Thông tư 09/2001/TT-BTM

CIRCULAR

GUIDING THE ORGANIZATION, TASKS AND POWERS OF LOCAL MARKET MANAGEMENT FORCES

Pursuant to the May 10, 1997 Commercial Law;
Pursuant to the Governments Decree No. 10/CP of January 23, 1995 on the organization, tasks and powers of the market management body;
Pursuant to the Governments Decree No. 15/CP of March 2, 1993 on the tasks, powers and State management responsibilities of the ministries and ministerial-level agencies;
Pursuant to the Prime Ministers decision in Document No. 696/CP-KTTH of August 2, 2000 and the Trade Ministrys Decision No. 1211/QD-BTM of August 28, 2000 on the assignment of the functions and tasks of the specialized trade inspectorate to the market management force;
After obtaining the agreement of the Government Commission for Organization and Personnel in Document No. 76/BTCCBCP of April 9, 2001;
The Trade Ministry hereby guides in detail the organization, tasks and powers of the local market management forces as follows:

I. GENERAL PROVISIONS

1. The market management force shall perform and exercise the functions, tasks and powers prescribed in the Governments Decree No. 10/CP of January 23, 1995 on the market inspection and control, fight against law violations in trade activities, as well as the functions, tasks and powers of the specialized trade inspectorate under the Commercial Law;

2. The market management force shall be built into a tightly organized regular force (according to Point 7, Section III, Part Two of the Political Bureaus Resolution No. 12-NQ/TW of January 3, 1996), thus ensuring the unified management and direction from the central to local levels;

3. The market management forces activities aim to establish order and discipline, make markets healthy and ensure that business activities on markets are compliant with the States laws;

4. The market management force shall independently operate under the provisions of law, abide by law and be answerable before law and superior agencies for its handling decisions;

5. While on official duty, market controllers shall have to strictly perform their assigned tasks and exercise their vested powers; ensure that the inspection and handling of violations are carried out in compliance with law and in an impartial, objective, accurate and prompt manner.

II. TASKS AND POWERS OF LOCAL MARKET MANAGEMENT FORCES

Pursuant to Article 5 of Decree No. 10/CP and Articles 250 and 257 of the Commercial Law, the major tasks of the local market management forces shall be as follows:

1. Tasks and powers of the Market Management Sub-Departments

The Market Management Sub-Departments are organizations attached to the provincial/municipal Trade Services or Services with the function of State management over trade (hereinafter referred to as provincial/municipal Services). They are tasked to inspect and control markets, fight acts of trading in smuggled goods and banned goods, and producing and trading in fake goods; inspect and examine the observance of the commercial legislation by organizations and individuals engaged in activities in their provinces and centrally-run cities. More concretely:

1.1. To direct market management teams in performing their tasks of inspecting and controlling markets; detecting illegally imported goods, banned goods, fighting the production of and trading in fake goods and other illegal business activities.

1.2. To direct market management teams in inspecting, detecting and handling the violations of regulations on traders and commercial activities under the Commercial Law, such as:

+ Conducting business activities without business registration certificates or not in line with contents inscribed in business registration certificates;

+ Continuing trade activities when having already been suspended therefrom or stripped of the right thereto;

+ Having no working offices, commercial shops or stores; having no signboards or signboards inscribed with contents not in line with those stated in business registration certificates;

+ Setting up representative offices and/or branches without permits therefor or letting representative offices and/or branches operate in contravention of the permits contents;

+ Trading in goods or providing commercial services, which are banned from trading or provision by law;

+ Violating the regulations on business conditions for goods and/or services subject to conditional business according to the provisions of law;

+ Violating the States regulations on observance of the price brackets or levels or posting up of prices of goods and commercial services;

+ Failing to provide full information on properties and utility of goods, thus causing damage to consumers� interests;

+ Violating the regulations on goods labeling;

+ Violating the States regulations on trade promotion, advertising, exposition and presentation of goods, trade fairs and exhibitions;

+ Violating the regulations on observance of the regime of invoices and vouchers in goods trading and circulation;

+ Committing fraudulent acts or acts of deceiving consumers in goods trading or commercial service provision;

+ Violating the States regulations on goods export and import;

+ Committing acts of illegal competition;

+ Committing other acts of violating the commercial legislation;

+ Taking acts against market controllers who are on duty.

