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MINISTRY OF NATIONAL DEFENCE OF VIETNAM
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No. 07/2023/TT-BQP
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Hanoi, January 27, 2023
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CIRCULAR
GUIDELINES FOR IMPLEMENTATION OF SOME ARTICLES OF
GOVERNMENT’S DECREE NO. 120/2013/ND-CP DATED OCTOBER 09, 2013 ON PENALTIES FOR
ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON NATIONAL DEFENSE OR CIPHER AND
GOVERNMENT’S DECREE NO. 37/2022/ND-CP DATED JUNE 06, 2022 ON ADMENDMENTS TO
SOME ARTICLES OF DECREES ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS AGAINST
REGULATIONS ON NATIONAL DEFENSE OR CIPHER; MANAGEMENT AND PROTECTION OF
NATIONAL BORDER; WITHIN THE TERRITORIAL WATERS, ISLANDS AND CONTINENTAL SHELF
OF THE SOCIALIST REPUBLIC OF VIETNAM
Pursuant to
Government’s Decree No. 120/2013/ND-CP dated October 09, 2013 on penalties for
administrative violations against regulations on national defense or cipher;
Pursuant to
Government’s Decree No. 37/2022/ND-CP dated June 06, 2022 on amendments to some
Articles of Decrees on penalties for administrative violations against
regulations on national defense or cipher; management and protection of
national border; within the territorial waters, islands and continental shelf
of the Socialist Republic of Vietnam;
Pursuant to
Government’s Decree No. 01/2022/ND-CP dated November 30, 2022 on functions,
tasks, powers, and organizational structure of the Ministry of National Defense
of Vietnam;
At the request of
Chief Inspector of the Ministry of National Defense;
The Minister of
National Defense hereby promulgates a Circular on guidelines for
implementation of some Articles of Government’s Decree No. 120/2013/ND-CP dated
October 09, 2013 on penalties for administrative violations against regulations
on national defense or cipher (hereinafter referred to as “Decree No.
120/2013/ND-CP”) and Government’s Decree No. 37/2022/ND-CP dated June 06, 2022
on amendments to some Articles of Decrees on penalties for administrative
violations against regulations on national defense or cipher; management and
protection of national border; within the territorial waters, islands and
continental shelf of the Socialist Republic of Vietnam (hereinafter referred to
as “Decree No. 37/2022/ND-CP”).
Chapter I
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Article 1. Scope
This Circular provides
guidelines for implementation of Clause 1, Clause 2, Article 4; Article 6;
Clause 2 Article 7; Point a, Clause 2, Article 11; Article 12; point a, point b
Clause 2 Article 23; Clause 1, Article 30 of Decree No. 120/2013/ND-CP, amended
by Clause 5, Clause 7, Clause 8, Clause 9, Clause 12, Clause 24, Clause 26,
Clause 27, Clause 28 Article 1 of Decree No. 37/2022/ND-CP and additional
regulations in Clause 13, Clause 16, Clause 17, Clause 18, Clause 19 and Clause
46, Article 1 of Decree No. 37/2022/ND-CP.
Article 2. Regulated
entities
This Circular applies to
domestic and foreign organizations and individuals that commit administrative
violations against regulations on national defense or cipher within the
territory of Vietnam; persons who have the power to record administrative
violations, persons who have the power to impose penalties for the
administrative violations, organizations and individuals related to imposition
of penalties for administrative violations against regulations on national
defense or cipher.
Article 3.
Determination of penalty amounts in specific cases
1. The specific penalty amount for an act of administrative
violation shall comply with regulations at Clause 4, Article 23 of the 2012 Law
on Handling Administrative Violations, amended in 2020.
2. Determination of the specific penalty amount for an act of
administrative violation in case there are numerous aggravating and extenuating
circumstances shall comply with regulations at Clause 1 Article 9 of Government’s
Decree No. 118/2021/ND-CP dated December 23, 2021 on elaboration of certain
Articles and enforcement of the Law on Handling of Administrative Violations
(hereinafter referred to as “Decree No. 118/2021/ND-CP).
