|
THE
MINISTRY OF AGRICULTURE AND RURAL DEVELOPMENT
---------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom Happiness
--------------
|
|
No.
1/NN-KL-TT
|
Hanoi,
February 18, 1997
|
CIRCULAR
GUIDING THE IMPLEMENTATION OF DECREE NO.77-CP ON SANCTIONS
AGAINST ADMINISTRATIVE VIOLATIONS IN THE MANAGEMENT AND PROTECTION OF FORESTS
AND THE MANAGEMENT OF FORESTRY PRODUCTS
The Government promulgated Decree
No.77-CP of November 29, 1996 on sanctions against administrative violations in
the protection and management of forests and the management of forestry
products. This Decree made full and concrete stipulations on sanctions against
violations of the principles of State management of forests for uniform
application of sanctions according to the Ordinance on the Handling of
Administrative Violations of July 6, 1995 and the stipulations of the Law on
the Protection and Development of Forests of August 12, 1991.
In order to ensure strict
implementation of Decree No.77-CP, the Ministry of Agriculture and Rural
Development gives further guidance and explanations on a number of issues
mentioned in Decree No.77-CP.
I- ON GENERAL
PROVISIONS
Chapter I of Decree No.77-CP
stipulated a number of issues peculiar to forestry. With regard to other
stipulations pertaining to the general principle, the Ordinance on the Handling
of Administrative Violations shall apply.
1. Concept of forestry products
(Article 2):
1.1. The forest timbers, plant
species, and rare and precious forest animals mentioned in this Article are the
plant and animal species specified in the List of rare and precious forest
plants and forest animals issued together with Decree No.18-HDBT of January 17,
1992.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Cases that shall be examined
for criminal liability (Article 3):
Clause 2, Article 3, of Decree
No.77-CP defined violations which no longer come under the jurisdiction against
administrative violations, but which shall be examined for criminal liability:
these are violations which cause losses beyond the maximum level liable to
sanctions against administrative violations stipulated for each violation
(Article 4 to Article 14), or the illegal exploitation, hunting,
transportation, buying or selling of rare and precious forest plants and forest
animals of special value in many aspects (e.g. Group IA and Group IB in the
List issued together with Decree No.18-HDBT). With regard to these cases, the
Rangers’ Service must cooperate with the Procuracy and Police agencies of the
same level to consider them; if they find enough signs of a criminal offence,
they must transfer them for prosecution and investigation as stipulated by law.
With regard to the violations to
be examined for criminal liability in general and the exercise of the authority
of the Rangers’ Service in criminal investigation, the Ministry shall, together
with the branches concerned, issue a document giving concrete guidance in
replacement of Circular No.16-LN/KL of September 20, 1989 of the Ministry of
Forestry guiding the exercise of the tasks and powers of the People’s Rangers’
Service in criminal investigation.
3. On the principle of handling
administrative violations:
Article 3 of the Ordinance on
the Handling of Administrative Violations stipulates that if a person commits
several administrative violations, he/she shall be sanctioned for each violation,
and that if many persons commit a violation, each of them shall be sanctioned.
3.1. In case a person commits
several administrative violations:
Considering the extent of damage
caused by each violation and comparing it to the framework of sanctions, the
competent agency shall consider and issue a sanction decision for each
violation. If the level of sanction for each of all these violations falls
within the jurisdiction of an authorized level, that level shall decide the
sanction; if one of the violations falls within the jurisdiction of a higher
level, all the dossier shall be submitted to the higher level for deciding
sanctions.
When making the report or
issuing a sanction decision against the person that has committed several acts
of violation, the competent agency shall make only one report and one sanction
decision, but it must clearly specify the violations and the level of sanction
for each.
3.2. In case many persons
organize themselves to commit an administrative violation:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
In case a violation is detected
which involves many persons committing different acts of violation, each person
shall be sanctioned for his/her act of violation. For example, in the illegal
transport of forestry products, the competent agency shall sanction the owner
of the forestry products as well as the user of the means to illegally
transport the forestry products.