1.3. To work out programs and/or plans for market inspection and control in each period, then report them to the provincial/municipal Services for decision; to organize the inspection and control of the observance of the commercial legislation by business organizations and individuals; to apply preventive measures and handle administrative violations falling under their competence and cases forwarded by the market management teams, and be responsible for handling decisions.

Cases falling beyond their competence shall be reported by the directors of the Sub-Departments to the presidents of the Peoples Committees of the provinces and centrally-run cities or the director of the Market Management Department for handling.

1.4. To directly administer, direct, guide and inspect operations of, and observance of the regulations on market management work by, market management teams and market controllers.

1.5. To propagate and disseminate the commercial policies and legislation; to propose the Peoples Committees of the provinces and centrally-run cities to take measures to ensure the observance of the commercial legislation and prevent law-breaking acts; to propose the competent agencies to amend, supplement or promulgate legal documents concerning the market management work.

1.6. To function as standing bodies to assist the directors of the provincial/municipal Services in organizing the operation coordination among local branches and authorities in the fight against smuggling, fake goods and banned goods production and trading and other illegal business activities that may take place in their localities.

1.7. To receive and settle according to their competence complaints and denunciations about activities of inspecting and handling administrative violations by market management teams as well as law-breaking acts committed by market controllers.

1.8. To sum up the law observance situation on markets and activities of inspecting and controlling markets in their localities and the observance of the prescribed reporting regime.

1.9. To manage and materialize the preferential regimes and policies toward their employees according to the division of responsibility for personnel management; to organize the professional skill fostering for controllers; to manage finance, assets, seals and stamps assigned to them according to regulations; to build material foundations and ensure the necessary working conditions for their operations and manage the local market management forces’ funds for combat illegal business acts.

2. Tasks and powers of market management teams

Market management teams are units attached to the Market Management Sub-Departments. They shall perform the following tasks:

2.1. To detect and inspect illegally imported goods, banned goods, fake goods production and trading; to inspect the business registration and observance of the registered contents; to inspect the observance of regulations on traders and trade activities; to detect other acts of violating the commercial legislation in their localities according to assignment and responsibility division by the Market Management Sub-Departments as specified in Clauses 1.1 and 1.2, Point 1, Section II of this Circular.

2.2. To apply preventive measures and handle violations of the commercial legislation according to their competence. Those cases falling beyond their competence shall be reported to the directors of the Sub-Departments for handling.

2.3. To coordinate with the concerned agencies in the localities under their charge in inspecting and handling administrative violations related to various fields.

2.4. To propose measures for market management and prevention of violations of the commercial legislation in their localities, as well as amendments and supplements to trade mechanisms, policies and legislation, which must be amended and/or supplemented, to the Sub-Departments for the latter to propose them to the competent agencies.

2.5. To sum up the market situation in their localities and to implement the prescribed reporting regime.

2.6. To inspect activities of controllers in observing the working regulation and law provisions on market inspection and control.

2.7. To manage and materialize the preferential regimes and policies toward their employees according the management responsibility delegation; to manage finance, assets, working facilities, seals and stamps, and to archive case dossiers according to regulations.

3. Powers and responsibilities of market controllers

Pursuant to Article 6 of Decree No. 10/CP and Articles 252 and 253 of the Commercial Law, when conducting inspection and control of the observance of the commercial legislation, the market controllers shall have the following powers and responsibilities:

3.1. Powers:

- To be entitled to request organizations and individuals engaged in trade business activities to supply data, documents and/or evidences and give answers to matters directly related to the inspection; conduct inspections upon detecting signs of violations of the commercial legislation at the places where the goods, material evidences and means involved in violations, books, vouchers, invoices, contracts and other relevant papers are manufactured or hidden;

- To be entitled to contact the concerned organizations and individuals to verify situation and gather data and evidences to serve the inspection work;

- To request the functional agencies to expertise material evidences involved in violations in cases of necessity;

- To make written inspection records and propose handling measures;

- To be entitled to apply measures to prevent and handle administrative violations according to their competence and law provisions.

