THE
GOVERNMENT
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SOCIALIST REPUBLIC OF
VIET NAM
Independence - Freedom – Happiness
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No: 36/1999/ND-CP
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Hanoi, June 09, 1999
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DECREE
ON SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE TERRITORIAL
WATERS AND ADJACENT AREAS, EXCLUSIVE ECONOMIC ZONES AND CONTINENTAL SHELF OF
THE SOCIALIST REPUBLIC OF VIETNAM
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
Pursuant to the Ordinance on Handling of Administrative Violations of July 6,
1995;
Pursuant to the Ordinance on Vietnam Coast Guard of March 28, 1998;
At the proposal of the Minister of Defense,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Vietnamese
organizations and/or individuals that commit acts of administrative violation
in the territorial waters and adjacent areas, exclusive economic zones and
continental shelf of the Socialist Republic of Vietnam shall all be sanctioned
according to the provisions of this Decree and other provisions of Vietnamese
law.
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Article 2.- In the
territorial waters and adjacent areas, exclusive economic zones and continental
shelf of Vietnam, the Vietnam Coast Guard shall have the competence to sanction
acts of administrative violation as prescribed by this Decree in the fields of
security, order and safety, environment protection, protection of aquatic
resources and mineral resources; acts of illegal transportation of people as well
as illegal transportation and/or trading of goods, weapons, explosives,
narcotics and stimulants; acts of smuggling and other acts of administrative
violation in the relevant fields. The specialized State management agencies
that detect acts of administrative violation shall sanction them according to
their jurisdiction; if the sanctioning does not fall under their
jurisdiction, they shall have to make records on the violations and forward
them to Vietnam Coast Guard or other competent agency(ies) for sanctioning according
to law.
Article 3.- In the
inland waters, when requested, Vietnam Coast Guard shall have to coordinate
with and assist the other specialized forces in performing the latter’s tasks,
ensuring that all operations on the sea strictly comply with the provisions of
law; where Vietnam Coast Guard itself detects acts of administrative violation,
it shall apply preventive measures, notify the violations and transfer such
cases to the competent agency(ies) for handling according to the provisions of
law.
Article 4.- Principles
for sanctioning administrative violations
1. The sanctioning of administrative violations
must be made strictly according to the provisions of law by the competent
persons defined in Article 35 of this Decree.
2. The other principles for sanctioning
administrative violations shall comply with Clauses 2, 3, 4, 5 and 6, Article 3
of the Ordinance on Handling of Administrative Violations.
Article 5.- The
extenuating and aggravating circumstances applicable in sanctioning administrative
violations stipulated in Chapter II, this Decree, shall comply with Articles 7
and 8 of the Ordinance on Handling of Administrative Violations.
Article 6.- The statute
of limitations for sanctioning administrative violations and the time-limit after
which administrative violations are considered as having not been handled
1. The statute of limitations for sanctioning an
administrative violation shall be one year after such violation is committed;
such time-limit shall be two (2) years for administrative violations in the
fields of environment, export, import, exit, entry, smuggling and trading in
fake goods; past the above-said time-limits, the sanctions shall not apply but
the measures prescribed at Points a, b and d, Clause 3, Article 11 of the Ordinance
on Handling of Administrative Violations may be applied.
2. The other provisions on the statute of
limitations shall comply with Clauses 2 and 3 of the Ordinance on Handling of
Administrative Violations.
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Article 7.- Forms of
sanction against administrative violations provided for in this Decree shall
comply with Chapter II of the Ordinance on Handling of Administrative
Violations.
Chapter II
FORMS AND LEVELS OF
SANCTION AGAINST ADMINISTRATIVE VIOLATIONS
Section I.- VIOLATIONS OF
SECURITY, ORDER AND SAFETY ON THE SEA
Article 8.- Sanctions
against the following violations by foreign ships and/or boats:
1. A fine of from 5,000,000 VND to 10,000,000
VND for act of illegally stopping or anchoring in the territorial waters of
Vietnam.