Chapter II
ADMINISTRATIVE VIOLATIONS, SANCTIONS,
REMEDIAL MEASURES FOR VIOLATIONS AGAINST REGULATION ON NATIONAL DEFENSE OR
CIPHER
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1. Sound reasons:
a) The person required to
participate in pre-enlistment medical check-up or medical check-up for reserve
officer selection; or comply with the enlistment order, the call to reserve
officer training or the order for concentrated training, practicing or
examination on readiness for mobilization/fighting (hereinafter referred to as
“conscript") is ill or involved in an accident or is ill or involved in an
accident on the way and must receive treatment at the medical facility.
b) A family member of the
conscript, including his/her biological father/mother; father-in-law or
mother-in-law; adoptive father/mother; legal guardian, spouse, biological child
or legally adopted child, is ill or involved in an accident and she/he is
receiving treatment at the medical facility.
c) A family member of the
conscript specified in point b of this Clause is deceased but the funeral has
not taken place or completed.
d) The house of the
conscript or a family member of the conscript specified in point b of this
Clause is located in an area struck by natural disasters, epidemics or fire
seriously affecting their life.
dd) The conscript fails
to receive the written call to pre-enlistment medical check-up or medical
check-up for reserve officer selection; enlistment order, the call to reserve
officer training or the order for concentrated training, practicing or
examination on readiness for mobilization/fighting or the conscript receives
the written call but the time or the location is not clearly stated in the
written call due to a mistake of the competent person or authority or
obstruction caused by another person according to regulations in Article 7 of
this Circular.
2. The cases specified in Point a and Point b Clause 1 herein must
be confirmed by the People's Committee of commune where they reside or the
medical facility or health station of commune where they reside; the cases
specified in Point c and Point d Clause 1 herein must be confirmed by the
People's Committee of commune where they reside; the case specified in Point dd
Clause 1 herein must be confirmed by the People's Committee of commune where
they reside or the competent authority.
Article 5. Violation
against regulation on conscription registration specified in Clause 2, Article
4 of Decree No. 120/2013/ND-CP, amended by Clause 7 Article 1 of Decree No.
37/2022/ND-CP
1. The “failure to apply for supplemental conscription
registration” specified in Point c Clause 2 Article 4 of Decree No.
120/2013/ND-CP, amended by Clause 7, Article 1 of Decree No. 37/2022/ND-CP
means a violation where a citizen fails to directly apply for supplemental
conscription registration at the chain of communal military command in case of
change of position, educational attainment, qualification, health conditions
and other information related to conscription according to regulations at
Article 6 of Government’s Decree No. 13/2016/ND-CP dated February 19, 2016 on
procedures for registration, regimes and policies of citizens in the period of
registration and pre-enlistment medical check-up (hereinafter referred to as
“Decree No. 13/2016/ND-CP").
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3. The “failure to apply for registration for absenteeism from
conscription” specified in Point dd, Clause 2 Article 4 of Decree No.
120/2013/ND-CP, amended by Clause 7 Article 1 of Decree No. 37/2022/ND-CP means
a violation where a citizen who has registered conscription and left
district-level administrative unit in which he/she resides, studies or works
for 3 consecutive months or more fails to directly apply for registration for
absenteeism from conscription at the chain of communal military command
according to regulations at Article 8 of Decree No. 13/2016/ND-CP.
Article 6. “Alteration
of health classification results” specified in Point a, Clause 2, Article 6;
Clause 2 Article 7 and Point a Clause 2 Article 11 of Decree No.
120/2013/ND-CP, amended by Clauses 8, 9 and 12 Article 1 of Decree No.
37/2022/ND-CP
1. “Alteration of health classification results”
specified in Clause 8 Article 1 of Decree No. 37/2022/ND-CP:
a) A person undergoing
medical check-up uses methods or measures to intentionally change his/her
health condition right before or during examination in order to avoid
conscription and the competent authority has concluded that this is a deceitful
act (such as use of drugs, stimulants or banned substances; self-injury or
self-harm to his/her health, or use of other methods for alteration of health
classification results)
b) A person undergoing a
medical check-up changes results of classification of his/her health during the
examination to avoid conscription.
c) A person asks another
person to undergo medical check-up.
