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GOVERNMENT OF
VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No. 118/2021/ND-CP
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Hanoi, December
23, 2021
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DECREE
ELABORATING CERTAIN
ARTICLES AND ENFORCEMENT OF THE LAW ON HANDLING OF ADMINISTRATIVE VIOLATIONS
Pursuant to the Law on Governmental Organization
dated June 19, 2015; Law on amendments to the Law on Governmental Organization
and the Law on Local Government Organization dated November 22, 2019;
Pursuant to the Law on Handling of
Administrative Violations dated June 20, 2012; The Law on amendments to certain
Articles of the Law on Handling of Administrative Violations dated November 13,
2020;
At the request of the Minister of Justice of
Vietnam;
The Government of Vietnam promulgates a Decree
elaborating certain Articles and enforcement of the Law on Handling of
Administrative Violations.
Chapter I
GENERAL PROVISIONS
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This Decree
elaborates certain Articles and enforcement of the Law on Handling of
Administrative Violations including:
1. Entities against
whom administrative penalties are imposed.
2. Regulations on
administrative violations and administrative penalties.
3. Applications of
regulations on administrative penalties.
4. State management
of enforcement of laws on handling of administrative violations.
Article 2. Regulated entities
1. Authorities competent to manage the enforcement
of laws on handling of administrative violations.
2. Authorities and individuals competent to handle
administrative violations.
3. Agencies, organizations and individuals relative
to the enforcement of laws on handling of administrative violations.
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1. Entities against whom administrative penalties
are imposed prescribed in clause 1 Article 5 of the Law on Handling of
Administrative Violations.
2. Administrative penalties will be imposed upon an
organization if the following conditions are fully satisfied
a) The organization is a juridical person under
regulations of civil laws or other organizations are established as prescribed
by laws;
b) Administrative violations are committed by
representatives, people appointed to act on the organization’s behalf or people
committing violations under direction, control, assignment and approval of
organizations and these violations prescribed in decrees on administrative
penalties in various state management fields.
3. Penalized organizations are prescribed
specifically in decrees on administrative penalties in various state management
fields.
4. For branches, representative offices and
business locations committing administrative violations within the
authorization scope and time limit of juridical persons and organizations or
under their direction, control, assignment and approval, these juridical
persons and organizations against whose administrative penalties shall be
imposed according to fines applicable to organizations for activities organized
by branches, representative offices and business locations of these juridical
persons and organizations.
For branches, representative offices and business
locations of juridical persons and organizations committing administrative
violations beyond the authorization scope and time limit of legal entities and
organizations or beyond their direction, control, assignment and approval,
these branches, representative offices and business locations on whose
administrative penalties shall be imposed according to fines applicable to
organizations for activities organized by branches, representative offices and
business locations of these legal entities and organizations.
5. Household businesses, households and communities
that commit administrative violations shall be subject to fines imposed on
individuals committing administrative violations. Representatives of household
businesses, owners of households, leaders of communities shall be responsible
for implementation of decisions on administrative penalties for household
businesses, households and communities.
6. In case officials, public employees, members of
the People's Army and the People's Public Security Forces and cipher officers
who commit violations whilst being on their official duties and missions and
these violations belong to the official duties and missions, they shall be not
subject to penalties according to regulations of laws on handling of
administrative violations but they shall be handled as prescribed by relative
laws.
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Chapter II
REGULATIONS ON ADMINISTRATIVE VIOLATIONS AND
ADMINISTRATIVE PENALTIES
Article 4. Regulations on administrative
violations, penalties, fines and remedial measures in decrees on administrative
penalties in various state management fields
1. Regulations on administrative violations must
satisfy the following requirements:
a) Violations must be relative to obligations,
liabilities, prohibitions of laws on administrative management order in various
state management fields;
b) Violations must meet requirements for ensuring
the state administrative management order;
c) Administrative violations must be presented
clearly, adequately and specifically to be able to determine violations and
impose penalties on them in the reality.
2. Administrative violations prescribed in decrees
on administrative penalties in various state management fields must be
corresponding and suitable to infringing natures of these violations.
In case an administrative violation belongs to a
state management field but relates to another state management field, in order
to ensure the completeness, comprehensiveness and uniformity of regulations on
administrative penalties, it may refer to the violations prescribed in the
decrees on administrative penalties on another field while delimiting power to
impose penalties on some titles with powers to impose penalties of this field.
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3. Penalties and fines shall be prescribed for each
administrative violation and must be based on the following elements:
a) Nature and seriousness of violations of the
state administrative management order of the violations; for violations that
are not serious and simple, warnings must be imposed;
b) Average income and standard of living of the
people in each stage of socio-economic development of Vietnam;
c) Level of education and deterrence,
reasonableness and feasibility of applying the penalties and fines.
4. Regulations on the penalty frame for each
administrative violation must be specific and the gap between the minimum and
maximum amount of the penalty frame must be not too large. The penalty frame
specified in an article must be arranged in ascending order starting from the
smallest amount to the largest amount.
5. Remedial measures shall be prescribed for each
administrative violation and must be based on the following requirements:
a) Administrative violations must cause
consequences or have the actual possibility of causing consequences;
b) Remedial measures must satisfy requirements for
re-recovery in the state administrative management order caused by
administrative violations;
c) Remedial measures must be performed clearly,
adequately and specifically to be able to apply to the reality and must ensure
the practicability.
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Article 5. Regulations on fixed-term suspension
of practising licenses or certificates, fixed-term suspension of operations or
confiscation of exhibits and means of administrative violations for
administrative violations specified in decrees on administrative penalties in
various state management fields
1. Basis for suspension of practising licenses or
certificates for administrative violations:
a) Direct violations against activities stated in
practising licenses or certificates;
b) Violations with serious nature and seriousness
against the state administrative management order.
2. Do not suspend practising licenses or
certificates for the fixed term in case there are law regulations on revocation
of practising licenses or certificates.
3. Regulations on fixed-term partial suspension of
operation for administrative violations committed by manufacturers, businesses
and service establishments must include licenses according to regulations of
laws on the basis of the following:
a) Direct violation against activities specified in
licenses;
b) Violations with serious nature and seriousness
against the state administrative management order.
c) Administrative violations must cause
consequences or have the actual possibility of causing serious consequences for
human life, health, environment and social security and order.
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5. Regulations on fixed-term partial or full
suspension of operation for administrative violations of manufacture, business
and service establishments or other operations do not require licenses
according to regulations of laws on the basis of nature and serious seriousness
of violations against the state administrative management order or serious
consequences for human life, health, environment and social security and order
that such violations have actual possibility of causing that.
6. In case exhibits and means
of administrative violations are drugs, weapons, explosives, combat gears,
objects of historical and cultural worth, national treasures, antiques,
precious forest products and objects banned from storage or circulation, they
must be confiscated. For other cases, regulations on the confiscation of
exhibits and means of administrative violations must be based on one of the
following:
a) Violations are constituted by deliberate faults
or serious violations;
b) Objects, money, goods, and means are direct
exhibits of the administrative violations or are directly used to commit
administrative violations.
7. Fixed-term suspension of licenses and practicing
certificates or fixed-term suspension of operation or confiscation of exhibits
and means of administrative violations which are primary or additional
penalties for specific administrative violations specified in decrees on
administrative penalties must be based on Articles 21, 25 and 26 of the Law on
Handling of Administrative Violations, clauses 1, 2, 3, 4, 5 and 6 of this
Article and particular nature of each state management field.
8. Duration of fixed-term
suspension of practising licenses or certificates or fixed-term suspension of
operation for administrative violations must be prescribed in specific time
frame and the minimum and maximum gaps between deprivation duration and
suspension duration must be not too large.
Article 6. Regulations on power
to impose penalties and issue offence notices
1. Power to impose fines of each title must be
prescribed specifically in decrees on administrative penalties. For decrees
having numerous state management fields, this power must be specifically
prescribed for each field.
In case fines for titles prescribed in Articles 38,
39, 40, 41 and 46 of the Law on Handling of Administrative Violations are
accounted as percentages of the maximum fines of corresponding fields
prescribed in clause 1 Article 24 of the Law on Handling of Administrative
Violations, the power to impose fines must be prescribed under specific fines
to be specified in decrees on administrative penalties in various state
management fields.
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3. In case decrees on administrative penalties
prescribe numerous titles of forces with power to impose penalties in many
different state management fields that participate in penalties, they must
clearly prescribe power to impose penalties of such forces on each particular
clause.
