THE
GOVERNMENT
---------------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
--------------
|
No.
138/2004/ND-CP
|
Hanoi,
June 17, 2004
|
DECREE
PRESCRIBING THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN
THE CUSTOMS DOMAIN
THE
GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the Customs Law of June 29, 2001;
Pursuant to the Ordinance on Handling of Administrative Violations of July 2,
2002;
At the proposal of the Finance Minister,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.-
Scope and subjects of application
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The administrative violations in
the customs domain include:
1. Violation of regulations on
customs procedures;
2. Violation of regulations on
customs inspection, supervision and control;
3. Violation of regulations on
export, import, transit of goods, luggage, foreign exchanges, gold, Vietnamese
currency, precious metals, precious stones, antiques, cultural products, postal
parcels, objects on exiting, entering or transiting means of transport and
other assets (hereinafter referred collectively to as commodities); violation
of regulations on exit, entry, transit of transport means.
Article 2.-
Principles for sanctioning of administrative violations in the customs domain
The principles for sanctioning
of administrative violations in the customs domain shall comply with the
provisions in Article 3 of the Ordinance on Handling of Administrative
Violations.
Article 3.-
Extenuating and aggravating circumstances
1. The extenuating circumstances
include:
a) The extenuating circumstances
prescribed in Article 8 of the Ordinance on Handling of Administrative
Violations;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c) The material evidences of
violation have the value smaller than the minimum fine level in the fine
bracket applicable to violation acts.
2. The aggravating circumstances
include the aggravating circumstances prescribed in Article 9 of the Ordinance
on Handling of Administrative Violations.
Article 4.-
Forms of sanctioning administrative violations in the customs domain and
remedial measures
1. For each
administrative-violation act, the violating individuals or organizations shall
be subject to one of the following principal sanctioning forms:
a) Caution;
b) Fine.
The maximum fine level in the
customs domain is VND 70,000,000.
The specific fine level for an
act of administrative violation is the average level of the fine bracket
prescribed for that violation act. In cases where extenuating circumstances are
involved, the fine levels shall be reduced but must not be lower than the
minimum level of the fine bracket. In cases where aggravating circumstances are
involved, the fine levels can be raised but must not exceed the maximum level
of the fine bracket.
2. Depending on the nature and
seriousness of violations, individuals and organizations committing
administrative violations may also be subject to the application of one or all
of the following additional sanctioning forms:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) Confiscation of material
evidences, means used for commission of administrative violations.
3. Apart from the sanctioning
forms prescribed in Clauses 1 and 2 of this Article, individuals and
organizations committing administrative violations may also be subject to the
application of one or all of the following remedial measures:
a) Forcible destruction of
violation material evidences being harmful cultural products, goods harmful to
human health, domestic animals and crops;
b) Forcible taking out of
Vietnam or forcible re-export of violation goods, means;
c) Forcible refunding of the
money amounts equal to the value of material evidences and/or violation means
already sold, dispersed or destroyed against law provisions.
4. For violation acts not
subject to the application of additional sanctioning form of confiscation of
goods and remedial measures, the goods and/or means of administrative
violations can be cleared from customs procedures according to law provisions
if the violators have fully paid fines according to regulations or been
guaranteed by credit institutions or other organizations licensed to conduct a
number of banking activities with the payable fine amounts for execution of the
sanctioning decisions.
Article 5.-
Responsibility for coordination in sanctioning of administrative violations in the
customs domain
In order to ensure that the
sanctioning of administrative violations in the customs domain is carried out
in a swift, fair and absolute manner according to law provisions, the concerned
individuals and organizations shall have to supply fully and in time
information, documents related to export, import or transit commodities,
exiting, entering or transiting means of transport involved in administrative
violations, when so requested by customs offices.
Article 6.-
Statute of limitations for sanctioning
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. For individuals who have been
instituted with lawsuits, prosecuted or brought to trial under issued
decisions, according to criminal procedures, but later get decisions to suspend
the investigation or suspend their cases and their violation acts show signs of
administrative violations in the customs domain, they shall be administratively
sanctioned according to the provisions of this Decree; in this case, the
statute of limitations for sanctioning administrative violations is 3 months as
from the date the persons with sanctioning competence receive the decisions to
suspend investigation or suspend cases and the dossiers of the violation cases.
3. Within the time limits
prescribed in Clauses 1 and 2 of this Article, if the violating individuals or
organizations again commit acts of administrative violation in the customs
domain or deliberately shirk or obstruct the sanctioning, the statue of
limitations for sanctioning of administrative violations prescribed in Clauses
1 and 2 of this Article shall not apply. In this case, the statute of
limitations for sanctioning of administrative violations shall be recalculated
from the time the new administrative violations are committed or the time the
acts of shirking or obstructing the sanctioning stop.
Article 7.-
Cases not sanctioned for administrative violations
Administrative sanctions shall
not be imposed in the following cases:
1. The cases prescribed in
Clause 6, Article 3 of the Ordinance on Handling of Administrative Violations,
Article 4 of the Government’s Decree No. 134/2003/ND-CP of November 14, 2003
detailing the implementation of a number of articles of the 2002 Ordinance on
Handling of Administrative Violations.
