Nghị định 37/2005/ND-CP

Decree of Government No. 37/2005/ND-CP, stipulating the procedures for application of coercive measures for execution of administrative violation-sanctioning decisions.

Decree of Government No. 37/2005/ND-CP, stipulating the procedures for application of coercive measures for execution of administrative violation-sanctioning decisions. đã được thay thế bởi Decree 166/2013/ND-CP enforcement of decisions to impose administrative penalties và được áp dụng kể từ ngày 28/12/2013.

Nội dung toàn văn Decree of Government No. 37/2005/ND-CP, stipulating the procedures for application of coercive measures for execution of administrative violation-sanctioning decisions.


THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 37/2005/ND-CP

Hanoi, March 18, 2005

 

DECREE

STIPULATING THE PROCEDURES FOR APPLICATION OF COERCIVE MEASURES FOR EXECUTION OF ADMINISTRATIVE VIOLATION-SANCTIONING DECISIONS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations;
At the proposal of the Minister of Public Security,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope and objects of regulation

This Decree provides for the order and procedures for application of coercive measures for execution of administrative violation-sanctioning decisions, or decisions on application of measures to redress consequences caused by administrative violations in cases of non-sanction (called administrative coercion for short) against individuals or organizations that are sanctioned for administrative violations but fail to voluntarily execute the above-said decisions after the expiration of the voluntary execution duration or the expiration of the execution postponement duration.

Article 2.- Administratively coercive measures

Administratively coercive measures shall include:

1. Salary or income deduction; bank-deposit deduction;

2. Distrainment of property with a value equal to fine amount for auction;

3. Other coercive measures for confiscation of material evidences and/or means used for commission of administrative violations; forced restoration of the original state altered due to administrative violations or forced dismantlement of illegally constructed works; forced implementation of measures to overcome living-environment pollution or epidemics spread; forced taking out of the Vietnamese territory of articles which cause harms to human health, domestic animals and crops, baneful cultural products.

Article 3.- Sources of deducted money and distrained property of organizations subject to the application of coercive measures

1. For organizations being state agencies or armed force units which are subject to the administratively coercive measure of money deduction, property distrainment and payment of coercion expenses, deductions shall be made from state budget allocations to such agencies or units.

2. For state-run non-business units with revenues, armed force units allowed to conduct revenue-generating activities under law provisions, which are subject to money deduction, property distrainment and payment of coercion expenses, such amounts shall be taken from sources of revenue and property brought about by those activities.

3. For political organizations, socio-political organizations, the money deduction, property distrainment and payment of coercion expenses shall be made from the money and property of such organizations, excluding properties which, as provided for by law, must not be used in order to fulfill the civil liabilities.

4. For social organizations, socio-professional organizations, social funds and charity funds, the money deduction, property distrainment, payment of coercion expenses shall be made from the money and property of such organizations or funds.

5. For enterprises (state enterprises, joint-stock companies, limited liability companies, joint-venture companies, companies with 100% foreign capital, private enterprises, cooperatives), the money deduction, property distrainment, payment of coercion expenses shall be made from the money, property or revenues in cash, or in kind of such enterprises.

Article 4.- Competence to issue administrative-coercion decisions

The following persons shall have competence to issue decisions to apply one of the administratively coercive measures prescribed in Article 2 of this Decree and have to organize the coercive execution of the sanctioning decisions of their own and of their subordinates:

1. Presidents of commune-, district- and provincial-level People’s Committees;

2. Chiefs of district-level police offices, directors of the provincial-level Police Departments; director of the Police Department for Administrative Management over Social Order, director of the Traffic Police Department, director of the Fire-Fighting Police Department, director of the Police Department for Investigation of Crimes related to Economic Management Order and Positions, director of the Police Department for Investigation of Social Order-Related Crimes, director of the Police Department for Investigation of Drug-Related Crimes, director of Exit and Entry Management Department under the Ministry of Public Security;

3. Border-guard station commanders, provincial-level border-guard commanders; director of the Coast Guard Department;

4. Directors of the provincial-level Customs Departments, director of the Department for Investigation against Smuggling under the General Department of Customs;

5. Heads of the Ranger Sub-Departments, director of the Ranger Department;

6. Heads of the Tax Sub-Departments, directors of the provincial/municipal Tax Departments;

7. Heads of the Market Management Sub-Departments, director of the Market Management Department;

8. Specialized chief inspectors of the provincial/municipal Services, specialized chief inspectors of the ministries, ministerial-level agencies or Government-attached agencies;

9. Judges assigned to chair court sessions, heads of the provincial-level civil judgment execution bureaus, heads of the judgment execution offices of military zones and equivalent levels.

Article 5.- Principles for deciding on the coercion and organizing the coercive execution of sanctioning decisions of subordinates

The persons defined in Article 4 of this Decree shall have competence to issue decisions on coercion and organize the coercive execution of sanctioning decisions of their subordinates in the following cases:

1. Subordinates are not competent to issue coercion decisions;

2. Subordinates are competent to issue coercion decisions but have not enough  forces and/or means to organize the execution of their coercion decisions and request in writing the superiors to issue coercion decisions;

3. The execution of sanctioning decisions involves many localities, organizations, individuals or the coerced individuals are religious dignitaries or prestigious people in the society and the superiors deem it necessary to issue coercion decisons.

