|
THE
MINISTRY OF INDUSTRY AND TRADE
-------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
---------
|
|
No:
11/2009/TT-BCT
|
Hanoi,
May 20, 2009
|
CIRCULAR
DETAILING A NUMBER OF ARTICLES OF DECREE NO.107/2008/ND-CP
DATED SEPTEMBER 22, 2008 OF THE GOVERNMENT DEFINING ON SANCTION OF
ADMINISTRATIVE VIOLATION FOR THE ACTS OF GOODS SPECULATION AND HOARDING,
EXCESSIVE PRICE HIKING, RUMOR SPREADING, SMUGGLING AND TRADE FRAUDS
Pursuant to Decree
No.189/2007/ND-CP dated December 27, 2007 of the Government providing for
function, duties, authorities of organizational structure of the Ministry of
Industry and Trade;
Pursuant to Decree No.107/2008/ND-CP
dated September 22, 2008 of the Government defining on sanction of
administrative violation for the acts of goods speculation and hoarding,
excessive price hiking, rumor spreading, smuggling and trade frauds;
The Ministry of Industry and Trade
details a number of Articles of Decree No.107/2008/ND-CP dated September 22,
2008 of the Government defining on sanction of administrative violation for the
acts of goods speculation and hoarding, excessive price hiking, rumor
spreading, smuggling and trade frauds (hereinafter referred to as Decree
No.107) as follows:
Item I. SCOPE
OF GOVERNING AND CONDITIONS OF APPLICATION
Article 1.
Scope of governing
This Circular details the
sanction of administrative violations for the violations provided in Articles
4, 5, 6, 7, 8, 9,10,11, 12, 13 of Decree No.107.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
1. The administrative sanction
for acts specified in Article 4, Article 5, Article 6 and Article 7 is only
applied when meeting full two conditions:
a) For goods and services of the
list of price stabilization in Decree No.75/2008/ND-CP dated June 09, 2008 of
the Government amending and supplementing some Articles of Decree
No.170/2003/ND-CP of December 25, 2003 of the Government detailing some
Articles of the Ordinance on Prices and Circular No.104/2008/TT-BTC dated
November 13, 2008 of Ministry of Finance guiding the implementation of Decree
No.170/2003/ND-CP of December 25, 2003, Decree No.75/2008/ND-CP dated June 09,
2008 amending and supplementing some Articles of Decree No.170/2003/ND -CP.
b) In the case of market’s
irregular fluctuations of supply and demand, prices of goods and services due
to natural disasters, fires, epidemics, war or other unexpected developments
announced the decision to apply measures to stabilize prices in the country,
each region by the Prime Minister or Minister of Finance (to be sanctioned the
violations specified in the above Articles in the whole country or region to be
announced) or announced the decision to apply measures to stabilize prices
within the localities by the Presidents of provincial People's Committees (to
be sanctioned only the violations specified in the Articles in the areas to be
announced by the presidents of provincial-level People's Committees).
Article 3.
Stripping the right to use certificate of satisfactory conditions of business,
the types of business licenses
On stripping the right to use
certificate of satisfactory conditions of business, the types of business
licenses prescribed in Decree No.107 shall be applied as follows:
- Stripping the right to use the
above types of papers with term is the stripping the right to use the above
types of papers for a maximum period of twelve months; determination of the
term of the stripping the right to use the above types of papers must be based
on the value of the goods of violation, the nature and seriousness of
violations.
- Stripping the right to use the
above types of papers indefinitely is the stripping the right to use the above
types of papers for the period from twelve months or more and only apply to
multiple violations or repeated administrative violations; determination of
multiple violations or repeated violations complies with the provisions of
clause 2 and clause 3, Article 6 of Decree No.128/2008/ND-CP of December 16,
2008 of the Government detailing implementation of some Articles of the
Ordinance on Handling of Administrative Violations in 2002 and Ordinance
amending and supplementing some Articles of the Ordinance on Handling of
Administrative Violations in 2008.
