to leave the transport means if
they violate the provisions of Point a, Clause 1, or Point a, Clause 3 of this
Article;
b) To be forced to halt the transport means and
comply with inspection requests of the customs authorities if they violate the
provisions of Point b, Clause 1 or Points b and c, Clause 3, of this Article;
c/ To have the material evidences confiscated if
they violate the provisions of Point b, Clause 4 Clause 5 of this Article;
d/ To have the right to use the license for export,
import and transit stripped for 30 days if they repeat the violation of the
provisions of Points a and b, Clause 4, and Clause 5, of this Article."
7.- Article 12 is amended, supplemented and
divided into three articles as follows:
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1. To be fined from 1,000,000 VND to 3,000,000
VND for one of the following violations:
a/ Failure to produce papers related to the
verification of the legality of exported or imported goods and/or articles and
transport means on entry or exit;
b/ Failure to take imported goods and/or
articles to the designated place for customs procedure clearance.
2. To be fined from 3,000,000 VND to 5,000,000
VND for one of the following violations:
a/ Purchase, sale or assignment of goods and/or
articles which are entitled to preferential tariff treatment in contravention
of regulations;
b/ Unauthorized replacement of the packing of
goods and/or articles which are under customs inspection and supervision;
c/ Unauthorized use of goods and/or articles
which have been assigned to their owners for keeping pending the customs
procedure clearance;
3. To be fined from 5,000,000 VND to 10,000,000
VND for one of the following violations:
a/ Export or import of goods and/or articles
other than those stated in the licenses;
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c/ Alteration of the appearance, composition and
characteristics of goods so as to legalize their export or import;
d/ Replacement of goods and/or articles which
have not been inspected by customs authorities with goods and/or articles
already inspected by customs authorities.
4. Violations of the provisions in Point a,
Clause 2; Points b and c, Clause 3 of this Article which cause loss of import
or export tax shall be sanctioned in accordance with the Law on Export Tax and
Import Tax.
5. To be fined from 15,000,000 VND to 50,000,000
VND for one of the following violations:
a/ Exporting or importing goods and/or articles
in contravention of the provisions on customs privileges and immunity
b/ Exporting or importing goods and/or articles
in contravention of the State provisions on humanitarian aid;
c/ Exporting or importing goods which are on the
list of goods the import or export of which is restricted or banned but the
violation is not so serious to be examined for penal liability;
d/ Exporting or importing fake goods and/or
articles of Vietnamese origin;
e/ Taking goods, articles and/or transport means
into Vietnam without the permission of the competent Vietnamese State agency;
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g/ Assigning export and/or import licenses or
their substitute papers;
h/ Falsification of papers in the customs
dossiers so as to export and/or import goods but the violation is not so
serious to be examined for penal liability;
6. To be fined from 50,000,000 VND to
100,000,000 VND for one of the following violations which are not so serious to
be examined for penal liability:
a/ Exporting or importing goods and/or articles
which are hazardous to human health;
b/ Exporting or importing goods and/or articles
which cause environmental pollution or spread epidemics and diseases.
7. Apart from fines, individuals and
organizations committing administrative violations shall be subject to
additional sanctions or possibly the following measures:
a/ Confiscation of goods and/or articles for violations
of the provisions in Point d, Clause 3; Clause 5 of this Article;
b/ Stripping of the right to use the licenses
for 30 to 90 days for recidivism or repeated violations of the provisions in
Points a and c, Clause 3, Points f and g, Clause 5 of this Article;
c) Forcible re-export of imported goods from
Vietnam for violations of Point a, Clause 3 if such imported goods are
machinery, equipment and production chain in violation of the general technical
standards;
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8. For violations of the provisions in Clause 3
of this Article, after the sanctioning decision is executed, the involved goods
shall be dealt with as follows:
a/ For goods which are raw materials for the
production of export goods or for export processing, goods imported under
foreign investment programs, goods imported with the ODA capital source, if
they are imported in excess of the amount declared to the customs authorities
but such excess amount is included in the contract or license, it shall be
deducted later from the contract or license; if the submission of such a
license is delayed the time limit for submission can be extended to 60 days
from the date of registration for customs procedure clearance, If no license is
submitted after this time limit the imported goods shall have to be
re-exported.
