Nghị định 54/1998/ND-CP

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE No. 16-CP OF MARCH 20, 1996 OF THE GOVERNMENT ON THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF STATE MANAGEMENT OVER CUSTOMS

THE GOVERNMENT

Pursuant to the Law of September 30, 1992 on Organization of the Government;
Pursuant to the Ordinance of July 6, 1995 on the Handling of Administrative Violations;
Pursuant to the Ordinance of February 20, 1990 on Customs;
At the proposal of the General Director of the General Department of Customs,

DECREES:

Article 1.- To amend and supplement a number of articles of Decree No. 16-CP of March 20, 1996 of the Government on the sanctioning of administrative violations in the field of State management over customs.

Article 2.- To amend and supplement Article 1 and Article 5 of Chapter I of Decree No. 16-CP.

1.- Article 1 is amended and supplemented as follows:

"Article 1.-

1. The administrative violations in the field of State management over customs include:

a/ The violations of regulations on customs procedures;

b) The violations of regulations on customs supervision, inspection and control;

c/ The violations of regulations on export, import or transit of goods, baggage, mails and parcels, foreign currencies, Vietnamese currency and other articles (hereafter collectively referred to as goods and articles) and transport means on entry, exit or transit in Vietnam.

d/ Acts of smuggling or illegal transportation of goods and/or articles across the Vietnamese border, which are not so serious to be examined for penal liability.

2. Individuals and organizations prescribed in Article 5 of the Ordinance on the Handling of Administrative Violations that commit administrative violations in the field of State management over customs shall be sanctioned in accordance with the provisions of this Decree and the Ordinance on the Handling of Administrative Violations promulgated on July 6, 1995.

3. Any mistakes made during the process of sending exported or imported goods and/or articles shall not be considered administrative violations if the senders or their lawful representatives fully notify the customs authorities thereof before the latter examine such exported or imported goods and/or articles. This provision shall not apply to goods and articles which are narcotics, weapons or reactionary documents."

2.- Article 5 is amended and supplemented as follows:

"Article 5a.- Cases which shall not be handled as administrative violations:

Goods, articles and/or transport means brought into Vietnam due to fires, natural disasters, enemy sabotages or unexpected events or in emergency circumstances must all be declared to the customs authorities in accordance with the law provisions and must be taken out of Vietnam after the above-mentioned factor(s) are overcome.

Article 5b.- Imposition of fines and forms of additional sanctions

1. The concrete amount of fine imposed on an administrative violation is the average level of the fine frame prescribed for such violation; if a violation involves an extenuating factor the fine amount may decrease but not lower than the minimum level of the fine frame; if it involves an aggravating factor the fine amount may be increased but not higher than the maximum level of the fine frame.

The consideration and imposition of a concrete fine amount must be based on the extenuating or aggravating factor(s) specified in Article 7 and Article 8 of the Ordinance on the Handling of Administrative Violations according to the principle that it is in favor of the involved parties.

2. Forms of additional sanctions and other administrative measures must be taken together with the principal sanctions."

Article 3.- To amend and supplement Articles 6, 7, 8, 9, 10, 11 and 12 of Chapter II of Decree No. 16-CP.

1.- Article 6 is amended and supplemented as follows:

"Article 6.- Violations of the time limit for customs declaration and procedure clearance

1. To receive a warning or be fined from 50,000 VND to 200,000 VND for failure to complete the customs procedures according to the time limit prescribed by law;

2. To be fined from 200,000 VND to 500,000 VND for one of the following violations:

a/ Failure to inform or incorrectly informing the time of arrival and/or departure of the transport means on exit, entry or in transit as prescribed by law;

b/ Failure to conduct temporary import for re-export; or temporary export for re-import, of goods, articles and/or transport means according to the time specified in the licenses, customs declarations or other papers as prescribed by law."

2.- Article 7 is amended and supplemented as follows:

"Article 7.- Violations of the regulations on customs sealing and escort:

1. To be fined from 200,000 VND to 1,000,000 VND for failure to keep intact the customs seal on the goods warehouse, goods, packages, articles and/or transport means which are under customs control and inspection.