2. “Deceitful act aimed at evasion of enlistment order
after obtainment of the result of pre-enlistment medical check-up which
shows that a person is eligible for conscription specified in Clause 9 Article
1 of Decree No. 37/2022/ND-CP means a violation where the person uses methods or
measures to change his/her condition to make it different from the result of
pre-enlistment medical check-up certified by the pre-enlistment check-up board
which shows that the person is eligible for conscription.
Article 7.
“Obstruction” specified in Clause 2, Article 21, Clause 3 Article 23 of Decree
No. 120/2013/ND-CP, amended by Clauses 16, 17, 18 and 19 Article 1 of Decree
No. 37/2022/ND-CP
1. “Obstruction" specified in Clause 2 Article 21 of
Decree No. 120/2013/ND-CP, amended by Clause 16 Article 1 of Decree No.
37/2022/ND-CP means a violation where a person uses words or take actions to
obstruct or make physical or mental threat to prevent persons who are
responsible for organization of militia and self-defense forces from fulfilling
their tasks in the case of execution of the decision on organization of militia
and self-defense forces issued by the competent authority.
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3. “Obstruction" specified in Clause 18 Article 1 of
Decree No. 37/2022/ND-CP means a violation where a person uses words or take
actions to obstruct or make physical or mental threat to prevent organization
of training for militia and self-defense forces according to the plan of the
competent authority or prevent persons summoned to participate in training for
militia and self-defense forces from fulfilling their tasks in training
according to regulations.
4. “Obstruction" specified in Points a, b Clause 2
Article 23 of Decree No. 120/2013/ND-CP, amended by Clause 19 Article 1 of
Decree No. 37/2022/ND-CP means a violation where a person uses words or take
actions to obstruct or make physical or mental threat to prevent officials or
soldiers of militia and self-defense forces from fulfilling their tasks
according to regulations of the law, or executing the decision on mobilization of
militia and self-defense forces for fulfillment of their tasks of the competent
authority.
Article 8. Imposition
of penalties for administrative violations against regulations on land for
national defense, unmanned aerial vehicles and ultralight aerial vehicles
specified in Clause 46, Article 1 of Decree No. 37/2022/ND-CP
1. In case of detection of violations against regulations on
use of land for national defense according to regulations at Government’s
Decree No. 91/2019/ND-CP dated November 19, 2019 on penalties for
administrative violations against regulations on land (hereinafter referred to
as “Decree No. 91/2019/ND-CP"), amended by Government’s Decree No.
04/2022/ND-CP dated January 06, 2022 on amendments to some Articles of Decrees
on penalties for administrative violations against regulations on land, water
resources and minerals; hydrometeorology; topography and cartography
(hereinafter referred to as “Decree No. 04/2022/ND-CP"), the persons who
have power to record administrative violations, impose penalties for the
administrative violations specified in Clause 37 Article 1 of Decree No.
37/2022/ND-CP shall record and impose penalties according to regulations. To be
specific:
a) Determination of
illegal gains obtained from invading or appropriating land for national defense
shall comply with regulations in Clause 2 Article 7 of Decree No.
91/2019/ND-CP, amended by Clause 2 Article 1 of Government’s Decree No.
04/2022/ND-CP. To be specific:
Illegal gains obtained from violation
=
Area of land for national defense in violation
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X
Years of violation
Total land use period according to land price schedules
of land type of definite use term being used; in case of long use term, the
period shall be 70 years
b) Determination of
invasion or appropriation of land for national defense, penalty rates and
remedial measures shall comply with regulations in Clause 4 Article 14 of
Decree No. 91/2019/ND-CP.
c) Determination of
destruction of land for national defense, penalty rates, remedial measures
shall comply with regulations in Article 15 of Decree No. 91/2019/ND-CP.
d) Determination of
obstruction or damage to land for national defense, penalty rates, remedial
measures shall comply with regulations in Article 16 of Decree No.