2. A fine of from over 10,000,000 VND to
20,000,000 VND for one of the following acts:
a/ Emitting smoke, firing gun of different
kinds, launching signals or using explosives in the territorial waters and
adjacent areas of Vietnam for any purposes, except for firing rescue signals
and firing salute gun-fires;
b/ Hindering maritime navigation activities and
activities of fishing and aquaculture, prospecting, exploring and exploiting
marine resources.
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a/ Interfering in the information and
communication system, devices and equipment of different types of the Socialist
Republic of Vietnam;
b/ Illegally using radars, supersonic wave
transmitters, theodolites, measuring devices, diving equipment and other
devices for geographical and meteorological surveys, sea-bed and depth probing
or any other exploring purposes in the territorial waters of Vietnam;
c/ Failing to put all the fixed and mobile
weapons on the ship in the preservation position when the armed ships or boats
enter the territorial waters and adjacent areas of Vietnam;
d/ Failing to apply professional measures to
prevent hazards and poisonousness, or failing to provide Vietnamese officials
with technical documents on radioactive, dangerous or noxious substances on
board the ship when so requested, with regard to ships operated by atomic
energy and ships and/or boats carrying radioactive materials, carrying or using
dangerous or noxious substances, which are allowed to travel through the
territorial waters and adjacent areas of Vietnam;
e/ Taking people out of the ship/boat or on
board the ship/boat in contravention of the provisions of Vietnamese
legislation on entry and exit; harboring, conniving with, covering or abetting
violators of Vietnamese law in the territorial waters and adjacent areas of
Vietnam.
4. Forms of additional sanction and other
measures:
a/ To confiscate material evidences and means of
administrative violations defined at Point a, Clause 2; Points a and b, Clause
3, this Article;
b/ To force administrative violators and means
of administrative violations stipulated in this Article to leave the water
areas where they are operating or the sea areas of Vietnam.
Article 9.- Sanctions
against violations by foreign fishing ships/boats operating in the sea areas of
Vietnam
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a/ Failing to pull up fishing nets or tools;
b/ Failing to put in the preservation position
all devices for probing, detecting and attracting fishes.
2. A fine of from 20,000,00 VND to 50,000,000
VND for recidivism of one of the acts mentioned in Clause 1 of this Article.
Article 10.- Sanctions
against violations committed by foreign organizations and/or individuals that
enter the sea areas of Vietnam to conduct scientific research
1. A fine of from 5,000,000 VND to 10,000,000
VND for act of conducting scientific research in places other than those
already prescribed for research.
2. A fine of from over 10,000,000 VND to
20,000,000 VND for act of carrying along weapons, ammunitions, explosives,
reconnaissance means or noxious substances.
3. A fine of from over 20,000,000 VND to
50,000,000 VND for act of installing and using equipment or devices or research
projects without permission of the Vietnamese competent agency(ies).
4. Forms of additional sanction and other
measures:
a/ To confiscate material evidences and means of
administrative violations stipulated in Clauses 2 and 3 of this Article;
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Article 11.- Sanctions
against other administrative violations in the field of security and order on
the sea shall comply with Article 18, except for Point b, Clause 2 of the
Government’s Decree No.49/CP of August 15, 1996 on sanctioning administrative
violations in the field of security and order.
Article 12.- Sanctions
against acts of violating regulations on entry, exit and transit shall comply
with Article 21, except for Points b and c, Clause 1; Point d, Clause 2 of the
Government’s Decree No.49/CP of August 15, 1996.
Article 13.- Sanctions
against acts of violating regulations on narcotics prevention, combat and
control shall comply with Article 22, except for Clause 2; Points a, b, c, g
and h, Clause 3; Points b, c and e, Clause 4 of the Government’s Decree
No.49/CP of August 15, 1996.
Article 14.- Sanctions
against violations in the use and handling of means for sea transport and
maritime services business activities
1. A fine of from 1,000,000 VND to 5,000,000 VND
for one of the following violations:
a/ Failing to have crew members’ passports
b/ Failing to have crew members’ maritime
navigation certificates.