Article 6.- Administrative- coercion decisions

1. Administrative coercion shall be effected only when there are administrative-coercion decisions of competent persons defined in Article 4 of this Decree. An administrative-coercion decision shall contain the following details: date of issuance of the decision; grounds for issuance of the decision; full name, position (rank), unit of the decision issuer; full name, residence place, office of the coerced individual or organization; coercive measures; execution time and venue; the agency assigned to take charge of executing the coercion decision; coordinating agencies; signature of the decision issuer, seal of the decision-issuing agency.

2. Coercion decisions must be addressed to the coerced individuals or organizations before the execution thereof. Coercion decisions of subordinate People’s Committees must also be sent to the immediate superior People’s Committees. Where the coercion is effected through measures prescribed in Clauses 2 and 3 of Article 2 of this Decree, the decisions thereon must be sent to the commune-level People’s Committees of the localities where the coercion shall be organized before the execution thereof for coordinated implementation.

Coercion decisions must be addressed to coerced individuals or organizations as well as relevant individuals and organizations 5 days before the actual coercion.

Article 7.- Responsibility to organize the execution of administrative-coercion decisions

1. Persons who have issued administrative- coercion decisions shall have to organize the execution of such decisions.

2. For administrative-coercion decisions of presidents of People’s Committees of different levels, the People’s Committee presidents who have issued coercion decisions shall base on the functions and tasks of the functional agencies of their People’s Committees to assign the agencies taking charge of execution of coercion decisions. Such assignment must be based on the principle that agencies shall be assigned to handle cases and matters falling in the professional domains of such agencies; in cases where a case or matter involves many agencies, the assignment of an agency to take charge of execution of the coercion decision shall be properly decided on a case-by-case basis.

3. Relevant organizations and individuals are obliged to coordinate with the persons competent to issue coercion decisions or agencies assigned to take charge of organizing the coercion in applying measures to execute administrative-coercion decisions.

Article 8.- Ensuring order and safety in the course of coercion

1. The agencies assigned to take charge of execution of coercion decisions shall have to ensure order throughout the course of coercion. Where they deem it necessary to involve the people’s police forces to ensure order and safety in the course of coercion, they must file written requests to the police offices of the same level 5 days before the coercion for arrangement of forces.

2. When requested to participate in ensuring order and safety in the course of coercion, the people’s police forces shall have to arrange forces to prevent in time acts of causing public disorder, resisting officials on duty in the course of executing administrative-coercion decisions.

Article 9.- Statute of limitations for execution of administrative-coercion decisions

1. Administrative-coercion decisions shall be valid within one years counting from the date of their issuance.

2. Where individuals or organizations subject to the application of coercive measures deliberately evade or delay the execution, the execution time limit shall be recalculated from the time the acts of evasion or delay are stopped.

3. For cases of administrative coercion with forced dismantlement of illegally constructed works; forced application of measures to redress the living-environment pollution, epidemics spread; forced destruction of articles causing harms to human health, domestic animals and crops, baneful cultural products, the statute of limitations provided in Clause 1 of this Article shall not apply.

Chapter II

PROCEDURES FOR APPLICATION OF ADMINISTRATIVELY COERCIVE MEASURES FOR EXECUTION OF ADMINISTRATIVE VIOLATION-SANCTIONING DECISIONS

Section A. COERCIVE MEASURE OF PARTIAL SALARY OR INCOME DEDUCTION

Article 10.- Subjects liable to the application of coercive measure of partial salary or income deduction

Individuals shall be subject to the application of coercive measure of partial salary or income deduction when:

1. They are working officials, employees or individuals, who enjoy salaries or incomes at any agencies or organizations under contracts of six-month or longer terms or contracts of indefinite term;

2. They are enjoying annual retirement allowances or working capacity loss allowances.

Article 11.- Decisions on coercive partial salary or income deduction against individuals

1. Decisions on coercive partial salary or income deduction against individuals must state clearly the date of issuance; grounds for issuance; full name, position and working unit of the decision issuer; full name and address of the individual subject to salary or income deduction; name and address of the agency or organization managing the salary or income of the coerced individual; the deducted amount, the reasons for deduction; name and address of the State Treasury receiving the money, mode of transferring the deducted money to the treasury; the execution time; signature of the decision issuer, seal of the decision-issuing agency.

2. The above-said decisions shall be addressed to coerced individuals, agencies or organizations directly managing their salaries or incomes, and relevant agencies.

Article 12.- Salary or income deduction rates applicable to individuals

1. Only salary or income portions corresponding to the money amounts stated in the sanctioning decisions of competent persons shall be deducted.

2. The rates of deduction of salaries, retirement allowances or working capacity loss allowances applicable to individuals shall not exceed 30% of the total salaries or monthly allowances of such individuals. For other revenues, the deduction rates shall be based on the actual incomes of such persons (but must not exceed 50% of their total incomes).