2. Goods, transport means are
introduced into the Vietnamese territory due to fires, natural disasters, enemy
sabotage, unexpected events, in emergency circumstances, which must be subject
to customs declaration according to law provisions; such goods and/or transport
means must be taken out of the Vietnamese territory when the above-mentioned
factors have been overcome.
3. Mistakes are committed in the
course of consigning export goods or import goods, which, however, have been
notified in writing by goods consignors or their lawful representatives or
goods consignees to the customs offices, and accepted by the heads of the
Customs Sub-Departments before the time of actual goods inspection. This
regulation shall not apply to cases where export or import goods are narcotics,
weapons, reactionary documents.
4. Customs declarations are
modified, supplemented or replaced strictly according to regulations in Clause
2, Article 22 of the Customs Law.
5. Goods are exported or
imported at variance with the customs declarations, but the declared tax
amounts are equal to or larger than the payable tax amounts while there have
appeared no intention to evade the implementation of other law provisions on
export or import.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
7. Goods are exported or imported
at variance with the customs declarations in terms of quantity, weight
prescribed in Clause 1 of Article 11, Clauses 1 and 2 of Article 12 of this
Decree while such export or import goods are valued at under VND 500,000.
8. Violation of regulations on
customs declarations for gold, foreign exchange, Vietnamese currency of persons
on exit or entry, where the violation material evidences are valued at under
VND 10,000,000.
Chapter II
SANCTIONING FORMS AGAINST INDIVIDUALS, ORGANIZATIONS
COMMITTING CUSTOMS- RELATED ADMINISTRATIVE VIOLATIONS
Article 8.-
Violation of regulations on time limits for carrying out customs procedures
1. Caution or a fine of between
VND 50,000 and 300,000 for acts of carrying out customs procedures not within
the time limits prescribed in the Customs Law.
2. A fine of between VND 300,000
and 500,000 for one of the following violations:
a) Submitting vouchers in the
customs dossiers entitled to delayed submission under law provisions not within
the prescribed time limits;
b) Temporarily importing for
re-export, temporarily exporting for re-import goods and/or transport means not
within the time limits prescribed in permits, customs declarations or other
papers according to law provisions.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) Failing to submit vouchers
which must be submitted in the customs dossiers entitled to delayed submission
according to law provisions;
b) Failing to declare within the
law-prescribed time limits any changes in the purposes of using the goods.
Article 9.-
Violation of regulations on customs supervision
1. A fine of between VND 200,000
and 1,000,000 for acts of failing to keep intact the customs seals on
storehouses, goods or transport means, which are being subject to customs
inspection and supervision without any plausible reasons.
2. A fine of between VND 500,000
and 2,000,000 for acts of moving transport means and/or goods, which are being
subject to customs supervision, in contravention of regulations.
3. A fine of between VND
10,000,000 and 15,000,000 for acts of changing without permission the packings,
appearances, industrial designs, origins, labels, trademarks of goods being
subject to customs supervision.
4. A fine of between VND
15,000,000 and 20,000,000 and confiscation of violation material evidences for
one of the following violations:
a) Changing without permission
types, quantity, quality or weight of goods being subject to customs
supervision;
b) Consuming without permission
goods being subject to customs supervision.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article
10.- Violation of regulations on purchase, sale or exchange of goods of
border residents
Border residents prescribed in
this Decree are persons having permanent residence registration or being
permitted to temporarily reside for a long time in border communes.
1. Caution or a fine of between
VND 50,000 and 200,000 for one of the following violations:
a) Bringing across border goods
in excess of law-prescribed limits without making customs declarations;
b) Bringing across border goods
not permitted by the State for exchange.
2. A fine of between VND 200,000
and 1,000,000 for one of the following violations:
a) Violation of the provisions
at Point a, Clause 1 of this Article where the goods in excess of the
prescribed limits are valued at over VND 5,000,000;
b) Bringing goods across border
not through the prescribed border-gates;
c) Harboring, trading,
transporting within the customs operation areas illegally-imported goods.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) A fine of between VND
3,000,000 and 5,000,000, for cases where violation material evidences are
valued at under VND 20,000,000;
b) A fine of between VND
5,000,000 and 15,000,000, for cases where violation material evidences are
valued at VND 20,000,000 or more;
4. Confiscation of material
evidences, for violations prescribed at Point b of Clause 1, Point c of Clause
2 and Clause 3 of this Article. If violation material evidences are harmful
cultural products, goods harmful to human health, domestic animals and/or
crops, they shall be compelled to be taken out of the Vietnamese territory or
destroyed.
5. Violations prescribed at
Point a of Clause 1, Points a, b of Clause 2 of this Article with acts of
evading taxes shall be sanctioned according to law provisions on tax.
Article
11.- Violation of regulations on goods export, import in form of gifts
1. Caution or a fine of between
VND 50,000 and 200,000 for acts of exporting or importing gifts at variance
with customs declarations.
2. A fine of between VND 200,000
and 1,000,000 for violation acts prescribed in Clause 1 of this Article where
the violation material evidences are on the list of those banned from export,
import or subject to conditional export or import but failing to satisfy the
conditions for export or import.
3. Individuals and organizations
committing the violations prescribed in Clause 2 of this Article, apart from
being fined, shall be forced to take the imported goods out of the Vietnamese
territory or shall not be allowed to export the goods volumes exported in
contravention of law provisions; if material evidences are narcotics, weapons,
explosives, support tools, reactionary documents, harmful cultural products,
they shall be handled according to law provisions.