2. A fine of from over 5,000,000 VND to
10,000,000 VND for one of the following violations:
a/ Failing to have the sea-going ship
registration certificate;
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c/ Practicing in sea transport and maritime
service business without permits or with expired permits;
d/ Conducting business in contravention of the
contents and scope of business prescribed in the permit;
e/ Failing to strictly comply with the contents
already registered by the enterprise (on sea lanes and lines, channels,
operation areas, ship’s name);
f/ Amending, erasing the sea transport and/or
maritime service business permit.
3. Forms of additional sanction:
To strip for up to 3 months the right to use
professional certificates or maritime navigation permits, for violations
stipulated at Points b and e, Clause 2, this Article.
Article 15.- Sanctions
against acts of violating regulations on human life and ship safety
1. Warning or a fine of from 100,000 VND to
500,000 VND for one of the following violations:
a/ The ship has no boards providing for the
life-saving task put up at necessary places;
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c/ Failing to have a board on the assignment of
life-saving and salvage responsibilities to each crew member on board the ship
and at the public places on the ship;
d/ Failing to equip the ship with life-saving
equipment as prescribed;
e/ The life-saving equipment fails to meet the
requirements for good quality and the operation readiness.
2. A fine of from 1,000,000 VND to 5,000,000 VND
for one of the following violations:
a/ The crew members fail to acquire enough
diplomas and/or professional certificates as prescribed;
b/ The ship fails to have the minimum staff for
safety as prescribed;
c/ The person appointed to a post is not
compatible with the name registered in the crew members’ book;
d/ Failing to have a ship diary or using such
diary in contravention of the regulations;
e/ Failing to obtain the means’ registration
number as prescribed.
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a/ The use time of the life-saving equipment has
expired;
b/ There’s no life-saving equipment on board the
ship.
4. Forms of additional sanction:
To strip definitely for 3 to 6 months or
indefinitely the right to use ship�s maritime operation
permit and the certificate of basic safety training, for administrative
violations stipulated in this Article.
Article 16.- Sanctions
against acts of transporting goods and/or passengers beyond the prescribed load
1. Warning or a fine of from 100,000 VND to
500,000 VND per each passenger in excess of the prescribed number.
2. A fine of from 2,000,000 VND to 10,000,000
VND for act of transporting goods beyond the prescribed load.
3. Warning or a fine of from 200,000 VND to
700,000 VND on each passenger for violations defined in Clause 1; a fine of
from 5,000,000 VND to 15,000,000 VND for violations defined in Clause 2, this
Article in case of recidivism.
Article 17.- Sanctions
against acts of violating safety regulations on fire and explosion prevention
and combat for boats and ships
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a/ The fire-extinguishing equipment is not ready
for operation;
b/ Failing to give signs of warning or necessary
instructions at places where fires and/or explosions may easily occur;
c/ There’s no fire-extinguishing system diagram,
a board on fire-extinguishing duty assignment and a board of instructions on
operations on board the ship.
2. A fine of from over 5,000,000 VND to
10,000,000 VND for one of the following violations:
a/ Failing to abide by or having not fully
abided by the regulations on fire prevention and combat;
b/ Failing to adequately equip the ship with fire-extinguishing
equipment as prescribed by Vietnamese law and the relevant international
agreements which Vietnam has signed or acceded to;
c/ The portable fire-extinguishers are out of
order;
d/ The fire-extinguishing devices are located at
places not provided for on the ship;
e/ The crew members on board the ship cannot
skillfully use the fire-extinguishing equipment;
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Article 18.- Sanctions
against acts of violating rules on ensuring maritime safety.
1. A fine of from 2,000,000 VND to 5,000,000 VND
against a means operator for breaches of the following voyage rules:
a/ Failing to use or improperly use signals of
different types as prescribed;
b/ Failing to strictly comply with the rules on
anti-collision on the sea.
2. A fine of from over 5,000,000 VND to
10,000,000 VND for one of the following acts:
a/ Failing to place signs of warning when the
means or other sunken objects constitute obstacle on the sea;
b/ Failing to place signs of warning of
artificial islands or projects on the sea;
c/ Removing or making maritime signals
ineffective.
3. Application of other measures:
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Article 19.- Sanctions
against acts of violating regulations on navigation order and safety on the
sea.