Any amount imported in excess of the amount
already declared with the customs authorities which is not included in the
contract or license without a plausible reason shall be confiscated and
remitted into the public fund.
b/ For goods which are temporarily imported for
re-export, if they are imported in excess of the amount already declared with
the customs authorities but such excess amount is included in the contract or
license, they shall be deducted later from the contract or license; if such
excess amount is not included in the contract or license without a plausible
reason, it shall be confiscated and remitted into the public fund.
c/ Any goods for the purpose of sale promotion
which are exported or imported in excess of the amount already declared with
the customs authorities shall be confiscated and remitted into the public fund.
d/ For goods imported with the non-refundable
aid source, if they are imported without a license or at variance with the
goods donation agreement, the time limit for submission of a license may be
extended as stipulated in Point a of this Clause or such goods donation
agreement may be supplemented if it is so permitted by a competent agency. If
the goods are emergency aid the General Director of the General Department of
Customs shall consider and decide the release of such goods.
e/ Goods and/or articles which are to be
re-exported or taken out of Vietnam and which are not banned goods may be
stored in a bonded warehouse(s) according to the Regulation on the storage of
goods in bonded warehouses.
Article 12b.- Violations of the regulations on
the management of bonded warehouses.
1. To be fined from 1,000,000 VND to 5,000,000
VND for one of the following violations:
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b/ Violations of the Regulation on the
management of bonded warehouses.
2. To be fined from 5,000,000 VND to 10,000,000
VND for acts of storing goods and/or articles banned from storage in bonded
warehouses in a bonded warehouse and concurrently such goods are forced to be
taken out of Vietnam within 10 days.
Article 12c.- Violations of the Regulation on
customs management over processed goods for export and raw materials imported
for the production of export goods.
1. To be fined from 1,000,000 VND to 5,000,000
VND for violations of the Regulation on customs management over raw material
imported for the production of export goods or export processing.
2. Violations of the provisions in Clause 1 of
this Article that cause losses of import or export tax shall be sanctioned in
accordance with the Law on Export Tax and Import Tax."
Article 4.- To amend and supplement
Article 16 and Article 17, Chapter III of Decree No. 16-CP.
1.- Article 16 is amended and supplemented as
follows:
"Article 16.-
1. The immediate chief of customs officers has
the powers:
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b/ To fine up to 200,000 VND.
2. The chief of the border gate customs, the
chief of the control team of the provincial/municipal Customs Department; and
the chief of the control team of the Department for Investigation against
Smuggling under the General Department of Customs, have the powers:
a/ To issue a warning;
b/ To fine up to 2,000,000 VND. Violations of
the provisions of the Law on Export Tax and Import Tax shall be sanctioned in
accordance with such Law.
c/ To confiscate the material evidences and
means employed in administrative violations which are valued at up to
20,000,000 VND.
3. The directors of the Customs Departments of
the provinces or cities directly under the Central Government have the powers:
a/ To issue a warning;
b/ To fine up to 20,000,000 VND. Violations of
the provisions of the Law on Export Tax and Import Tax, they shall be
sanctioned in accordance with such Law;
c/ To confiscate the material evidences and
means employed in administrative violations and decide the destruction of goods
and/or articles which are harmful to human health and poisonous cultural
publications;
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2.- Article 17 is amended and supplemented as
follows:
"Article 17.-
1. With regard to violations subject to a fine
of over 20,000,000 VND, the director of provincial/municipal Customs Department
shall transfer their dossiers along with the material evidences to the People's
Committees of the provinces or cities directly under the Central Government for
sanctioning decisions by the presidents of the provincial/municipal People's
Committees and at the same time report them to the General Director of the
General Department of Customs.
2. All violations of the customs legislation
which occur on the land, in the territorial waters, on the continental shelf
and in the exclusive economic zone of the Socialist Republic of Vietnam shall
be handled by the customs authorities in charge of the area where the
violations occur according to their competence defined in this Decree.
3. In places along the national border where
there are no customs offices, the chiefs of the border guard units situated
therein and the border guard members on duty shall be entitled to sanction
customs-related administrative violations in accordance with the provisions in
Clause 3, Article 3 of this Decree.
4. The directors of the Police Departments of
the provinces and cities directly under the Central Government, the economic
police and the market management agency that detect goods and/or articles which
are imported illegally or in transit or temporarily imported for re-export and
are illegally sold on the Vietnamese market shall decide to sanction such
violations in accordance with the provisions in Point b, Clause 4, Article 11,
amended, in Article 3 of this Decree, Point a, Clause 2; Points g and h, Clause
5, Article 12a, amended, in Article 3 of this Decree."
Article 5.- To amend and supplement
Article 27, Chapter V of Decree No. 16-CP as follows:
"Article 27.- Dealing with cases where
imported goods and/or articles which are past the time limit for customs
procedure clearance or which are forced to be taken out of Vietnam or
re-exported:
1. All imported goods and/or articles for which,
even after 90 days from the deadline for customs procedure clearance as
prescribed by law and after 30 days from the date the customs office makes an
announcement on the mass media, nobody appears to complete customs procedures,
shall be remitted into the State public fund.