4. Persons with power to issue offence notices
include persons with power to impose penalties, officials, public employees and
persons of the People's Army, People's Public Security and cipher workers on
their official duties, missions; aircraft commanders, captains, ship captains
and persons assigned to issue offence notices by the aircraft commanders,
captains and ship captains.
Titles with power to issue offence notices are specifically
prescribed in the decrees on administrative penalties in each state management
field.
5. For administrative violations subject to both
penalties including primary penalties which are fine and additional penalties
which are expulsion, the decrees on administrative penalties in various state
management fields must stipulate power to impose penalties on such violations
for titles with power to impose penalties of expulsion as prescribed in point
dd clause 5 and clause 7 Article 39 of the Law on Handling of Administrative
Violations.
Chapter III
APPLICATION OF REGULATIONS ON ADMINISTRATIVE PENALTIES
Article 7. Application of
legislative documents to impose penalties on administrative violations
1. The application of legislative documents to
impose penalties on administrative violations shall be implemented as
prescribed in Article 156 of the Law on Promulgation of Legislative Documents.
2. In case an administrative violation is committed
in a period in which there are plenty of valid decrees on administrative
penalties in various state management fields but no decree can be determined to
apply according to clause 1 of this Article, the application of legislative
documents to impose penalties on the administrative violation shall be
implemented as follows:
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b) If the administrative violation is being
committed, decrees which are valid at the time of discovering the violation
shall be applied to impose penalties;
Article 8. Principles for determination of
administrative violations, imposition of administrative penalties, remedial
measures and force majeure events
1. The determination of an administrative violation
which has ended, or is being committed for the purpose of calculating the
prescriptive period shall comply with the following principles:
a) The
administrative violation which has ended refers to the violation committed once
or several times and there are grounds for determining that the violation has
been committed completely before the competent authority or person detects the
administrative violation;
b) The administrative violation which is being
committed refers to the violation which is happening when the competent
authority or person detects the administrative violation and such violation
still infringes upon the state management order.
2. Administrative penalties
and remedial measures shall be only applied when decrees on administrative
penalties in various state management fields prescribe the penalties and
remedial measures for specific administrative violations, except for cases
prescribed in clause 2 Article 65 of the Law on Handling of Administrative
Violations.
3. In case the administrative violation has
been committed due to objective conditions and circumstances such as an
epidemic or due to the obligation to carry out anti-epidemic measures, in order
to determine whether to impose administrative penalties or not, persons with
power to impose penalties must verify, collect full information, data,
documents relating to the administrative violation in order to clarify
circumstances of specific cases. In case the epidemic is determined as the
direct cause of the administrative violation; if the violator is not able to
anticipate disease circumstance and overcome although they took all necessary
measures within their abilities, regulations in clause 4 Article 11 of the Law
on Handling of Administrative Violations may be applied to avoid administrative
penalties.
Article 9. Imposition of fines; fixed-term
suspension of practising licenses or certificates; fixed-term suspension of
operation; confiscation of exhibits and means of administrative violations and
remedial measures
1.
The determination of a fine on a
particular administrative violation in case there are numerous aggravating and
extenuating circumstances shall be applied according to the following
principles:
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b) A specific fine
on an administrative violation is the average amount of the penalty frame
prescribed for such violation. In case there are at least 02 extenuating
circumstances, the minimum amount of the penalty frame shall be imposed; if
there are at least 02 aggravating circumstances, the maximum amount of the
penalty frame shall be applied.
2. Fixed-term suspension of
practising licenses or certificates shall be imposed as follows:
a) In case a violator committing multiple
administrative violations that are imposed penalties once of which there are at
least 02 violations is imposed fixed-term suspension of various different types
of practising licenses or certificates, particular fixed-term suspension shall
be imposed for each violation.
In case there are at least 02 violations imposed on
fixed-term suspension of the same practising license or certificate, the
maximum duration of the use right deprivation time frame of the violation
having the longest duration of suspension;
b) In case a violator committing administrative
violations in multiple times is subject to penalties on each violation of which
there are at least 02 violations imposed on fixed-term suspension of the same
practising license or certificate, the maximum amount of the use right
deprivation time frame of the violation having the longest duration of
suspension;
c) In case the maintaining duration of validity of
a practising license or certificate is shorter than the duration of suspension
of the practising license or certificate, the duration of deprivation shall be
applied as the remaining duration of validity of such practising license or
certificate.
3. The power to impose suspension of practising
licenses or certificates does not depend on authorities or persons issued such
practising licenses or certificates and only depend on the Law on Handling of
Administrative Violations.
4. Violators must submit practising licenses or
certificates on retention request of persons with powers to impose penalties,
except for the case to which preventive measures and measures for assurance of
administrative penalty (hereinafter referred to as “preventive measures”), which
is impoundment of practising license or certificate are applied as prescribed
in clause 7 Article 125 of the Law on Handling of Administrative Violations.
The submission of the practising license or certificate must be issued in
writing and 01 copy shall be submitted to the violator. In case a record of
retention of the practising license or certificate has been made, the record of
retention shall be continuously valid until the expiry date of suspension of
the practising license or certificate according to a decision on administrative
penalties.
5. Within 02 working days from the day on which the
decision on administrative penalties including suspension of the practising
license or certificate, competent person made the decision must submit it to
the authority that issued the practising license or certificate.
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a) In case a violator who committing multiple
administrative violations is subject to penalties at the same time, in which at
least 2 violations on which penalties for fixed-term suspension of operation
have been imposed, the maximum duration of the suspension time frame of such
violation with regulations on the longest suspension duration shall be applied;
b) In case a violator who committing multiple
administrative violations is subject to penalties on each violation, in which
at least 2 violations on which penalties for fixed-term suspension of operation
have been imposed, the maximum duration of the suspension time frame of such
violation with regulations on the longest suspension duration shall be applied;
7. The determination
of specific time limit of fixed-term suspension of a practising license or
certificate and fixed-term suspension of operation for an administrative
violation in case there are numerous aggravating and extenuating circumstances
shall be applied according to the following principles:
a) Upon the determination of time limit of
fixed-term suspension of a practising license or certificate and fixed-term
suspension of operation for the administrative violation of the violator having
both aggravating and extenuating circumstances, each extenuating circumstance
involved shall be equivalent to an aggravating circumstance deduced;
b) The specific time limit of suspension of a
practising license or certificate or suspension of operation for an
administrative violation is the average duration of deprivation or supension
time frame prescribed for such violation. In case there are at least 02
extenuating circumstances, the minimum duration of the deprivation or
suspension time frame shall be applied; if there are at least 02 aggravating
circumstances, the maximum duration of the deprivation or suspension time frame
shall be applied.
8. Persons with power to confiscate
exhibits and means of administration violations prescribed in clause 2 Article
65 and clause 4 Article 126 of the Law on Handling of Administrative Violation
are persons with power to impose administrative penalties on such violations.
In case exhibits and means of administrative
violations are instruments prohibited from storing and circulating, persons
with power to confiscate them shall be determined as prescribed in clause 2
Article 24 hereof.
9. Persons with power to
apply remedial measures prescribed in clause 2 Article 65 of the Law on
Handling of Administrative Violations are persons with power to impose
administrative penalties on such cases.
10. Persons with power to destroy exhibits or means
of administrative violations which are products harmful to health of human,
animals, plants and environment, and toxic materials as prescribed in clause 5
Article 126 of the Law on Handling of Administrative Violations are persons
with power to impose administrative penalties on such cases.
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1. Decisions on authorization as prescribed in
Article 54, clause 2 Article 87 and clause 2 Article 123 of the Law on Handling
of Administrative Violations must include specific scopes, contents and
duration of authorization.
A Decision on authorization must consist of a
number, specific date, cite, signature and seal; in case an authority or unit
of an assignor does not able to use its own seal, a seal without full name of
its superior authority shall be put.
On the legal bases, decisions on administrative
penalties, decisions on enforcing execution of decisions on penalties,
decisions on application of preventive measures of the authorized deputies must
clearly state numbers, dates and cites of such authorization decisions.
2. Assignees leading or assuring authorities or
units with power to impose penalties shall also have power to impose penalties
and be handed over to impose penalties or enforce execution of decisions on
penalties, application of preventive measures like their leaders
3. During the authorization period, persons with
power to impose administrative penalties specified in clause 1 Article 54 of
the Law on Handling of Administrative Violations shall still have the power to
impose penalties and enforce execution of decisions on penalties and
application of preventive measures.
