Thông tư 04/2000/TT-BVGCP

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE GOVERNMENT’S DECREE No.44/2000/ND-CP OF SEPTEMBER 1, 2000 ON "SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE FIELD OF PRICE"

In furtherance of Article 24 of the Government’s Decree No.44/2000/ND-CP of September 1, 2000 on "sanctioning administrative violations in the field of price" (hereinafter called Decree No.44/CP for short), the Government Pricing Committee hereby guides a number of points as follows:

Section I. GENERAL PROVISIONS

1. Administrative violations in the field of price mean acts committed by individuals or organizations intentionally or unintentionally, violating the regulations on the State management of prices, which are not serious enough for penal liability examination, but, according to law provisions must be administratively sanctioned.

2. Objects of regulation specified in Decree No.44/CP include:

- Individuals, State management agencies, armed force units, economic organizations, socio-political organizations and socio-professional organizations of all economic sectors, which are engaged in goods and service production and/or business activities.

- Foreign organizations and individuals committing acts of administrative violation in the field of price on the Vietnamese territory shall be sanctioned like the Vietnamese ones, except otherwise provided for by international agreements which Vietnam has signed or acceded to.

3. A number of expressions used in Decree No.44/CP shall be construed as follows:

- Commission of violation more than once is the case where an act of administrative violation in the field of price is committed for the second time on.

- Recidivism is the case where a subject violated an act of administrative violation, and was already sanctioned, but while the prescribed duration for the violator to be considered having never been sanctioned not yet expired, such subject committed a new act of administrative violation in the same field.

- Statute of limitations for sanctioning an administrative violation in the field of price shall be 2 years from the date such administrative violation is committed to the time point when such act of violation is detected.

- Bodies competent to set prices defined in Decree No.44/CP include: the Government and the bodies authorized or prescribed by the Government to have competence to decide prices.

4. On the sanctioning principles: When an administrative violation sanction against an organization or individual that at the same time commits different acts of administrative violation in the field of price, which are all subject to the sanctioning form of fine, is decided, all fine amounts shall be aggregated into a general fine level. But the fine level for each act must be clearly inscribed. If the general fine level goes beyond the sanctioning competence of the first handling body, the dossier shall be transferred to the competent authority(ies) in the locality where the administrative violation act is committed for sanctioning according to the latter’s competence as provided for in Articles 16 and 17 of Decree No.44/CP.

5. In addition to the specific fine level for each act of administrative violation in the field of price specified in Section II of this Circular, depending on the seriousness of their violations, the individuals and organizations that have committed administrative violation acts shall also be subject to:

5.1. Additional sanctioning form of confiscating all the price differences acquired through their violations.

5.2. One or several of the following measures:

a/ Compelled compensation for the whole loss amount caused by the administrative violation in the field of price;

b/ Recovery of the money used as goods price or freight subsidies as well as money in support of the price policy implementation, which have been acquired through false or over-declaration of dossiers or vouchers; or the amounts of such money already used for wrong purposes;

c/ Retrospective collection of all payable amounts which have been evaded by employing tricks in the price declaration;

d/ Compelled payment of all expenses for the refund of money to the organizations and individuals to which the prices have been wrongly applied, under decisions of the competent authorities;

e/ Revocation of price decisions issued ultra vires or wrong price decisions;

Section II. ACTS OF ADMINISTRATIVE VIOLATION IN THE FIELD OF PRICE, SANCTIONING FORMS AND LEVELS

1. Acts of failing to strictly comply with the regulations on price posting and reporting:

1.1. Acts of failing to strictly comply with the regulations on price posting shall be subject to:

a/ Warning, for first-time and non-damaging violations, for acts of failing to post up prices of goods and/or services which have been set by the concerned individuals and enterprises by themselves;

b/ A fine of between VND 50,000 and 200,000 for acts of:

- Failing to strictly comply with the regulations on posting of prices of goods and/or services which are on the list of goods and services with prices set by the State.

- Second-time violations or relapsing into acts prescribed in Paragraph a.

1.2. Acts of failing to strictly comply with the regulations on price reporting

A fine of between VND 1,000,000 and 5,000,000 shall be imposed on individuals and enterprises that commit acts of failing to strictly comply with the regulations on reporting upon the price-managing bodies’ requests on such price-formulating factors as: goods and service supply capability, production and business costs, etc., for goods and services with prices set by the State.