91/2019/ND-CP.
dd) Determination of
violations against regulations on management of markers of use of land for
national defense, penalty rates, remedial measures shall comply with
regulations in Article 34 of Decree No. 91/2019/ND-CP.
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2. In case of detection of violations against regulations on
unmanned aerial vehicles and ultralight aerial vehicles, the persons who have
the power to record administrative violations, impose penalties for the
administrative violations against regulations on national defense or cipher
shall comply with regulations at Government’s Decree No. 144/2021/ND-CP dated
December 31, 2021 on administrative penalties for violations against
regulations on social safety, security, order; social evils, fire prevention
and firefighting; rescue; domestic violence prevention and control. In
case of imposition of penalties beyond their competence, the dossier on administrative
violations shall be transferred to the competent authority according to
regulations.
Article 9. Imposition
of supplementary sanctions of confiscating material evidence or means used for
commission of administrative violations specified in Decree No. 120/2013/ND-CP,
amended by Article 1 of Decree No. 37/2022/ND-CP
1. When imposing supplementary sanctions of confiscating
material evidence or means used for commission of administrative violations
against regulations on national defense or cipher, the competent persons on
duty shall adopt procedures for confiscating material evidence or means
used for commission of administrative violations according to regulations at
Article 81 of 2012 Law on Handling of Administrative Violations, amended in
2020.
2. Handling of material evidence or means involved in
commission of administrative violations of which decisions on confiscation have
already been issued shall comply with regulations at Clause 42 Article 1 of
2020 Law on amendments and supplements to certain Articles of Law on handling
of administrative violations.
3. Management of material evidence and means illegally owned
or used for administrative violations in cases of confiscation shall comply
with regulations at Article 23 of Decree No. 118/2021/ND-CP.
4. Identification of power to impose penalties for material
evidence or means of administrative violations which are products prohibited
from possession or circulation shall comply with Article 24 of Decree No.
118/2021/ND-CP.
Article 10. Remedial
measure of enforced performance of conscription according to regulations of the
Law on Military Service
The remedial measure of
“enforced performance of conscription” according to regulations of the Law on
Military Service in the case of the violations specified in Clause 2 Article 7
of Decree No. 120/2013/ND-CP, amended by Clause 5, Article 9 of Decree No.
37/2022/ND-CP means that a citizen has to continue to comply with regulations
on medical check-up for conscription and enlistment in the next medical
check-up or next conscription according to the Law on Military Service and
other relevant legal documents immediately after the decision on
imposition of remedial measure is issued.
Chapter III
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Article 11.
Identification of power to impose penalties for administrative violations
against regulations on national defense or cipher
1. If multiple persons have the power to impose a penalty for
an administrative violation against regulations on national defense or cipher,
the imposition of a penalty shall comply with regulations in Clause 3 Article
52 of 2012 Law on handling administrative violations, amended in
2020.
2. The power to impose penalties on an individual who commits
multiple administrative violations against regulations on national defense or
cipher shall be determined according to regulations in Clause 4 Article 52 of
2012 Law on handling administrative violations, amended in 2020.
Article 12. Imposition
of penalties for administrative violations against regulations on national
defense or cipher without violation records
Imposition of penalties
for administrative violations against regulations on national defense or cipher
without violation records applicable to case where a warning is issued with
regard to violation specified in Clause 1 Article 4 of Decree No.
120/2013/ND-CP shall comply with regulations at Article 56 of 2012 Law on
handling administrative violations, amended in 2020.
Article 13. Imposition
of penalties for administrative violations against regulations on national
defense or cipher with violation records
1. Imposition of penalties for administrative violations
against regulations on national defense or cipher with violation records is
applicable to administrative violations committed by individuals and
organizations other than cases specified in Article 12 of this Circular.
2. The violation records shall be made according to
regulations in Article 58 of 2012 Law on handling administrative violations,
amended in 2020 and Article 12 of Decree No. 118/2021/ND-CP.