2. To be fined from 500,000 VND to 2,000,000 VND for acts of unauthorized breaking of the customs seal or displacement of transport means, goods and/or articles which are being escorted by customs authorities or which, according to regulations, must not be displaced when being sealed..

3. To be fined from 10,000,000 VND to 15,000,000 VND for acts of unauthorized breaking of the customs seal to replace sealed goods and/or articles with those of different category, quantity, weight, quality, industrial design, origin and/or trademark, which are not so serious to be examined for penal liability. Unauthorized sale of replaced goods and/or articles shall not only result in a fine and but also the reimbursement of a sum of money equal to the value of goods and/or articles sold without permission.

4. Any violations of the provision in Clause 3 of this Article that cause losses of export or import tax shall be sanctioned in accordance with the provisions of the Law on Export Tax and Import Tax."

3.- Article 8 is amended and supplemented as follows:

"Article 8.- Violations of the regulations on exchange of exports and/or imports among border population:

1. To receive a warning or be fined from 50,000 VND to 200,000 VND for one of the following violations:

a/ To carry across the border goods and/or articles other than those already declared to the customs authorities;

b/ To carry across the border goods and/or articles not through the designated routes and border gates;

c/ To carry across the border goods and/or articles in excess of the quotas set by the State without declaring them to the customs authorities.

c/ To carry across the border goods and/or articles banned from exchange by the State;

2. To be fined from 200,000 VND to 500,000 VND if the excess amount of goods and/or articles transported across the border without declaring them to the customs authorities, which is valued at over 10,000,000 VND.

3. To be fined from 500,000 VND to 1,000,000 VND for acts of carrying across the border goods and/or articles banned from import or export, which are not so serious to be examined for penal liability.

4. Violations of the provisions in Points b, c and d of Clause 1, Clause 2 and Clause 3 of this Article shall be subject to not only a fine but also confiscation of the goods and/or articles which are material evidences in the violations.

Goods and/or articles in a violation which cause environmental pollution shall be forced to be taken out of Vietnam or destroyed."

4.- Article 9 is amended and divided into two articles.

"Article 9a.- Violations of the regulations on the import or export of gifts:

1. To receive a warning or be fined from 50,000 VND to 200,000 VND for acts of importing or exporting gifts other than those declared with the customs authorities.

2. To be fined from 500,000 VND to 2,000,000 VND for acts of exporting or importing gifts in contravention of the State's regulations on export and import.

3. Individuals and/or organizations that violate the provisions in Clause 2 of this Article shall be not only fined but also forced to take out of Vietnam or forbidden to export the goods and/or articles which are imported or exported in contravention of the State's regulations; material evidences and/or means involved in a violation which are goods or articles banned from export and/or import or conditional imports or exports shall be confiscated.

4. In cases where a gift recipient has not been informed in advance or is doubtful about the real content of the goods and/or article(s) sent to him/her, he/she may, at his/her request, be shown such goods by the customs authorities before making the customs declaration. Such a prior look at the goods must be under the supervision by the customs authorities.

Article 9b.- Violations of the regulations on exported or imported baggage.

1. To receive a warning or be fined from 20,000 VND to 200,000 VND for acts of exporting or importing baggages without making declarations or making incorrect declarations according to customs regulations on declaration.

2. To be fined from 500,000 VND to 2,000,000 VND for one of the following acts:

a/ Failure to make the customs declaration when exporting baggages in contravention of the State's regulations on export;

b/ Failure to make the customs declaration when importing baggages which are banned from import by the State.

3. For violations of the provisions in Clause 2 of this Article, baggages which are in contravention of the export and import legislation shall not be allowed to be exported from or imported into Vietnam or which are goods and/or articles banned from export or import shall be confiscated."

5.- Article 10 is amended and supplemented as follows:

"Article 10.- Violations of the regulations on export or import of displaced and inherited property:

To receive a warning or be fined from 100,000 VND to 500,000 VND for failure to make the customs declaration when exporting or importing displaced or inherited property which are banned from export or import by the State.

Exporting or importing displaced and inherited property which are foreign currency(ies), precious metal(s) or precious stones shall comply with the regulations of the State Bank of Vietnam."