- The duration of stripping the
right to use license or certificate of practice is calculated from the time of
temporary keeping of certificate of satisfactory conditions of business,
license, or certificate of practice.
Item II.
VIOLATIONS AND APPLICATION OF FORMS AND LEVELS OF SANCTION
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
1. Regarding violations
Where in the time and areas
announced to apply the measures to stabilize the prices at which traders buy
goods outside the area to bring to region with irregular fluctuations announced
to apply measures to stabilize the prices by the competent authorities to sell
for market stability is not considered as acts of commodity speculation, not be
sanctioned administrative violation for acts of commodity speculation.
2. The method to calculate the
value of goods, determine the amount and price of stampeded goods:
The value of stampeded goods =
price of purchase x amount of stampeded goods.
In which:
- Determination of price:
Bases to determine price is
implemented in accordance with provisions in Article 63 of Decree
No.06/2008/ND-CP dated January 16, 2008 of the Government defining sanction of
administrative violations in trade activity, Circular No.15/2008/TT-BCT dated
December 02, 2008 of Ministry of Industry and Trade guiding Decree
No.06/2006/ND-CP dated January 16, 2008 of the Government defining handling of
administrative violations in the trade activity and Article 34 of Decree
No.128/2008/ND-CP dated December 16, 2008 detailing the implementation of some
Articles of the Ordinance on Handling of Administrative Violations in 2002 and
Ordinance amending and supplementing a number of Articles of the Ordinance on
Handling of Administrative Violations in 2008.
- Determination of the amount
includes:
+ Goods are being stampeded;
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
+ Stampeded goods were sold.
3. Confiscation of the proceeds
benefit amount applies to goods sold, calculated as follows:
Proceeds benefit amount required
to confiscate = (price of selling - purchase price) x quantity of stampeded
goods sold
Article 5.
Sanction against acts of hoarding goods
1. Regarding violations
The acts prescribed in clause 1,
clause 2, clause 3 and clause 4 of Article 5 of Decree No.107/2008/ND-CP are
sanctioned in the case with full two conditions specified in Article 2 of this
Circular when having goods in the stores, warehouses, sale place as an act of
hoarding goods.
2. The sanction of acts of
hoarding goods specified at point c, clause 5 of Article 5 of Decree No.107 is
applied as follows:
a) Where supermarkets, trade
centers, other modern goods distribution facilities (shopping centers,
membership shops as warehouses, supermarkets, cheap-price selling shops,
department store) trading goods with acts of hoarding goods, then subjects to
sanction of administrative violation are organizations or individuals who own
supermarkets, trade centers, other modern goods distribution facilities.
b) Where organizations or
individuals trading in supermarkets, trade centers, other modern goods
distribution facilities having acts of hoarding goods, then subjects to
sanction of administrative violation are organizations or individuals who trade
in supermarkets, trade centers, other modern goods distribution facilities.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
For example:
- Loss of power throughout the
area as selling fuel;
- At the time of the inspection,
goods in both warehouse and sales locations are all up so it’s no longer for
sale.
- Cutting of business locations
to reduce costs or such business locations have no buyers, few people to buy
because type, color of goods does not match the tastes of the consumers at the
locations of cutting.
When determine reason that is
legitimate or not, the persons who are competent to inspect and sanction make a
conclusion, are responsible for their conclusions and must be recorded in
inspection reports.
4. "Previous time" is
interpreted the time before the competent authorities announce the measures to
stabilize prices in effect.
5. The method of calculation of
average inventory of goods of the 3 preceding months in clause 4, Article 5 of
Decree No.107/2008/ND-CP as follows:
The average inventory of goods
of the 3 months = Total average inventory of goods of each month of the 3
preceding months: (divide) 3
In which the method of
calculation "average inventory of goods of a month": based on the
specific data to apply one of the following ways:
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
The average inventory of goods
of a month = Total average inventory of goods of each day of the month: (divide)
Number of days in month
- Having no sufficient data of
each day:
The average inventory of goods
of a month = (amount of inventory of earlier of month + amount of inventory of
mid of month + amount of inventory of end of month): (divide) 3
- Having no inventory data of
mid month:
The average amount of inventory
a month = (amount of inventory of earlier of month + amount of inventory of end
of month): (divide) 2
Article 6.