Article
12.- Violation of regulations on export, import of goods by persons
on exit or entry
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. A fine of between VND 200,000
and 500,000 for acts of violating the regulations on customs declaration when
exporting, importing goods beyond the prescribed luggage limits.
3. A fine of between VND 500,000
and 2,000,000 for one of the following violations:
a) The violations prescribed in
Clause 2 of this Article with material evidences being valued at VND 10,000,000
or more;
b) The violations prescribed in
Clause 2 of this Article with material evidences being goods banned from export
or import or subject to conditional export or import but failing to meet the
conditions for export, import.
4. The persons who commit
violations prescribed at Point b of Clause 3, this Article, shall not be
allowed to export or import the goods in violation or have such goods
confiscated if the goods are banned from export or import, but exported or
imported without making customs declarations.
5. Violation of the regulations
in Clause 2, Point a of Clause 3 of this Article involving tax evasion shall be
sanctioned according to tax laws.
Article
13.- Violation of regulations on export or import of goods being assets on
movement
Caution or a fine of between VND
100,000 and 500,000 for acts of violating the regulations on customs
declaration upon the export or import of goods being assets on movement.
Article
14.- Violation of regulations on customs supervision
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) Boarding, getting off
transport means carrying export or import goods being subject to customs
inspection, when not so permitted by customs offices;
b) Failing to stop exit, entry
or transit transport means at the prescribed places for carrying out the
customs procedures.
2. A fine of between VND
1,000,000 and 3,000,000 for acts of failing to strictly observe the regulations
on customs management when operating ships carrying export, import goods into
Vietnam not at the prescribed ports.
3. A fine of between VND
3,000,000 and 5,000,000 for one of the following violations:
a) Approaching without
permission ships, boats carrying export or import goods, which are carrying
customs procedures;
b) Failing to obey the commands
of customs officers as prescribed when moving transport means within the
customs operation areas;
c) Failing to realize the
request to open the goods storages according to regulations for customs
officers to check;
d) Bringing into customs
operation areas export or import goods without adequate valid papers as
prescribed;
e) Harboring, trading,
transporting within customs operation areas illegally imported goods with
violation material evidences being valued at under VND 20,000,000.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) Unloading goods not at the
right destination ports stated in the bills of lading without plausible
reasons;
b) Operating exit, entry or
transit means of transport not on the prescribed routes nor through the prescribed
border-gates;
c) Loading, unloading,
transshipping, disconnecting wagons of, export, import or transit goods on
transport means being subject to customs inspection, supervision.
5. A fine of between VND
5,000,000 and 15,000,000 for one of the following violations:
a) Harboring, trading,
transporting illegally imported goods in customs operation areas with violation
material evidences being valued at VND 20,000,000 or more;
b) Dispersing, destroying or
abandoning goods to evade the customs inspection, supervision and control.
6. A fine of between VND
10,000,000 and 20,000,000 for acts of fraudulently exchanging, dispersing
violation material evidences and/or means already detected and temporarily
seized.
7. Confiscation of violation
material evidences, for violations prescribed at Point e of Clause 3, Clauses 5
and 6 of this Article.
Those who commit the violations
prescribed at Point b of Clause 5, Clause 6 of this Article with material
evidences and/or means having disappeared shall be compelled to pay money sum
equal to the value of the violation material evidences and/or means.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. A fine of between VND
1,000,000 and 4,000,000 for one of the following violations:
a) Failing to carry export or
import goods to the prescribed places for carrying out the customs procedures;
b) Failing to supply
information, vouchers and/or documents related to export or import goods, exit
or entry transport means, when so requested by customs offices according to law
provisions;
c) Failing to abide by decisions
on post-customs clearance inspection without plausible reasons;
d) Failing to adequately archive
customs dossiers, accounting books, vouchers related to export or import goods
already cleared from customs procedures within the law-prescribed archival
duration;
e) Failing to present retained
goods being objects liable to post-customs clearance inspection at requests of
customs offices;
f) Failing to arrange personnel,
means in service of actual inspection of goods and/or transport means when so
requested by customs offices without plausible reasons.
2. A fine of between VND
3,000,000 and 5,000,000 for one of the following violations:
a) Assigning, using goods entitled
to customs privileges against regulations;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c) Exporting, importing goods
against the State’s regulations on humanitarian aid.
3. A fine of between VND 5,000,000
and 10,000,000 for acts of exporting or importing goods without customs
declarations or at variance with customs declarations in terms of quantity,
weight, quality, commodity codes, value, origins.
4. A fine of between VND
10,000,000 and 15,000,000 for one of the following acts:
a) Exporting, importing goods at
variance with the contents of permits;
b) Violations prescribed in
Clause 3 of this Article with material evidences being valued at VND 50,000,000
or more;
c) Changing the forms, structure
or nature of goods so as to legalize their export, import;
d) Fraudulently substituting
goods having already gone through customs inspection for goods having not yet
gone through customs inspection.
5. Violations prescribed at
Point a of Clause 2, Clause 3, Points b and c of Clause 4 of this Article
involving tax evasion shall be sanctioned according to the provisions of tax
legislation.