1. A fine of from 500,000 VND to 2,000,000 VND
for one of the following acts:
a/ Letting other means cling onto or tie to one�s
own means in contravention of the regulations when the ship is sailing;
b/ Using towing means in contravention of its
functions;
c/ Having no rules for the passenger ship or
letting the passengers sit on the ship’s deck roof or sides;
d/ Loading goods in contravention of the
regulations.
2. A fine of from 10,000,000 VND to 20,000,000
VND for one of the following acts:
a/ Carrying noxious goods, explosive and/or
inflammable substances together with passengers;
b/ Using fake number plate when operating the
means.
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To strip definitely for 3 to 6 months or
indefinitely the right to use the ship master’s diploma or professional
certificate, for administrative violations defined in Clause 2, this Article.
Article 20.- Sanctions
against acts of violating regulations on search and rescue
1. A fine of from 2,000,000 VND to 5,000,000 VND
for act of failing to perform the prescribed obligation on maritime search and
rescue;
2. A fine of from over 5,000,000 VND to
10,000,000 VND for act of failing to obey the mobilization order without
plausible reasons or for the irresponsibility in executing the mobilization
order of the competent agency.
Article 21.- Sanctions
against acts of violating regulations on salvage of sunken properties in the
sea.
1. Warning or a fine of from 200,000 VND to
1,000,000 VND for act of failing to report or untruthfully reporting on the
detection of sunken property in the sea.
2. A fine of from 10,000,000 VND to 20,000,000
VND for each act of violating regulations on salvage or preservation, handling
of sunken properties.
3. A fine of from over 20,000,000 VND to
50,000,000 VND for each act of violating regulations on salvage or trading in
archeological and historical objects in the territorial waters and adjacent
areas.
4. Form of additional sanction:
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Section II.- VIOLATIONS IN
THE FIELD OF SEA ENVIRONMENT PROTECTION
Article 22.- Sanctions
against acts of discharging waste matters and noxious substances
1. A fine of from 5,000,000 VND to 20,000 000
VND for one of the following acts:
a/ Discharging oil and grease, noxious chemicals
or radioactive substances beyond the prescribed limits on the sea areas;
b/ Discharging assorted garbage, dirty water and
matters, waste water mixed with oil and other noxious substances from the ship
into the prohibited areas or restricted areas on the sea;
c/ Discharging waste matters and noxious
substances into the sea in contravention of the regulations on environment
protection.
2. A fine of from over 20,000,000 VND to
50,000,000 VND for violations defined in Clause 1, this Article, in case of
recidivism.
3. A fine of from over 50,000,000 VND to
100,000,000 VND for violations defined in Clause 2, this Article, in cases
where many aggravating factors are involved.
4. Application of other measures:
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Article 23.- Sanctions
against acts of transporting noxious substances
1. A fine of from 10,000,000 VND to 20,000,000
VND for one of the following acts:
a/ Having no documents on noxious substances;
b/ Having no permits for the transportation of
noxious substances;
c/ Failing to apply special preventive measures
in accordance with the regulations on environment protection.
2. A fine of from over 20,000,000 VND to
50,000,000 VND for violations defined in Clause 1, this Article, in case of
recidivism.
3. A fine of from over 50,000,000 VND to 100,000,000
VND for violations defined in Clause 1 of this Article, in cases where many
aggravating factors are involved.
4. Application of other measures:
To force the violation means to leave the water
area where it is operating or leave the sea area of Vietnam.
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Article 25.- Sanctions
against violations of regulations on the prevention of environmental incidents
in the prospection, exploration, exploitation and transportation of oil and gas
shall comply with the provisions of Article 12, Decree No.26/CP of April 26,
1996 of the Government.
Article 26.- Sanctions
against violations in overcoming environmental incidents shall comply with the
provisions of Article 19, Decree No.26/CP of April 26, 1996 of the Government.
Section III.- VIOLATIONS OF
REGULATIONS ON THE EXPLOITATION AND PROTECTION OF AQUATIC RESOURCES
Article 27.- Sanctions
against the permit-related violations, including the failure to have a permit,
the use of a fake permit or a permit granted not by the competent agency
1. A fine of from 2,000,000 VND to 5,000,000 VND
for means with a tonnage of under 50 tons.