Sanction of administrative violations on price declaration and registration of
price
1. Price declaration
List of goods subject to price
declaration, the enterprises required to declare the price, form, content and
procedures of price declaration, the dossier-receiving agency of price
declaration, powers and responsibilities of the dossier-receiving agency of
price declaration and the enterprises to declare price comply with the
provisions of Item VII of Circular No.104/2008/TT-BTC November 13, 2008 of
Ministry of Finance.
2. Registration of price
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Article 7.
Sanction of administrative violations on the prices listing of goods and
services
1. Acts of violation
Acts of not listing the prices
of goods and services, foreign currency, gold; price listing not in compliance
with regulations, unclear causing confusion to customers; sale of goods,
collection of service charge of more than listed prices; listing prices of
goods and services in foreign currencies or collection of money from selling
goods and services in foreign currencies without permission are violations of
the price listing sanctioned for administrative violations as stipulated in Article
9 of Decree No.107.
2. Listing of price and listed
price
a) The listing of price complies
with provisions in Article 29 of the Ordinance on prices, specifically:
Organizations and individuals of
production and trade must list prices of goods and services at their stores,
places where buy and sell goods and provide services; the listing of price
should be clear, not cause confusion to customers.
For goods and services valued by
the State, organizations and individuals of production and trade must list the
proper prices decided by the competent State agencies and purchase, sell in
accordance with the listed prices.
For goods and services which are
not of the list of valued by the State, they shall be listed according to the
prices decided by organizations and individuals of producing and trade.
b) For goods and services
subject to price registration, they are the prices of enterprises registered
prices with the competent state management agency under provisions in clause
5.2, Item VI of Circular No.104/2008/TT-BTC of the Ministry of Finance.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Article 8.
Administrative sanction for the acts of smuggling petrol across the border
1. Acts of violating the export
of goods not in compliance with the contents of license in point b, clause 2
and violations of export of goods without a license as prescribed at point đ,
clause 4, clause 10, Article 1 of Decree No.18/2009/ND-CP dated February 18,
2009 of the Government amending and supplementing some Articles of Decree
No.97/2007/ND-CP on June 07, 2007 of the Government defining the handling of
administrative violations and enforcement of administrative decisions in
customs field that export commodities are petroleum, then apply penalty for
administrative violations in Article 10 of Decree No.107 for sanctioning.
2. Acts of counterfeiting,
unauthorized use of quotas, license of export, import of goods and acts of export
and import of goods without quotas, license of export, license of import of
goods as prescribed in clause 2, clause 3, Article 34 of Decree
No.06/2008/ND-CP dated January 16, 2008 of the Government that export
commodities are petroleum, then apply penalty for administrative violations in
Article 10 of Decree No.107 for sanctioning.
3. Guidance on the method to
calculate the value of petroleum for the application of sanctions provided for
in Article 10 of Decree as follows:
The value of gas (oil) = amount
of gas (oil) price seized X price
Bases to determine price comply with provisions in Article 63 of Decree
No.06/2008/ND-CP dated January 16, 2008 of the Government sanctioning
administrative violations in trade activity, Circular No.15/2008/TT-BCT dated
December 02, 2008 of Ministry of Industry and Trade guiding the implementation
of Decree No.06/2006/ND-CP dated January 16, 2008 of the Government sanctioning
administrative violations in the trade activity and Article 34 of Decree
No.128/2008/ND-CP dated December 16, 2008 detailing the implementation of some
Articles of the Ordinance on Handling of Administrative Violations in 2002 and
Ordinance amending and supplementing a number of Articles of the Ordinance on
Handling of Administrative Violations in 2008.
Article 9.