6. A fine of between VND
10,000,000 and 20,000,000 for one of the following violations:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) Exporting or importing goods
banned from export or import;
c) Importing goods of fake
origins into Vietnam; exporting goods of fake origins;
d) Importing goods and/or
transport means into the Vietnamese territory without permission of competent
State bodies as prescribed;
e) Exporting, importing goods
without the prescribed permits;
f) Forging customs seals, papers
in customs dossiers in order to export, import goods, which do not constitute
crimes;
g) Failing to produce permits
when goods arrive at border-gates, for import goods which, according to
regulations, require permits before signing contracts.
7. A fine of between VND
40,000,000 and 70,000,000 for one of the following violations:
a) Exporting, importing goods
harmful to human health;
b) Exporting, importing goods
which pollute environment or spread epidemics.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) Confiscation of goods if
committing the violations prescribed at Point c of Clause 2, Point d of Clause
4, Clause 6 of this Article, except for cases where material evidences are
forced to be taken out of the Vietnamese territory as prescribed;
b) Deprivation of the right to
use permits or substitute papers for a period of between 30 and 90 days, for
cases of relapse into, or repetition of one of the violations prescribed at
Points a and c of Clause 4, Point g of Clause 6 of this Article;
c) Forcible export of violation
material evidences from the Vietnamese territory, for the violations prescribed
in Clause 3, Points a and b of Clause 4 of this Article, where the import goods
violate law provisions on technical standards;
d) Forcible taking out of the
Vietnamese territory within 30 days after being handed the sanctioning
decisions, or forcible destruction, of violation material evidences and/or
means, for violations prescribed in Clause 7 of this Article.
Article
16.- Violation of regulations on bonded warehouses, tax suspension
warehouses
1. A fine of between VND 200,000
and 500,000 for one of the following violations:
a) Failing to notify customs
offices of the expiry of the warehouse-renting contracts;
b) Failing to take goods out of
bonded warehouses upon the expiry of warehouse-renting contracts;
c) Registering the percentages
of imported raw materials entitled to tax suspension, submitting dossiers on
goods liquidation not within the law-prescribed time limits.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) Moving goods from one bonded
warehouse to another without the consents of customs offices;
b) Providing services of
reinforcing packings, classifying goods, sampling goods retained in bonded
warehouses without supervision by customs officers;
c) Expanding, narrowing or
relocating bonded warehouses without permission;
d) Failing to open books for
monitoring the export, import, warehousing, ex-warehousing of goods according
to law provisions;
e) Failing to strictly observe
the regime of reporting on the actual conditions of goods in warehouses and the
situation of warehouse operations;
f) Violation of regulations on
liquidation of goods in tax-suspension warehouses.
3. A fine of between VND
1,000,000 and 5,000,000 for one of the following violations:
a) Putting goods into bonded
warehouses at variance with the customs declarations or bonded
warehouse-renting contracts according to law provisions;
b) Putting goods into
tax-suspension warehouses in contravention of law provisions.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) Introducing from overseas
into bonded warehouses goods not entitled to be retained in bonded warehouses
as provided for;
b) Continuing to deal in bonded
warehouses when the bonded warehouse-establishing permits have already been
withdrawn;
c) Erasing, modifying bonded
warehouse-establishing permits;
d) Failing to carry out customs
procedures when taking goods out of, or putting goods into, bonded warehouses;
e) Arbitrarily dispersing goods
retained in bonded warehouses, tax-suspension warehouses;
f) Destroying goods retained in
bonded warehouses or tax-suspension warehouses in contravention of law
provisions.
5. Apart from the application of
forms of fine, the violating individuals and organizations shall also be
subject to the following additional sanctioning forms or remedial measures:
a) Confiscation of goods, for
violations prescribed at Points d and e of Clause 4 of this Article.
If the material evidences of the
violation prescribed at Point e, Clause 4 of this Article have no longer
existed, sums of money equal to the value of violation evidences must be paid.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article
17.- Violation of regulations on customs management over goods processed
for foreign countries, goods imported for production of exports
1. A fine of between VND
1,000,000 and 5,000,000 for one of the following violations:
a) Exporting or importing goods
without making customs declarations or in contravention of customs declarations
in terms of quantity, weight, quality, commodity codes, categories, value,
origins;
b) Arbitrarily using goods not
for the right purposes already registered with customs offices;
c) Violation of regulations on
liquidation of goods processed for foreign countries, goods imported for
production of exports;
d) Violation of regulations on
retention of samples, dossiers, vouchers;
e) Violation of other
regulations on customs management over goods processed for foreign countries
and goods imported for production of exports.
2. A fine of between VND
5,000,000 and 10,000,000 and confiscation of violation material evidences for
acts of exporting or importing goods subject to export or import ban or to
permits as provided for by law without the permits.
3. Violation of regulations on
customs management over goods processed for foreign countries and goods
imported for production of exports, involving acts of tax evasion, shall be
sanctioned according to tax legislation.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. A fine of between VND
1,000,000 and 5,000,000, for violation of the regulations on customs management
over export processing zones, enterprises in export processing zones, free
trade zones, border-gate economic zones and other customs preference areas.
2. The violations prescribed in
Clause 1 of this Article involving tax evasion acts shall be sanctioned
according to tax legislation.
