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THE GOVERNMENT
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 102/2021/ND-CP
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Hanoi, November 16, 2021
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DECREE
AMENDMENTS TO SOME ARTICLES OF
DECREES ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON TAX
AND INVOICING; CUSTOMS; INSURANCE BUSINESS AND LOTTERY BUSINESS; MANAGEMENT AND
USE OF PUBLIC PROPERTY, THRIFT PRACTICE AND WASTEFULNESS COMBAT; NATIONAL
RESERVE; STATE TREASURY; ACCOUNTING AND INDEPENDENT AUDIT
Pursuant
to the Law on Government Organization dated June 19, 2015;
Pursuant
to the Law on Amendments to some Articles of the Law on Government Organization
and Law on Local Government Organization dated November 22, 2019;
Pursuant
to the Law on Penalties for Administrative Violations dated June 20, 2012;
Pursuant
to the Law on Amendments to some Articles of the Law on Penalties for
Administrative Violations dated November 13, 2020;
Pursuant
to the Law on Tax Administration dated June 13, 2019;
Pursuant
to the Law on Customs dated June 23, 2014;
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Pursuant
to the Law on Thrift Practice and Wastefulness Combat dated November 26, 2013;
Pursuant
to the Law on National Reserve dated November 20, 2012;
Pursuant
to the Law on Accounting dated November 20, 2015;
Pursuant
to the Law on Independent Audit dated March 29, 2011;
Pursuant
to the Law on Business Insurance dated December 09, 2000;
Pursuant
to the Law on Amendments to some Articles of the Law on Business Insurance and
Law on Intellectual Property dated June 14, 2019;
Pursuant
to the Government’s Decree No. 87/2017/ND-CP dated July 26, 2017 defining the
functions, tasks, powers and organizational structure of the Ministry of
Finance;
At the
request of the Minister of Finance;
The
Government hereby promulgates a Decree on amendments to some Articles of
Decrees on penalties for administrative violations against regulations on tax
and invoicing; customs; insurance business and lottery business; management and
use of public property, thrift practice and wastefulness combat; national
reserve; state treasury; accounting and independent audit.
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AMENDMENTS TO DECREES ON
PENALTIES FOR ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON TAX AND
INVOICING; CUSTOMS; INSURANCE BUSINESS AND LOTTERY BUSINESS; MANAGEMENT AND USE
OF PUBLIC PROPERTY, THRIFT PRACTICE AND WASTEFULNESS COMBAT; NATIONAL RESERVE;
STATE TREASURY; ACCOUNTING AND INDEPENDENT AUDIT
Article 1. Amendments to some Articles of
the Government’s Decree No. 125/2020/ND-CP dated October 19, 2020 on penalties
for administrative violations against regulations on tax and invoicing
1. Point a Clause 1 of Article 8 is amended as follows:
“a) The prescriptive time limit for imposition of an
invoice-related administrative penalty shall be 02 years.”
2. Clause 2 of Article 22 is amended as follows:
“2. Fines ranging from VND fines VND 20,000,000 to VND
50,000,000 shall be imposed for the act of giving or selling invoices, except
for the case specified in Clause 1 of this Article.”
3. Point h is added to Clause 4 of Article 24 as follows:
“h) Issuing invoices which do not contain all compulsory
contents as prescribed.”
4. Clauses 3 and 4 of Article 26 are amended as follows:
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a) Causing the loss, burning or damage of invoices already
released or purchased from tax authorities even though they have not been
issued yet;
b) Causing the loss, burning or damage of issued invoices
(the replicas intended for clients) during use although sellers have already
declared or paid taxes, or have had documents or records evidencing the sale of
goods or the provision of services;
If such loss, burning or damage takes place through the
buyer's fault, both the seller and the buyer must keep a record of such
incident.
c) Causing the loss, burning or damage of invoices issued but
not yet submitted for completion of tax declaration;
Relevant parties must make a record of the loss, burning or
damage.
4. Fines ranging from VND 5,000,000 to VND 10,000,000 shall
be imposed for the act of causing the loss, burning and damage of issued
invoices, or invoices already submitted for completion of tax declaration or
those are in use or storage, except the cases specified in Clauses 1, 2 and 3
of this Article.”
5. Point b Clause 2 of Article 42 is amended as follows:
“b) They shall not be charged during the interval before the fine reduction
or exemption decision is issued;”
6. Article 43 is amended as follows:
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1. Cases of exemption and reduction of fines for tax or
invoice-related administrative violations; power and procedures for exemption
and reduction of fines for tax or invoice-related administrative violations are
specified in Article 77 of the Law on Penalties for Administrative Violations
and Clause 38 Article 1 of the Law on Amendments to some Articles of the Law on
Penalties for Administrative Violations and Clauses 2, 3, 4 and 5 of this
Article.
2. After getting away the deduction of the insured value or
indemnity value (if any), the maximum amount of exemption or reduction shall be
equal to the remaining amount of fine determined in the fine charge decision
and does not exceed the value of damaged goods or services.
If a taxpayer commits a tax-related violation in a force
majeure event as prescribed by the Law on Tax Administration, the documents
proving the value of the damaged property or goods and insured value or
indemnity value include:
a) The written inventory determining the damaged value issued
by the taxpayer or the taxpayer’s legal representative;
b) The written document or record stating the damaged value
which is issued by the competent appraising body in accordance with regulations
of laws (an original copy, notarized or certified copy), unless otherwise
stated in Point c of this Clause;
c) The set of documents and records stating the indemnity
against the material loss accepted by the insurance agency as required by laws
(original copies or notarized or certified copies) (if any);
d) The set of documents and records stating compensation
liabilities that must be accepted by the insurance agency as required by laws
(original copies or notarized or certified copies) (if any);
3. Exemption and reduction of fines for tax or
invoice-related administrative violations shall not be applied to the cases in
which penalty charge decisions have been completely executed.
4. If the fine exemption or reduction is granted, the
reduction or exemption from the amount of interest on late payment of the fine
shall be applied as well.