Sanction of acts of smuggling paddy, rice, forest products, and minerals across
the border
Method to calculate the value of
goods is paddy, rice, forest products and minerals to apply the sanctions
provided for in Article 11 of Decree:
The value of goods = amount of
goods seized X price
In which:
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
- Price: Bases to determine
price comply with provisions in Article 63 of Decree No.06/2006/ND-CP dated
January 16, 2008 of the Government sanctioning administrative violations in
trade activity, Circular No.15/2008/TT-BCT dated December 02, 2008 of the
Ministry of Industry and Trade guiding the implementation of Decree
No.06/2006/ND-CP dated January 16, 2008 of the Government sanctioning
administrative violations in trade activity and Article 34 of Decree
No.128/2008/ND-CP dated December 16, 2008 detailing the implementation of some
Articles of the Ordinance on Handling of Administrative Violations in 2002 and
the Ordinance amending, supplementing some Articles of the Ordinance on
Handling of Administrative Violations in 2008.
Article 10.
Sanction against prohibited goods, smuggled goods, and fake goods
The sanction for violations of
goods banned from trading, smuggled goods valued at VND 100,000,000 or more,
counterfeit goods valued at 30 million dong or more and trademark violations
complies with Circular No.15/2008/TT-BCT dated December 02, 2008 of Ministry of
Industry and Trade guiding some Articles of Decree No.06/2008/ND-CP dated
January 16, 2008 of the Government on handling of administrative violations in
trade activity.
Article 11.
Sanction against fraud acts on measurement, packaging goods, and the quality of
goods and services
1. Acts of violation
Acts of violations provided in
Article 13 of Decree 107 include:
a) Acts of fraud on measurement,
packaging goods are the fraud in carrying out the measurement, the method of
measurement in weighing, measuring, counting goods (quantity of goods is short
of compared with the amount stated on the package) to lack goods but the buyers
still pay the full price of goods, causing damage to the customers.
b) Acts of fraud on the quality
of goods and services are the acts of producing, processing, charging, loading,
packaging, trading goods but the quality of goods are not in accordance with
publication of quality or recording on labels causing damage to the customers.
2. The violations, other
sanctions in measurement, the quality of goods and services that Decree
No.107/2008/ND-CP does not define, shall apply sanctions stipulated in Decree
No.126/2005/ND-CP dated October 10, 2005 of the Government and Decree
No.95/2007/ND-CP dated June 04, 2007 amending and supplementing some Articles
of Decree No.126/2005/ND- CP dated October 10, 2005 prescribing the sanction of
administrative violations in the field of measurement and quality of products,
goods.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
The value of fraudulent
commodities = Amount of fraudulent commodities x price
In which:
a) Determination of the amount
of fraudulent goods:
- The amount of fraudulent goods
is the actual amount of goods at the time of inspection, seizure;
If there is sufficient evidence
to determine the time of fraud and amount of fraudulent commodities within such
time, then take amount of fraudulent goods calculated from the time with
fraudulent act.
For example:
When checking the gas station A
on 30/12/2008, it is installed microchip to cause error 0.5% while regulations
allow only 0.05% of error; The inspection agency has enough grounds to
determine that the gas station is installed microchip from 30/9/2008, the
amount of goods sold during the period from 30/09/2008 to 30/12/2008 is 100,000
liters.
Method to calculate gas amount
of fraudulent measurement of the gas station X as follows:
Gas amount of fraud = 100,000
liters X (0.5% - 0.05%) = 4500 liters
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
For example:
When checking fertilizer
production facilities of the Company X, it is found that it has been recorded a
net weight of 50 kg/bag on each packaging but in fact determined, each bag is
lacked compared with the weight stated on the packaging, its average weight is
only 48.5 kg/bag; the inspection is determined that the number of goods is
inspected of lot of goods Y and has sold 500,000 kg (10,000 bags) to the
market.