3.2. Responsibilities:

- To abide by laws and the working regulations and be answerable to the competent State agencies and law for all of their acts and decisions;

- To produce market inspection cards upon conducting the inspection. In cases where the law prescribes that the inspection and/or examination must obtain inspection decisions of the competent authorities, such inspection decisions shall have to be produced together with the inspection cards;

- To strictly comply with the inspection and examination procedures, not to cause troubles, harass for bribes or impede normal trade activities and cause damage to traders’ legitimate interests;

- To report to competent agencies on the inspection and examination results and propose handling measures.

III. ORGANIZATION AND PAYROLL PERSONNEL OF LOCAL MARKET MANAGEMENT FORCES

1. The Market Management Sub-Departments are bodies attached to the provincial/municipal Services

Market Management Sub-Departments shall be headed by their directors who are deputy directors of the provincial/municipal Services and are assisted by a number of deputies.

The appointment and dismissal of directors of the Market Management Sub-Departments shall be proposed by directors of the provincial/municipal Services according to the criteria set by the Trade Ministry and decided by the presidents of the Peoples Committees of the provinces and centrally-run cities.

The appointment and dismissal of deputy directors of the Market Management Sub-Departments shall be proposed by directors of the Market Management Sub-Departments according to the criteria set by the Trade Ministry and decided by directors of the provincial/municipal Services after consulting and reaching agreements with the heads of the organization and personnel boards of the provincial/municipal administrations.

2. Organizational structure of a Market Management Sub-Department consists of:

a/ Advisory sections assisting the Sub-Departments director

Basing himself/herself on the working requirements and tasks, organizational scale of market management forces and the delegation of responsibilities for organization and personnel in their localities..., the director of the Market Management Sub-Department shall work out a plan for organization of such Sub-Departments sections and report it to the director of the provincial/municipal Service for decision after obtaining written consent of the head of the organization and personnel board of the provincial/municipal administration.

The functions and tasks of sections under Sub-Departments shall be defined by directors of the provincial/municipal Services at the proposals of directors of such Market Management Sub-Departments.

b/ Market management teams under the Sub-Department:

b.1/ Basing himself/herself on market development scale in each area in the locality and requirements of the inspection and control work, the Sub-Departments director shall request the provincial/municipal Services director to propose to the president of the Peoples Committee of the province or centrally-run city for decision the setting up of market management teams on the following organizational principles:

- Teams attached to the Sub-Department to handle cases occurring within the entire area of the province or city;

- Teams attached to the Sub-Department, which shall be stationed in urban districts, rural districts, provincial capitals or provincial towns (hereinafter referred collectively to as districts) with relatively developed markets where goods exchange hubs are concentrated;

- Inter-district market management teams;

- Market management teams shall not have their own assisting apparatus: depending on the organizational size of the teams, the Sub-Departments directors shall decide the appointment of full-time or part-time employees thereto. The appointment of part-timers must not violate the organizational regulations such as team leaders must not concurrently be accountants, cashiers or accountants must not concurrently be cashiers.

b.2/ Each team shall have a head who takes the full charge and is assisted by a number of his/her deputies.

b.3/ Market management teams shall be named according to numbers 1, 2, 3...

b.4/ The appointment and/or dismissal of heads and deputy heads of market management teams shall be proposed by directors of the Market Management Sub-Departments and decided by directors of provincial/municipal Services on the basis of criteria set by the Trade Ministry.

c/ Payrolls of the Market Management Sub-Departments are included in the total State management payrolls assigned by the provinces to the provincial Services.

IV. ON WORKING CONDITIONS

1. The Market Management Sub-Departments and market management teams shall have their working offices, seals, be furnished with working facilities as provided for and allocated operation funding by the State budget in conformity with the market managements operation particularities, and be entitled to open transaction accounts at the State Treasury, in which:

+ The Sub-Departments shall be organized into budget drafting units, entitled to open transaction accounts and custody accounts at the State Treasury and set up funds for combat against illegal business acts under the Finance Ministrys guidance;

+ Teams shall not be budget drafting units, but shall be entitled to open accounts to receive wage and advance of expenses for their operations and settle operation funding with the Sub-Departments.