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Article 2. Amendments to some Articles of
the Government’s Decree No. 128/2020/ND-CP dated October 19, 2020 on penalties
for administrative customs offences
1. Article 2a is added after Article 2 as follows:
“Article 2a. Principles of imposing penalties for
administrative customs offences in cases where multiple administrative offences
are committed
Any organization or individual that commits multiple
administrative offences shall face a penalty for each offence, unless an
offence in Point a, b or d Clause 1, Point a Clause 3 Article 7; Clause 1, 2 or
3, Point d Clause 4, Point a, b, c or d Clause 6 Article 8; Point a Clause 1,
Point b Clause 2 Article 11 of this Decree which involves multiple
declarations/documents in the customs dossier is committed at different times
of customs declaration registration and discovered at the same time but has yet
to be considered, a penalty shall be imposed for that offence while the repeat
of that offence shall be taken into account as an aggravating circumstance
provided that the prescriptive time limit for penalty imposition has not yet
expired.”
2. Article 4 is amended as follows:
a) Clause 2 is amended as follows:
“2. The prescriptive time limit for imposing penalties for
other customs offences is similar to that in Article 6 of the Law on Penalties
for Administrative Violations 2012 and Clause 4 Article 1 of the Law on
Amendments to some Articles of the Law on Penalties for Administrative
Violations, except for the cases specified in Clause 1 of this Article.
The dates which are used to determine the prescriptive time
limit for imposing penalties for other customs offences are specified in
Clauses 5 and 6 of this Article.”
b) Clauses 5 and 6 are added as follows:
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a) The ending date of an administrative offence specified in
Article 7 hereof is the date on which the customs procedures are followed or
tax dossier is submitted;
b) The ending date of an administrative offence specified in
Article 8 hereof is the date on which the customs declaration is registered;
the date on which the goods manifest, the passenger list or the baggage
declaration included in the dossier on the vehicle entering and leaving Vietnam
or the vehicle in transit is submitted;
c) The ending date of an administrative offence specified in
Article 10 hereof is the date on which the person entering or leaving Vietnam
completes customs declaration;
d) The ending date of an administrative offence specified in
Point a Clause 1 Article 11 hereof is the date on which the documents in the
customs dossier are submitted, produced or sent to the customs authority
according to the registered customs declaration;
dd) The ending date of an administrative offence specified in
Point b Clause 1 Article 11 hereof is the date on which the taxpayer makes an
amendment to the statement;
e) The ending date of an administrative offence specified in
Point c Clause 2 Article 11 hereof is the date on which the taxpayer submits
the statement;
g) The ending date of an administrative offence specified in
Point a Clause 7 Article 11 hereof is the date on which the documents are
declared, submitted or produced to the customs authority;
h) The ending date of an administrative offence specified in
Point b Clause 7 Article 11 hereof is the date on which the illegal use of
another entity’s account or digital signature to follow customs procedures is
terminated;
i) The ending date of an administrative offence specified in
Point c Clause 7 Article 11 hereof is the illegal access to, falsification or
destruction of the customs information system is terminated;
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6. The administrative offences specified in this Decree other
than those specified in Clause 5 of this Article are treated as in-progress
offences.”
3. Points dd and e are added after Point d Clause 3 of
Article 5 as follows:
“dd) With respect to fines, the specific amount of fine for
an administrative offence prescribed in Article 7, 8, 10, 11, 12, 13, 15, 16,
17, 18, 19, 20, 21, 22, 23 or 24 or Clause 1, 3 or 4 Article 25 hereof must be
the average of specific fines in the range for such offence. For a mitigating
circumstance that exists, the average fine for an offence in the fine range
shall be reduced by 10% provided that the fine amount imposed for such offence
is not lower than the minimum fine in that range. Meanwhile, for an aggravating
circumstance that exists, the average fine for an offence in the fine range
shall be increased by 10% provided that the fine amount imposed for such
offence is not greater than the maximum fine in that range.
e) When determining the fine amounts imposed on entities that
commit offences under both aggravating and mitigating circumstances, the
aggravating circumstance shall be reduced or relieved according to the
one-for-one rule under which a mitigating circumstance is offset against an
aggravating circumstance.
4. Article 29 is amended as follows:
“Article 29. Power to impose penalties of the customs
Directors of Sub-departments of Customs, Directors of
provincial, inter-provincial and city Customs Departments, Director of the
Smuggling Prevention Department, Director of the Department of Post-Clearance
Inspection and the Director General of the General Department of Vietnam
Customs are entitled to impose penalties for the acts of making understatement
of tax payable or overstatement of tax eligible for refund, remission or
cancellation; tax evasion; commercial banks' failure to transfer outstanding
tax from the taxpayer’s account to the state budget account at the request of
the tax authority as specified in Points b, c and d Clause 2 Article 138 of the
Law on Tax Administration.
For other administrative offences, the power to impose
penalties of the customs is as follows:
1. Customs officials on duty are entitled to:
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b) impose a maximum fine of VND 500,000 upon an individual
and VND 1,000,000 upon an organization.
2. Team leaders and group leaders of Sub-departments of
Customs; team leaders of control teams affiliated to provincial,
inter-provincial or central-affiliated city Customs Departments; team leaders
of Sub-departments of Post-Clearance Inspection are entitled to:
a) issue warnings;
b) impose a maximum fine of VND 5,000,000 upon an individual
and VND 10,000,000 upon an organization.
3. Directors of Sub-departments of Customs; Sub-departments
of Post-Clearance Inspection, leaders of control teams affiliated to
provincial, inter-provincial or central-affiliated city Customs Departments; leaders of criminal
investigation teams, leaders of smuggling prevention teams, captains of
maritime control flotillas; leaders of anti-smuggling, counterfeit product
control and intellectual property teams affiliated to the Smuggling
Investigation and Prevention Department; Directors of Post-clearance Inspection
Sub-departments as an affiliate of the Post-clearance Inspection Department are
entitled to:
a) issue warnings;
b) impose a maximum fine of VND 25,000,000 upon an individual
and VND 50,000,000 upon an organization;
c) confiscate the exhibit or instrumentality whose value does
not exceed VND 50,000,000 if the administrative offence is committed by an
individual or VND 100,000,000 if the administrative offence is committed by an
organization;
d) enforce the remedial measures mentioned in this Decree.
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a) issue warnings;
b) impose a maximum fine of VND 50,000,000 upon an individual
and VND 100,000,000 upon an organization;
c) confiscate any exhibit involved in commission of
administrative offence;
d) enforce the remedial measures mentioned in this Decree.