4. The authorization shall be terminated in one of
the following cases:
a) Authorization time limit specified in decisions
is over;
b) Delegated tasks have been completed;
c) Superiors terminate the authorization for their
inferiors. In this case, the termination of authorization must be decided in
writing;
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dd) Assignors or assignees die, or are declared by
the Court as having lost their civil act capacity or been restricted in their
civil act capacity, are missing or dead;
e) Assigned tasks have not been finished but such
violation cases must be transferred to other competent authorities or persons
for handling under regulations of laws;
g) Assignors or assignees are prosecuted or
detained to serve investigation, prosecution and adjudication;
h) Conditions for authorization for detention
of violators under administrative procedures prescribed in clause 2 Article 123
of the Law on Handling of Administrative Violations no longer exist.
Article 11. Power to impose administrative
penalties of Chiefs of specialized inspectorates.
1. A chief of specialized inspectorate are entitled
to impose penalties for administrative violations within the scope and content
of the inspection in the inspection duration according to regulations of laws
on inspection.
When the inspection duration expires according to
regulations of laws on inspection but any decision on penalties is made for
objective reasons, such violation case must be transferred to persons with
power to penalties.
2. If the decision on administrative penalties is
filed, the person that has made the decision on inspection shall receive and
settle it, or instruct the person that has issued the decision on
administrative penalties to handle as prescribed by laws on complaints.
Article 12. Issuing offence notices
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a) A competent person who is on duty must issue an
offence notice when he/she detects the violation.
For an act showing signs of an administrative
violation that is not under his/her power to issue an offence notice of
administrative violation or not in his/her management fields and areas, he/she
must make a record of working to record the case and immediately transfer it to
a person with power to issue an offence notice;
b) For a case that its exhibits or means must be
expertised, verified, inspected or another necessary case, a competent person
who is on duty may make a record of working to record the case.
The working record prescribed in points a and b of
this clause is one of the bases for issuing the offence notice;
c) If any administrative violation is detected by
professional technical equipment, the location where the offence notice is
issued shall comply with regulations specified in clause 2 Article 58 of the
Law on Handling of Administrative Violations;
d) The transfer of the results achieved from
professional technical equipment to persons with power to impose administrative
penalties in order to issue offence notices and decisions on imposition of
administrative penalties shall comply with the Government's regulations on the
list, management and use of professional technical equipment, collection and
use of data collected from technical equipment provided by individuals or
organizations for the purpose of detecting administrative violations.
2. Time limit for issuing an offence notice:
a) The offence notice shall be issued within 02
working days from the day on which the administrative violation is detected;
b) For the case that consists of multiple complex
circumstances or has a large scale and causes effects to legal rights and
interests of organizations or individuals, the offence notice shall be issued
within 05 working days from the day of detecting the administrative violation;
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d) If the administrative violation is committed on
an aircraft, ship or train, a person entitled to issue offence notices or the
aircraft commander, the captain or ship master shall issue a notice and
transfer it to a person entitled to impose penalties for administrative
violations within 02 working days from the date on which the aircraft, ship or
train arrives at an airport, port or railway station;
dd) If a case having multiple different
administrative violations, in which there is an administrative violation which
is detected by professionally technical equipment or it is required to
determine the value of exhibits, means of the violation, assess, inspect and
verify relevant details, the offence notice shall be issued for violations in
such case within 03 working days from the day on which the violator is detected
by professionally technical equipment or from the date of receiving full result
of valuation of exhibits or means of the violation, assessment, inspection and
verification of relevant details.
3. Issuing offence notices in some specific cases:
a) Only one offence notice and one decision on
penalties shall be issued for each administrative violation. In case a
violation has been issued in writing and a decision on penalties is not issued
but a violator fails to comply with requests and orders of the competent
person, and still deliberately commit the violation, the competent person must
apply appropriate preventive measures to terminate the violation. Upon making
the decision on penalties for such violation, the person with power to impose
penalties may apply aggravating circumstances as specified in point i clause 1
Article 10 of the Law on Handling of Administrative Violations or impose
penalties on the violation of failing to implement requests and orders of the
competent person in case that decrees on administrative penalties in the
corresponding state management fields have regulations and penalties for
violations having offence notices which have been issued and decisions on
penalties which have not been issued;
b) In case a violator commits multiple different
administrative violations in the same violation case, the competent person
shall issue the offence notice, in which each violation shall be clarified;
c) In case multiple violators commit an
administrative violation in the same violation case, the competent person may
issue one or multiple offence notice(s) for each violator. In case value of
exhibits or means of administrative violation is different, the competent
person must clarify the value of each violator’s exhibit or mean of violation;
d) In case multiple violators commit multiple
different administrative violations in the same violation case, the competent
person may issue one or multiple offence notice(s), in which each violator's
violation shall be clarified;
dd) In case a violator commits an administrative
violation in multiple times, the competent person shall issue an offence
notice, in which each violation and each time of violation shall be clarified.
4. A record of administrative violation must
consist of the following main contents:
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b) Full name and position of the record maker;
c) Information about the violator and individuals
or entities involved;
d) Time and location when and where the violation
occurs;
dd) Specific and adequate case or violation
description;
e) Preventive measures
g) Testimony of the violator or legal or authorized
representative of the violating entity;
h) Testimony of the witness, the victim or
representative of the organization suffering loss or damage (if any); opinions
of the parents or guardian in case the violator is a minor (if any);
i) Rights and time limit of explanation about the
administrative violation of the violator, and authority receiving explanation
of the competent person; if the violator refuses to explain, his/her opinion
must be clarified in the record;
k) Time and location when and where the violator or
representative of the violating entity must be present to settle the case;
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5. Signing offence notices:
a) An offence notice must include at least 02
copies and must be signed by the record maker and the violator or
representative of the violating entity, except for records which are made
according to regulations in clause 7 of this Article 58 of the Law on Handling
of Administrative Violations; in case the violator fails to sign, he/she must
sign by pressing his/her finger-print; if there are witnesses, interpreters,
victims or representatives of the organization suffering damage, they must both
sign the records; in case the record consist of multiple pages, each page of
the record must be signed;
b) In case the violator or representative of the
violating entity is not present at the place of violation or deliberately
evades or fails to sign or press his/her finger-print in the notice for an
objective reason or has presence but refuses to sign or press fingerprint in
the record or in case the violator cannot be identified, the record must
include a signature of the representative of communal authority where the
violation occurred or of at least one witness to confirm that the violator has
not signed in the record; in case there is no signature of representative of communal
authority or the witness, reasons for that must be clarified in the record.
6. Transferring the offence notice:
a) One copy of the offence notice completely issued
must be transferred to the violator, except for cases that cannot identify
violators. In case the offence notice marker is not entitled to impose
penalties on the administrative violation, the notice and other documents must
be transferred to a person with power to impose penalties within 24 hours from
the time of making the record;
b) In case the violator is a minor, the notice will
also be sent to his/her parents or guardian;
c) In case the violator and/or representative of
violating organization is/are absent from place of issuing offence notice(s) or
is/are present but refuses to receive or has bases to believe that the violator
evades receiving the record, the transfer of the offence notice shall comply
with regulations in Article 70 of the Law on Handling of Administrative
Violations on the submission of decisions on administrative penalties for
execution.
7. Records of administrative violations made and
sent electronically as prescribed in clause 7 Article 58 of the Law on Handling
of Administrative Violations shall comply with regulations in decrees on
administrative penalties in various state management fields in a manner that is
suitable for each field’s nature.
8. If persons with power to issue offence notices
or relative entities having failures in late transferring offence notices or
dossiers of violation cases leading to the time limit for making decisions on
penalties is over, they are subject to handling as prescribed by laws.
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1. A person promulgated a decision by
himself/herself or on request of persons prescribed in clause 3 Article 18 of
the Law on Handling of Administrative Violations must promulgate a decision on
cancellation of all the contents of the decision in one of the following cases:
a) Failure in determination of the violator;
b) Violation against
regulations on power to promulgate decisions;
c) Violations against regulations on procedures for
promulgating decisions;
d) Cases prescribed in clause 1 Article 12 of the
Law on Handling of Administrative Violations;
dd) Cases prescribed in clause 6 Article 12 of the
Law on Handling of Administrative Violations;
e) Cases prescribed in clause 10 Article 12 of the
Law on Handling of Administrative Violations;
g) Cases prescribed in clause 3 Article 62 of the
Law on Handling of Administrative Violations;
h) Cases of failure to make decisions on penalties
prescribed in clause 1 Article 65 of the Law on Handling of Administrative
Violations.
