Thông tư 27/2020/TT-BCT

CIRCULAR

ON CONTENTS OF AND PROCEDURES FOR INSPECTION OF ADMINISTRATIVE VIOLATIONS AND ACTIONS TAKEN AND PRACTICES PERFORMED BY MARKET SURVEILLANCE AUTHORITIES

Pursuant to the Law on Penalties for Administrative Violations dated June 20, 2012;

Pursuant to the Ordinance on Market Management dated March 8, 2016;

Pursuant to the Government's Decree No. 98/2017/ND-CP dated August 18, 2017 on functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government’s Decree No. 148/2016/ND-CP dated November 4, 2016 on guidelines for the Ordinance on Market Management; the Government’s Decree No. 78/2019/ND-CP dated October 14, 2019 on amendments to the Government’s Decree No. 148/2016/ND-CP dated November 4, 2016 on guidelines for the Ordinance on Market Management;

Pursuant to the Decision No. 34/2018/QD-TTg dated August 10, 2018 of the Prime Minister on functions, tasks, powers and organizational structure of the General Department of Market Surveillance;

At the request of Director of General Department of Market Surveillance;

The Minister of Industry and Trade promulgates a Circular on contents of and procedures for inspection of administrative violations and actions taken and practices performed by market surveillance authorities.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Circular set forth contents of and procedures for inspection of administrative violations and actions taken (hereinafter referred to as inspection and actions taken) and practices performed by market watchdog officers, including:

a) Formulation, approval, and issuance of inspection program orientation, inspection plan;

b) Receipt and processing of reports on existing violations or potential violation and issuance of surprise inspection plans;

c) Contents and procedures for inspection, and actions against administrative violations;

d) Adoption of preventive measures and guaranteeing measures to deal with administrative violations (hereinafter referred to as preventive and guaranteeing measures);

dd) Power and procedures for performing practices.

2. The inspection and actions taken by the market watchdog authorities in the industrial property shall comply with law on industrial property and this Circular.

Article 2. Regulated entities

1. Market watchdog agencies, units and officers.

2. Agencies, organizations, and individuals relevant to the inspection and actions taken and performance of practices by the market watchdog authorities.

Article 3. Rules for inspection and actions taken and performance of practices

1. Comply with the law on actions against administrative violations, ordinance on market surveillance and this Circular.

2. Well-grounded, in conformity with the functions, tasks, powers of market watchdog authorities; ensure accuracy, impartiality, openness to the public, transparency, timely manner, non-discrimination, non-obstruction of legal business of organizations and individuals.

3. Activities of market watchdog authorities specified in Chapter IV and Chapter V of this Circular are performed in the form of inspectorate specified in Article 23 of the Ordinance on Market Surveillance, except for the practices mentioned in Chapter VI of this Circular.

4. The information technology in the inspection and actions taken and performance of practices by market watchdog authorities shall be applied in a secured, safe, economical and productive manner as per the law.

Chapter II

FORMULATION, APPROVAL, AND ISSUANCE OF INSPECTION PROGRAM ORIENTATION, INSPECTION PLAN

Article 4. Inspection program orientation

1. Inspection program orientation is a document which determines general orientation about purposes, requirements, entities to be inspected or fields or places to be inspected concerning the planned inspection in 01 (one) year of the market watchdog authorities, approved by the Minister of Industry and Trade at the request of General Department of Market Surveillance.

2. According to the market situation, market surveillance requirements or written direction of the Government, the Prime Minister, the Minister of Industry and Trade or the superior body, the General Department of Market Surveillance (hereinafter referred to as General Department) shall formulate an inspection program orientation for the subsequent year and submit to the Minister of Industry and Trade for approval before November 15th.

3. Once approved, the inspection program orientation of the General Department shall be forwarded to the Inspectorate of the Ministry of Industry and Trade, Department of Legal Affairs, specialized inspection authorities of The Ministry of Industry and Trade and relevant agencies for cooperation; to Department of Market Surveillance Practices (hereinafter referred to as Department of Practices), Market Surveillance Department of province (hereinafter referred to as Department of province) for implementation; to post up at the head office of the General Department; and to post it on the websites of the General Department and the Ministry of Industry and Trade.