5. The Director of the General Department of Vietnam Customs
is entitled to:
a) issue warnings;
b) impose a maximum fine of VND 100,000,000 upon an
individual and VND 200,000,000 upon an organization;
c) confiscate any exhibit involved in commission of
administrative offence;
d) enforce the remedial measures mentioned in this Decree.”
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a) Clause 2a is added after Clause 2 as follows:
“2a. The leaders of Task Force Teams for drug and crime
prevention and control which are put under the control of Task Force
Commissions are entitled to:
a) issue warnings;
b) impose a maximum fine of VND 10,000,000 upon an individual
and VND 20,000,000 upon an organization;
c) confiscate the exhibit or instrumentality whose value does
not exceed VND 20,000,000 if the administrative offence is committed by an individual
or VND 40,000,000 if the administrative offence is committed by an
organization;
d) enforce the remedial measures mentioned Point dd Clause 5
Article 5 of this Decree.”
b) Clause 3 is amended as follows:
“3. Commanding Officers of Border Guard Posts, Captains of
Naval Border Guard Flotillas, Commanders of the Border Guard Commands at port
border gates are entitled to:
a) issue warnings;
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c) confiscate the exhibit or instrumentality whose value does
not exceed VND 40,000,000 if the administrative offence is committed by an
individual or VND 80,000,000 if the administrative offence is committed by an
organization;
d) enforce the remedial measures mentioned Points a and dd
Clause 5 Article 5 of this Decree.”
c) Clause 3a is added after Clause 3 as follows:
“3a. Leaders of Task Force Commissions for Drug and
Crime Prevention and Control as an affiliate of the Department of Drug and
Crime Prevention and Control under the control of the Command of Border Guards
are entitled to:
a) issue warnings;
b) impose a maximum fine of VND 50,000,000 upon an individual
and VND 100,000,000 upon an organization;
c) confiscate the exhibit or instrumentality whose value does
not exceed VND 100,000,000 if the administrative offence is committed by an
individual or VND 200,000,000 if the administrative offence is committed by an
organization;
d) enforce the remedial measures mentioned Points a, dd and e
Clause 5 Article 5 of this Decree.”
d) Clause 4 is amended as follows:
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a) issue warnings;
b) impose a maximum fine of VND 100,000,000 upon an
individual and VND 200,000,000 upon an organization;
c) confiscate any exhibit involved in commission of
administrative offence;
d) enforce the remedial measures mentioned Points a, dd and e
Clause 5 Article 5 of this Decree.”
6. Point c Clause 4, Clause 5 and Clause 6 of Article 31 are
amended as follows:
a) Point c of Clause 4 is amended as follows:
“c) confiscate the exhibit or instrumentality whose value
does not exceed VND 40,000,000 if the administrative offence is committed by an
individual or VND 80,000,000 if the administrative offence is committed by an
organization;”
b) Clause 5 is amended as follows:
“5. Captains of Naval Border Guard Squadrons; Heads of Reconnaissance
Commissions; Heads of Task Force Commissions for Drug Crime Prevention and
Control under the control of the Command of Coast Guard of Vietnam are entitled
to:
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b) impose a maximum fine of VND 30,000,000 upon an individual
and VND 60,000,000 upon an organization;
c) confiscate the exhibit or instrumentality whose value does
not exceed VND 60,000,000 if the administrative offence is committed by an
individual or VND 120,000,000 if the administrative offence is committed by an
organization;
d) enforce the remedial measures mentioned Points a and dd
Clause 5 Article 5 of this Decree.”
c) Clause 6 is amended as follows:
“6. Commanders of Regional Coastguard Command Centers and
Director of the Department of Operations and Legislation under the control of
the Command of Coast Guard of Vietnam are entitled to:
a) issue warnings;
b) impose a maximum fine of VND 50,000,000 upon an individual
and VND 100,000,000 upon an organization;
c) confiscate any exhibit involved in commission of administrative
offence;
d) enforce the remedial measures mentioned Points a and dd
Clause 5 Article 5 of this Decree.”
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a) The introductory paragraph of Clause 4 is amended as
follows:
“4. In case an administrative offence case involves multiple
acts of offence, the power to impose penalties for an administrative offence
shall be determined according to the following principles:”
b) Title of Clause 6 is amended as follows: “Thẩm quyền xử
phạt vi phạm hành chính của Hải quan” (“Power to impose penalties for
administrative offences of the customs”)
c) Points b and c of Clause 6 are amended as follows:
“b) Team Leaders, Group Leaders of Customs Sub-departments;
Leaders of Groups in Control Teams affiliated to provincial, inter-provincial
or central-affiliated city Customs Departments; Leaders of Teams in
Post-clearance Inspection Sub-departments has the power to impose penalties for
the administrative offences specified in Points a, b and d Clause 1 Article 7;
Clause 2 Article 7; Points a, b, c, d, dd, e and h Clause 3 Article 7; Point c
Clause 4 Article 7; Clauses 1, 2, 3 and 4 Article 8; Points a, b, c and d
Clause 6 Article 8; Point a Clause 1, Point a Clause 2, Point a Clause 3, Point
a Clause 5 Article 10; Clauses 1, 2 and 3 Article 11; Clause 1 Article 12;
Clause 1 Article 13; Clauses 1 and 2 Article 23; Clauses 1 and 2 Article 24 of
this Decree;
c) Directors of Sub-departments of Customs; Sub-departments
of Post-Clearance Inspection, leaders of control teams affiliated to
provincial, inter-provincial or central-affiliated city Customs Departments;
leaders of criminal investigation teams, leaders of smuggling prevention teams,
captains of maritime control flotillas; leaders of anti-smuggling, counterfeit
product control and intellectual property teams affiliated to the Smuggling
Investigation and Prevention Department; Directors of Post-clearance Inspection
Sub-departments as an affiliate of the Post-clearance Inspection Department has
the power to impose fines, additional penalties and remedial measures against
the administrative offences in Article 7; Article 8; Points a, b and c Clause
1, Clause 2, Clause 3, Point a Clause 4, Points a and b Clause 5 Article 10;
Clauses 1, 2, 3, 4, 5 and 6 Article 11; Points a, b and c Clause 8, Clause 9,
Clause 10 Article 11; Clauses 1, 2, 3, 4, 5, 7 and 8 Article 12; Clauses 1, 2,
3, 4, 7 and 8 Article 13; Points a, b, c and d Clause 1, Clause 4, Clause 5
Article 15; Points a, b and c Clause 1, Clause 2, Clause 3 Article 16; Points
a, b and c Clause 1, Clause 2, Clause 3 Article 17; Article 18 (unless the
fines are beyond the competence of these persons); Article 19; Clauses 1, 2, 3,
7 and 8 Article 20; Clauses 1, 2, 4 and 5 Article 21; Clauses 1 and 2, Points
a, b, c, d, dd, e and g Clause 3, Clause 4 Article 22; Article 23; Clauses 1