2. A fine of from over 5,000,000 VND to
10,000,000 VND for means with a tonnage of from 50 to 100 tons.
3. Fine of from over 10,000,000 VND to
50,000,000 VND for means with a tonnage of over 100 tons.
4. Form of additional sanction:
To confiscate the total aquatic and sea products
which have been processed as well as fishing facilities used for the illegal
fishing.
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Article 29.- Sanctions
against administrative violations in the field of fishery activities by
foreigners and foreign means shall comply with the provisions of Articles 16,
17 and 18, Decree No.49/CP of July 13, 1998 of the Government.
Section IV.- VIOLATIONS IN
OTHER FIELDS
Article 30.- Sanctions
against acts of violating regulations on the exchange of import/export goods by
border inhabitants shall comply with Article 8 of the Government’s Decree
No.54/1998/ND-CP of July 21, 1998 amending and supplementing a number of
Articles of Decree No. 16/CP of March 20, 1996 of the Government on sanctioning
administrative violations in the field of State management over customs.
Article 31.- Sanctions
against acts of falsely declaring and evading tax shall comply with Article 3;
the confiscation of material evidences and means used to commit administrative
violations in the field of taxation shall comply with Article 6 of the
Government’s Decree No.22/CP of April 17, 1996 on sanctioning administrative
violations in the field of taxation.
Article 32.- Sanctions
against acts of violating regulations on goods import and/or export; and
violations by the transport means’ owners shall comply with Clauses 2 and 3,
Article 14; Point a, Article 21 of the Government’s Decree No.01/CP of January
3, 1996 on sanctioning administrative violations in the field of trade.
Article 33.- Sanctions
against acts of violating regulations on prospection, exploration, exploitation
and management of minerals shall comply with the provisions of Articles 4, 5, 6
and 8 of the Government’s Decree No.35/CP of April 23, 1997 stipulating
sanctions against administrative violations in the field of State management
over minerals.
Article 34.- Sanctions
against other administrative violations on the sea areas and continental shelf
of Vietnam that fall under the jurisdiction of Vietnam Coast Guard shall comply
with relevant law provisions on sanctioning administrative violations,
promulgated by the State of the Socialist Republic of Vietnam.
Chapter III
SANCTIONING COMPETENCE
AND PROCEDURES AND APPLICATION OF MEASURES TO PREVENT ADMINISTRATIVE VIOLATIONS
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1. A member of the Coast Guard professional team
on official duty shall have the competence:
a/ To issue warning;
b/ To fine up to 200,000 VND.
2. The head of the Coast Guard professional group
shall have the competence:
a/ To issue warning;
b/ To fine up to 500,000 VND.
3. The head of the Coast Guard professional team
shall have the competence:
a/ To issue warning;
b/ To fine up to 1,000,000 VND.
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4. The chief of the Coast Guard flotilla shall
have the competence:
a/ To issue warning;
b/ To fine up to 2,000,000 VND;
c/ To force compensation of up to 1,000,000 VND
for damages caused by administrative violations;
d/ To force the restoration of the initial state
which has been altered by administrative violations;
e/ To suspend activities that have caused
pollution to the living environment and/or spread of diseases.
5. The chief of the Coast Guard squadron shall
have the competence:
a/ To issue warning;
b/ To fine up to 2,000,000 VND;
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d/ To force the restoration of the initial state
which has been altered by administrative violations;
e/ To suspend activities that have caused
pollution to the living environment and/or spread of diseases.
f/ To destroy degraded cultural products and/or
noxious articles harmful to the people�s health.