6.- Article 11 is amended and supplemented as follows:

"Article 11.- Violations of the regulations on customs control:

1. To receive a warning or be fined from 200,000 VND to 500,000 VND for one of the following violations:

a/ Unauthorized embarkation on or disembarkation from the transport means which is under customs inspection;

b/ Failure to stop the transport means on exit from, entry into or in transit through Vietnam at the designated checkpoints for customs procedure clearance.

2. To be fined from 1,000,000 VND to 3,000,000 VND for non-compliance with the regulations on customs management when sea-going vessels which are transporting exported or imported goods on international routes call on undesignated Vietnamese ports.

3. To be fined from 3,000,000 VND to 5,000,000 VND for one of the following violations:

a/ Unauthorized docking of vessels or boats transporting exported or imported goods which are under customs inspection and supervision;

b/ Failure to obey orders of the customs authorities when driving the transport means in the area under customs control;

c/ Failure to obey requests to open goods stores for customs inspection.

4. To be fined from 5,000,000 VND to 10,000,000 VND for one of the following violations:

a/ Taking into the areas under customs control exported or imported goods and/or articles or displacement of transport means carrying exported or imported goods and/or articles in the area under customs control without sufficient valid papers;

b/ Harboring, trading in or transporting illegally imported goods and/or articles in the area under customs control;

c/ Failure to drive the transport means on exit or entry or in transit through Vietnam on the designated routes and through the designated gateways.

d/ Loading or unloading goods at a destination port other than the one designated in the bill of lading without a plausible reason.

5. To be fined from 15,000,000 VND to 20,000,000 VND for one of the following violations:

a/ Dispersing or jettisoning goods and/or articles to evade customs inspection and control;

b/ Hindering the customs authorities to take preventive administrative measures or replacing or removing material evidences detected and seized in administrative violations of customs regulations, which are not so serious to be examined for penal liability;

c/ Unauthorized loading or unloading of goods, unauthorized trans-shipment, removal of goods from one ship or car to another, car detachment or sale of goods and/or articles which are exported, imported or in transit and under the customs inspection and control.

6. Apart from fines, additional sanctions or other administrative measures shall be imposed on one of the following violations:

a/ To be forced to leave the transport means if they violate the provisions of Point a, Clause 1, or Point a, Clause 3 of this Article;

b) To be forced to halt the transport means and comply with inspection requests of the customs authorities if they violate the provisions of Point b, Clause 1 or Points b and c, Clause 3, of this Article;

c/ To have the material evidences confiscated if they violate the provisions of Point b, Clause 4 Clause 5 of this Article;

d/ To have the right to use the license for export, import and transit stripped for 30 days if they repeat the violation of the provisions of Points a and b, Clause 4, and Clause 5, of this Article."

7.- Article 12 is amended, supplemented and divided into three articles as follows:

"Article 12a.- Violations of the regulations on customs inspection:

1. To be fined from 1,000,000 VND to 3,000,000 VND for one of the following violations:

a/ Failure to produce papers related to the verification of the legality of exported or imported goods and/or articles and transport means on entry or exit;

b/ Failure to take imported goods and/or articles to the designated place for customs procedure clearance.

2. To be fined from 3,000,000 VND to 5,000,000 VND for one of the following violations:

a/ Purchase, sale or assignment of goods and/or articles which are entitled to preferential tariff treatment in contravention of regulations;

b/ Unauthorized replacement of the packing of goods and/or articles which are under customs inspection and supervision;

c/ Unauthorized use of goods and/or articles which have been assigned to their owners for keeping pending the customs procedure clearance;

3. To be fined from 5,000,000 VND to 10,000,000 VND for one of the following violations:

a/ Export or import of goods and/or articles other than those stated in the licenses;

b/ Exporting or importing goods and/or articles which are not of the quantity, weight, quality, trademark, category, value and/or origin declared to the customs authorities;

c/ Alteration of the appearance, composition and characteristics of goods so as to legalize their export or import;

d/ Replacement of goods and/or articles which have not been inspected by customs authorities with goods and/or articles already inspected by customs authorities.

4. Violations of the provisions in Point a, Clause 2; Points b and c, Clause 3 of this Article which cause loss of import or export tax shall be sanctioned in accordance with the Law on Export Tax and Import Tax.