2. Acts of wrongly applying prices:

2.1. Warning, for first-time and non-damaging violations, for acts of buying goods and/or services at prices lower than the posted ones or selling goods and/or services at prices higher than the posted ones, for those on the list of goods and services with prices set by individuals and enterprises by themselves.

2.2. A fine of between VND 100,000 and 500,000 for acts of:

a/ Buying or selling goods and/or services on the list of goods and services with prices set by the State at prices different from their posted prices.

b/ Second-time violations or relapsing into acts prescribed in Clause 2.1.

2.3. A fine of between VND 500,000 and 2,000,000 shall be imposed against acts of buying and/or selling goods or providing services at prices or charges different from the specific price levels or price limits prescribed by the competent authorities.

2.4. A fine of between VND 1,000,000 and 5,000,000 shall be imposed against acts of:

a/ Taking advantages of natural calamities to raise selling prices of goods or providing charges of services to obtain illicit profits;

b/ Taking advantages of natural calamities and other particularly difficult circumstances of the society to depress buying prices of goods, which are not up to the normal quality and prices of such goods before the natural calamities occur.

In addition to the sanctioning form of fines, organizations and individuals that commit administrative violations prescribed in this Clause 2 shall also be subject to the sanctioning forms specified in Clause 5.1., and Paragraph a, Clause 5.2., Section I of this Circular.

3. Acts of tricking in compiling the price-declaring dossiers:

3.1. A fine of between VND 2,000,000 and 5,000,000 shall be imposed against acts of:

a/ Falsely declaring prices at variance with the actual prices in vouchers and invoices or reasonable prices on the market and constituting costs involved in the price plans for goods and services, which have been submitted to the competent authorities for promulgation or the competent authorities for evaluation of price plans before submitting them to the superior bodies for decision;

b/ Untruthfully reporting costs in the price plans.

3.2. A fine of between VND 5,000,000 and 10,000,000 shall be imposed against the following acts:

a/ Declaring goods-selling prices or service- providing charges lower than the actual ones of goods and services, which are subject to the price difference collection prescribed by the State for the price policy implementation;

b/ Declaring goods-selling prices or service-providing charges higher than the actual ones of goods and services, which are subject to the price difference collection prescribed by the State for the price policy implementation.

In addition to the sanctioning form of fines, individuals and organizations committing administrative violations shall also be subject to other measures prescribed in Paragraph c, Clause 5.2, Section I of this Circular.

3.3. A fine of between VND 10,000,000 and 20,000,000 shall be imposed against the following acts:

a/ Falsely declaring or over-declaring the quantities of goods for transport, purchase and sale at variance with the actual ones in order to receive price or freight subsidy money.

b/ Falsely declaring or over-declaring the goods transport distances in order to receive the price or freight subsidy money.

In addition to the sanctioning form of fines, individuals and organizations committing administrative violations shall also be subject to other measures prescribed in Paragraph b, Clause 5.2, Section I of this Circular.

4. Acts of using for wrong purposes the price and/or freight subsidy money and money amounts provided in support of the price policy implementation:

A fine of between VND 5,000,000 and 10,000,000 shall be imposed against the following acts:

a/ Using for wrong purposes the price or freight subsidy money, with regard to goods and services eligible for price and freight subsidy policy;

b/ Using for wrong purposes the money amounts provided in support of the price policy implementation.

In addition to the sanctioning form of fines, individuals and organizations committing administrative violations shall also be subject to the sanctioning forms prescribed in Paragraph b, Clause 5.2, Section I of this Circular.

5. Acts of setting wrong prices or setting prices ultra vires:

A fine of between VND 2,000,000 and 3,000,000 shall be imposed against the following acts:

a/ Setting on an enterprise’ own initiative prices of goods and/or services which do not fall under its competence;

b/ Setting prices higher or lower than specific price levels, outside the price bracket, higher than the ceiling price, lower than the floor price prescribed by the competent authority.

In addition to the sanctioning form of fines, individuals and organizations committing administrative violations shall also be subject to the sanctioning forms prescribed in Clause 5.1, Paragraphs a and e, Clause 5.2, Section I of this Circular.

6. Acts of violating the regulations on goods prices or commercial service charges in the sale promotion period:

6.1. Warning, for first-time and non-damaging violations, for acts of failing to post up the sale time and prices of goods and/or services on sale promotion with prices set by individuals and enterprises themselves.

6.2. A fine of between VND 50,000 and 200,000 shall be imposed against the following acts:

a/ Failing to post up the sale time and prices of goods and/or services on sale promotion with prices set by the State;

b/ Second-time violation or relapsing into acts prescribed in Clause 6.1.