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2. All goods and/or articles which, as
prescribed, must be re-exported or taken out of Vietnam but their owners fail
to do so even after 30 days from the date the customs authorities make an
announcement thereon, shall be either remitted into the public fund or
destroyed."
Article 6.- To amend and supplement
Article 31 and Article 32, Chapter VI of Decree No. 16-CP
1.- Article 31 is amended as follows:
"Article 31.- Complaints against decisions
on the application of preventive administrative measures:
1. Individuals and/or organizations that are
subject to preventive administrative measures specified in Articles 18, 19, 20,
21 or 22 of Decree No. 16-CP on the sanctioning of administrative violations in
the field of State management over customs shall be entitled to lodge
complaints on their own or through their lawful representatives to the
immediate higher level of the person who issues decisions to apply such
measures.
2. Upon receiving a complaint, the competent
person shall have to reply in writing to the complainant within five days after
the receipt of such complaint.
3. If the complainant disagrees with the
settlement by the competent person defined in Clause 2 of this Article, he/she
shall be entitled to initiate a lawsuit at an administrative court."
2.- Article 32 is amended and supplemented as
follows:
"Article 32.- Complaining against decisions
to sanction administrative violations
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2. Within 15 days from the date of receipt of a
complaint, the person who has issued the sanctioning decision shall have to
settle it and reply in writing to the complainant.
In cases where the complainant disagrees with
the decision on the settlement of his/her complaint, he/she shall be entitled
to lodge a complaint to the immediate higher level of the person who has issued
such sanctioning decision within three days after the date he/she receives the
decision on the settlement of the complaint or initiate a lawsuit at an
administrative court..
In cases where a sanctioned person lodges a
complaint to the immediate higher level of the person who has made the
sanctioning decision, within 20 days after the receipt of such complaint, the
immediate chief of the person who has made the sanctioning decision shall have
to settle the matter and reply in writing to the complainant. In cases where
the complainant simultanously sends his/her complaint to the immediate higher
level of the person who has made the sanctioning decision and initiate a
lawsuit at an administrative court, the settlement of such complaint shall come
under the jurisdiction of the administrative court. The customs authorities
shall have to transfer the dossier on the violation to the competent
administrative court for settlement.
3. The complaint against the complaint settlement
decision of the president of the People's Committee of the province or city
directly under the Central Government or the director of the Customs Department
of a province or city directly under the Central Government (hereafter
collectively referred to as the provincial president or the director of the
provincial Customs Departments) shall be addressed to the very person who has
issued the sanctioning decision for settlement in accordance with the
provisions in Clause 2 of this Article. If the complainant disagrees with the
settlement of his/her complaint by the provincial president or the director of
the provincial Customs Department, he/she shall be entitled to lodge the
complaint to the General Director of the General Department of Customs or initiate
a lawsuit at an administrative court.
If the complainant lodge the complaint only to
the General Director of the General Department of Customs, the latter shall,
within 30 days from the date of receipt of the complaint, have to consider and make
a conclusion thereon and reply in writing to the complainant. In cases where
such conclusion is different from the decision of the provincial president or
the director of the provincial Customs Department, the provincial president or
the director of the provincial Customs Department shall, within seven days from
the date of receipt of the written conclusion, have to consider and alter
his/her decision according to the conclusion of the General Director of the
General Department of Customs. If the provincial president disagrees with the
conclusion of the General Director of the General Department of Customs, he/she
may lodge a complaint to the General State Inspector. Within 45 days from the
date of receipt of such complaint, the General State Inspector shall consider
and make a decision on the settlement of the complaint. The decision of the
General State Inspector is final.
In cases where the complainant simultanously
lodges a complaint to the General Director of the General Department of Customs
and initiate a lawsuit at an administrative court, the General Director of the
General Department of Customs shall transfer the dossier to the competent
administrative court for trial.
4. The complaint against a decision to sanction
an administrative violation shall not suspend the execution of such decision.
5. In cases where the person in charge of
settling a complaint issues a decision to change the form, level and/or measure
of sanctioning or cancels the sanctioning decision, he/she shall also
simultanously issue a decision on the compensation for the losses (if any) in
accordance with the provisions of law."
In cases where the complainant disagrees with
the decision on compensation, he/she may request a court to handle the case.
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The General Director of the General Department
of Customs shall have to guide the implementation of this Decree.
Article 8.- The ministers, the heads of
the ministerial-level agencies and agencies attached to the Government, the
heads of the mass and social organizations at the central level, and the
presidents of the People's Committees of the provinces and cities directly
under the Central Government shall have to implement this Decree.
ON BEHALF OF THE GOVERNMENT
FOR THE PRIME MINISTER
DEPUTY PRIME MINISTER
Nguyen Tan Dung