II- ON
VIOLATIONS AND THE FORMS AND LEVELS OF SANCTION
Chapter II of Decree No.77-CP
clearly stipulates that the violations in the management and protection of
forests and the management of forestry products include 11 acts defined in
Article 4 to Article 14. For each act, the maximum extent of damage caused to a
forest or to forestry products and the maximum level of fine are specified;
each level of sanction is converted into a level of fine so that the competent
agency can within its power hand a sanction corresponding to the seriousness of
the violation; the form of sanction - warning or fine - is specified, so are
the forms of additional sanction and other measures corresponding to each
administrative violation.
1.
Determining the violations:
In making a report on
administrative violations and handing the sanctions, the competent agency must
determine and correctly write the name of the violation as stipulated in
Article 4 to Article 14; then it has to specify which Article of the Law on
Forest Protection and Development (LFPD) and which concrete stipulation of a
document of the Government, a Ministry or a province or district guiding the
implementation of that Law has been violated in order to clarify such
administrative violation, such as:
1.1. Illegally destroying
forests (Article 4): a violation of Article 13 of LFPD and the concrete
stipulation in Article 23 of the Land Law.
1.2. Illegally exploiting
forests (Article 5): depending on each specific case, it may be a violation of
one of Articles 19, 37, 38 and 39 of LFPD; if the objects of violation are the
rare and precious timber and forestry products defined in this Article and
Article 12 of Decree No.77-CP, that is forest plants in Group IIA, it is a
violation of the concrete stipulation in Decree No.18-HDBT of January 17, 1992.
1.3. Illegally cutting and
burning forests to make terraced fields (Article 6): a violation of Article 21
of LFPD.
1.4. Violating the stipulations
on the prevention and fight against forest fires (Article 7): a violation of
Article 22 of LFPD and Decree No.22-CP of March 9, 1995 of the Government
stipulating the prevention and fight against forest fires.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1.6. Illegally tending domestic
animals in forests (Article 9): a violation of Article 21 of LFPD.
1.7. Illegally hunting and catching
forest animals (Article 10): a violation of Article 19 of LFPD; if the objects
of violation are the rare and precious forest animals defined in this Article,
that is, the rare and precious forest animals in Group IIB, it is a violation
of the concrete stipulation in Decree No.18-HDBT of January 17, 1992.
1.8. Damaging forest land
(Article 11): a violation of Article 24 of LFPD.
1.9. Illegally transporting,
buying or selling forestry products (Article 12): a violation of Article 20 of
LFPD and the concrete stipulations in Circular No.11-LN/KL of October 31, 1995
of the Ministry of Forestry guiding the control of the exploitation,
transportation, processing, exporting and trading of forestry products.
1.10. Violating the stipulations
on the State management of the processing of timber and forestry products
(Article 13): a violation of the concrete stipulations in Decision
No.2375NN-CBNLS/QD of December 30, 1996 of the Minister of Agriculture and
Rural Development issuing the Regulations on the consideration and ratification
of network planning and the granting of permits to enterprises for the
processing of timber and other forestry products.
1.11. Violating the procedure of
submitting to the control of forestry products (Article 14): a violation of the
concrete stipulations in Circular No.11-LN/KL of October 31, 1995.
2. Forms and
levels of sanction:
2.1. For each violation (Article
4 to Article 14), a level of fine is set correspondingly to the damage caused
by the administrative violation. When considering sanctions, the person
authorized to impose sanctions, in addition to serving a warning or imposing
fines on those individuals or organizations that have committed administrative
violations shall, according to his competence, apply one or several additional
sanctions and other measures stipulated in the last clauses of each Article,
depending on the character and seriousness of the violations.
2.2. Method of calculating
fines:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2.3. Fining and confiscating
illegal forestry products:
In sanctioning administrative
violations in forest protection, it has in fact been difficult to impose a fine
and also to confiscate the illegal forestry products, but this is a principle
in handling the violations that cause damage to forests and forestry products.
The confiscation of illegal forestry products is of great practical
significance in fighting violations and in retrieving property for the State.
That is why, when sanctioning the acts of cutting trees and destroying forests,
illegally exploiting, collecting, transporting, buying and selling forestry
products, particularly fraudulent acts or acts that cause damage to the rare
and precious forest plants and forest animals, it is necessary to apply both
forms of sanction. In special cases where the violator meets with financial
difficulty and does not have money to pay the fine or is not able to fully pay
the fine, the competent agency can impose a lighter fine or serve a warning and
confiscate the illegal forestry products; in case the violator really needs
such forestry products and is a local inhabitant eligible for the preferential
treatment policy, and the forestry products belong to the common types, the
competent agency can impose a fine and allow him/her to use those forestry
products.