6.3. A fine of between VND 500,000 and 2,000,000 shall be imposed against the following acts:

a/ Selling goods or providing commercial services in the sale promotion period at prices lower than 70% of the pre-sale promotion goods prices or commercial service charges;

b/ Promoting the sale with goods and/or services with values 30% higher than the pre - sale promotion goods prices or commercial service charges.

In addition to the sanctioning form of fines, individuals and organizations committing administrative violations shall also be subject to the sanctioning forms prescribed in Paragraph a, Clause 5.2, Section I of this Circular.

Section III. COMPETENCE AND PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE FIELD OF PRICE

I. Sanctioning competence:

1.1. For administrative violation acts subject to the additional sanctioning forms and other measures beyond their competence, the first-handling bodies shall, within 3 working days from the date of making written records on such violations, have to propose in writing to the bodies with sanctioning competence the specific sanctioning forms and levels.

1.2. The bodies with sanctioning competence that receive written proposals on administrative sanctions shall have to issue sanctioning decisions within the time limit prescribed in Clause 2.2, Section III of this Circular. The sanctioning decisions must be notified to the proposing bodies.

2. The procedures for sanctioning administrative violations in the field of price, which are carried out in compliance with Articles 45, 46, 47, 48 and 49 of the July 6, 1995 Ordinance on Handling of Administrative Violations, are concretized as follows:

2.1. Warning shall be applied to first-time or non-damaging violations. The decision on warning shall be made in writing according to the set form.

2.2. Upon detecting an act of administrative violation in the field of price, the competent body shall have to immediately stop such administrative violation act and make a record thereon according to the set form. Such a record must be made into at least 2 copies with signatures of the record maker, violating organization or individual or the representative of the violating unit, and shall be sent to the violating organization or individual and the concerned parties. For acts of violating the regulations on price decision, the persons with sanctioning competence shall have to promptly report to and request the competent bodies to suspend or annul the written price decisions issued ultra vires or wrong price decisions according to the provisions of the Law on Promulgation of Legal Documents.

Within fifteen working days after the written record is made, the body with sanctioning competence shall have to issue a sanctioning decision according to the set form. In cases where a violation involves many complicated details that need to be verified, the above-said time limit may be extended but must not exceed 30 days. The sanctioning decision must be sent to the violating individual or organization and the fine collector within 3 days after the sanctioning decision is issued.

For fines of VND 2,000,000 or more, the sanctioning decisions must also be sent to the Peoples Procuracy of the same level.

2.3. The decisions on sanctioning administrative violations in the field of price shall take effect after its signing, unless otherwise specifically inscribed therein. The sanctioned individuals and organizations shall have to abide by the time limit inscribed in the sanctioning decisions. Past the prescribed time limit, if the violators still fail to execute the sanctioning decisions, they shall be compelled to do so with measures prescribed in Clause 2, Article 20 of Decree 44/CP.

2.4. Clauses 2 and 3, Article 19 of Decree No.44/CP shall be implemented in compliance with a joint circular of the Finance Ministry and the Government Pricing Committee.

Section IV. COMPLAINTS, DENUNCIATIONS AND HANDLING OF VIOLATIONS

1. Complaints, denunciations and settlement thereof:

Individuals and organizations that have been handled for administrative violations in the field of price are entitled to lodge complaints according to the Law on Complaints and Denunciations. Pending the settlement of their complaints and/or denunciations, the sanctioned organizations and individuals shall still have to execute the sanctioning decisions of the competent authorities.

2. Handling of violations:

If persons competent to sanction administrative violations in the field of price commit acts for personal profits or lack responsibility, cover or ignore the handling of, or handle the violations not in time, not correspondingly to their seriousness or not according to their competence as prescribed, they shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability. If they cause damage to the State, organizations and/or individuals, they shall have to pay the compensation therefor according to the provisions of law.

If persons sanctioned for administrative violations in the field of price commit acts of obstructing, opposing officials on duty or deliberately delaying or evading the execution of administrative violation- sanctioning decisions, they shall, depending on the nature and seriousness of their violations, be administratively handled or examined for penal liability according to the provisions of the current legislation.

Section V. ORGANIZATION OF IMPLEMENTATION

This Circular takes effect 15 days after its signing.

All problems arising in the course of implementation should be promptly reported by the ministries, branches and localities to the Government Pricing Committee for appropriate supplements and/or amendments to this Circular.