Article
19.- Violation of regulations on customs declaration of foreign exchange,
gold by persons on exit or entry
1. Upon exit:
a) A fine of between VND 500,000
and 3,000,000 for acts of carrying foreign exchange, gold in violation of the
regulations on customs declaration with violation material evidences being
valued at between VND 10,000,000 and under 30,000,000;
b) A fine of between VND
3,000,000 and 10,000,000 for acts of carrying foreign exchange, gold in
violation of the regulations on customs declaration with violation material
evidences being valued at between VND 30,000,000 and 70,000,000;
c) A fine of between VND
10,000,000 and 15,000,000 for acts of carrying foreign exchange, gold in
violation of the regulations on customs declaration with violation material
evidences being valued at between VND 70,000,000 and under 100,000,000;
d) A fine of between VND
30,000,000 and 70,000,000 for acts of violating the regulations on customs
declaration with material evidences being valued at VND 100,000,000 or more,
which are not crimes.
2. Upon entry:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) A fine of between VND
2,000,000 and 5,000,000 for acts of carrying foreign exchange, gold in
violation of the regulations on customs declaration with violation material
evidences being valued at between VND 50,000,000 and under 100,000,000;
c) A fine of between VND
5,000,000 and 10,000,000 for one of the following violations:
- Over-declaring foreign
exchange or gold with value being equal to between VND 10,000,000 and under
100,000,000.
- Violation of the regulations
on customs declaration with material evidences being valued at VND 100,000,000
or more, which do not constitute crimes.
d) A fine of between VND
10,000,000 and 20,000,000 for acts of over-declaring foreign exchange, gold
with value of VND 100,000,000 or more.
3. Violation material evidences
shall be returned once the sanctioning decisions were executed. The export,
import of foreign exchange, gold shall comply with law provisions.
Article
20.- Violation of the regulations on customs declaration of Vietnamese
currency by persons on exit, entry
1. Caution or a fine of between
VND 200,000 and 1,000,000 for acts of carrying Vietnamese currency upon exit,
entry in violation of the regulations on customs declaration with violation
material evidences being valued at between VND 10,000,000 and 20,000,000.
2. A fine of between VND
1,000,000 and 5,000,000 for acts of carrying Vietnamese currency upon exit,
entry in violation of the regulations on customs declaration with violation
material evidences being valued at between VND 20,000,000 and under
100,000,000.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. The violation material
evidences shall be returned once the sanctioning decisions were executed. The
export or import of Vietnamese currency shall comply with the current law
provisions.
Article
21.- Insulting, threatening, obstructing customs officers on official duty
1. A fine of between VND 500,000
and 1,000,000 for acts of hurting the honor of, or obstructing customs officers
being on official duty.
2. A fine of between VND
1,000,000 and 3,000,000 for acts of threatening or using force to resist
customs officers on official duty, which are, however, not crimes.
Chapter
III
SANCTIONING COMPETENCE
Article
22.- Competence to sanction customs-related administrative violations
1. Leaders of the operation
teams of Customs Sub-Departments are competent:
a) To impose caution;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Directors of Customs
Sub-Departments, leaders of the Control Teams of the Customs Departments of
provinces, inter-provinces or centrally-run cities (hereinafter referred
collectively to as Customs Department); leaders of the Anti-Smuggling Control
Teams and heads of Marine Control Flotillas under the Anti-Smuggling
Investigation Department of the General Department of Customs have the right:
a) To impose caution;
b) To impose fines of up to VND
10,000,000;
c) To confiscate material
evidences, means used for commission of administrative violations, with value
of up to VND 20,000,000.
3. The directors of the Customs
Departments have the right:
a) To impose caution;
b) To impose fines of up to VND
20,000,000;
c) To deprive of the right to
use permits falling under their jurisdiction;
d) To confiscate material
evidences, means used for commission of administrative violations;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
f) To force the destruction of
violation material evidences being harmful cultural products, goods harmful to
human health, domestic animals and crops;
g) To force the payment of sums of money equal to the value of
violation material evidences and/or means sold, dispersed or destroyed
illegally.
4. The head of the
Anti-Smuggling Investigation Department under the General Department of Customs
has the right:
a) To impose caution;
b) To impose fines of up to VND
70,000,000 for acts of violation in the field of customs and fines of up to VND
100,000,000 in the field of tax (except otherwise provided for by tax laws);
c) To deprive of the right to
use permits falling under his/her jurisdiction;
d) To confiscate material
evidences, means of administrative violations;
e) To force the taking out of
the Vietnamese territory or to force the re-export of material evidences, means
of administrative violations.
f) To force the destruction of
material evidences being harmful cultural products or goods harmful to human
health, domestic animals and crops;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
5. For violation acts prescribed
in tax laws related to export/import goods, the persons with sanctioning
competence defined in Clauses 2, 3 and 4 of this Article are competent to sanction
them under the provisions of tax legislation.
6. The provincial/municipal
People’s Committee presidents are competent to sanction administrative
violations under the provisions in Article 30 of the Ordinance on Handling of
Administrative Violations regarding acts of violating the provisions of this
Decree.
7. Border guards, coast guards
are competent to sanction, under the provisions in Articles 32 and 33 of the
Ordinance on Handling of Administrative Violations, customs-related
administrative violations prescribed in Articles 10 and 14 of this Decree.
Article
23.- Determining the sanctioning competence
1. The sanctioning competence of
the persons defined in Article 22 of this Decree is the competence applicable
to an act of administrative violation. In case of fine, the sanctioning
competence is determined on the basis of the maximum level of the fine bracket
prescribed for each violation act.