Method to calculate number of
fraudulent fertilizer on measurement of Company X as follows:
Number of fraudulent fertilizer
of company X = 10,000 bags X (50 kg - 48.5 kg) = 15,000 kg
b) Determination of price
- Bases to determine price
comply with provisions in Article 63 of Decree No.06/2006/ND-CP dated January
16, 2008 of the Government sanctioning administrative violations in trade
activity, Circular No.15/2008/TT-BCT dated December 02, 2008 of Ministry of
Industry and Trade guiding the implementation of Decree No.06/2006/ND-CP dated
January 16, 2008 of the Government sanctioning administrative violations in
trade activity and Article 34 of Decree No.128/2008/ND-CP of December 16, 2008
detailing the implementation of some Articles of the Ordinance on Handling of
Administrative Violations in 2002 and Ordinance amending and supplementing some
Articles of the Ordinance on Handling of Administrative Violations in 2008.
- If the price changes several
times but can not determine the amount of fraud of each time of price change,
the value of fraudulent goods is calculated by the method of simple average.
For example:
October 10, 2008, the inspection
found that the gas station A sells petrol at a rate of 0.1% error, error
allowed is 0.05%, the time that the gas station A was installed microchips
causing incorrect measurement, leading harm to customer was December 01, 2007;
within the above time, gasoline prices have been adjusted four times: at the
time of installing the chip (1/12/2007) gasoline was being sold at the price of
12.000d/liter, 30/3/2008 the price was adjusted up to 14.000d/liter; 01/6/2008
the price was adjusted up to 18,000 VND/liter; 30/8/2008 the price was adjusted
down 14,500 VND/liter; 20/9/2008 the price was adjusted down 11,000 VND/liter
(d/l). The total amount of gasoline sold from 01/12/2007 to 10/10/2008 is
200,000 liters.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Simple average price = (12,000
d/l + 14,000 d/l + 18,000 d/l + 14,500 d/l +11,000 d/l): (divide) 5 = 13,900
d/l
Amount of fraudulent gas =
200,000 liters X (0.1 - 0.05) = 10,000 liters
The value of fraudulent goods =
10,000 liters X 13,900 dong = 139,000,000 dong
- Where there is data on amount
of sale of each time of price increase (decrease), the method of the weighted
average shall be calculated.
Weighted average price = Σ
(amount of fraudulent goods in each time of price change X price of each time
of change): (divide) the total amount of goods
Example: From the above example,
further documentation to prove
From 01/12/2007 to 29/03/2008
the gas station A sold 50,000 liters at 12,000 VND/liter
From 30/03/2008 to 01/06/2008
the gas station A sold 50,000 liters at 14,000 VND/liter
From 02/06/2007 to 29/8/2008 the
gas station A sold 40,000 liters at 18,000 VND/liter From 30/08/2008 to
19/09/2008 the gas station A sold 40,000 liters at 14,500 VND/liter
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Price of weighted average =
((50,000 x 12,000) + (50,000 x 14,000) + (40,000 x 18,000) + (40,000 x 14,500)
+ (20,000 X 11,000)): (divide) 200,000 = 14,200 VND/liter
4. Method of calculating value
of fraudulent goods on quality
- The calculation of value of
fraudulent goods on quality to determine the rate of fine and competence to
sanction:
The value of fraudulent goods on
quality = amount of seized goods X price
- The value required to
compensate damage to customers, where unable to determine customers, the amount
of money shall be confiscated to remit into state budget = amount of units of
goods seized X (unit price of goods unit for proper publication of quality or
stated on labels - unit price of fraudulent goods unit on quality).
Item III.
IMPLEMENTATION PROVISIONS
Article 12.
Effect
1. This Circular takes effect 45
days from its signing date.
2. During the implementation of
Decree No.107/2008/ND-CP and the guidance in this Circular, if any problems
arise, the ministries and branches at central and local reflect to the Ministry
of Industry and Trade for timely research, guidance and answers.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
FOR
THE MINISTER
DEPUTY MINISTER
Nguyen Cam Tu