and 2 Article 24; Clauses 1, 3 and 4 Article 25 of this Decree;”
d) Clause 9 is amended as follows:
“9. At the positions along the national border where the
customs organization is not available, the local Border Guard has the power to
impose fines, additional penalties and remedial measures in accordance with
Article 30 of this Article for the administrative customs offences specified in
Article 13 of this Decree. To be specific:
a) Senior officers of the Border Guard officers on duty have
the power to impose penalties for the offences in Clause 1 Article 13 of this
Decree;
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c) Commanding Officers of Border Guard Posts, Captains of
Naval Border Guard Flotillas, Commanders of the Border Guard Commands at port
border gates have the power to impose penalties for the administrative offences
in Clause 1, Clause 2, Clause 3, Clause 4, Clause 7, Points b and d Clause 8
Article 13 of this Decree;
d) Leaders of Task Force Commissions for Drug and Crime
Prevention and Control as an affiliate of the Department of Drug and Crime
Prevention and Control under the control of the Command of Border Guards have
the power to impose penalties for the administrative offences in Article 13 of
this Decree;
dd) Chief Commander of provincial-level Border Guards;
Captains of Naval Border Guard Squadrons, and Director of the Department of
Drug and Crime Prevention and Control affiliated to the Command of Border
Guards have the power to impose penalties for the administrative offences in
Article 13 of this Decree.”
dd) Points dd and e of Clause 10 are amended as follows:
“dd) Captains of Naval Border Guard Squadrons; Heads of
Reconnaissance Commissions; Heads of Task Force Commissions for Drug Crime
Prevention and Control under the control of the Command of Coast Guard of
Vietnam have the power to impose penalties for the administrative offences in
Clauses 1, 2, 3 and 4, Points b, c, d and dd Clause 5, Clause 7, Points b, c
and d Clause 8 Article 13 of this Decree;
e) Commanders of Regional Coastguard Command Centers and
Director of the Department of Operations and Legislation under the control of
the Command of Coast Guard of Vietnam have the power to impose penalties for
the administrative offences in Clauses 1, 2, 3, 4, 5, 6 and 7, Points b, c and
d Clause 8 Article 13 of this Decree.”
8. Article 33a is added after Article 33 as follows:
“Article 33a. Implement remedial measures
1. When an individual or organization is compelled to remove
from the territory of the Socialist Republic of Vietnam or re-export the
exhibit or instrumentality involved in an administrative offence, the customs
authority shall carry out a close supervision from the place of storing goods
involved in the offence to the border checkpoint of re-export.
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2. The enforced removal from the territory of the Socialist
Republic of Vietnam or enforced re-export at the import checkpoint of an
exhibit or instrumentality involved in an administrative offence shall be carried
out as follows:
a) If the exhibit or instrumentality involved in the
administrative offence is being stored at the border checkpoint area, the
customs authority must carry out a close supervision thereof to ensure that it
has been removed at the checkpoint of import. The supervision result is
specified in a record for keeping purpose;
b) If the exhibit or instrumentality involved in the
administrative offence is no longer stored at the border checkpoint area, the
customs authority must carry out a close supervision from the place of storing
the exhibit or instrumentality involved in the offence to the border checkpoint
through which it was imported for re-export. The supervision result must be
certified by the border checkpoint customs in writing or by other electronic
means and sent back to the customs authority that issued the administrative
penalty imposition decision within 05 (five) days from the date on which the
exhibit or instrumentality involved in an administrative offence is removed
from the territory of Vietnam or re-exported for keeping of the case file.
3. When an individual or organization is compelled to
transport the goods involved in the merchanting trade transactions, goods being
moved to another custom post outside the checkpoint area or temporarily
imported goods at the correct border checkpoint or on the correct route, the
Sub-department of Customs from which the goods are transported shall supervise
the goods transported and cooperate with the Sub-department of Customs to which
the goods are transported or related agencies to ensure that the goods are
transported at the correct border checkpoint or on the correct route.
4. Upon being compelled to discard a goods package or label
that is changed because of an offence, the individual or organization involved
in the administrative offence may strip, remove or restore the original
condition of the goods package or label.
Upon being compelled to remove the illegal elements of the
goods before they are removed from the territory of the Socialist Republic of
Vietnam, the individual or organization involved in the administrative offence
may delete, strip or remove such elements.
5. Upon being compelled to destroy the goods or item
detrimental to human, animal and plant health and the environment or indecent
material, the individual or organization involved in the offence shall,
according to the nature and characteristics of the goods or item and
environmental safety requirements, destroy it using the following methods: use
of chemicals, mechanical method, burning, burial or another method prescribed
by law. The customs authority shall supervise the direct destruction or carry
out supervision by other technical means (if any).
Upon destruction of goods or items, the individual or
organization involved in the administrative offence shall make a destruction
record according to the form enclosed with the Decree on elaboration of some
Articles and measures for implementation of the Law on Penalties for
Administrative Violations.
The destruction record shall bear signatures of participants
in the destruction and representative of the customs authority supervising the
destruction. After the destruction, the individual or organization involved in
the administrative offence shall submit 01 destruction record and documents
about the destruction to the customs authority that issued the administrative
penalty imposition decision, within 05 (five) days from the date of
destruction.
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7. Upon being compelled to pay
the outstanding tax; the tax incorrectly
exempted, reduced, refunded or cancelled which
is written on the decision on tax imposition, the individual or organization
involved in the administrative offence shall make a full payment thereof to the
State Treasury’s account and send 01 photocopy of the payment slip (if making
the payment in cash) to the customs authority that issued the administrative
penalty imposition decision for keeping of the case file.