5. To be fined from 15,000,000 VND to 50,000,000 VND for one of the following violations:

a/ Exporting or importing goods and/or articles in contravention of the provisions on customs privileges and immunity

b/ Exporting or importing goods and/or articles in contravention of the State provisions on humanitarian aid;

c/ Exporting or importing goods which are on the list of goods the import or export of which is restricted or banned but the violation is not so serious to be examined for penal liability;

d/ Exporting or importing fake goods and/or articles of Vietnamese origin;

e/ Taking goods, articles and/or transport means into Vietnam without the permission of the competent Vietnamese State agency;

f/ Exporting or importing goods without a license as prescribed;

g/ Assigning export and/or import licenses or their substitute papers;

h/ Falsification of papers in the customs dossiers so as to export and/or import goods but the violation is not so serious to be examined for penal liability;

6. To be fined from 50,000,000 VND to 100,000,000 VND for one of the following violations which are not so serious to be examined for penal liability:

a/ Exporting or importing goods and/or articles which are hazardous to human health;

b/ Exporting or importing goods and/or articles which cause environmental pollution or spread epidemics and diseases.

7. Apart from fines, individuals and organizations committing administrative violations shall be subject to additional sanctions or possibly the following measures:

a/ Confiscation of goods and/or articles for violations of the provisions in Point d, Clause 3; Clause 5 of this Article;

b/ Stripping of the right to use the licenses for 30 to 90 days for recidivism or repeated violations of the provisions in Points a and c, Clause 3, Points f and g, Clause 5 of this Article;

c) Forcible re-export of imported goods from Vietnam for violations of Point a, Clause 3 if such imported goods are machinery, equipment and production chain in violation of the general technical standards;

d/ Forcible re-export from Vietnam within seven to 15 days or destruction of material evidences and means involved in the violations of the provisions of Clause 6 of this Article;

8. For violations of the provisions in Clause 3 of this Article, after the sanctioning decision is executed, the involved goods shall be dealt with as follows:

a/ For goods which are raw materials for the production of export goods or for export processing, goods imported under foreign investment programs, goods imported with the ODA capital source, if they are imported in excess of the amount declared to the customs authorities but such excess amount is included in the contract or license, it shall be deducted later from the contract or license; if the submission of such a license is delayed the time limit for submission can be extended to 60 days from the date of registration for customs procedure clearance, If no license is submitted after this time limit the imported goods shall have to be re-exported.

Any amount imported in excess of the amount already declared with the customs authorities which is not included in the contract or license without a plausible reason shall be confiscated and remitted into the public fund.

b/ For goods which are temporarily imported for re-export, if they are imported in excess of the amount already declared with the customs authorities but such excess amount is included in the contract or license, they shall be deducted later from the contract or license; if such excess amount is not included in the contract or license without a plausible reason, it shall be confiscated and remitted into the public fund.

c/ Any goods for the purpose of sale promotion which are exported or imported in excess of the amount already declared with the customs authorities shall be confiscated and remitted into the public fund.

d/ For goods imported with the non-refundable aid source, if they are imported without a license or at variance with the goods donation agreement, the time limit for submission of a license may be extended as stipulated in Point a of this Clause or such goods donation agreement may be supplemented if it is so permitted by a competent agency. If the goods are emergency aid the General Director of the General Department of Customs shall consider and decide the release of such goods.

e/ Goods and/or articles which are to be re-exported or taken out of Vietnam and which are not banned goods may be stored in a bonded warehouse(s) according to the Regulation on the storage of goods in bonded warehouses.

Article 12b.- Violations of the regulations on the management of bonded warehouses.

1. To be fined from 1,000,000 VND to 5,000,000 VND for one of the following violations:

a/ Sending in a bonded warehouse goods other than those declared to the customs authorities;

b/ Violations of the Regulation on the management of bonded warehouses.

2. To be fined from 5,000,000 VND to 10,000,000 VND for acts of storing goods and/or articles banned from storage in bonded warehouses in a bonded warehouse and concurrently such goods are forced to be taken out of Vietnam within 10 days.

Article 12c.- Violations of the Regulation on customs management over processed goods for export and raw materials imported for the production of export goods.