Article 13.- Responsibility of agencies, organizations, employers that are managing salaries or incomes of coerced individuals

1. Agencies, organizations or employers that are managing salaries or incomes of individuals subject to the application of the salary or income deduction measure have the responsibility to strictly abide by the coercion decisions of competent agencies.

2. Right on the nearest pay day, agencies, organizations or employers managing salaries or incomes of coerced individuals have the responsibility to deduct portions of salaries or incomes of coerced individuals according to the coercion decisions and transfer the deducted amounts into the accounts at the State Treasuries stated in the coercion decisions, and at the same time notify such to the persons competent to issue decisions on coercive salary deduction.

3. Where agencies, organizations or employers managing salaries or incomes of individuals subject to the application of the salary or income deduction measure deliberately decline to execute coercive-deduction decisions of competent agencies, they shall be administratively sanctioned according to law provisions.

Section B. COERCIVE MEASURE OF MONEY DEDUCTION FROM BANK ACCOUNTS

Article 14.- Subjects liable to coercive measure of bank account deduction

The measure of bank account deduction shall apply to individuals or organizations that do not voluntarily abide by sanctioning decisions, do not pay coercion expenses when:

1. The individuals have deposits at banks in Vietnam (except where they are subject to the application of the coercive measure of salary or income deduction);

2. The organizations have deposits at banks in Vietnam.

Article 15.- Verification of information on accounts of coerced individuals, organizations

1. Persons competent to issue decisions on coercive deduction of money from bank accounts are entitled to gather, verify and request banks to supply information on accounts, current balances in accounts of coerced individuals or organizations.

2. Coerced individuals and organizations have the responsibility to inform the persons competent to issue decisions on coercive money deduction from bank accounts of the banks where they open their accounts, their account numbers at the banks, when so requested.

Article 16.- Decisions on coercive deduction of money from bank accounts

1. Decisions on coercive deduction of money from bank accounts must clearly state the date of issuance; the grounds for issuance; full name, position and working unit of the decision issuer; the deducted money amount, full name of account holder and the number of the account; name and address of the bank where the subject liable to the deduction measure opens accounts; name, address and account number of the State Treasury; mode of transferring the deducted money amount from bank to treasury; the time limit for execution, and must be signed and sealed by the person competent to issue the decision on coercive deduction of money.

2. Decisions on coercive deduction of money from bank accounts shall be addressed to deduction-liable individuals or organizations, banks where such individuals or organizations open their accounts and relevant agencies 5 days before the coercion is effected.

3. Within 5 days as from the date of receiving the decisions on coercive deduction of money from their bank accounts, the deduction-liable individuals or organizations shall have to request the banks where they have opened their accounts to transfer money from their accounts into the accounts of the State Treasuries stated in the coercive deduction decisions. Where such individuals or organizations deliberately decline to abide by the coercive deduction decisions, they shall be subject to the coercive measure of property distrainment as provided for in Section C, Chapter II of this Decree.

Article 17.- Responsibility of banks where coerced individuals or organizations open their accounts

1. The banks have the responsibility to supply necessary information in writing on accounts of coerced individuals or organizations which are opened at the banks, when so requested in writing by persons competent to issue decisions on coercive deduction of money from bank accounts.

2. Within 5 days as from the date of receiving the coercive deduction decisions, the concerned banks have the responsibility to coordinate with the persons competent to issue coercion decisions in notifying the account holders thereof. Upon receiving the money transfer requests of the account holders being coerced individuals or organizations, the banks have the responsibility to transfer the money amounts of the coerced individuals or organizations into the accounts of the State Treasuries stated in the coercive deduction decisions; and at the same time to notify the agencies issuing the deduction decisions and coerced individuals or organizations thereof.

3. Where accounts are reduced to no balance or to a balance not enough for decision execution, the banks, after deducting the available money amounts, must notify such to the agencies which have issued decisions on coercive deduction of money from bank accounts for application of the coercive measure of property distrainment as provided for in Section C, Chapter II of this Decree.

4. If there still exists a balance in accounts of the coerced individuals or organizations but banks fail to deduct money for remittance into the state budget according to coercive deduction decisions of competent persons, such banks shall be administratively sanctioned according to the provisions of Article 35 of the Government’s Decree No. 202/2004/ND-CP of December 10, 2004 on sanctioning of administrative violations in the monetary and banking domain.

Article 18.- Procedures for collection of deducted money

1. The partial deduction of salaries, incomes or bank accounts of individuals and organizations subject to administrative coercion shall be effected on the basis of collection vouchers according to current regulations. Collection vouchers used for salary or income deduction shall be sent to relevant parties.

2. After collecting money, the State Treasuries receiving the deducted money shall have to inform the persons competent to issue coercion decisions thereof.

Section C. COERCIVE MEASURES OF DISTRAINMENT OF PROPERTY WITH A VALUE EQUAL TO FINE AMOUNT FOR AUCTION

Article 19.- Subjects liable to coercive measures of distrainment of valuable property for auction

The measure of distrainment of valuable property for auction shall apply only to individuals or organizations that do not voluntarily abide by sanctioning decisions, do not pay coercion expenses when:

1. Such individuals are freelance laborers having no agencies or organizations to manage their fixed salaries or incomes.