8. Upon being compelled to stick the “Vietnam duty not paid”
stamp, the individual or organization involved in the administrative offence
shall stick the stamp before selling goods at a duty-free shop or transferring
goods to the purchaser in the case where the goods are directly dispatched from
the duty-free warehouse to the purchaser. The “Vietnam duty not paid” stamp
location shall comply with the Government’s regulations on duty-free business.”
9. Clause 1 of Article 33 is amended as follows:
“1. The procedures for imposing penalties and implementing
decisions to impose penalties for customs offences shall comply with Chapter
III Part 2 of the Law on Penalties for Administrative Violations 2012 and
Clauses 29 through 45 Article 1 of the Law on Amendments to some Articles of
the Law on Penalties for Administrative Violations; Chapter XIV Section 1
Chapter XV of the Law on Tax Administration 2019; Chapter XIV, section 1
Chapter XV of the Law on Tax Administration 2019; Chapter VII of the
Government’s Decree No. 126/2020/ND-CP dated October 19, 2020 on elaboration of
the Law on Tax Administration, and regulations of this Decree.”
10. Article 34 is amended as follows:
“Article 34. Exemption and reduction of fines for
administrative customs offences
The exemption and reduction of fines for administrative
customs offences shall be granted as prescribed in Article 77 of the Law on
Penalties for Administrative Violations 2012 and Clause 38 Article 1 of the Law
on Amendments to some Articles of the Law on Penalties for Administrative
Violations.”
Article 3. Amendments to some Articles of
the Government’s Decree No. 98/2013/ND-CP dated August 28, 2013 on amendments
to Decree No. 98/2013/ND-CP dated August 28, 2013 on penalties for
administrative violations in insurance business and lottery business amended by
the Government’s Decree No. 48/2018/ND-CP dated March 21, 2018 and Decree No.
80/2019/ND-CP dated November 01, 2019
1. Title of Article 3 is amended, Point c is added to Clause
2 and Clauses 3, 4 and 5 are added to Article 3 as follows:
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“Article 3. Penalties and prescriptive time limits for
imposing penalties for administrative violations”
b) Point b is added after Point b of Clause 2 as follows:
“c) Principles of applying the suspension of the certificate
of eligibility for lottery business within a defined time limit:
When determining the time limit for suspension of the
certificate of eligibility for lottery business of an entity that commits a
violation under both aggravating and mitigating circumstances, the aggravating
circumstance shall be reduced or relieved according to the one-for-one rule
under which a mitigating circumstance is offset against an aggravating
circumstance.
The specific time limit for suspension of the certificate of
eligibility for business for an act of violation is the average of total time
length of the time frame for such suspension for that act. If there is any
mitigating circumstance, the time limit for such suspension may be reduced by
01 month for each mitigating circumstance but must not be lower than the
minimum limit of the time frame for such suspension; if there is any
aggravating circumstance, the time limit for such suspension may be increased
by 01 month for each aggravating circumstance but must not exceed the maximum
limit of the time frame for such suspension.”
c) Clauses 3, 4 and 5 are added after Clause 2 of Article 3
as follows:
“3. The prescriptive time limits for imposing penalties for
administrative violations against regulations on insurance business:
a) The prescriptive time limits for imposing penalties for
administrative violations against regulations on insurance business is
specified in Article 6 of the Law on Penalties for Administrative Violations.
b) For an in-progress administrative violation against
regulations in insurance business, the prescriptive time limit begins from the
date on which the competent law enforcement officer detects such violation. For
a completed administrative violation, the prescriptive time limit begins from
the date on which that violation terminates. The ending date of a violation
which is used to determine the prescriptive time limit for imposing penalties
for administrative violations against regulations on insurance business is the
date on which regulations of law are correctly implemented. In case of failure
to determine the date on which regulations of law are correctly implemented,
the ending date of a violation which is used to determine the prescriptive time
limit for imposing penalties for administrative violations against regulations
on insurance business is the date on which the violation is detected.
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- For the act of modifying, falsifying or forging a document
in the approved application for establishment and operation license specified
in Clause 1 Article 5, Clause 1 Article 6 of this Decree, the ending date of
such act of violation is the date on which the approved application is found
being erased or modified resulting in change of the content;
- For the failure to issue internal procedures or guidelines
specified in Point b Clause 3 Article 9 and Point a Clause 1 Article 12 of this
Decree, the ending date of such violation is the date on which the procedures
are issued as prescribed by law;
- For act of violating reporting regulations specified in
Point a Clause 2 Article 18, Point e Clause 3 Article 18, Point b Clause 1
Article 21 and Point a Clause 1 Article 32 of this Decree, the ending date of
such violation is the date of reporting.
4. Prescriptive time limits for imposing penalties for
administrative violations against regulations on lottery business:
a) The prescriptive time limit for imposing an administrative
violation against regulations on lottery business shall be 01 year.
b) For an in-progress administrative violation against
regulations in lottery business, the prescriptive time limit begins from the
date on which the competent law enforcement officer detects such violation. For
a completed administrative violation, the prescriptive time limit begins from
the date on which that violation terminates. The ending dates of violations
which are used to determine the prescriptive time limits for imposing penalties
for several administrative violations in Chapter III of this Decree are
prescribed as follows:
- For the act of making erasures or alternations resulting in
change of content of the certificate of eligibility for business or the
documents in the approved application for lottery agent, in case of failure to
determine the date of making such erasures or alternations, the ending date of
such violation is the date of discovering such erasures or alternations;
- For the failure to formulate and promulgate regulations on
elaboration of procedures for recall of unsold lottery tickets, failure to
formulate and make publicly available the rules of drawing, failure to
promulgate the Regulation on management and exploitation of computer-generated
lottery business server data specified in Clause 1 Article 40, Clause 1 Article
44 and Clause 1 Article 49 of this Decree, the ending date of the violation is
the date on which the regulations on elaboration of procedures for recall of
unsold lottery tickets are promulgated, rules of drawing are publicly made
available and the Regulation on management and exploitation of
computer-generated lottery business server data is promulgated.
- For act of violating reporting regulations specified in
Article 51 of this Decree, the ending date of such violation is the date of
reporting.