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3. For cases prescribed in points a, b, c, dd and e
clause 1 of this Article, if there are bases to promulgate new decisions, the
persons promulgated decisions must promulgate new decisions or transfer them to
persons with power to promulgate new decisions.
For the case prescribed in point h clause 1 of this
Article, if exhibits or means of administrative violations banned from storage
or circulation or subject to penalties for confiscation or remedial measures
against administrative violations under laws, competent persons who have
promulgated the decisions must promulgate new decision or transfer them to
persons with power to promulgate new decisions for confiscation and application
of remedial measures.
Article 14. Correction, amendment and partial
cancellation of decisions on administrative penalties
1. Persons who have promulgated decisions by
themselves or on request of persons prescribed in clause 3 Article 18 of the
Law on Handling of Administrative Violations shall have responsibilities for
correction of their decisions upon having errors in drafting techniques.
2. Persons who have promulgated decisions by
themselves or on request of persons prescribed in clause 3 Article 18 of the
Law on Handling of Administrative Violations shall have responsibilities for
amendment and/or partial cancellation of decisions if these decisions have
errors or violations that do not fall under cases specified in clause 1 Article
13 of this Decree and clause 1 of this Article.
3. Decisions on correction, amendment and/or
partial cancellation of decisions on administrative penalties shall be stored
among penalty records.
Article 15. Time limit for implementation and
contents of correction, amendment and partial or complete cancellation of
decisions on administrative penalties
1. Time limit for correction, amendment and partial
or complete cancellation of a decision:
a) Time limit for correction, amendment and partial
cancellation of the decision is 01 year from the date on which the competent
person promulgates the decision having errors. In case the prescriptive period
prescribed in point a clause 1 Article 6 of the Law on Handling of
Administrative Violations ends, the correction, amendment or partial
cancellation of the decision shall be not implemented;
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2. There is no time limit for correction, amendment
and partial cancellation of the decision prescribed in point a clause 1 of this
Article in the following cases:
a) The penalty decision applying the confiscation
of exhibits or means of administrative violations and remedial measures
prescribed in clause 1 Article 74 of the Law on Handling of Administrative Violations;
b) The case that has
a decision on handling complaints of a person or authority with power to handle
complaints about mandatory amendment and partial cancellation of the decision;
c) The case that involves contents of denunciation
of a person or authority with power to handle the denunciation of mandatory
amendment and partial cancellation of the decision;
d) The case that having a judgment or decision of
the Court on the amendment and partial cancellation of the decision that is
filed a lawsuit.
3. For the case
prescribed in clause 3 Article 13 of this Decree, if there is a ground for
promulgating a new decision, a competent person must make a record of
confirming circumstances of the case of administrative violation according to
Article 59 of the Law on Handling of Administrative Violations.
The time limit for
promulgating the new decision is under regulations of clause 1 Article 66 of
the Law on Handling of Administrative Violations from the date on which the
record of confirming circumstances of the case of administrative violations.
4. The
decision applying the confiscation of exhibits or means of administrative
violations and remedial measures shall only be corrected, amended and partially
cancelled as prescribed in point a clause 2 of this Article on the confiscation
of exhibits or means of administrative violations and the application of
remedial measures.
Article 16. Effect, time limit and prescriptive
period for enforcement of decisions on correction, amendment, partial or complete
cancellation or new decisions on administrative penalties
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2. Time limit for enforcing decisions on
correction, amendment and partial cancellation or new decisions shall be 10
days from the date on which violators receive the decisions; in case a new
decision has a term of enforcement of more than 10 days, it shall comply with
that term.
3. Prescriptive period for enforcement of decisions
on correction, amendment and partial cancellation or new decisions:
a) Prescriptive period for enforcement of decisions
on correction, amendment and partial cancellation or new decisions shall be 01
year from the date on which the decisions are made;
b) In case it is necessary to make a/an correction,
amendment and partial cancellation or promulgation of new decisions multiple
times, prescriptive period shall be 02 years from the date on which decisions
on correction, amendment and partial cancellation are made;
Decisions are no longer valid beyond the time limit
prescribed in points a and b of this clause unless the case that a decision on penalties
applies confiscation of exhibits, means of administrative violation or remedial
measures;
d) In case a penalized organization or individual
(hereinafter referred to as “penalized violators”) deliberately shirks or
delays implementation of the decisions, the above-mentioned prescriptive period
shall begin from the date on which the act of shirking or delaying terminates.
Article 17. Explanation
1. In case a violator does not send a written
explanation to a person with power to impose administrative penalties or a
petition for extension of the time limit for explanation within the time limit
prescribed in clause 2 Article 61 of the Law on Handling of Administrative Violations
or clarified in the offence notice on failure to explain, the person with power
to impose penalties shall promulgate a decision on penalties within the time
limit prescribed in point a clause 1 Article 66 of the Law on Handling of
Administrative Violations.
In case a violator has a request for explanation
according to regulations of clauses 2, 3, and 4 Article 61 of the Law on
Handling of Administrative Violations, the person with power to impose
penalties shall promulgate a decision on penalties within the time limit
prescribed in points b and c clause 1 Article 66 of the Law on Handling of
Administrative Violations.
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3. The explanation and consideration of
explanations shall be made into written documents and they shall be stored
among penalty records.
4. Upon making a record of administrative
violation, if no person with power to impose penalties is determined, each
violator shall send a written explanation to a person with power to make
records. The person with power to make records shall transfer the case's
dossier and the written explanation to the person with power to impose
penalties immediately after determining the power to impose administrative
penalties on that person.
Article 18. Release of administrative penalties
for violators on mass media
1. For a violation that must be released as
prescribed in Clause 1 Article 72 of the Law on Handling of Administrative
Violations, the head of an authority or unit that make a decision on penalties
shall send a written notification of the release and a copy of the decision on
administrative penalties to a website or newspaper of an agency of ministry,
department or the People's Committee where the administrative violation is
committed within 03 working days from the day on which the decision on
penalties is made.
In case of correction, amendment and cancellation
of decisions on administrative penalties or promulgation of new decisions, the
release is also required as prescribed in this clause.
2. Information to be disclosed includes: Full name,
date of birth, identity card or citizen identification number or personal
identification number, nationality of the violator or name and address of the
violating organization; administrative violation; form of penalty; remedial
measures and implementation duration.
3. Head of the press agency or the person
responsible for managing contents of websites and the time limit for release
shall:
a) Publish all information that needs to be
released within 02 working days from the date on which it receives a written
notification of release and a copy of decision on administrative penalties;
b) Publish information about each decision on
penalties at least 01 time and duration of the release is at least 30 days;
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4. Head of the agency where the person who has made
the decision on administrative violations works for shall:
a) Be responsible for released contents;
b) Correct wrong information within 01 working day
from the date on which it detects the wrong information or receives requests
for correction.
5. Correct wrong information:
In case a website or newspaper incorrectly releases
information prescribed in clause 2 of this Article, it is required to correct
right columns or positions where wrong information is published during 24 hours
from the tine of detecting the wrong information and receiving requests for correction
on the website or the next issue of the newspaper and pay for the correction;
b) The correction shall be made in 01 time for each
decision on administrative penalties and duration of publishing is at least 30
days.
6. In case the penalty cannot be released on time
as prescribed in clause 1 of this Article because of force majeure, the person
who responsible for releasing the penalty must directly report to the superior
head and release it immediately after the force majeure is controlled.
7. Expenses for release and correction of wrong
information shall be covered by regularly operating expenses from the office of
the competent person who has made the decision on administrative violation.
8. For people who commit violations prescribed in
clauses 1, 2, 3, 4, 5 and 6 of this Article shall, depending on nature and
seriousness of violation, be disciplined, or must be reimbursed in accordance
with laws on state's compensation liability in case of causing damages.
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1. In case a penalized person dies or goes missing
or a penalized organization dissolves or goes bankrupt as prescribed in Article
75 of the Law on Handling of Administrative Violations and the penalty
decisions still valid, the person who issues the penalty decision must makes a
decision on partial enforcement of the decision on administrative penalties
within 60 days from the date on which the penalized person dies written in
his/her death certificate; the penalized person goes missing recorded in the
decision to declare the person missing; from the date on which the business
organization notifies the dissolution; from the effective date of the decision
to declare bankruptcy. The decision on enforcement shall include the following
contents:
a) Suspension of enforcement of penalties and
reasons for suspension; except for the cases specified in point b of this
Clause;
b) Maintenance of penalties for confiscation of
exhibits or means of administrative violations and remedial measures.