Generally speaking, in
considering sanctions it is necessary to consider the circumstances of the
violator and the aim of his/her violation to decide a rational and reasonable
sanction in each specific case to ensure that the sanction has a practical
effect.
2.4. Stripping the right to use
a permit within the jurisdiction of the competent agency is revoking the permit
issued by the agency of the same level to the person concerned (a permit for
exploiting forests, transporting, processing and exporting forestry products)
which the violator has deliberately infringed on or counterfeited; this measure
shall be taken when the competent agency deems it necessary to revoke the
permit to prevent a repeat of the violation. In case of ultravires, it must
report them to the authorized State agency and request it to revoke the permit.
III-
COMPETENCE AND PROCEDURE OF HANDING SANCTIONS
A- COMPETENCE
OF HANDING SANCTIONS:
1. Competence
of the Rangers’ Service to hand sanctions (Article 15):
1.1. When detecting an act of
violation within their competence to hand sanctions, the Rangers on mission
shall have to take the following steps:
- If it is a minor violation and
if they deem it necessary to serve a warning or to impose a fine of up to
20,000 VND without confiscating the evidences and the working means involved,
they shall decide a sanction on the spot by serving a verbal warning or
imposing a fine by issuing a Sanction Decision.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The Rangers must comply with the
set model form and the guidance of the Ministry of Agriculture and Rural
Development when issuing a Sanction Decision within their competence.
If the Rangers detect an act of
violation which is ultravires, after making a report on it and temporarily
seizing the evidences and the working means involved, they must promptly report
it to the Head of the Service or refer it to the authorized level for
settlement.
1.2. On the exercise of the
power of the Head of a Rangers’ Station and the Head of a Mobile Rangers’ Team
to impose sanctions, the Rangers’ Services of provincial level should closely
direct these units to hand sanctions within their competence and in accordance
with the provisions of law on administrative sanctions. These Services should
review and consolidate the Rangers’ Stations in terms of material facilities
and particularly professional level in order to ensure a correct exercise of
the sanctioning power of these Stations; for the time being, it is necessary to
direct on an experimental basis the transfer of the sanctioning competence to a
number of Stations and then to sum up and draw experiences for application by
other Stations.
The Rangers’ Stations and the
Mobile Rangers’ Teams can use their own seal in the legal activities of their
unit; when detecting a violation and making a report, if the act of violation
falls within the sanctioning power of the Stations or the Teams, the Head of
the Rangers’ Station or the Head of the Mobile Rangers’ Team shall consider and
decide a fine and confiscate the illegal forestry products and the working
means involved by issuing a Sanction Decision according to the stipulations and
the guidance of the Ministry of Agriculture and Rural Development.
1.3. On the competence to confiscate
illegal forestry products:
Article 15 of Decree No.77-CP
stipulates that the Heads of the Rangers’ Stations or a higher level can
confiscate the illegal forestry products within the framework of sanctions
under their jurisdiction, that is, the volume or the value of forestry products
lies within the framework of sanctions of each level. The confiscation of the
working means involved is another aspect of the competence. The Stations and
the Teams are empowered to confiscate the working means involved in the
violation with a maximum value of 10 million VND; the Rangers’ Services of
district level with the maximum value of 20 million VND, and the Rangers’
Services of provincial level and the Rangers’ Department with an unlimited
value.
The competence to confiscate
illegal forestry products and to hand a fine belongs to the competence of each
level when deciding a sanction.
According to the stipulations in
Clause 1, Article 3, of Decree No.77-CP, when applying a level of sanction with
extenuating circumstances, the authorized agency can reduce the fine, but not
lower than the minimum level in the framework of sanctions, and when there is
an aggravating factor, it can increase the fine, but not higher than the
maximum level in the framework of fines. Thus, when considering a sanction
against a violation with extenuating circumstances or an aggravating factor,
the levels of fines may be different and it is within the power of different
levels to hand a fine and to confiscate illegal forestry products within that
framework of sanctions.