2. The Market Management Sub-Departments shall be entitled to set up funds for combat against illegal business acts and give rewards from the revenue source generated from the handling of violations according to the Governments regulations.

3. Market management employees are subject to the prescribed professional criteria applicable to State employees, enjoy wages according to the wage grades and table prescribed by the State for the market management; are furnished with uniform, badges, insignia and signs uniformly in the entire force under the guidance of the Trade Ministry and the Finance Ministry. Those employees qualified for inspection and control tasks shall be granted inspection cards by the Trade Ministry (the Market Management Department) for performance of such tasks.

V. WORKING RELATIONSHIP

The relationship between the Trade Ministry and the Peoples Committees of all levels and local market management organizations shall be as follows:

1. The Trade Ministry shall direct, guide and uniformly manage the market management force throughout the country in the inspecting operations, State employee criteria, professional fostering and equipment regime applicable to the market management force.

The Market Management Department shall have to assist the Trade Ministry in giving the unified branch instructions to the Market Management Sub-Departments throughout the country on operation orientation of the market management force in each period; guidance, force consolidation, preferential regimes and policies, State employee professional criteria (including those applicable to leaders of market management sub-departments and teams), professional work of inspection and handling of violations, inspecting skill training and fostering; inspection of operations of market management sub-departments and teams and market controllers; creation of necessary working conditions (attire and uniform, fundamental weapons and supporting tools, issuance of uniform market management seals and stamps, granting and withdrawal of inspection cards, market management signs, badges and insignia) for market management forces throughout the country.

2. The Peoples Committees of the provinces or centrally-run cities shall be answerable to the Government for the market management work in their localities and manage the market management forces in their localities according to law.

- The directors of the provincial/municipal Services shall assist the presidents of the Peoples Committees of the provinces or centrally-run cities in managing, directing and inspecting operations of the Market Management Sub-Departments in terms of their operation programs and plans, organization and payroll personnel, and materialization of preferential regimes and policies toward their employees according to personnel management responsibility delegation.

- The Sub-Departments directors shall have to:

+ Assist directors of the provincial/municipal Services in directing the market management work and assume the prime responsibility for coordination between the market management force and other inspection and control forces in their localities under the authorization of directors of the provincial/municipal Services; devising programs and plans for coordination with the district Peoples Committees in supervising and creating conditions for operations of market management teams.

+ Base themselves on the assigned payrolls to report such to directors of the provincial/municipal Services, so that the latter request the competent authorities to organize examinations to recruit employees; dispose forces for market management work, fight smuggling and fake goods in their respective localities;

+ Transfer team heads, team deputy heads, section heads and deputy heads and officials and employees within their Sub-Departments according to requirements of tasks, when necessary, after reporting such to directors of the provincial/municipal Services;

+ Raise wages according to the prescribed regimes, commend, reward and discipline public employees of sub-departments according to the management responsibility delegation.

3. Heads of market management teams operating in districts or inter-district areas shall have to perform tasks prescribed at Point 2, Section II of this Circular and other tasks assigned by the Market Management Sub-Departments and district Peoples Committees; report and submit to the direction by the presidents of the Peoples Committees of local districts (where teams operate) regarding the teams inspection programs and plans and operation results in each period.

VI. ORGANIZATION OF IMPLEMENTATION

1. Directors of the provincial/municipal Services shall base themselves on this Circular to direct directors of the Market Management Sub-Departments in elaborating plans for organization and payroll personnel of such Market Management Sub-Departments and submitting them to the presidents of the Peoples Committees of the provinces or centrally-run cities for decision. The organizational consolidation and strengthening should be quickly carried out but must comply with the organizing principles and law provisions and must not affect the inspection operation of the market management force.

2. This Circular takes effect 15 days after its signing for promulgation and replaces Circular No. 10/TM-QLTT of April 19, 1995 of the Trade Ministry on the functions, tasks and powers of the local market management forces. All stipulations previously promulgated by the Trade Ministry which are contrary to this Circular are now annulled.