2. Such individuals or organizations have no bank accounts or their bank deposits are not enough for application of the measure of partial deduction of salaries, incomes or bank accounts.

3. Such individuals or organizations have not enough conditions for application of the deduction measure or have deliberately declined to abide by the coercive deduction measure, have not paid coercion expenses.

Only portions of property of coerced individuals or organizations, corresponding to the money amounts stated in sanctioning decisions and expenses for organization of coercion execution shall be distrained.

Article 20.- Decisions on coercion by property distrainment measure

1. Decisions on coercion by property distrainment measure must clearly state the date of issuance; grounds for issuance; full name, position (rank), unit of the decision issuer; full name, residence place, head-office of the individual or organization subject to property distrainment; the fine amount; the distrainment venue; signature of the decision issuer, seal of the decision-issuing agency.

2. The property distrainment must be notified to the target individuals or organizations, the commune-level People’s Committees of the localities where such individuals resides or such organizations are headquartered or the agencies where such persons work 5 days before the coercion is effected, except where the notification may hinder the distrainment.

Article 21.- The following properties must not be distrained

1. Curative medicines, foods, foodstuff in service of essential needs of coerced individuals and their families.

2. Labor tools, daily-life devices necessary for coerced individuals and their families.

3. Ordinary worship objects; legacy, orders, medals, diplomas of merit.

4. Properties in service of defense and security.

Article 22.- Property distrainment procedures

1. Property distrainment must be carried out during daytime (from 08.00 hrs to 17.00 hrs).

2. Persons issuing coercion decisions or persons assigned to enforce coercion shall assume the prime responsibility for the distrainment.

3. When property distrainment is carried out, the coerced persons or adult members of their families, representatives of organizations subject to the property distrainment, representatives of local administrations and witnesses must be present.

If individuals who must execute coercion decisions or adult members of their families are deliberately absent, property distrainment shall still be carried out but in the presence of representatives of local administrations and witnesses.

4. Coerced individuals and organizations are entitled to request properties to be distrained first and the persons assigned to conduct the distrainment must accept such requests if deeming that they do not affect the coercion.

If coerced individuals or organizations fail to specify properties to be distrained first, properties under their private ownership shall be distrained first.

5. Properties jointly owned by coerced individuals and other persons shall be distrained only if the coerced individuals do not have their private properties or their private properties are not enough for execution of coercion decisions. In case of disputed property, the distrainment shall still proceed and the co-owners of the to be-distrained propery shall be informed of their right to initiate lawsuits according to civil procedures.

Agencies conducting distrainment shall have to publicly announce the time and venue of distrainment to co-owners. If upon the expiration of the three-month time limit counting from the distrainment date nobody initiates a lawsuit, distrained properties shall be put up for auction according to law provisions on property auction.

Article 23.- Property distrainment records

1. Property distrainment must be recorded in writing. The written records must clearly state the property distrainment time and venue; the full names and positions of the persons taking charge of the distrainment; representatives of the organizations subject to property distrainment, individuals having their properties distrained or their lawful representatives; witnesses; representatives of local administrations (or agencies of coerced individuals); description of appellation, conditions and characteristics of each distrained property.

2. Persons taking charge of distrainment; representatives of organizations subject to property distrainment, individuals having properties distrained or their lawful representatives; witnesses; representatives of local administrations (or agencies of coerced individuals) shall sign their names in the records. Where any persons are absent, or are present but refuse to sign the records, such must be written in the records and the reasons therefor must be clearly stated.

3. A distrainment record shall be made in two copies, with one copy to be kept by the coercion decision-issuing agency and one copy handed to the individual having his/her property distrained or the representative of the organization subject to coercive distrainment, right after the property distrainment record is made.

Article 24.- Assignment of distrained properties for preservation

1. Persons in charge of distrainment shall select one of the following forms for preservation of distrained properties:

a) Assigning the coerced persons or their relatives or the persons managing and/or using such properties to preserve them;

b) Assigning one of the co-owners to preserve the properties if such properties are co-owned by them;

c) Assigning organizations or individuals that have conditions to preserve them.

2. Properties being gold, silver, precious metals, gemstones or foreign currencies shall be assigned to state treasuries for management; properties being industrial explosive materials, support tools, things of historical or cultural values, national treasures, antiques, rare and precious foreign products shall be temporarily assigned to relevant state management agencies for management.

3. Upon assignment of distrained properties for preservation, persons in charge of distrainment must make records thereon, clearly stating the date of handover for preservation; full names of the persons in charge of executing the coercion decisions, coerced individuals, representatives of coerced organizations, persons assigned to preserve the properties, handover witnesses; the quantity, conditions (quality) of properties; rights and obligations of persons assigned to preserve the properties.

Persons taking charge of distrainment, persons assigned to preserve properties, coerced individuals, representatives of coerced organizations and witnesses shall sign in the records. In cases where any persons are absent or are present but refuse to sign the records, such must be written in the records and the reasons therefor must be clearly stated.