For example: the illegal
transportation of 6m3 of common timber log shall be checked and a report of the
violation is made by the Rangers�
Service of district level. This act of violation with such extent of damage
lies within the framework of fines from more than 1 million VND to 5 million
VND stipulated in Clause 3, Article 12, of Decree No.77-CP. The level of fine
temporarily calculated as directed above is 3 million VND, which is outside the
competence of the Rangers’ Service of district level. In case it involves an
extenuating factor, the level of fine may be reduced as stipulated from more
than 1 million VND to 2 million VND and the illegal forestry products are
confiscated; this form and level of sanction comes under the competence of the
Head of the Rangers’ Service of district level. On the contrary, if it involves
aggravating factors, the service can increase the fine to a maximum level of 5
million VND and confiscate the illegal forestry products; this form and level of
fine comes under the competence of the Head of the Rangers’ Service of
provincial level or the President of the People’s Committee of district level.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Clause 4, Article 16, of Decree
No.77-CP stipulates that the local Rangers’ Services of different levels shall
have to help the People’s Committees of the same levels in considering and
deciding sanctions and organizing the enforcement of that Sanction Decision.
That responsibility shall be effected as follows:
2.1. The President of the
People’s Committees of commune level shall exercise his/her competence as
stipulated in Clause 1, Article 16, of Decree No.77-CP. Regarding the
confiscation of illegal forestry products within the framework of sanctions
under the commune level’s jurisdiction, when the commune temporarily seizes
illegal forestry products to report to the local Rangers’ Service for
settlement, the Rangers’ Service of district level or the local Rangers’
Station must closely cooperate with the commune and promptly give its written
opinion on the handling of such illegal forestry products so that the President
of the People’s Committee of the commune may decide the sanction in the same
Sanction Decision according to the model form and the guidance of the Ministry
of Agriculture and Rural Development. After confiscating the illegal forestry
products, the local Rangers’ Service shall have to preserve and settle them
according to the law currently in force.
As the communes have no Rangers’
organization of the same level, the Rangers’ Service of provincial level shall
have to direct the Rangers’ Service of district level and the Rangers’ Stations
to help the People’s Committee of the commune in applying sanctions according
to their competence and to the provisions of law on the handling of
administrative violations such as by guiding the use and management of legal
model forms and the application of the procedure of considering and applying
sanctions.
2.2. The Presidents of the
People’s Committees of district and provincial levels shall exercise their
sanctioning competence as stipulated in Clause 2 and Clause 3, Article 16, of
Decree No.77-CP.
In his/her capacity as adviser
to the local Rangers’ Services at different levels, the President of the
district People’s Committee shall exercise his/her competence to impose
sanctions against the violations which are outside the competence of the
district Rangers’ Service, but which have been detected and reported by the
district Rangers’ Service, or which have been referred to them from a lower
level. Regarding the violations which are outside the competence of the
provincial Rangers’ Services, but which have been detected and reported by the
provincial Rangers’ Service or which have been referred to them from a lower
level, then the district Rangers’ Service or the provincial Rangers’ Service
shall prepare a full dossier and submit it to the President of the district
People’s Committee or the President of the provincial People’s Committee to
consider and sign the Sanction Decision, and then organize the enforcement of
the Sanction Decision such as the collection and remittance of fines, the
management and handling of the evidences and the working means confiscated, and
the settlement of the necessary expenses in enforcing the sanctions.
3.
Responsibility of the specialized agencies to cooperate (Article 18):
Article 18 of Decree No.77-CP
clearly stipulated the responsibility of the specialized agencies such as the Police,
the Customs Office, the Taxation Office, the Market Control Force and the
Specialized Inspectors to cooperate with the Rangers’ Services in trying to
prevent violations of the Forest Protection Law. The provincial Rangers’
Services should actively advise and help the provincial and municipal People’s
Committees to direct the specialized agencies in satisfactorily fulfilling this
responsibility, establishing a cooperative relationship and making it a regular
activity.
When the specialized agencies
detect a violation, make a report on it and transfer the dossier and exhibits
to the Rangers’ Service for settlement, the Rangers’ Service must closely
cooperate with them to handle in time the violation and settle the necessary
expenses according to the current regime for the specialized agencies.