4. Where the approved inspection program orientation requires amendments, the General Department shall seek a decision from the Minister of Industry and Trade. A decision on amendments to the inspection program orientation shall be forwarded to the agencies specified in clause 3 hereof.

Article 5. Inspection plan

1. The inspection plan of Department of Practices and Department of province consists of:

a) Routine inspection plan is an inspection plan that is formulated and issued to undertake the tasks in the following year. Time frame of a routine inspection plan starts on January 1 and ends by November 15 of the inspecting year;

b) Themed inspection plan is an inspection plan that is formulated and issued in response to the case at point a clause 2 Article 6 of this Circular and be undertaken for a specific period of time in the year.

2. An inspection plan specified in clause 1 of this Article must at least contain:

a) Bases for issuance;

b) Purposes and requirements;

c) Entities, products, fields and places to be inspected; list of specific names and addresses of organizations, individuals or places of business to be inspected and anticipated time;

d) Inspection checklist;

dd) Tasks assigned to inspection teams;

e) Expected composition of inspection forces, including coordinating entities (if any);

g) Time frame of plan;

h) Estimated budget, facilities and other means for the inspection;

i) Reporting.

3. If any problem arises in the place or sector that falls under jurisdiction of the market surveillance authority but not within the scope or contents of the inspection plans approved or issued by the superior bodies, the leader of the market watchdog team shall, on their own initiative, formulate a themed inspection plan and submit it to the Director of Department of Market Surveillance for approval and implementation.

The themed inspection plan of the market watchdog team must contain the contents stated in points a, b, c, d, e, g, h, i clause 2 hereof.

Article 6. Formulation, approval and issuance of inspection plan

1. The formulation, approval and issuance of routine inspection plan of Department of Practices and Department of province:

a) According to the market situation and market surveillance requirements in the place and approved inspection program orientation of the General Department, the Department of Practices and Department of province shall require affiliated entities to review, consolidate, and propose contents in the inspection plan specified in points c, d, e, g clause 2 Article 5 of this Circular before December 1 every year;

b) According to point a of this clause, the Director of Department of Practices or Department of province (hereinafter referred to as Director) shall formulate the routine inspection plan of the following year and seek approval from the Director General of General Department of Market Surveillance (hereinafter referred to as Director General) before December 10 every year.  Documents required: a request for seeking approval for the routine inspection plan and the draft routine inspection plan made by the Department of Practices or Department of province;

c) According to the approval for routine inspection plan of the Director General, the Director shall issue the decision on routine inspection plan of the following year no later than December 31 every year;

d) Promptly after issuance, the decision on routine inspection plan of Department of Practices or Department of province shall be sent to the People's Committee of province and relevant entities for further cooperation; to the Director General for reporting and supervision; to the affiliated market surveillance authorities for implementation; to organizations or individuals to be inspected (hereinafter referred to as inspected entities) as prescribed and be posted up at the head office or on website of the agency (if any).

2. The formulation and issuance of themed inspection plan of Department of Practices and Department of province:

a) According to problems, fields, and places requiring inspection in the market, from time to time, not within the routine inspection plan that has been issued; or under the direction of the Government, the Prime Minister, the Minister of Industry and Trade, Director General, the People's Committee of province or the superior authority, the Director shall request affiliated entities to review, consolidate and outline an inspection plan as prescribed in points c, d, e, g clause 2 Article 5 hereof;

b) According to point a of this clause, the Director shall, on their own initiative, formulate and issue a themed inspection plan;

c) Promptly after issuance, the decision on themed inspection plan of Department of Practices or Department of province shall be sent to the People's Committee of province and relevant entities for further cooperation; to the affiliated market surveillance authorities for implementation; to the Director General for reporting and supervision; to inspected entities as prescribed and be posted up at the head office or on website of the agency (if any); to relevant Department of province for further cooperation in the themed inspection plan of the Department of Practices.

3. The formulation and approval of themed inspection plan of market watchdog team:

a) According to clause 3 Article 5 of this Circular, the leader of market watchdog team shall, on their own initiative, formulate a themed inspection plan of the market watchdog team and seek approval from the superior Director. Documents required: the request for approval of themed inspection plan, draft decision on approval for themed inspection plan and draft themed inspection plan of the market watchdog team;

b) Within 05 business days of receiving the documents in point a, the superior Director shall consider approving the themed inspection plan of the market watchdog team;

c) Promptly after issuance, the decision on approval of themed inspection plan of the market watchdog team shall be sent to the People's Committee of district and relevant entities for further cooperation; to the inspected entities as prescribed and be posted up at the head office or on website of the agency (if any).