6. The Coast Guard�s regional commander
shall have the competence:
a/ To issue warning;
b/ To fine up to 20,000,000 VND;
c/ To confiscate material evidences and means
used for committing the administrative violations;
d/ To force the restoration of the initial state
which has been altered by administrative violations;
e/ To force the overcoming of the living
environment pollution and/or the spread of diseases;
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7. The Head of the Coast Guard Department shall
have the competence:
a/ To issue warning;
b/ To fine up to 20,000,000 VND;
c/ To strip the right to use permits according
to his/her competence, except where the permits are issued by the higher State agency(ies),
he/she shall issue a decision to suspend the violations and request the
competent State agency(ies) to withdraw the permits.
d/ To confiscate material evidences and means
used for committing the administrative violations;
e/ To force the overcoming of the living
environment pollution and/or the spread of diseases;
f/ To force the restoration of the initial state
which has been altered by administrative violations or force the dismantlement
of illegally built projects;
g/ To force foreign ships and/or boats and crew
members thereon to leave the sea areas of Vietnam;
h/ To destroy degraded cultural products and/or
noxious articles harmful to the people’s health.
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Where the persons with sanctioning competence
stipulated in Clauses 3, 4, 5, 6, 7 and 8 of this Article are absent or where
authorized by such persons, their deputies may sanction administrative
violations according to their competence.
Article 36.- Competence
to apply measures to prevent administrative violations.
1. The following persons shall be competent to
apply measures to prevent administrative violations:
a/ The chief of the Coast Guard professional
team;
b/ The chief of the Coast Guard flotilla;
c/ The chief of the Coast Guard squadron;
d/ The Coast Guard’s regional commander;
e/ The head of the Coast Guard Department.
2. The application of measures to prevent
administrative violations and the handling of administrative violations shall
comply with the provisions of Article 38 of the Ordinance on Handling of
Administrative Violations.
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4. In cases where the persons stipulated in
Clause 1 of this Article are absent or unable to fulfill their tasks, their
deputies shall have the competence to make decision.
Article 37.- The
procedures for sanctioning administrative violations shall comply with the provisions
of Chapter VI of the Ordinance on Handling of Administrative Violations.
The Ministry of Finance shall coordinate with
the Ministry of Defense in providing detailed guidance on the procedures for
the payment, collection, management and use of administrative violation fines
in accordance with the provisions of this Decree.
Chapter IV
COMPLAINT, DENUNCIATION
AND HANDLING OF VIOLATIONS
Article 38.- Complaint,
denunciation and settlement of complaints and denunciations
1. Organizations or individuals being sanctioned
for administrative violations under this Decree or their lawful representatives
shall have the right to complain about sanctioning decisions of the competent
persons according to the 1998 Law on Complaints and Denunciations. Pending the
settlement of their complaints by the competent agencies or persons, the
sanctioned organizations or individuals shall still have to execute sanctioning
decisions, except where the construction project(s) must be dismantled.
In cases where the complaining organizations or
individuals disagree with the complaint-settling decisions, they shall have the
right to further complain with the superior competent person or initiate an
administrative lawsuit at court according to the provisions of law.
2. An individual may denounce to competent State
agencies any administrative violations defined in this Decree, which are
committed by organizations or other individuals according to the provisions of
the 1998 Law on Complaints and Denunciations.
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Article 39.- Handling
of violations
1. The persons who have competence to handle administrative
violations defined in this Decree and hassle the violators, tolerate, cover,
fail to sanction or sanction not in time, improperly sanction or ultra vire
sanction the administrative violations shall, depending on the nature and
extent of their violations, be disciplined or examined for penal liability,
and, if causing damage, pay compensation therefor as prescribed by law.
2. The persons sanctioned for administrative
violations who obstruct or oppose the persons performing the official duty with
the inspection, control or sanctioning responsibility; or who deliberately
delay or evade the execution of decisions on sanctioning the administrative
violations shall, depending on the nature and seriousness of their violations,
be administratively handled or examined for penal liability, and, if causing
damages, pay compensation therefor as prescribed by law.
Chapter V
IMPLEMENTATION PROVISIONS
Article 40.- This
Decree takes effect 15 days after its signing.
Article 41.- The
Minister of Defense shall coordinate with the concerned ministries and branches
in guiding, inspecting and urging the implementation of this Decree.
The ministers, the heads of the
ministerial-level agencies, the heads of the agencies attached to the
Government, the presidents of the People’s Committees of the provinces and
centrally-run cities and the head of the Coast Guard Department shall have to
implement this Decree.
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THE GOVERNMENT
Phan Van Khai