2. Responsibilities for enforcement of penalties
for confiscation of exhibits or means of administrative violations and
application of remedial measures in case penalized people die, go missing or
penalized organizations dissolve, go bankrupt:
a) Individuals and organizations that are managing
exhibits or means of administrative violations shall be responsible for
enforcing penalties for confiscation of exhibits or means of administrative
violations;
b) Individuals who come into inheritances
determined as prescribed by civil laws on inheritance shall continue to
implement remedial measures within scopes of the inheritances.
3. Submission of decisions on partial enforcement
of decisions on administrative penalties:
a) Decisions on partial enforcement of decisions on
administrative penalties in case penalized organizations dissolve or go
bankrupt must be sent to authorities, organizations and individuals with power
to settle the dissolution or bankruptcy; legal representatives of these
penalized organizations for enforcement of penalties;
b) Decisions on partial enforcement of decisions on
administrative penalties must be sent to individuals or organizations prescribed
in clause 2 of this Article and point a of this clause within 03 working days
from the date on which decisions are issued.
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a) Procedures for partial enforcement of the
decisions on administrative penalties prescribed in point b clause 1 of this
Article shall be implemented according to regulations of section 2 Chapter III
Part 2 of the Law on Handling of Administrative Violations;
b) If individuals or organizations prescribed in
clause 2 of this Article fail to implement remedial measures by the time limit
for enforcing the decisions, authorities of people with power to impose
penalties that are handling the administrative violation cases must organize
implementation of them.
Expenses for implementing remedial measures shall
be reduced from value of inherited property that penalized people have left or
the remaining property of penalized organizations after dissolution or
bankruptcy that is considered as an item of the priority payment expenses (if
any).
5. If penalized people die without inheritances, or
penalized organizations dissolve or go bankrupt without remaining property,
remedial measures shall be taken in accordance with clause 4 Article 85 of the
Law on Handling of Administrative Violations.
6. Inheritors of penalized people who are dead or
missing, or legal representatives of penalized organizations that are dissolved
or bankrupted are entitled to supervise and file lawsuits against expenses and
payment for expenses for implementing remedial measures prescribed in Clause 4
this Article.
Article 20. Forms and procedures for collection
and payment of fines
1. Violators pay fines according to one of the
following forms:
a) Direct payment of cash at State Treasuries or at
commercial banks where State Treasuries open their accounts specified in
penalty decisions;
b) Transfer to accounts of State Treasuries written
in penalty decisions via National Public Service portal or electronic payment
services of banks or intermediary payment service providers;
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d) Payment of fines for administrative violations
committed in the field of road traffic to state treasuries according to
regulations of points a, b and c clause 1 of this Article or by public postal
services.
2. Procedures for payment of fines:
a) In case penalized individuals do not stay or
penalized organizations are not located at places of violations while only
fines are imposed, persons with power to impose penalties for decisions on
paying fines prescribed in point b clause 1 of this Article and send them to violating
individuals or organizations via posts by guaranteed forms within 02 working
days from the date on which penalty decisions are issued;
b) Penalized violators shall pay to accounts of
state treasuries as written in penalty decisions within the time limit
prescribed in Clause 1 Article 73 of the Law on Handling of Administrative
Violations;
c) Within 05 working days from the day on which
fines are paid to accounts of state treasuries in person or by public post,
person that impounded the documents for ensuring penalties according to
regulations in clause 6 Article 125 of the Law on Handling of Administrative
Violations must return impounded documents to penalized organizations or
individuals by post with guaranteed forms for direct payment or via public
postal services for indirect payment. Expenses for submission of sanctioning
decisions and return of documents shall be paid by penalized violators;
d) Penalized violators may receive impounded
documents in person or via legal representatives or authorized representatives.
3. In case penalized violators defer fines as
prescribed in clause 1 Article 78 of the Law on Handling of Administrative
violations, collecting authorities shall base on sanctioning decisions to
calculate and collect late fine payment interests.
4. Decisions on suspension of sanctioning decision;
reduction or exemption of the remaining fine or the whole fine; fine payment by
installments must be made in writing.
Duration of consideration and decision of reduction
or exemption of the remaining fine or acceptance of fine payment by instalments
shall not be included in the duration of fine deferral.
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6. The Minister of Finance of Vietnam shall provide
guidance on the collection and transfer of fines for administrative violations
specified in Clauses 1, 2 and 3 of this Article; the method of calculating and offsetting
differential fines (if any) in case there are decisions on correction,
amendment, cancellation or issuance of new decisions on administrative
penalties.
Article 21. Documents of collection and transfer
of fines and late fine payment interests for administrative violations
1. Documents of collection and transfer of fines
and late fine payment interests shall be uniformly printed, issued, managed and
used nationwide or electronic documents of transferring to state budget as
prescribed by laws to confirm the payments to collecting authorities. Documents
of collection and transfer of fines and late fine payment interests for
administrative violations must be stored in among penalty records as prescribed
by laws on archives.
2. Documents for collection and transfer of fines
and late fine payment interests shall include:
a) Fine receipts which must have pre-printed face
values used for on-site fine collection as prescribed in clause 2 Article 69
and clause 2 Article 78 of the Law on Handling of Administrative Violations in
case the fine is up to 250.000 VND for individuals and 500.000 VND for
organizations;
b) Fine receipts that do not have pre-printed face
values used to collect fines for the other administrative violation cases and
late fine payment interests;
c) Money transfer letters and electronic documents
submitted to the state budget (if any);
d) Certificates of transfer of fines for road
traffic offences issued by public postal service providers (if any);
dd) Other documents under regulations of laws.
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a) The Ministry of Finance shall provide fine
receipts to authorities and units having persons with power to impose
administrative penalties and authorities and organizations that collect fines
for administrative violations according to laws.
Postal service providers shall print and manage
certificates of payment of fines for road traffic offences via public postal
services;
b) Issuing authorities or organizations must make
written notifications before bringing the first specimen of fine receipts for
administrative violations to use or certificates of payment of fines for road
traffic offences;
c) Organizations and individuals provided with fine
receipts, certificates of payment of fines for road traffic offences must
manage and use them as prescribed in this Decree and other relevant law
provisions.
4. Documents of collection and transfer of fines
and late fine payment interests shall be used as follows:
a) Upon using fine receipts, fine collectors must
compare the information on sanctioning decisions on administrative penalties
and the information on the fine receipts. The total fine amounts specified in
the fine receipts must be consistent with the fine amounts specified in
sanctioning decisions;
b) Upon collecting late fine payment interests
according to clause 1 Article 78 of the Law on Handling of Administrative
Violations, the information on fine receipts must include collected amount and
fine deferral;
c) Fine payers may refuse to pay fines or request
the refund of paid fines if they detect that fine receipts or collection
documents are not conformable with regulations, decisions on administrative
penalties, fines and late fine payment interests (if any) and notify to
agencies in charge of fine collection for prompt settlement.
5. Management of fine receipts:
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b) Authorities and organizations provided with fine
receipts must open books to monitor the receipt, delivery and preservation of
receipts in accordance with the current accounting regime; make monthly and
quarterly reports on the use of fine receipts; make annual statements of fine
receipts in accordance with laws;
c) Destruction of fine receipts must comply with
law provisions applicable to each type of receipts.
6. Electronic documents sent to the State budget
shall be issued and used in accordance with regulations of laws.
7. The Minister of Finance shall specify contents
and forms of fine receipts, and other collection documents; print, issue,
manage, and use fine receipts, and late fine payment interests, except for
certificates of fine payment for road traffic offences by using the public
postal services prescribed in Clause 3 this Article.
Article 22. Transfer of decisions on
administrative penalties for organizing implementation
1. Authorities of persons making decisions on
administrative penalties for cases mentioned in Clause 1 and Clause 2 Article
71 of the Law on Handling of Administrative Violations shall transfer all
original documents and relevant papers to authorities receiving sanctioning
decisions for implementation of them. Exhibits and means of administrative
violations which are impounded or confiscated (if any) shall be transferred to
authorities receiving sanctioning decisions for implementation of them.
The transfer of exhibits and/or means of
administrative violations to authorities receiving sanctioning decisions for
implementation of them must be recorded in writing.