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a) When determining the fine amount imposed on an entity that
commits a violation under both aggravating and mitigating circumstances, the
aggravating circumstance shall be reduced or relieved according to the
one-for-one rule under which a mitigating circumstance is offset against an aggravating
circumstance.
b) The specific amount of fine for a violation is the average
of specific fines in the range for such violation. For a mitigating
circumstance that exists, the average fine for a violation in the fine range
shall be reduced by 10% provided that the fine amount imposed for such
violation is not lower than the minimum fine in that range. Meanwhile, for an
aggravating circumstance that exists, the average fine for a violation in the
fine range shall be increased by 10% provided that the fine amount imposed for
such violation is not greater than the maximum fine in that range.”
2. Point b Clause 1 of Article 19 is amended as follows:
“b) Failure to comply with the principles, terms, and fee
schedule as prescribed by law;”
3. Article 33a is added after Article 33 as follows:
“Article 33a. The power to make records of
administrative violations against regulations on insurance business
1. Upon discovering administrative violations against
regulations on insurance business, the titles specified in Article 33 hereof
have the power to make records of administrative violations as prescribed.
2. Competent persons on duty in the field of insurance
business according to the legislative documents or administrative documents
promulgated by a competent authority or person must promptly make written
records of administrative violations and transfer them to a competent person
for penalty imposition.”
4. Point d Clause 2 of Article 33 is amended as follows:
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5. Article 51a is added after Article 51 as follows:
“Article 51a. The power to make records of
administrative violations against regulations on lottery business
The persons competent to impose penalties specified in
Article 52 of this Decree or competent persons on duty in the field of lottery
business have the power to make records of administrative violations.”
6. Point c Clause 2 of Article 52 is amended as follows:
c) confiscate the exhibit or instrumentality whose value does
not exceed VND 100,000,000 if the administrative violation is committed by an
individual and VND 200,000,000 if the administrative violation is committed by
an organization.”
Article 4. Amendments to some Articles of
the Government’s Decree No. 63/2019/ND-CP dated July 11, 2019 on penalties for
administrative violations against regulations on management and use of public
property; thrift practice and wastefulness combat; national reserve; state
treasury
1. Article 3 is amended as follows:
“Article
3. Prescriptive time limits for imposing penalties for administrative
violations
1. The
prescriptive time limits for imposing penalties for administrative violations
against regulations on management and use of public property; thrift practice
and wastefulness combat; national reserve; state treasury specified in this
Decree shall be 01 year. The prescriptive time limits for imposing
administrative violations relating to public property being house, land and
infrastructure property invested in and managed by the State shall be 02 years.
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a) For a
completed administrative violation, the prescriptive time limit begins from the
date on which that violation terminates;
b) For an
in-progress administrative violation, the prescriptive time limit begins from
the date on which that violation is detected;
c) The
administrative violations against regulations on investment in or procurement
of public property specified in Article 6 of this Decree shall be completed
ones in case where the investment in or procurement is completed and the
property has been transferred to a regulatory authority, organization or unit
for management and use; and shall be treated as in-progress ones in the
remaining cases;
d) The
administrative violations against regulations on lease of property specified in
Article 7 of this Decree shall be completed ones in case where the property has
been leased and put into use; and shall be treated as in-progress ones in the
remaining cases;
dd) The
administrative violations against regulations on encroaching upon working
offices or public service facilities specified in Article 11 of this Decree
shall be determined as follows:
- The
adjacent land user’s act of deliberately moving boundary markers of its/his/her
land plot with the aim of expanding land area or building a work encroaching
upon the land area of a working office or public service facility, regulatory
authority, organization or unit shall be treated as a completed administrative
violation; treated as an in-progress violation in the remaining cases.
- The
organization’s or individual’s act of using the house or land area of the
working office or public service facility, regulatory authority, organization
or unit without permission shall be treated as an in-progress administrative
violation.
e) The in-progress administrative violations against
regulations on management and use of public property are the ones specified in
Articles 8, 9, 10, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25 and 26 of
this Decree.
3. The ending dates of
in-progress and completed administrative violations which are used to determine
the prescriptive time limits for imposing penalties for administrative
violations against regulations on thrift practice and wastefulness combat are
prescribed as follows:
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a) The
administrative violation specified in Clause 2 Article 32 of this Decree shall
be treated as a completed one if the act of using state budget-derived fund for
improper purposes or inconsistently with its principles is completed; and shall
be treated as an in-progress one in the remaining cases;
c) The
administrative violation specified in Clause 2 Article 32 of this Decree shall
be treated as a completed one if the act of using state budget-derived fund in
a wasteful manner that is inconsistent with standards, technical regulations or
beyond the prescribed limits is completed; and shall be treated as an
in-progress one in the remaining cases;
d) The
administrative violation specified in Clause 1 Article 33 of this Decree shall
be treated as a completed one if the act of illegal obstruction of scientific
and technological research and application or implementation of projects using
recyclable resources is completed; and shall be treated as an in-progress one
in the remaining cases;
dd) The
administrative violation specified in Clause 2 Article 33 of this Decree shall
be treated as a completed one if the act of extracting and using of natural
resources inconsistently with planning or procedures is completed; and shall be
treated as an in-progress one in the remaining cases;
e) The administrative violation specified in Clause 1 Article
35 of this Decree shall be treated as a completed one if the act of causing
wastefulness upon management of a working office or public service facility is
completed; and shall be treated as an in-progress one in the remaining cases;
g) The
administrative violation against regulations on procurement of assets or
materials in a state-funded single-member limited liability company specified
in Clause 2 or 3 Article 36 of this Decree shall be treated as a completed one
if the asset procurement is completed; and shall be treated as an in-progress one
in the remaining cases;
h) The
in-progress administrative violations against regulations on thrift practice
are the violations specified in Clause 1 Article 31, Clause 1, Clause 4 Article
36 of this Decree; the violations against regulations on management and use of
capital of state-funded single-member limited liability companies specified in
Clause 2 Article 36 of this Decree; the violations against regulations on
management and use of assets and materials specified in Clause 2, Clause 3
Article 36 of this Decree.
4. The
ending dates of in-progress and completed administrative violations which are
used to determine the prescriptive time limits for imposing penalties for
administrative violations against regulations on national reserve are
prescribed as follows:
a) The
administrative violations treated as in-progress ones are those specified in
Article 41, Article 42, Article 47, Points b and c Clause 3 Article 48 and
Article 49 of this Decree;
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5. The
ending dates of the administrative violations against regulations on state
treasury are prescribed as follows:
a) The
ending dates of the administrative violations specified in Article 54, Article
57, Article 58, Article 59 and Article 60 of this Decree are the dates on which
the documents are submitted to the State Treasury;
b) The
ending dates of the administrative violations specified in Article 55, Article
56, Article and Article 61 of this Decree are the dates on which the State
Treasury receives the conclusion given by the criminal proceedings agency on
the violation case showing no sign of a criminal offence.”