Article 14.
Explanations from organizations and individuals that commit administrative violations
against regulations on national defense or cipher
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Article 15. Transfer
of files on administrative violations against regulations on national defense
or cipher suspected of crime for criminal prosecution
1. In the process of consideration of violation against
regulations on national defense or cipher for imposition of a penalty, in case
of suspicion of a crime, the person who has power to impose the penalty shall
immediately transfer the dossier on the violation to the competent authority entitled
to pursue criminal proceeding according to regulations at Article 62 of 2012
Law on handling administrative violations, amended in 2020 for handling.
Article 16. Issuance
and execution of decisions on imposition of penalties
1. The issuance of decisions on imposition of penalties for
administrative violations against regulations on national defense or cipher
shall comply with regulations at Article 67 of 2012 Law on handling
administrative violations, amended in 2020.
2. The contents of decisions on imposition of penalties for
administrative violations against regulations on national defense or cipher
shall comply with regulations at Article 68 of 2012 Law on handling
administrative violations, amended in 2020.
3. The execution of decisions on imposition of penalties for
administrative violations against regulations on national defense or cipher
shall comply with regulations at Section 2 Chapter III Part 2 of 2012 Law on
handling administrative violations, amended in 2020.
4. The enforced execution of decisions on imposition of
penalties for administrative violations against regulations on national defense
or cipher shall comply with regulations at Section 3 Chapter III Part 2 of 2012
Law on handling administrative violations, amended in 2020 and Decree No.
166/2013/ND-CP dated November 12, 2013 of the Government on enforced execution
of decisions on imposition of penalties for administrative violations.
Article 17. Forms and
procedures for payment of fines
1. Organizations or individuals who commit administrative
violations against regulations on national defense or cipher shall pay fines
under forms specified in Clause 1 Article 20 of Decree No. 118/2021/ND-CP
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3. Documents of collection and payment of
fines and late fine payment interests for administrative violations shall comply with regulations at Article 21 of Decree No.
118/2021/ND-CP.
Chapter IV
IMPLEMENTATION PROVISIONS
Article 18.
Transitional clauses
1. Administrative violations against regulations on national
defense or cipher committed before July 22, 2022 and under consideration shall
be handled according to regulations of the Government’s Decree No.
120/2013/ND-CP and Circular No. 95/2014/TT-BQP dated July 07, 2014 of the
Minister of National Defense on guidelines for the Government’s Decree No.
120/2013/ND-CP dated October 09, 2013 on penalties for administrative
violations against regulations on national defense or cipher.
2. Administrative violations against regulations on national
defense or cipher committed before July 22, 2022 and discovered afterwards or
under consideration shall be handled according to regulations of Decree No.
37/2022/ND-CP and this Circular if the application of such Decree and this
Circular is favorable to the individuals and organizations who commits these
violations.
3. If the organization or individual that incurs a penalty
still files a complaint against the decision on imposition of
penalties for administrative violations against regulations on national defense
and cipher issued
or completely executed before the effective date of this Decree, the
regulations of law taking
effect at the time of committing the administrative violation shall apply.
Article 19: Entry into
force
This Circular takes
effect from March 14, 2023 and supersedes Circular No. 95/2014/TT-BQP dated
July 07, 2014 of the Minister of National Defense on guidelines for the
Government’s Decree No. 120/2013/ND-CP dated October 09, 2013 on penalties for
administrative violations against regulations on national defense or cipher.
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1. Chief of the General Staff, Chairman of the General
Department of Politics and heads of agencies, units, and relevant organizations
and individuals shall be responsible for implementation of this Circular.
2. In the cases where any of the documents referred to in this
Circular is amended or replaced, the newest one shall apply.
3. Any difficulty or problem that arises during the
implementation of this Circular should be reported to the Ministry of National
Defense (via Inspectorate of the Ministry of National Defense) for
consideration and resolution.
PP. MINISTER
DEPUTY MINISTER
Lieutenant General Vo Minh Luong