Copies of records shall be handed to persons assigned to preserve the properties, coerced individuals, representatives of coerced organizations, witnesses and persons taking charge of distrainment, each to one person.

4. Persons assigned to preserve properties shall be paid with actual and reasonable expenses for preservation of properties, except those defined at Point a, Clause 1 of this Article.

5. Persons assigned to preserve properties, who cause damage to, fraudulently swap, lose or destroy such properties shall have to pay compensations therefor and, depending on the nature and seriousness of their violations, be administratively handled or examined for penal liability according to law provisions.

Article 25.- Valuation of distrained properties

1. The valuation of distrained properties shall be conducted at the houses of individuals or headquarters of organizations that have their properties distrained or at places where distrained properties are kept (except for cases where valuation councils must be set up).

2. Distrained properties are valued under the agreement between the persons taking charge of execution of coercion decisions and representatives of coerced organizations or individuals as well as co-owners in case of distrainment of common properties. The time limit for the involved parties to reach agreement on prices shall not exceed 5 working days as from the date the properties are distrained.

For distrained properties valued at under VND 500,000 each or being perishable, if the involved parties fail to reach agreement on their prices, the persons competent to issue coercion decisions shall have to determine the prices.

3. Where distrained properties are valued at VND 500,000 or more each, of the kinds difficult to be valuated or the involved parties cannot reach agreement on their prices, within 15 days as from the date the properties are distrained, the persons who have issued coercion decisions shall propose competent agencies to set up valuation councils with the persons who have issued coercion decisions as their heads and representatives of finance bodies and relevant professional agencies as their members.

Within 7 working days after their establishment, the valuation councils must conduct the valuation. Individuals having their properties distrained or representatives of the organizations having their properties distrained may express their opinions on the valuation, but the power to decide on the prices shall rest with the valuation councils.

The property valuation shall be based on the market prices at the time of valuation. For properties whose prices are uniformly managed by the State, the valuation thereof shall be based on the property prices set by the State.

4. The property valuation must be recorded in writing. The written records must clearly state the valuation time and venue, participants in the valuation, names and values of the valuated properties; and must be signed by participants in the valuation and property owners.

Article 26.- Competence to set up property valuation councils

1. District-level People’s Committee presidents shall decide on the establishment of valuation councils for cases of administrative coercion falling under the jurisdiction of district- or commune-level state management agencies.

2. Provincial-level People’s Committee presidents shall decide on the establishment of valuation councils for cases of administrative coercion falling under the jurisdiction of provincial-level state management agencies.

3. The establishment of valuation councils at central agencies shall be decided by the managing ministers after consulting with the Finance Minister, relevant ministries and branches.

Article 27.- Tasks of valuation councils

1. To study and propose the organization and contents of their meetings.

2. To prepare documents necessary for the valuation.

3. To conduct the valuation of properties.

4 To make records on the valuation.

Article 28.- Transfer of distrained properties for auction

1. For properties already distrained for auction, basing themselves on the property values determined under the provisions of Article 25 of this Decree, the persons in charge of coercion shall, within 10 days as from the date of issuance of the distrainment decisions, sign contracts on auction authorization with organizations which have the auctioning function to organize the auction of such properties according to the following regulations:

a) For distrained properties with a determined value of under VND 10,000,000, the persons in charge of coercion shall sign auction authorization contracts with district-level finance bodies for organization of auctions;

b) For distrained properties with a determined value of over VND 10,000,000, the persons in charge of coercion shall sign auction authorization contracts with provincial-level auction service centers of the localities where the properties are located for organization of auctions.

2. The Finance Minister shall guide the determination of reserve prices for auction of the properties prescribed at Points a and b, Clause 1 of this Article.

3. The transfer of distrained properties to responsible agencies for auctions must be recorded in writing. The written records must clearly state the dates of transfer; the transferors and the transferees, the quantity and quality of the properties; and must be signed by the transferors and the transferees. The dossiers on handover of distrained properties to responsible agencies for auction shall each comprise the decision on coercive distrainment; papers and documents related to ownership rights, lawful use rights (if any); written valuation of the properties and records on handover of such properties.

4. In cases where distrained properties are cumbersome commodities or in great quantities, for which provincial-level auction service centers or district-level finance agencies have no place to keep them, upon the completion of transfer procedures,  contracts on preservation of such properties can be signed with the subjects which are keeping such properties. The expenses for performance of preservation contracts shall be covered by the proceeds from property auctions.

5. When the distrained properties have already been transferred to responsible agencies for auctions, the procedures for auction of such properties shall comply with the provisions of current legislation on property auction.

6. For properties under common ownership, the auction thereof shall be prioritized for their co-owners first.

7. Where the proceeds from property auctions are bigger than the amounts stated in the sanctioning decisions plus the coercion expenses, within 10 days as from the auctioning dates, the agencies enforcing the coercive measure of distrainment of properties for auction shall carry out procedures to return the differences to the coerced individuals or organizations.