2. Consideration for deferring, reducing or
exempting fines in case of transferring sanctioning decisions for organization
of implementation:
a) If penalized violators propose for deferral of,
reduction in or exemption from fines as prescribed in Article 76 and Article 77
of the Law on Handling of Administrative Violations, competent persons of
authorities receiving sanctioning decisions for implementation shall receive,
consider and decide the deferral, reduction or exemption and notify it to the
proposers and persons with power to issue decisions on administrative penalties
for consideration and provision of reasons in case of disagreeing with the
deferral, reduction or exemption;
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3. If penalized violators do not voluntarily comply
with sanctioning decisions as prescribed in Clause 1 Article 73 of the Law on
Handling of Administrative Violations, competent persons at the authorities
receiving sanctioning decisions shall issue decisions on enforcing
implementation of decisions on administrative penalties as prescribed by laws.
4. Where exhibits are impounded as prescribed in
Clause 3 Article 71 of the Law on Handling of Administrative Violations and
exhibits or means of administrative violations are real estate, airplanes,
ships, inland watercraft, cargo and vehicles that are bulky, difficult to
transport and have high transport costs, authorities of persons issuing
decisions on administrative penalties shall still apply sanctioning decisions
for organizing implementation.
Article 23. Management of exhibits and means
illegally owned or used for administrative violations in cases of confiscation
1. For exhibits and means impounded due to being
illegally owned or used for administrative violations in case of confiscation,
regulations of clause 1 Article 126 of the Law on Handling of Administrative
Violations shall be applied. In this case, violators must pay amounts equal to
the value of the exhibits and means of violations to the State budget.
In case an amount equal to the value of exhibits or
means of violation is paid in a case involving many violators, these violators
shall all pay an amount equal to the value of exhibits or means of
administrative violations to the state budget according to rate decided by
persons with power to impose penalties under sanctioning decisions, unless
violators reach written agreements on such payment and send them to persons
with power to impose penalties within the time limit for issuance of decisions
on administrative penalties specified in Article 66 of the Law on Handling of
Administrative Violations.
2. For an exhibit or mean of administrative
violation confiscated that are registered as collateral according to
regulations of civil laws, it shall be handled as follows:
a) The mortgagee may receive back the exhibit, mean
or a value equivalent to its secured obligation; the violator must pay an
amount equivalent to the value of the exhibit or mean of administrative
violation to the state budget;
b) The mortgagee shall send a written notification
of result of handling the collateral to a person with power to impose
administrative penalties within 03 working days from the date on which he/she
receives the result of handling the collateral which is the exhibit or means of
administrative violation confiscated. In case the collateral has higher value
after handling than the value of the secured obligation, but the violator fails
to pay enough amount equal to the value of the exhibit or mean of
administrative violation to the state budget, the mortgagee shall transfer the
differential value of the collateral to the state budget within 05 working days
from the date the written notification of result of handling the collateral is
made;
b) If the mortgagee fails to transfer the
differential value of the collateral which is an exhibit or mean of
administrative violation eligible for confiscation in the prescribed period,
he/she shall be penalized according to regulations of laws on administrative
penalties for offences related to currency and bank or other relevant fields.
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In case it is unable to apply grounds prescribed in
clause 2 Article 60 of the Law on Handling of Administrative Violations, the
competent person who is handling the case must establish an assessment board.
The assessment board is established according to regulations of clause 3
Article 60 of the Law on Handling of Administrative Violations.
4. The form and procedures for collection and
transfer of the amount equal to the value of exhibit or mean of violation to
the state budget shall comply with regulations of Article 21 of this Decree.
Article 24. Identification of power to impose
penalties for exhibits or means of administrative violations which are products
prohibited from possession or circulation
1. In case decrees on administrative penalties for
state management offences prescribe the value or quantity of products
prohibited from possession or circulation and fines for violations having
exhibits or means of administrative violation which are products prohibited
from possession or circulation, power to impose penalties shall be identified
according to regulations of Chapter II Part 2 of the Law on Handling of
Administrative Violations and regulations of decrees on administrative
penalties.
In case exhibits or means of administrative
violations which are products prohibited from possession or circulation are not
prescribed in the above-mentioned case, the determination of their values is
not required but the case dossiers must be transferred to persons with power to
impose penalties as prescribed in Clause 2 of this Article.
2. Power to impose penalties for exhibits or means
of administrative violations which are products prohibited shall be identified
according to the following principles and orders:
a) If a competent person who is handling a
violation case is the person with the highest power to impose penalties for
state management offences, the power to impose penalties shall still belong to
such person;
b) If a competent person who is handling a
violation case is not the person with the highest power to impose penalties for
state management offences or is not the President of the provincial People's
Committee, he/she must transfer the violation case to the President of the
provincial People's Committee where the violation occurred or the person with
the highest power to impose penalties for state management offences to issue a
sanctioning decision.
3. Power to decide temporary confiscation of
exhibits or means of administrative violations which are products prohibited
from possession or circulation shall be implemented according to clause 3
Article 125 of the Law on Handling of Administrative Violations.
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1. When enforcing administrative penalties on
minors, in case their exact ages cannot be determined to apply sanctioning
forms, persons with power to impose penalties shall choose to apply sanctioning
forms in favour of violating minors.
2. Before deciding to impose warnings against
minors committing administrative violations, persons with power to impose
penalties must consider conditions for applying reminder measures as prescribed
in Article 139 of the Law on Handling of Administrative Violations and Article
26 of this Decree. Decisions to impose warnings on minors only made when
conditions for applying reminder measures are not satisfied.
Article 26. Reminder measures
1. Reminder measures refer to measures of education
which are applied in substitution of warnings against minors who commit administrative
violations so that minors can be aware of their violations.
2. Entities and requirements for applying reminder
measures:
a) Minors aged from 14 to under 16 who are imposed
on administrative penalties when they voluntarily declare, admit and sincerely
apologize for their violations;
b) Minors aged from 16 to under 18 who are imposed
on administrative penalties when their administrative violations are prescribed
as warnings and they voluntarily declare, admit and sincerely apologize for
their violations.
3. Persons with power to impose penalties shall
consider and decide to apply reminder measures based on requirements specified
in clause 2 of this Article. The reminder shall be given in word, on the spot
of violation and shall not be recorded in writing.
Article 27. Responsibilities of persons with
power to impose administrative penalties on duty
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a) have orders or decisions to do duties issued by
competent authorities, wear uniforms, military uniforms, badges of authorities
or use inspection cards, cards of officials performing specialized inspection
tasks as prescribed by laws;
b) handle in a prompt manner, in accordance with
nature and seriousness of violations and in accordance with provisions of laws
on administrative penalties, orders, charters and regulations of each
authority;
c) be serious and gentle in performing official
duties.
2. People committing violations against regulations
in Clause 1 of this Article or regulations on prohibited acts specified in
Article 12 of the Law on Handling of Administrative Violations or other
provisions of laws, depending on the nature and seriousness of violations that
result in disciplinary action or criminal prosecution; upon causing damage,
compensation must be made according to laws on compensation liability of the
state.
Article 28. Handling of responsibilities for
enforcement of laws on handling of administrative violations
Persons and authorities with power to enforce laws
on handling of administrative violations shall, depending on specific cases,
consider and handle their according to regulations of the Government of Vietnam
or regulations of relevant laws.
Chapter IV
STATE MANAGEMENT OF
ENFORCEMENT OF LAWS ON HANDLING OF ADMINISTRATIVE VIOLATIONS
Section 1. Contents
of state management of enforcing laws on handling of administrative violations
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1. Research, review, develop and complete policies
and laws on handling of administrative violations.
2. Develop and appeal to competent authorities to
promulgate or Authorities competent to manage the enforcement of laws on
handling of administrative violations.
3. Monitor enforcement of laws on handling of
administrative violations.
4. Preliminarily and finally report enforcement of
laws on handling of administrative violations to complete the system of
legislative documents.
Article 30. Disseminating laws, providing
professional guidance and training in laws on handling of administrative
violations
1. Research and compile documents serving for the
dissemination and training in laws on handling of administrative violations.
2. Organize professional training in handling
administrative violations for employees.
3. Organize dissemination of laws on handling of
administrative violations with contents and forms suitable for each specific
entity.
4. Disseminate laws, provide professional guidance
and training in laws on handling of administrative violations.
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1. Plans for examining enforcement of laws on
handling of administrative violations of ministries, ministerial agencies,
Vietnam Social Security, Supreme People’s Court of Vietnam, State Audit Office
of Vietnam and the Provincial People’s Committees shall be submitted to the
Ministry of Justice of Vietnam within 10 days from the date they are issued for
monitoring, cooperating and organizing implementation of the examination.