2. Clause
7 of Article 4 is amended as follows:
“7.
Organizations or individuals incurring penalties as regulated herein shall not
use state budget or state budget-derived funding to pay fines and cover costs
of remedial measures, except for the case in Clause 8 Article 37 of the
Government's Decree No. 10/2021/ND-CP dated February 09, 2021 on management of
construction investment costs.”
3.
Article 5 is amended as follows:
“Article
5. Imposition of fines
1. The
fines prescribed in Section 1, Section 2, Section 3 and Section 4 Chapter II,
Section 1 Chapter III, Section 1 Chapter IV, Section 1 and Section 2 Chapter V
hereof are imposed upon organizations. The fine imposed upon an individual
shall be equal to a half of the fine imposed upon an organization for
committing the same violation (except provisions in Article 17, Article 23 and
Article 27 hereof).
2. Upon
imposing a fine, the specific amount of fine for an administrative violation is
the average of specific fines in the range for such violation. For a mitigating
circumstance that exists, the average fine for a violation in the fine range
shall be reduced by 10% provided that the fine amount imposed for such
violation is not lower than the minimum fine in that range. Meanwhile, for an
aggravating circumstance that exists, the average fine for a violation in the
fine range shall be increased by 10% provided that the fine amount imposed for
such violation is not greater than the maximum fine in that range.
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4. Point
c Clause 1, Point c Clause 2 and Point c Clause 3 of Article 30 are amended as
follows:
a) Point
c Clause 1 of Article 30 is amended as follows:
c)
confiscate the exhibit or instrumentality involved in the administrative
violation whose value does not exceed VND 1,000,000;”
b) Point
c Clause 2 of Article 30 is amended as follows:
“c)
confiscate the exhibit or instrumentality involved in the administrative
violation whose value does not exceed VND 100,000,000;”
c) Point
c Clause 3 of Article 30 is amended as follows:
“c)
confiscate the exhibit or instrumentality involved in the administrative
violation whose value does not exceed VND 140,000,000.
5. Point
c Clause 1 of Article 51 is amended as follows:
“c)
confiscate the exhibit or instrumentality involved in the administrative
violation whose value does not exceed VND 100,000,000.
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“c)
confiscate the exhibit or instrumentality involved in the administrative
violation whose value does not exceed VND 1,000,000”.
7. Point
c Clause 2 of Article 52 is amended as follows:
“c)
confiscate the exhibit or instrumentality involved in the administrative
violation whose value does not exceed VND 100,000,000.
8. Point
c Clause 3 Article 52 and Point c Clause 1 of Article 53 are amended as
follows:
“c)
confiscate the exhibit or instrumentality involved in the administrative
violation whose value does not exceed VND 140,000,000”.
9.
Clauses 1 and 2 of Article 56 are amended as follows:
“1. A
fine ranging from VND 10,000,000 to VND 15,000,000 shall be imposed for forging
documents requesting the State Treasury to allocate funding for covering
recurrent expenditures, recurrent expenditures on public services, expenditures
on national target programs, target programs using state budget for public
services (except expenditures on repair, maintenance, improvement, upgrade or
expansion of material facilities covered by state budget for recurrent
expenditures and revenues retained to cover recurrent expenditures with total
investment of at least VND 500,000,000).
2. A fine ranging from VND
30,000,000 to VND 50,000,000 shall be imposed for forging documents requesting
the State Treasury to allocate investment funding derived from state budget and
investment funding derived from budget for target programs or allocate funding
for covering expenditures on repair, maintenance, improvement, upgrade or
expansion of material facilities covered by state budget for recurrent
expenditures and revenues retained to cover recurrent expenditures with total investment
of at least VND 500,000,000.”
10. Point
c is added to Clause 1 of Article 62 as follows:
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11. Point
a Clause 3 of Article 63 is amended as follows:
“a)
Impose a fine up to VND 70,000,000;”
Article 5. Amendments to some Articles of
the Decree No. 41/2018/ND-CP dated March 12, 2018 on penalties for
administrative violations in the fields of accounting and independent audit
1. Clause
3 of Article 3 is amended as follows:
“3. The
dates which are used to determine the prescriptive time limits for imposing
penalties for administrative violations in the fields of accounting and
independent audit are prescribed as follows:
a) For a
completed administrative violation, the prescriptive time limit begins from the
date on which that violation terminates;
b) For an
in-progress administrative violation, the prescriptive time limit begins from
the date on which that violation is detected;
c) The
ending date of a violation against regulations on accounting and independent
audit which is used to determine the prescriptive time limit for imposing
penalties is:
- The
date on which the organization or individual finishes implementing the business
process or their tasks in accordance with regulations of law on accounting and
independent audit;
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d) In
order to consider whether an administrative violation is completed or in
progress, apart from Point c above, the authority or person competent to impose
penalties shall rely on regulations of law on accounting and independent audit,
documents and facts of each specific case to determine whether the
administrative is completed or in progress.”
2.
Clauses 2 and 3 of Article 6 are amended as follows:
“2. The
fines specified in Chapter II and Chapter III of this Decree are imposed upon
organizations except cases specified in Clause 1 Article 7; Article 8; Article
9; Article 10; Article 11; Article 13; Article 14; Article 15; Article 16;
Article 17; Article 19; Clauses 1 and 3 of Articles 21; Article 22; Articles
23; Article 24; Article 26; Article 33; Article 34; Clauses 1 and 3 Article 36;
Clauses 1 Article 38; Clauses 2 and 3 Article 39; Clauses 1 and 2 Article 48;
Clause 1 Article 57; Clauses 1 and 2 Article 61; Article 67, which are fines
that apply to individuals. For organizations with the same violations, the
fines will double those of individuals.
3. The
maximum fines the persons specified in Chapter IV of this Decree may impose are
fines for one administrative violation committed by an individual. The maximum
fine imposed upon an organization for the same violation is twice the maximum
fine imposed on an individual.”