2. In cases of sanctioning a
person who commits many violation acts, the sanctioning competence is determined
according to the following principle:
If the sanctioning level,
additional sanctioning form and remedial measures prescribed for each act fall
under the sanctioner’s competence, the sanctioning competence still belongs to
such person. If the sanctioning level, additional sanctioning form or remedial
measures prescribed for one of those acts fall beyond the sanctioner’s
competence, such person must transfer all dossiers on the violation case to the
person with sanctioning competence.
3. For acts subject to the
maximum level of VND 20,000,000 in the fine bracket, the directors of Customs
Departments shall transfer the dossiers to the People’s Committees of the
provinces or centrally-run cities where the administrative violations are
committed or where the Customs Departments are headquartered in cases the
administrative violations are committed in the sea areas under Vietnam’s
sovereignty so that the provincial/municipal People’s Committee presidents
decide on the sanctioning.
4. For all acts of violating the
customs legislation which are committed on land, the territorial sea, areas
adjacent to the territorial sea, continental shelf or exclusive economic zone
of the Socialist Republic of Vietnam in the geographical areas under the
management of any customs offices, such customs offices shall have the
responsibility to sanction them according to the competence prescribed in this
Decree; in cases where they are detected by the Anti-Smuggling Investigation
Department, the sanctioning shall be effected according to its competence.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Chapter IV
MEASURES TO PREVENT ADMINISTRATIVE VIOLATIONS AND
ENSURE THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS
Article
24.- Holding people in custody according to administrative procedures
1. The holding of people in
custody according to administrative procedures shall apply only in cases where
it is necessary to prevent, stop immediately acts of causing public
disturbances in customs operation areas, inflicting injuries on customs
officers on official duty or it is necessary to gather, verify important
details to be used as basis for issuing decisions on administrative sanctions.
2. The custody duration
applicable to persons committing administrative violations shall not exceed 12
hours counting from the time of holding the violators. In case of necessity,
the custody duration may prolong but must not exceed 24 hours. In far-flung mountainous
regions, islands, the custody duration can be longer but must not exceed 48
hours.
3. All cases of human custody
must be decided in writing and each person held in custody must be given such a
written decision.
4. It is strictly forbidden to
hold persons committing administrative violations in remand homes, criminal
detention rooms or places failing to ensure hygiene and safety for persons held
in custody.
5. At the requests of persons
held in custody, the persons issuing custody decisions must notify their
relatives, offices, work or study places thereof. When minors are held in
custody in the night time for more than 6 hours, their parents or guardians
must necessarily be notified thereof.
Article
25.- Competence to hold people in custody according to administrative
procedures
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Directors of Customs
Sub-Departments, leaders of Control Teams of Customs Departments, heads of
Anti-Smuggling Control Teams and heads of Marine Control Flotillas under the
Anti-Smuggling Investigation Department of the General Department of Customs.
In cases where the above-defined
persons are absent, their authorized deputies are competent to issue decisions
on holding people in custody according to administrative procedures.
The human custody must strictly
comply with the principles, procedures and order prescribed in Article 44 of
the Ordinance on Handling of Administrative Violations.
Article
26.- Temporary seizure of material evidences and means of administrative
violations
1. The temporary seizure of
violation material evidences and means shall only apply in case of necessity to
immediately stop the administrative violations or to verify details for use as
basis to decide on the sanctioning.
The persons defined in Article
25 of this Decree are competent to decide on temporary seizure of material
evidences and means of administrative violations.
2. In case of necessity, the
persons competent to sanction administrative violations, defined in Clause 1,
Article 22 of this Decree, are also competent to issue decisions on temporary
seizure of material evidences and means of administrative violations. Within 24
hours as from the time of issuing decisions, the decision issuers must report
thereon to their immediate bosses defined in Article 25 of this Decree and get
the written consents of such persons.
3. The persons issuing decisions
on temporary seizure of material evidences and/or means of administrative
violations shall have to organize the preservation of such material evidences
and/or means; if the material evidences and/or means are lost, fraudulently
substituted or damaged due to their faults, they must pay compensations
therefor and shall also be handled according to law provisions.
Where the violation material
evidences and/or means need to be sealed, the sealing thereof must be conducted
in the presence of the violators or their representatives, the representatives
of local administrations and witnesses.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
5. For material evidences of
administrative violations, which are types of goods easily to decay, the
temporary seizure decision issuers must make separate records and organize the
immediate sale thereof. The proceeds therefrom must be deposited into custody
accounts opened at State Treasuries. If later the material evidences are
confiscated under decisions of competent persons, such proceeds must be
remitted into the State budget; where the material evidences are not
confiscated, the proceeds must be returned to their lawful owners, managers or
users.
6. Within 10 days as from the
date of temporary seizure, the persons competent to decide on the temporary
seizure and the sanctioning must handle the temporarily-seized material
evidences and/or means by measures stated in the sanctioning decisions. If the
sanctioning form of confiscation is not applied, the material evidences or the
proceeds from the sale thereof shall be returned to their lawful owners,
managers or users.
The duration for temporary
seizure of material evidences and/or means can be prolonged but shall not
exceed 60 days for violation cases involving many complicated circumstances
which need to be verified or relating to many domestic and foreign individuals
and/or organizations.