The Ministry of Justice shall assume
monitoring and consolidation of plans for examining of ministries, ministerial
agencies, Vietnam Social Security, Supreme People’s Court of Vietnam, State
Audit Office of Vietnam to ensure that there is not more than 1 time of
examination per year for authorities and units under their management, except
for unscheduled examination.
2. The Ministry of Justice shall, within its tasks
and power, cooperate with ministries, ministerial agencies, Vietnam Social
Security, Supreme People’s Court of Vietnam, State Audit Office of Vietnam in
developing plans for examining and handling identical plans for examining.
3. The Minister of Justice shall inspect the
enforcement of laws on handling of administrative violations of ministries,
ministerial agencies, Vietnam Social Security and the People’s Committees of provinces
and central-affiliated cities and authorities managing persons with power to
handle administrative violations.
4. The Minister of Justice shall assist the
Government to inspect enforcement of laws on handling of administrative
violations of the Supreme People’s Court of Vietnam and State Audit Office of
Vietnam according to regulations specified in Article 17 of the Law on Handling
of Administrative Violations.
5. The examination of enforcement of laws on
handling of administrative violations shall comply with regulations of the
Government of Vietnam on examination and handling of enforcement of laws on
administrative violations.
Article 32. Cooperating in inspecting
enforcement of laws on handling of administrative violations
1. The cooperation in inspection of enforcement of
laws on handling of administrative violations between the Ministry of Justice
with relative central authorities; between the Departments of Justice and
professional authorities of the provincial People’s Committees, agencies organized
in the vertical structures in provinces or central-affiliated cities, the
district-level People's Committees is carried out when there are petitions and
reflections from individuals, organizations and the press about the application
of laws on handling of administrative violations that seriously affect lawful
rights and interests of such individuals and organizations.
2. Procedures for cooperation in inspecting
enforcement of laws on inspection.
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1. The national database of handling administrative
violations is built on the basis of integrating electronic data from the
database of handling administrative violations of ministries, ministerial
agencies, Vietnam Social Security, State Audit Office of Vietnam, the Supreme
People's Court and the People's Committees at all levels and authorities
managing persons with power to handle administrative violations.
2. The national database of handling administrative
violations must ensure connection with the national database of population and
other professional database as prescribed by laws.
3. Development, management, exploitment and use of
the national database shall comply with regulations of the Government of
Vietnam and the Minister of Justice.
Article 34. Statistics on handling of
administrative violations
1. Statistics on handling of administrative
violations are the basis for accessing situation and forecasting tendency for
administrative violations, proposing remedial measures, completing policies,
laws, serving state management of enforcement of laws on handling of
administrative violations.
2. Statistics on handling of administrative
violations shall be collected as prescribed by laws on statistics.
Article 35. Reporting enforcement of laws on
handling of administrative violations
1. Reports on enforcement of laws on handling of
administrative violations shall include reports on situation of administrative
penalties and reports on situation of applying measures for handling
administrative violations which are made annually.
2. A report on the situation of administrative
penalties shall include the following contents:
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b) Number of violation cases detected and
penalized; penalized entities; the application of penalty forms and remedial
measures; preventive measures; types of popular violations;
c) Results of enforcing decisions on administrative
penalties: total sanctioning decisions; total amount of fines which are
collected from administrative penalties; number of licenses and practising
certificates which are suspended for a fixed term; number of cases of
fixed-term suspension of operation; number of the sanctioning decisions which
are finished; number of decisions on deferral of, reduction, exemption from
imposing fines; number of decisions that must be forced to implement; number of
decisions which are complained and sued;
d) Number of violating minors eligible for
alternative measures for handling administrative violations that are reminder
measures;
dd) Number of responsibilities cases subject to
criminal prosecutions;
e) Number of dossiers transferred by authorities
with power to conduct criminal proceedings to impose administrative penalties;
g) Difficulties in enforcement of laws on
administrative penalties; recommendations, proposals.
3. A report on the application of administrative
measures shall include the following contents:
a) Comments and general assessment on the situation
of applying measures for community-based education in communes, wards and towns
and making dossiers of proposals for application of administrative measures for
center-based education in reform schools, compulsory educational institutions
or compulsory rehabilitation centers; number of cases which are complained or
sued;
b) Comments and general assessment on the situation
of consideration and decision of the People's Court of Vietnam on the application
of administrative measures for center-based education in reform schools,
compulsory educational institutions or compulsory rehabilitation centers;
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d) Number of violating minors eligible for alternative
measures for handling administrative violations that are home management and
community-based education;
dd) Comments and assessments on the situation of
organizing enforcement of decisions on application of measures for
community-based education in communes, wards or towns; number of decisions on
temporary suspension of enforcement of them;
e) Comments and assessment on the situation of
organizing implementation of decisions on center-based education in reform
schools; compulsory educational institutions; number of decisions on suspension
or exemption from enforcement of such decisions;
g) Comments and assessment on the situation of
organizing implementation of decisions on center-based education in compulsory
rehabilitation centers; number of decisions on suspension or exemption from
enforcement of such decisions;
h) Number of entities who are being enforced on
decisions on application of administrative measures for center-based education
in compulsory educational institutions or reform schools; reduction in time
limit; suspension or exemption from enforcement of the remaining duration;
i) Number of entities who are being enforced on
decisions on application of administrative measures for center-based education
in compulsory rehabilitation centers; reduction in time limit; suspension or
exemption from enforcement of the remaining duration;
k) Difficulties or proposals.
4. Time for closing the report data shall comply
with the Government's regulations on reporting regimes of state administrative
authorities.
5. The Minister of Justice shall specify the
regimes of reporting on enforcement of laws on handling of administrative
violations.
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Article 36. Resposibilities of the Ministry of
Justice
1. Develop and complete laws on handling of
administrative violations:
a) Propose the development and completion of laws
on handling of administrative violations to competent authorities;
b) Develop and promulgate legislative documents on
handling of administrative violations under its power or appeal to competent
authorities to promulgate them;
c) Take charge and cooperate with the Government
Office, ministries, ministerial agencies and Vietnam Social Security in
developing a list of decrees elaborating the Law on Handling of Administrative
Violations; guide, inspect and urge ministries, ministerial agencies and
Vietnam Social Security to propose and execute Programs on development of decrees;
d) Request competent authorities to study
amendments and improvement of laws on handling of administrative violations on
the basis of recommendations of authorities, organizations and individuals and
the practice of managing enforcement of laws on handling of administrative
violations; take charge and cooperate with the Government Office and relevant
authorities submitting researching and proposing to submit plans for handling
limitations and inadequacies in the practice of applying laws on handling administrative
violations to the Government and the Prime Minister;
dd) Make preliminary and final reports on the
implementation of laws on handling of administrative violations.
2. Monitor implementation of laws on handling of
administrative violations:
a) Guide, inspect and urge ministries, central and
local authorities to implement laws on handling of administrative violations,
promptly detect difficulties to propose solutions;
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3. Guide the implementation of laws on handling of
administrative violations under its power or at the request of ministries,
central or local authorities.
4. Guide dissemination of laws on handling
administrative violations; take charge and cooperate with ministries, central
or local authorities in providing guidance and training in professional skills
for implementation of laws on handling of administrative violations.
5. Take charge and cooperate with relevant
ministries, central or local authorities in inspecting the enforcement of laws
on handling administrative violations.
6. Propose competent authorities to organize
inspections when there are recommendations and reflection of individuals and
organizations on the application of laws on handling administrative violations
that seriously affect the legitimate rights and interests of such individuals
and organizations.
7. Develop a national database of handling of
administrative violations; provide guidance on management, exploitation and use
of the National Database on handling of administrative violations in accordance
with laws.
8. Establish and maintain operation of the web
portal to receive reflections, recommendations and results of settlement of
violating cases as prescribed.
9. Regulations on reporting regimes and statistics
of handling administrative violations and implementing reports and statistics
on handling of administrative violations.
10. Develop and submit reports on the enforcement
of laws on handling of administrative violations to competent authorities.