3. Point
c Clause 2 of Article 70 is amended as follows:
“c)
confiscate the exhibit whose value does not exceed VND 50,000,000 if the
administrative violation is committed by an individual or VND 100,000,000 if
the administrative violation is committed by an organization.”
4. Point
c Clause 1 of Article 71 is amended as follows:
“c)
confiscate the exhibit whose value does not exceed VND 10,000,000 if the
administrative violation is committed by an individual or VND 20,000,000 if the
administrative violation is committed by an organization.”
Article 6. Addition of, removal of several words, phrases,
and annulment of Clauses in several Articles
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a) The
phrase “hành chính” (“administrative”) are added to the phrase “vi phạm nhiều
lần” (“violation committed multiple times”) in Points a, b and c Clause 3 of
Article 5, which is now “vi phạm hành chính nhiều lần” (“administrative
violation committed multiple times”).
b) Clause
3 of Article 8 is annulled.
2.
Several phrases are added to and removed from the Government’s Decree No.
128/2020/ND-CP dated October 19, 2020 on penalties for administrative customs
offences as follows:
a) The
phrase “và khoản 31 Điều 1 Luật sửa đổi, bổ sung một số điều của Luật Xử lý vi
phạm hành chính” (“and Clause 31 of the Law on Amendments to some Articles of
the Law on Penalties for Administrative Violations”) is added after the phrase
“Luật Xử lý vi phạm hành chính năm 2012” (“the Law on Penalties for
Administrative Violations 2012”) in Clause 3 of Article 4.
b) The
phrase ““và các khoản từ 61 đến 67 Điều 1 Luật sửa đổi, bổ sung một số điều của
Luật Xử lý vi phạm hành chính” (“and Clauses 61 through 67 of the Law on
Amendments to some Articles of the Law on Penalties for Administrative
Violations”) is added after the phrase “Luật Xử lý vi phạm hành chính năm 2012”
(“the Law on Penalties for Administrative Violations 2012”) in Clause 1 of
Article 26.
c) The
phrase “và Luật sửa đổi, bổ sung một số điều của Luật Xử lý vi phạm hành chính”
(“and the Law on Amendments to some Articles of the Law on Penalties for
Administrative Violations”) is added after the phrase “Luật Xử lý vi phạm hành
chính năm 2012” (“the Law on Penalties for Administrative Violations 2012”) in
Clause 2 of Article 36.
d) The
phrase “có trị giá không vượt quá mức tiền phạt được quy định tại điểm b khoản
này” (“which have been used for committing administrative violation but are
worth less than the fine specified in Point b of this Clause”) is removed from
Point c Clause 1 of Article 28.
3.
Several words and phrases are removed from and phrases are added to the
Government’s Decree No. 98/2013/ND-CP dated August 28, 2013 on amendments to
Decree No. 98/2013/ND-CP dated August 28, 2013 on penalties for administrative
violations in insurance business and lottery business amended by the
Government’s Decree No. 48/2018/ND-CP dated March 21, 2018 and Decree No.
80/2019/ND-CP dated November 01, 2019 as follows:
a) The
phrase “, thẩm quyền lập biên bản vi phạm hành chính” (“, the power to make
records of administrative violations”) is added after the phrase “thẩm quyền xử
phạt” (“the power to impose penalties”) in Clause 1 of Article 1.
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c) The phrases “được sử dụng để” (“used for”) và “sử dụng để”
(“used for”) are removed from Point b Clause 2 of Article 3; Point b Clause 1,
Point d Clause 3 of Article 33; Point a Clause 6 of Article 36; Point b Clause
1, Point c Clause 2, Point d Clause 3 of Article 52.
4.
Phrases in the Government’s Decree No. 63/2019/ND-CP dated July 11, 2019 on
penalties for administrative violations against regulations on management and
use of public property; thrift practice and wastefulness combat; national
reserve; state treasury are removed and changed as follows:
d) The
phrase “có trị giá không vượt quá mức tiền phạt được quy định tại điểm b khoản
này” (“for committing administrative violations worth less than the fine
specified in Point b of this Clause”) is removed from Point c Clause 1 of
Article 29.
b) The
phrase “Quỹ có nguồn gốc từ ngân sách nhà nước” (“state budget-derived fund”)
in Article 32 is changed to “Quỹ tài chính nhà nước ngoài ngân sách” (“state
extra-budgetary financial trust”.
5.
Phrases are removed from the Government’s Decree No. 41/2018/ND-CP dated March
12, 2018 on penalties for administrative violations in the fields of accounting
and independent audit as follows:
a) The
phrase “có trị giá không vượt quá mức tiền phạt được quy định tại điểm b khoản
này” (“whose value does not exceed the fine specified in Point b of this
Clause”) is removed from Point c Clause 2 of Article 71.
b) The phrase
“đối với cá nhân” (“on individuals”) is removed from Point b Clause 3 of
Article 71.
Chapter II
IMPLEMENTATION CLAUSE
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1. If,
after the effective date of this Decree, the organization or individual that
incurs a penalty still files a complaint against the administrative penalty
imposition decision issued before the effective date of this Decree, the
regulations laid down in the Decree on penalties for administrative violations
taking effect at the time of committing the administrative violation shall
apply.
2.
Regulations of this Decree shall apply to the administrative violations against
regulations on tax and invoicing; customs; insurance business and lottery
business; management and use of public property, thrift practice and
wastefulness combat; national reserve; state treasury; accounting and
independent audit committed before the effective date of this Decree and then
discovered or currently taken into consideration if this Decree does not
provide for legal liability or impose less serious legal liability.
3. Any
application for exemption from fines for tax or invoice-related administrative
violations received by the tax authority before the effective date of this
Decree shall be processed in accordance with the Government’s Decree No.
125/2020/ND-CP dated October 19, 2020 on penalties for administrative
violations against regulations on tax and invoicing.
Article 8. Responsibility for implementation
Ministers,
heads of ministerial agencies, heads of Governmental agencies,
Chairmen/Chairwomen of People’s Committees at all levels and other relevant
authorities, organizations and individuals are responsible for the
implementation of this Decree.
Article 9. Effect
This
Decree comes into force from January 01, 2022.
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ON BEHALF OF THE GOVERNMENT
PP. THE PRIME MINISTER
THE DEPUTY PRIME MINISTER
Le Minh Khai