Regarding the report and dossier
transferred to them by the specialized agencies, if the Rangers’ Service
considers them to be inadequate, it should complete the dossier by checking it
and making a supplementary report to the original report, getting the
declarations of the guilty person(s) and witness(es), examining the site of the
violation... to further clarify the act, the character and seriousness of the
violation and other factors in order to have a basis for considering in order
to decide a sanction.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
When a violation is detected and
a report of it is made, the extent of the damage caused and the corresponding
level of fine should be considered to see which level is empowered to settle
it, then the dossier should be submitted to that level for settlement. The
transfer of the dossiers is effected through the system of local Rangers’
Services at different levels, and the Rangers’’ Service concerned shall settle
the dossier within its competence. If the case is outside the competence of the
district Rangers’ Service or the provincial Rangers’ Service, these Services
should prepare a full dossier and submit it to the district or provincial
People’s Committee for settlement.
B- PROCEDURE
OF HANDING SANCTIONS:
1. Applying preventive measures
(Article 22):
The application of preventive
measures must comply with the procedures defined in Article 39 to Article 44 of
the Ordinance on the Handling of Administrative Violations.
On the temporary seizure and
search of persons according to administrative procedure, the persons authorized
to issue a decision on this matter are the Head of the district Rangers’
Service and the Head of the district Rangers’ Service of Appeal.
On the temporary seizure of the
evidences and the working means involved, considering the power to confiscate
the illegal forestry products and the working means involved as stipulated in
Article 15 of Decree No.77-CP, the persons authorized to issue a decision for
temporary seizure of the illegal forestry products and the working means
involved are the Head of the Rangers’ Service from the Head of the Rangers’
Station and the Mobile Rangers’ Team upwards.
2. Collection and remittance of
fines (Article 24):
The Rangers� Service at different levels
shall collect and remit fines according to the stipulations of Article 24 of
Decree No.77-CP. The fines collected must be remitted to the State budget in
the accounts opened by the unit at the State Treasury. The receipts of fines
collected must be issued by the Ministry of Finance (the General Taxation
Department). The management and use of the receipts of fines collected must be
conducted according to the regime of taxes set by the Ministry of Finance.
The provincial Rangers’ Services
shall have to cooperate with the Finance Services and the Taxation Department
to give guidance on the ways of collecting and remitting fines, the regime of
managing the receipts of fines collected and remitting fines for uniform application
in the localities.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Considering Clause 6, Article
27, of Decree No.77-CP, and Clause 6, Point B, Section II, of Circular
No.52-TC/CSTC of September 12, 1996 of the Ministry of Finance guiding the collection
and use of fines imposed on administrative violations, the provincial Rangers’
Services shall cooperate with the Finance Services and the Taxation Department
to give guidance on the contents of the expenses, the regime of making advance
payments, and accounting of payments for the expenses in the handling of the
violations of the forest law for uniform application in the localities.
4. Implementation effect of
Decree No.77-CP:
Under Article 30 of Decree
No.77-CP this Decree takes effect from the date of its signing on November 29,
1996, and this Decree replaces Decree No.14-CP of December 5, 1992 of the
Government issuing Stipulations on the handling of administrative violations in
the management and protection of forests.
Therefore, all the violations
which have been detected and reported but which are not yet handled must be
uniformly sanctioned according to Decree No.77-CP, and not according to Decree
No.14-CP which has been annulled.
*
* *
Upon receiving this Circular,
the Ministries and the People’s Committees of the provinces and cities directly
under the Central Government shall have to study and have a full grasp of
Decree No.77-CP and this Circular, and implement them in all branches and at
all levels down to the grassroots level. The provincial Rangers’ Services shall
help the provincial and municipal People’s Committees in directing the
implementation of these documents, first of all directing the local Rangers to
strictly implement the Decree, follow and sum up the examination and handling of
administrative violations in the localities and report them to the provincial
and municipal People’s Committees and the Ministry of Agriculture and Rural
Development.
The Rangers’ Department shall
have to follow, direct and inspect the implementation of these documents, sum
up the general situation and make periodical reports on the results to the
Ministry of Agriculture and Rural Development and the Government.
This Circular takes effect from
the date of its signing. The Ministry shall issue a set of model forms and
guide its implementation to ensure full observance of the legal procedures for
sanctioning administrative violations in the management and protection of
forests and the management of forestry products stipulated in Decree No.77-CP.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
FOR
THE MINISTER OF AGRICULTURE AND RURAL DEVELOPMENT VICE-MINISTER
Nguyen Quang Ha