1. To be fined from 1,000,000 VND to 5,000,000 VND for violations of the Regulation on customs management over raw material imported for the production of export goods or export processing.

2. Violations of the provisions in Clause 1 of this Article that cause losses of import or export tax shall be sanctioned in accordance with the Law on Export Tax and Import Tax."

Article 4.- To amend and supplement Article 16 and Article 17, Chapter III of Decree No. 16-CP.

1.- Article 16 is amended and supplemented as follows:

"Article 16.-

1. The immediate chief of customs officers has the powers:

a/ To issue a warning;

b/ To fine up to 200,000 VND.

2. The chief of the border gate customs, the chief of the control team of the provincial/municipal Customs Department; and the chief of the control team of the Department for Investigation against Smuggling under the General Department of Customs, have the powers:

a/ To issue a warning;

b/ To fine up to 2,000,000 VND. Violations of the provisions of the Law on Export Tax and Import Tax shall be sanctioned in accordance with such Law.

c/ To confiscate the material evidences and means employed in administrative violations which are valued at up to 20,000,000 VND.

3. The directors of the Customs Departments of the provinces or cities directly under the Central Government have the powers:

a/ To issue a warning;

b/ To fine up to 20,000,000 VND. Violations of the provisions of the Law on Export Tax and Import Tax, they shall be sanctioned in accordance with such Law;

c/ To confiscate the material evidences and means employed in administrative violations and decide the destruction of goods and/or articles which are harmful to human health and poisonous cultural publications;

d/ To strip the right to use the permit; revoke the permit or propose to the competent State agency to strip the right to use or revoke the export and/or import permit in accordance with the provisions of law.

2.- Article 17 is amended and supplemented as follows:

"Article 17.-

1. With regard to violations subject to a fine of over 20,000,000 VND, the director of provincial/municipal Customs Department shall transfer their dossiers along with the material evidences to the People's Committees of the provinces or cities directly under the Central Government for sanctioning decisions by the presidents of the provincial/municipal People's Committees and at the same time report them to the General Director of the General Department of Customs.

2. All violations of the customs legislation which occur on the land, in the territorial waters, on the continental shelf and in the exclusive economic zone of the Socialist Republic of Vietnam shall be handled by the customs authorities in charge of the area where the violations occur according to their competence defined in this Decree.

3. In places along the national border where there are no customs offices, the chiefs of the border guard units situated therein and the border guard members on duty shall be entitled to sanction customs-related administrative violations in accordance with the provisions in Clause 3, Article 3 of this Decree.

4. The directors of the Police Departments of the provinces and cities directly under the Central Government, the economic police and the market management agency that detect goods and/or articles which are imported illegally or in transit or temporarily imported for re-export and are illegally sold on the Vietnamese market shall decide to sanction such violations in accordance with the provisions in Point b, Clause 4, Article 11, amended, in Article 3 of this Decree, Point a, Clause 2; Points g and h, Clause 5, Article 12a, amended, in Article 3 of this Decree."

Article 5.- To amend and supplement Article 27, Chapter V of Decree No. 16-CP as follows:

"Article 27.- Dealing with cases where imported goods and/or articles which are past the time limit for customs procedure clearance or which are forced to be taken out of Vietnam or re-exported:

1. All imported goods and/or articles for which, even after 90 days from the deadline for customs procedure clearance as prescribed by law and after 30 days from the date the customs office makes an announcement on the mass media, nobody appears to complete customs procedures, shall be remitted into the State public fund.

All goods and/or articles with unidentified owners, for which, even past 30 days from the date the customs office makes an announcement on the mass media, nobody appears to receive, shall be remitted into the State public fund or destroyed. This provision shall not apply to goods and/or articles which may quickly deteriorate or badly affect human health or the environment;

2. All goods and/or articles which, as prescribed, must be re-exported or taken out of Vietnam but their owners fail to do so even after 30 days from the date the customs authorities make an announcement thereon, shall be either remitted into the public fund or destroyed."