7. The temporary seizure of
material evidences and/or means of administrative violations must be decided
and recorded in writing and violators and/or representatives of the violating
organizations must each be given a copy of such decision.
Article
27.- Body search according to administrative procedures
1. The body search according to
administrative procedures shall be conducted only when there are grounds to
believe that such persons hide in their bodies goods, documents or means of
administrative violations. The body search must be decided in writing and the
searched persons must each be handed a copy of such decision.
2. Only competent persons
defined in Article 25 of this Decree can decide on body search according to
administrative procedures.
3. Before conducting body
search, the searchers must show their customs identify cards and notify the
body search decisions to the searched persons. When conducting body search, the
female shall search the female and the male shall search male to the witness of
persons of the same sex.
4. All cases of body search must
be recorded and the searched persons must each be handed a copy of such
records.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. The search of transport means
and objects according to administrative procedures shall be conducted only when
there are grounds to believe that material evidences and/or means of
administrative violations are hidden in such transport means or objects. The
search of transport means and objects according to administrative procedures
must be decided in writing.
2. Only persons defined in
Article 25 of this Decree shall have the competence to decide on search of
transport means and objects according to administrative procedures.
3. When the search of transport
means and objects is conducted, the transport means or object owners or the
transport means commanders or operators and a witness must be present. Where
the means or object owners or means operators are absent, there must be two
witnesses.
4. All cases of search of
transport means, objects must be recorded and transport means or object owners
or transport means commanders or operators must each be given a copy of such
record.
5. The search of transport means
and/or objects of subjects enjoying diplomatic privileges and immunity must
comply with the provisions of international agreements which Vietnam has signed
or acceded to. When there are grounds to confirm that diplomatic bags or
consular bags have been abused for purposes contrary to the provisions of
international agreements on diplomatic ties, consular relations, which Vietnam
has signed or acceded to, or that the luggage or transport means contain goods
banned from export, import or goods not entitled to law-prescribed privileges
and immunity, the General Director of Customs shall decide to handle them
according to such international agreements.
Article
29.- Search of places where material evidences and/or means of
administrative violations are hidden
1. The search of places where
material evidences and/or means of administrative violations are hidden shall
be conducted only when there are grounds to believe that the material evidences
and/or means of administrative violations are hidden in such places.
2. Only the competent persons
defined in Article 25 of this Decree can issue decisions to search places where
material evidences and/or means of administrative violations are hidden.
Where places of hiding material
evidences and/or means of administrative violations are residential places, the
search decisions must be agreed upon in writing by district-level People’s
Committee presidents before they are implemented.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Chapter V
ADMINISTRATIVE VIOLATION-SANCTIONING PROCEDURES
Article
30.- Stopping administrative violations
Upon detecting administrative
violations, the persons with sanctioning competence must issue decisions to
immediately stop such violation acts. The stoppage decisions can be made in
writing or expressed in words, whistle, signals or other forms, depending on
each specific violation case.
Article
31.- Simple procedures
Where the sanctioning form of
caution or fine of up to VND 100,000, the sanctioning procedures shall comply
with the provisions in Article 54 of the Ordinance on Handling of
Administrative Violations.
Article
32.- Making records on administrative violations
For administrative violations in
the customs domain which do not fall into the cases prescribed in Article 31 of
this Decree, the persons with sanctioning competence must promptly make records
thereon according to regulations. If the record makers have no sanctioning
competence, the persons having the sanctioning competence must sign their names
in the records; in case of necessity, verification shall be made before signing
the records.
Forms and contents of, and order
of making, the records shall comply with the provisions in Article 55 of the
Ordinance on Handling of Administrative Violations.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The forms and contents of, the
order and procedures for promulgating, decisions to sanction administrative
violations in the customs domain shall comply with the provisions in Article 56
of the Ordinance on Handling of Administrative Violations.
Article
34.- Handling of cases where import goods are not cleared from customs
procedures within the prescribed time limits or are compelled to be taken out
of the Vietnamese territory or re-exported
1. If past 90 days counting from
the date the goods arrive at the unloading border-gates nobody comes to carry
out the customs procedures, the competent persons defined in Clause 2, 3 and 4
of Article 22 of this Decree must announce such on the mass media or publicize
it at customs offices. Within 180 days counting from the date of such
announcement, if nobody comes to carry out the customs procedures, the
competent persons defined in Clauses 2, 3 and 4 of Article 22 of this Decree
must issue decisions to confiscate or destroy the violation material evidences
according to regulations.
2. Where the owners of violation
material evidences or means cannot be identified, the competent persons defined
in Clauses 2, 3 and 4 of Article 22 of this Decree must announce such on the
mass media and publicize it at customs offices. If after 30 days counting from
the date of such announcement nobody comes to claim them, the competent persons
defined in Clauses 2, 3 and 4 of Article 22 of this Decree must issue decisions
to confiscate or destroy the violation material evidences or means according to
regulations.
3. Goods imported at variance
with permits, contracts, bills of lading or brief declarations, which are
disclaimed by good consignees, shall be handled according to the provisions in
Clause 2 of this Article.
4. The competent persons defined
in Clause 3 and 4 of Article 22 of this Decree must notify responsible
individuals or organizations of the cases where, according to regulations,
goods must be re-exported or taken out of the Vietnamese territory. If past 30
days counting from the date of receiving the notification of the customs
offices, the goods are not yet re-exported nor taken out of the Vietnamese
territory, the competent persons defined in Clauses 3 and 4 of Article 22 of
this Decree must issue decisions to confiscate or destroy the violation
material evidences according to regulations, except for cases of having
plausible reasons.