Article 29.- Transfer of property ownership rights

1. Purchasers of distrained properties shall have their ownership over such properties recognized and protected by law.

2. Competent state bodies shall have to carry out the procedures for transfer of ownership rights to purchasers according to law provisions.

3. Ownership right transfer dossiers shall each comprise:

a) A copy of the decision on administrative coercion by distrainment of property for auction;

b) The property auction record;

c) Other papers related to the property (if any).

Section D. COERCIVE MEASURE OF CONFISCATION OF MATERIAL EVIDENCES AND/OR MEANS USED FOR COMMISSION OF ADMINISTRATIVE VIOLATIONS

Article 30.- Subjects liable to the application of coercive measure of confiscation of material evidences and/or means used for commission of administrative violations

Individuals and organizations committing administrative violations, upon receipt of decisions on confiscation of material evidences and/or means used for commission of administrative violations, must voluntarily hand over such material evidences and/or means or abide by the competent agencies’ or persons’ decisions on confiscation of material evidences and/or means. In cases where they decline to hand over or hand over only a portion of the material evidences and/or means subject to confiscation, they shall face the administrative coercion.

Article 31.- Coercion decisions to confiscate material evidences and/or means used for commission of administrative violations

The coercion must be decided in writing. The written decisions must clearly state the dates of issuance; the grounds for issuance; full names and positions of the decision issuers; full names and addresses of the individuals, organizations using material evidences and/or means for violations; names of confiscated material evidences and/or means used for commission of administrative violations; and contain the signatures and full names of the decision issuers and the seals of the decision-issuing agencies.

Coercion decisions to confiscate material evidences and/or means used for commission of administrative violations shall be addressed to individuals or organizations that have used material evidences and/or means for commission of administrative violations 5 days before the coercion is effected.

Article 32.- Organization of coercion execution

1. Before carrying out the coercion, if individuals or organizations subject to the coercion voluntarily execute administrative violation-sanctioning decisions, the agencies in charge of coercion shall make records on the voluntary execution.

2. The coercion to confiscate material evidences and/or means used for commission of administrative violations must be conducted in the presence of representatives of local administrations and witnesses.

3. The coercion must be recorded in writing. The written records must clearly state the coercion time and venue; the coercion-conducting agencies; the coerced individuals or organizations; representatives of the local administrations of the localities where the coercion is executed, the witnesses; the names of confiscated material evidences and/or means, the conditions thereof.

4. Coerced individuals or representatives of coerced organizations, representatives of coercion decision-issuing agencies, representatives of local administrations and witnesses shall sign the records. In cases where any persons are absent or are present but refuse to sign the records, such must be written in the records and the reasons therefor must be clearly stated.

5. Where coerced individuals or organizations are deliberately absent, the coercion shall still be carried on in the presence of representatives of local administrations and witnesses.

Chapter III

PROCEDURES FOR APPLICATION OF COERCIVE MEASURES TO APPLY MEASURES FOR REDRESSING CONSEQUENCES CAUSED BY ADMINISTRATIVE VIOLATIONS

Article 33.- Coercion decisions to apply measures for redressing consequences caused by administrative violations

The coercion to take measures for redressing consequences caused by administrative violations must be decided in writing. Such decisions must clearly state the dates of issuance; grounds for issuance; full names and positions of the decision issuers; full names and addresses of the coerced individuals or organizations; remedial measures to be taken; time for coercion completion; individuals, agencies in charge of coercion activities; agencies with responsibility to participate; and contain the signatures and full names of the decision issuers, and the seals of the decision-issuing agencies.

Coercion decisions to implement measures for redressing consequences caused by administrative violations must be addressed to coerced individuals or organizations, and the commune-level People’s Committees of the localities where the coercion is carried out 5 days before the coercion for coordinated implementation.

Article 34.- Organizing the execution of coercion decisions

1. Upon receiving coercion decisions on application of measures to redress consequences of administrative violations, individuals or organizations tasked to organize the execution of coercion decisions must coordinate with relevant agencies in mobilizing forces and means for the application of measures already stated in the decisions.

2. Before conducting the coercion, if the coerced individuals or organizations voluntarily execute the decisions, the agencies in charge of coercion shall make records recognizing the voluntary execution.

3. The coercion for application of measures to redress consequences of administrative violations must be conducted in the presence of representatives of local administrations and witnesses.

4. Where coerced individuals or organizations are intentionally absent, the coercion shall still be carried on in the presence of representatives of local administration and witnesses.

5. Where individuals or organizations have to execute coercion decisions on dismantlement, removal of illegally constructed works or hand-over of land where exist in the works or on such land the assets not subject to coercion, coercion organizers shall have the right to force such individuals or organizations and other persons present in the works to get out of the works or the land areas, and at the same time request them to voluntarily remove along their properties. If they fail to do so voluntarily, the coercion organizers may request the coercion forces to bring them and their assets out of such works or land areas.

If they refuse to take their assets, coercion organizers must make records thereon, clearly stating the quantity, category, conditions of each kind of properties and hire qualified organizations or individuals to watch and preserve them in warehouses of the coercion decision-issuing agencies and notify the locations and time for individuals or organizations having such assets to come and receive their assets. Individuals and organizations having the assets must bear all expenses for transportation, watch, keeping and preservation of the assets.