Article 6.- To amend and supplement Article 31 and Article 32, Chapter VI of Decree No. 16-CP

1.- Article 31 is amended as follows:

"Article 31.- Complaints against decisions on the application of preventive administrative measures:

1. Individuals and/or organizations that are subject to preventive administrative measures specified in Articles 18, 19, 20, 21 or 22 of Decree No. 16-CP on the sanctioning of administrative violations in the field of State management over customs shall be entitled to lodge complaints on their own or through their lawful representatives to the immediate higher level of the person who issues decisions to apply such measures.

2. Upon receiving a complaint, the competent person shall have to reply in writing to the complainant within five days after the receipt of such complaint.

3. If the complainant disagrees with the settlement by the competent person defined in Clause 2 of this Article, he/she shall be entitled to initiate a lawsuit at an administrative court."

2.- Article 32 is amended and supplemented as follows:

"Article 32.- Complaining against decisions to sanction administrative violations

1. Individuals and/or organizations that are sanctioned for administrative violations or their lawful representatives shall be entitled to lodge complaints to the persons who have made such sanctioning decisions within 10 days from the date they receive such sanctioning decisions.

2. Within 15 days from the date of receipt of a complaint, the person who has issued the sanctioning decision shall have to settle it and reply in writing to the complainant.

In cases where the complainant disagrees with the decision on the settlement of his/her complaint, he/she shall be entitled to lodge a complaint to the immediate higher level of the person who has issued such sanctioning decision within three days after the date he/she receives the decision on the settlement of the complaint or initiate a lawsuit at an administrative court..

In cases where a sanctioned person lodges a complaint to the immediate higher level of the person who has made the sanctioning decision, within 20 days after the receipt of such complaint, the immediate chief of the person who has made the sanctioning decision shall have to settle the matter and reply in writing to the complainant. In cases where the complainant simultanously sends his/her complaint to the immediate higher level of the person who has made the sanctioning decision and initiate a lawsuit at an administrative court, the settlement of such complaint shall come under the jurisdiction of the administrative court. The customs authorities shall have to transfer the dossier on the violation to the competent administrative court for settlement.

3. The complaint against the complaint settlement decision of the president of the People's Committee of the province or city directly under the Central Government or the director of the Customs Department of a province or city directly under the Central Government (hereafter collectively referred to as the provincial president or the director of the provincial Customs Departments) shall be addressed to the very person who has issued the sanctioning decision for settlement in accordance with the provisions in Clause 2 of this Article. If the complainant disagrees with the settlement of his/her complaint by the provincial president or the director of the provincial Customs Department, he/she shall be entitled to lodge the complaint to the General Director of the General Department of Customs or initiate a lawsuit at an administrative court.

If the complainant lodge the complaint only to the General Director of the General Department of Customs, the latter shall, within 30 days from the date of receipt of the complaint, have to consider and make a conclusion thereon and reply in writing to the complainant. In cases where such conclusion is different from the decision of the provincial president or the director of the provincial Customs Department, the provincial president or the director of the provincial Customs Department shall, within seven days from the date of receipt of the written conclusion, have to consider and alter his/her decision according to the conclusion of the General Director of the General Department of Customs. If the provincial president disagrees with the conclusion of the General Director of the General Department of Customs, he/she may lodge a complaint to the General State Inspector. Within 45 days from the date of receipt of such complaint, the General State Inspector shall consider and make a decision on the settlement of the complaint. The decision of the General State Inspector is final.

In cases where the complainant simultanously lodges a complaint to the General Director of the General Department of Customs and initiate a lawsuit at an administrative court, the General Director of the General Department of Customs shall transfer the dossier to the competent administrative court for trial.

4. The complaint against a decision to sanction an administrative violation shall not suspend the execution of such decision.

5. In cases where the person in charge of settling a complaint issues a decision to change the form, level and/or measure of sanctioning or cancels the sanctioning decision, he/she shall also simultanously issue a decision on the compensation for the losses (if any) in accordance with the provisions of law."

In cases where the complainant disagrees with the decision on compensation, he/she may request a court to handle the case.

Article 7.- This Decree shall take effect 15 days after its signing.

The General Director of the General Department of Customs shall have to guide the implementation of this Decree.

Article 8.- The ministers, the heads of the ministerial-level agencies and agencies attached to the Government, the heads of the mass and social organizations at the central level, and the presidents of the People's Committees of the provinces and cities directly under the Central Government shall have to implement this Decree.