Article 37. Responsibilities
of ministries, ministerial agencies, Vietnam Social Security, the Supreme
People's Court and State Audit Office of Vietnam
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a) Implement development and completion of laws on
handling of administrative violations within their powers
b) Make reports on the enforcement of laws on
handling of administrative violations within their powers;
c) Carry out statistics on handling of
administrative violations within their powers;
d) Cooperate in developing database of handling
administrative violations; direct information providers to serve development of
database of handling administrative violations and integrate information into
the national database of handling administrative violations at the Ministry of
Justice;
dd) Carry out inspection and examination of the
situation of enforcement of laws on handling of administrative violations of
the fields under their management;
e) Carry out dissemination and training in
professional skills of applying laws on handling of administrative violations
under management of ministries, ministerial agencies and Vietnam Social
Security;
g) Develop material facilities, strengthen
organization, and arrange resources to enforce laws on handling of
administrative violations.
2. Responsibilities of ministries, ministerial
agencies and Vietnam Social Security for reporting enforcement of laws on handling
of administrative violations:
a) They shall report the situation of
administrative penalties specified in clause 2 Article 35 hereof.
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b) The Ministry of Labor-War Invalids and Social
Affairs shall report the situation of applying measures for center-based
education in compulsory rehabilitation centers as prescribed in points a, c, g,
i and k Clause 3 Article 35 hereof;
c) The Ministry of Public Security shall report the
situation of applying measures for community-based education in communes, wards
and towns; center-based education in reform schools and compulsory educational
institutions as prescribed in points a, c, d, dd, e, h and k Clause 3 Article
35 hereof;
d) They shall report implementation of laws on
handling of administrative violations and send them to the Ministry of Justice
in the prescribed time limit for implementing regimes of reporting the
enforcement of laws on handling of administrative violations of the Minister of
Justice.
3. Supreme People’s Court shall carry out tasks as
prescribed in clause 4 Article 17 of the Law on Handling of Administrative
Violations and send annual reports to the Ministry of Justice on the situation
of administrative penalties as prescribed in clause 2 Article 35 hereof and
reports on the situation of applying administrative measures as prescribed in
points b, c, d, e, g, h, I and k clause 3 Article 35 hereof.
4. The State Audit Office of Vietnam shall carry
out tasks as prescribed in clause 4 Article 17 of the Law on Handling of
Administrative Violations and send annual reports to the Ministry of Justice on
the situation of administrative penalties as prescribed in clause 2 Article 35
hereof.
5. Legal organizations of ministries, ministerial
agencies and Vietnam Social Security shall take charge in managing the
enforcement of laws on handling of administrative violations in fields under
their management; carrying out tasks prescribed in clauses 1 and 2 of this
Article and other assigned tasks to assist Ministers and Heads of ministerial
agencies and General Directors of Vietnam Social Security.
Article 38. Responsibilities of the Ministry of
Finance
1. Carry out tasks prescribed in clauses 1, 2 and 5
Article 37 hereof.
2. Take charge and cooperate with the Ministry of
Justice in providing guidance and ensuring expenditures for state management of
enforcing laws on handling administrative violations and organizing
implementation of laws on handling of administrative violations according to
regulations of the Law on State Budget of Vietnam.
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1. The People's Committees at all levels shall,
during the implementation of laws on handling of administrative violations, if
they detect regulations on handling of administrative violations that are not
feasible, are not consistent with reality, or are overlapping or contradictory,
propose governing bodies to draft or the Ministry of Justice to study and
handle them.
2. Responsibilities of the People’s Committees at
all levels for reporting enforcement of laws on handling of administrative
violations:
a) Presidents of the commune-level People’s
Committees shall report implementation of laws on handling of administrative
violations in fields under their management to the district-level People’s
Committees in the prescribed time limit for implementing regimes of reporting
enforcement of laws on handling administrative violations of the Minister of
Justice.
Justice Divisions shall provide advices and
assistance to the Presidents of district-level People’s Committees in
implementing reports on enforcement of laws on handling of administrative
violations in their districts;
b) Heads of professional authorities affiliated to
the provincial People’s Committees and agencies organized in the vertical
structures in their provinces or central-affiliated cities and the
district-level People’s Committees shall make reports on enforcement of laws on
handling of administrative violations in fields under their management to the
Departments of Justice for consolidating and reporting them to the provincial
People’s Committees in the prescribed time limit for implementing regimes of
reporting enforcement of laws on handling administrative violations of the
Minister of Justice.
Departments of Justice shall provide advices and assistance
to the Presidents of provincial People’s Committees in implementing reports on
enforcement of laws on handling of administrative violations in their
provinces;
c) Presidents of the provincial People’s Committees
shall make reports on implementation of laws on handling of administrative
violations in fields under their management and send them to the Ministry of
Justice in the prescribed time limit for implementing regimes of reporting
enforcement of laws on handling administrative violations of the Minister of
Justice.
In order to monitor the situation of handling
administrative violations in their provinces, the provincial People’s
Committees shall not add data about handling of administrative violations of
agencies organized in the vertical structures in their provinces or
central-affiliated cities to reports on enforcement of laws on handling of
administrative violations sent to the Ministry of Justice;
d) Presidents of the People’s Committees at all
levels shall, within their powers, report contents prescribed in clause 2,
points a, c, d, dd and k clause 3 Article 35 hereof.
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4. The provincial People’s Committees shall develop
database of handling administrative violations in their provinces; direct
departments, divisions and provincial authorities to provide information to
serve the development of database of handling administrative violations.
Departments of Justice shall assist the provincial
People’s Committees in developing database of handling administrative
violations and integrating into the national database of handling
administrative violations in the Ministry of Justice.
5. The People’s Committees at all levels shall
examine the situation of implementation of laws on handling of administrative
violations.
6. The People’s Committees at all levels shall
organize inspection at the requests of the Departments of Justice or upon
having reflections and recommendations of individuals, organizations or the
press on the application of laws on handling administrative violations that
seriously affect the legitimate rights and interests of such individuals and
organizations under their management for cases prescribed in Article 32 hereof.
7. The People’s Committees at all levels shall
carry out dissemination and training in professional skills in applying laws on
handling administrative violations under their management.
8. The People’s Committees at all levels shall direct
the development of material facilities, strength of organizations, and
arrangement of resources for implementation of laws on handling administrative
violations.
9. Departments of Justice shall assume, advise and
assist the provincial People’s Committees in managing the implementation of
laws on handling administrative violations in their provinces.
Chapter V
IMPLEMENTATION CLAUSES
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1. Expenditures used for state management of
implementation of laws on handling of administrative violations and
organization of implementation of laws on handling administrative violations
guaranteed by the state budget and allocated in the state budget estimates of
relevant agencies and units according to regulations of the Law on State Budget
of Vietnam.
2. Central authorities, local authorities and units
shall make estimates of expenditures for organizing implementation of laws on
handling administrative violations at the same time with the development of
annual budget estimates, and send them to financial agencies at the same levels
for consolidation and submission to competent authorities for consideration and
decision.
Article 41. Schedule used in handling
administrative violations
1. The Appendix of form of offence notices and
decisions for use in administrative penalties is promulgated together with this
Decree.
2. Forms used in the application of administrative
measures are issued together with decrees specifying the application of
administrative measures.
3. In case of necessity, in order to meet
requirements of state management, ministers and heads of ministerial agencies
may issue other forms in addition to the forms specified in Clauses 1 and 2 of
this Article for use in their departments and fields after having the written
consent of the Minister of Justice.
4. Forms used in handling administrative violations
are stored in paper and in electronic form. Competent authorities and persons
may use pre-printed forms or self-print forms, manage and take responsibility
in accordance with laws.
5. Authorities with powers to handle administrative
violations shall be responsible for the accuracy and completeness in printing,
issuing, managing and using forms issued as prescribed in Clauses 1, 2 and 3 of
this Article.
Article 42. Effect
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2. The regulations specified in point a clause 1,
clauses 2 and 4, Article 15 of this Decree shall take effect against decisions
on administrative penalties issued from January 1, 2021.
3. This Decree replaces Government's Decree No.
81/2013/ND-CP dated July 19, 2013 elaborating some articles and measures to
implement the Law on Handling of Administrative Violations and Government's
Decree No. 97/2017/ND-CP dated August 18, 2017 revising some articles of
Government's Decree No. 81/2013/ND-CP dated July 19, 2013 elaborating certain
articles and measures to implement the Law on Handling of Administrative
Violations.
Article 43. Responsibility for implementation
Ministers, Heads of ministerial agencies, Heads of
Governmental agencies, Presidents of the People's Committees of provinces and
central-affiliated cities and relative agencies shall be responsible for
implementation of this Decree./.
ON BEHALF OF.
GOVERNMENT
PP. PRIME MINISTER
DEPUTY PRIME MINISTER
Pham Binh Minh
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