Past six months after the receipt of the notices on reception of assets, if individuals or organizations having the assets fail to come and receive back their assets (except for plausible reasons), such assets shall be auctioned according to law provisions. The proceeds therefrom, after the subtraction of expenses for transportation, watch, keeping, preservation and handling of the assets, shall be deposited as demand savings at banks and notify the asset-owning individuals or organizations thereof for the reception of such money amounts. For damaged and valueless assets, coercion organizers shall organize the destruction thereof according to law provisions. Coercion organizers must make records thereon, clearly stating the current conditions of the assets before they are destroyed.

Article 35.- Records on enforcement of coercion decisions to apply measures for redressing consequences of administrative violations

1. The enforcement of coercion decisions to apply measures for redressing consequences of administrative violations must be recorded in writing and copies of the written records must be handed to coerced persons, each with one. Such records must clearly state the time, venue and agencies in charge of coercion; coerced individuals or organizations; representatives of local administrations and witnesses; execution results.

2. Coerced individuals or representatives of coerced organizations, representatives of coercion decision-issuing agencies, representatives of local administrations and witnesses shall sign the records. Where any persons are absent or are present but refuse to sign the records, such must be written in the records and the reasons therefor must be clearly stated.

Chapter IV

GUARANTEE OF EXECUTION OF ADMINISTRATIVE-COERCION DECISIONS

Article 36.- Measures to guarantee the execution of decisions on administrative coercion

1. Upon the issuance of decisions to apply administratively coercive measures, if detecting signs showing that the individuals or organizations subject to application of coercive measures perform acts of disbursing or damaging money or property, the persons who have issued the coercion decisions may request the concerned agencies, organizations, administrations of the localities where the coerced individuals reside or work, or where the coerced organizations are headquartered to apply embargo measures in order to prevent the disbursement of money or property.

2. Where coerced individuals or organizations commit acts of resistance, failing to abide by the coercion decisions, the persons who have issued the coercion decisions may mobilize forces and means to guarantee the enforcement of coercion.

3. Administratively coerced individuals who have not executed, or evaded the execution of, such decisions shall be temporarily banned from exit.

Article 37.- Transfer of enforcement of coercion decisions to guarantee the enforcement

1. Where coerced individuals or organizations are in the administrative areas of one province but reside or headquarter in another province and have no conditions for execution of coercion decisions in the localities where the violations are committed, the coercion decisions shall be transferred to competent enforcement agencies of the same level of the localities where such individuals reside or such organizations are headquartered for organization of the enforcement. If there are no competent enforcement agencies of the same level in the localities where the coerced individuals reside or the coerced organizations are headquartered, the coercion decisions shall be transferred to the district-level People’s Committees for organization of the enforcement

Where coerced individuals or organizations are in different districts of the same mountainous province, island or other remote and far-flung areas, where travel to and fro is difficult and the coerced individuals or organizations have no conditions to execute the coercion decisions at the places where they are issued, such coercion decisions shall be transferred to the agencies of the same level of the localities where such individuals reside or such organizations are headquartered for organization of the enforcement.

2. When transferring the enforcement of the coercion, the coercion enforcement-transferring agencies shall have to transfer all the dossiers of the cases to the agencies of the same level in the localities where coerced individuals reside or coerced organizations are headquartered for organization of the enforcement.

Within 10 days after receiving the transfer notices and dossiers of the cases, the agencies of the same level of the localities where coerced individuals reside or coerced organizations are headquartered shall have to organize the enforcement of the coercion decisions.

Article 38.- Coercion against individuals or organizations subject to both the application of administrative sanctions and the application of one or many remedial measures

1. Where individuals or organizations fail to execute both the administratively sanctioning decisions and the application of one or many measures to redress consequences of administrative violations, the persons competent to issue decisions on administrative coercion, defined in Article 4 of this Decree, may apply simultaneously the coercive measures prescribed in Chapter II and Chapter III of this Decree against such individuals or organizations, except for the cases provided for in Article 69 of the Ordinance on Handling of Administrative Violations.

2. Where individuals or organizations comply only with the sanctioning decisions but not the remedial measures or only with the remedial measures but not the sanctioning decisions, the persons competent to issue administrative-coercion decisions, defined in Article 4 of this Decree may apply the coercive measures provided for in Chapter II or Chapter III of this Decree against such individuals or organizations.

Chapter V

ADMINISTRATIVE-COERCION EXPENSES

Article 39.- Determination of expenses for administrative-coercion activities

1. Expenses for administrative-coercion activities shall be determined on the basis of actual expenses arising in the course of executing the administrative-coercion decisions, compatible with the prices in each locality.

2. Expenses for administrative-coercion activities shall cover:

a) Expense for mobilization of people for enforcement of coercion decisions;

b) Remuneration paid to pricing specialists to organize auctions, expenses for organization of property auction;

c) Rentals of means for dismantlement and transportation of things and assets;

d) Expense for hiring of persons to keep or preserve distrained properties;

e) Other actual expenses (if any).