Article
35.- Procedures for confiscating and handling material evidences and means
of administrative violations
1. When applying the form of
confiscation of material evidences and/or means of administrative violations in
the customs domain, the persons with sanctioning competence, defined in Clauses
2, 3 and 4 of Article 22 of this Decree must strictly comply with the
confiscation procedures prescribed in Article 60 of the Ordinance on Handling
of Administrative Violations.
2. Persons issuing confiscation
decisions shall have to preserve and classify the violation material evidences
and means for transferring them to the district-level finance agencies or the
provincial/municipal auction service centers according to the provisions in
Clause 1, Article 61 of the Ordinance on Handling of Administrative Violations
and Articles 32, 33 and 34 of the Government’s Decree No. 134/2003/ND-CP of
November 14, 2003 detailing the implementation of a number of articles of the
2002 Ordinance on Handling of Administrative Violations.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. Violation material evidences,
which are easy-to-decay goods, shall be handled according to the provisions in
Clause 3, Article 61 of the Ordinance on Handling of Administrative Violations.
Article
36.- Execution of sanctioning decisions and postponing the execution of
fining decisions
1. Individuals and organizations
sanctioned for administrative violations must execute the decisions on
sanctioning such administrative violations within 10 days counting from the
date of receiving the sanctioning decisions. The payment of fines shall comply
with the provisions in Article 58 of the Ordinance on Handling of
Administrative Violations.
2. Individuals and organizations
that have received the administrative violation- sanctioning decisions but
failed to voluntarily execute them shall be coerced to execute them according
to regulations.
3. The postponement of execution
of fining decisions shall comply with the provisions in Article 65 of the
Ordinance on Handling of Administrative Violations.
Article
37.- Measures to coerce the execution of sanctioning decisions
1. The coercive execution of
administrative violation-sanctioning decisions shall comply with the following
measures:
a) Deducting part of wages or
incomes, deducting money from bank accounts;
b) Distraining assets with value
equivalent to the fine amounts for auction;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d) Other coercive measures
prescribed at Point c, Clause 1, Article 66 of the Ordinance on Handling of
Administrative Violations, except for measures of forcible dismantlement of
illegally-constructed works.
2. Before applying the coercive
measures prescribed at Points b and d of Clause 1 of this Article, the customs
offices must notify such in writing to the presidents of the People’s
Committees of the wards, communes or district townships where the coercion
shall be applied for implementation coordination.
3. Only the persons defined in
Article 67 of the Ordinance on Handling of Administrative Violations can issue
coercion decisions and have the task to organize the coercive execution of
sanctioning decisions.
4. When requested by customs
offices, the management or business units having individuals or organizations
that are forced to execute sanctioning decisions shall have to comply with the
provisions at Point a of Clause 1 of this Article.
5. The finance bodies, banks,
police, border guards and the local administrations at all levels shall have to
coordinate with one another for the execution of coercion decisions of customs
offices.
6. The coerced individuals and
organizations must bear all expenses for the organization of execution of
coercive measures.
Chapter VI
COMPLAINTS, DENUNCIATIONS, COMMENDATION AND HANDLING OF
VIOLATIONS
Article
38.- Complaints, denunciations
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. All citizens are entitled to
denounce illegal acts in sanctioning of administrative violations in the
customs domain.
3. The competence, procedures
and time limits for settlement of complaints and denunciations shall comply
with law provisions on complaints and denunciations.
Article
39.- Institution of administrative lawsuits
The institution of lawsuits
against administrative violation-sanctioning decisions, decisions to apply
preventive measures and the assurance of sanctioning of administrative
violations in the customs domain shall comply with law provisions on procedures
for settlement of administrative lawsuits.
Article
40.- Commendation
Individuals and organizations
that record achievements in preventing and combating administrative violations
in the customs domain shall be commended/rewarded according to the general
regime of the State.
Article
41.- Handling of violations
Those persons who have
competence to sanction administrative violations in the customs domain but
harass for bribe, tolerate, cover up, fail to sanction or sanction not in time,
improperly or ultra vires the administrative violations shall, depending on the
nature and seriousness of their violations, be disciplined or examined for
penal liability; if causing damage, they must pay compensations therefor
according to law provisions.
Chapter
VII
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article
42.- Implementation effect
1. This Decree takes
implementation effect 15 days after its publication in the Official Gazette.
2. To annul Decrees No. 16/CP of
March 20, 1996; No. 54/1998/ND-CP of July 21, 1998 and No. 58/2000/ND-CP of
October 24, 2000 of the Government prescribing the sanctioning of
administrative violations in the customs domain.
3. Where international
agreements which Vietnam has signed or acceded to contain provisions on
sanctioning of administrative violations in the customs domain different from
the provisions of this Decree, the provisions of such international agreements
shall apply.
4. The Finance Ministry shall
assume the prime responsibility for, and coordinate with the concerned
ministries and branches in, guiding the implementation of this Decree.
5. The ministers, the heads of
ministerial-level agencies, the heads of Government-attached agencies and the
presidents of provincial/municipal People’s Committees shall have to implement
this Decree.
ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Phan Van Khai