Article 40.- Advance and reimbursement of administrative-coercion expenses

1. Expenses for administrative-coercion activities may be advanced from the state budget and reimbursed immediately after money is collected from individuals or organizations subject to administrative coercion.

2. The Finance Ministry shall have to guide the management, allocation, advance, recovery, exemption, reduction of expenses for administrative-coercion activities according to provisions of legislation on state budget.

Article 41.- Payment of administrative-coercion expenses

All expenses for administrative-coercion activities shall be paid by coerced individuals or organizations. If such individuals or organizations fail to voluntarily reimburse coercion expenses, the persons competent to issue coercion decisions may issue decisions on coercion with measures provided for in Clauses 1 and 2, Article 2 of this Decree.

Article 42.- Exemption, reduction of administrative-coercion expenses

1. Individuals subject to administrative coercion, if actually meeting with difficulty and being incapable of paying part or whole of coercion expenses and filing their written exemption or reduction applications certified by commune-level People’s Committees, may be considered for exemption or reduction of part or whole of administrative-coercion expenses.

2. Persons competent to issue administrative-coercion decisions are entitled to consider the exemption, reduction of administrative-coercion expenses.

Chapter VI

COMPLAINT, DENUNCIATION, INITIATION OF ADMINISTRATIVE LAWSUITS, COMMENDATION AND HANDLING OF VIOLATIONS

Article 43.- Complaint, denunciation, initiation of administrative lawsuits

1. Individuals or representatives of organizations subject to the application of coercive measures are entitled to lodge their complaints or initiate administrative lawsuits against the application of coercive measures according to law provisions.

2. All citizens are entitled to denounce illegal acts in the application of coercive measures.

3. The competence, procedures and time limits for solution of complaints, denunciations or administrative lawsuits shall comply with the provisions of the legislation on complaints and denunciations or with the provisions of the legislation on procedures for settlement of administrative cases.

Article 44.- Commendation

Individuals and organizations recording outstanding achievements in execution of administratively coercive measures shall be commended/rewarded according to the general regimes of the State; if suffering material losses, they shall get compensations therefor; if suffering from health damage or loss of life, they shall enjoy the general regimes and policies of the State.

Article 45.- Handling of violations

1. Persons who are competent to issue coercion decisions but issue decisions to illegally apply coercive measures, thus causing damage to other individuals and/or organizations shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability and pay compensations for damage caused by their illegal decisions.

2. Persons who are tasked to enforce coercion decisions but abuse their powers, act against law, commit acts beyond the coercion limits, tolerate, cover up, decline to coerce or have coerced not in time shall be disciplined or examined for penal liability; if causing material losses to the state, organizations or individuals, they must pay compensations or reimbursement according to provisions of law.

3. Those who directly commit or incite, instigate other persons to commit acts of causing public disorder or resisting officials on duty in order to obstruct coercion activities shall, depending on the seriousness of their violations, be administratively handled or examined for penal liability.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 46.- Implementation effect

This Decree takes effect 15 days after its publication in the Official Gazette.

Article 47.- Responsibility for guidance and implementation

The Ministry of Public Security shall assume the prime responsibility for, and coordinate with the concerned ministries and branches in, guiding the implementation of this Decree.

The ministers, the heads of the ministerial-level agencies, the heads of the Government-attached agencies and the presidents of the provincial/municipal People’s Committees shall have to implement this Decree.

 

 

ON BEHALF OF THE GOVERNMENT
PRIME MINISTER




Phan Van Khai

 

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Thuộc tính Văn bản pháp luật 37/2005/ND-CP

Loại văn bảnNghị định
Số hiệu37/2005/ND-CP
Cơ quan ban hành
Người ký
Ngày ban hành18/03/2005
Ngày hiệu lực08/04/2005
Ngày công báo...
Số công báo
Lĩnh vựcThủ tục Tố tụng, Vi phạm hành chính
Tình trạng hiệu lựcHết hiệu lực 28/12/2013
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Lược đồ Decree of Government No. 37/2005/ND-CP, stipulating the procedures for application of coercive measures for execution of administrative violation-sanctioning decisions.


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              Decree of Government No. 37/2005/ND-CP, stipulating the procedures for application of coercive measures for execution of administrative violation-sanctioning decisions.
              Loại văn bảnNghị định
              Số hiệu37/2005/ND-CP
              Cơ quan ban hànhChính phủ
              Người kýPhan Văn Khải
              Ngày ban hành18/03/2005
              Ngày hiệu lực08/04/2005
              Ngày công báo...
              Số công báo
              Lĩnh vựcThủ tục Tố tụng, Vi phạm hành chính
              Tình trạng hiệu lựcHết hiệu lực 28/12/2013
              Cập nhật4 năm trước

              Văn bản gốc Decree of Government No. 37/2005/ND-CP, stipulating the procedures for application of coercive measures for execution of administrative violation-sanctioning decisions.

              Lịch sử hiệu lực Decree of Government No. 37/2005/ND-CP, stipulating the procedures for application of coercive measures for execution of administrative violation-sanctioning decisions.