4. In case where entities, matters to be inspected or time for performance in the foregoing plan are found duplicated with any inspection plan that has been previously approved or  issued, the market surveillance authority shall immediately report to the head of the market surveillance authority that has approved or issued the latter inspection plan and relevant entities for handling.

5. If the latter inspection plan needs amendments, the market surveillance authority shall request the competent person to make a decision.

The decision on amendment to the decision on approval of the inspection plan or decision on amendment to the inspection plan of the competent person shall be sent to relevant entities; be posted up at the head office and on the website of the agency as prescribed in point d, clause 1, point c clause 2 or point c clause 3 hereof.

6. The Director General or Director shall oversee the performance of the inspection plan by affiliated market surveillance agencies, promptly discover and direct the handling of any duplicated scope, entities, matters to be inspected, time for performance; and take appropriate actions against alleged wrongdoers with respect to duplicating issues during the process of formulation, issuance and performance of the inspection plan.

Article 7. Performance of inspection plan

1. Based on the tasks assigned in the approved or issued inspection plan, the manager or leader of market watchdog team shall:

a) Issue or propose the competent person to issue a decision on inspection of the compliance with law on business (hereinafter referred to as inspection decision) associated with the inspected entities as planned;

b) Initiate and direct the inspection as planned;

c) Consolidate information and report the superior Director in writing on the result of inspection as planned as soon as practicable after closure of the inspection plan or upon a surprise request.

2. Upon closure of the inspection plan or Department of Practices or Department of province or upon a surprise request, the Director shall consolidate information and report the Director General in writing on the result of the inspection as planned as per the law on reporting of the market watchdog authorities. The report shall specify causes and specific responsibilities in a case where the inspection plan has unperformed tasks and other proposals (if any).

Chapter III

RECEIPT AND PROCESSING OF REPORTS ON EXISTING OR POTENTIAL VIOLATIONS AND ISSUANCE OF SURPRISE INSPECTION PLANS

Article 8. Reports on existing or potential violations for surprise inspections

1. Reports on existing or potential violations include:

a) Reports from the Government, the Prime Minister, the Minister of Industry and Trade, the President of People’s Committee of province, Director General, Director, the President of People’s Committee of district on existing or potential violations requiring inspection, in specific:

b) Reports of market watchdog officers who are designated to perform the practices as prescribed in Articles 34, 35, and 36 of this Circular or reports of market watchdog officers who are in charge of inspection and actions taken;

c) Reports of market surveillance authorities forwarded from reports on existing or potential violations;

d) Requests for inspection and actions taken against violations by other regulatory agencies not specified in point a;

dd) Reports on existing or potential violations from means of mass media;

e) Reports, claims, complaints, and whistleblowing reports of consumers or other entities on existing or potential violations.

2. The requests made by the competent authority or person in point a and market watchdog officers in point b shall prevail as a basis for the person with authority to consider issuing a surprise inspection decision.

3. A report on existing or potential violation not specified in clause 2 shall require prior investigation and verification before being used as a basis for the person with authority to consider issuing a surprise inspection decision.

Article 9. Receipt and processing of reports

1. Except as provided in clause 2 and clause 3, the market watchdog officer shall receive reports on existing or potential violations as prescribed in Article 8 and then forward them to the head of the superior market surveillance authority for handling. The report shall be made in writing for the cases of point dd and e clause 1 Article 8.

2. Promptly after receiving the report in Article 8, the head of the market surveillance authority that has competence to make an inspection decision (hereinafter referred to as inspection decision-maker) shall take the following actions:

a) Personally issue, or authorize the deputy or require the inferior inspection decision-maker to issue, an inspection decision within their designated authority, location or field and take further actions as prescribed in clause 2 Article 8, unless he/she deems that the request for inspection of the officer on duty has not well-grounded to issue such an inspection decision.

b) Designate a market watchdog officer to gather and verify the information or supervise the business operation with potential violation (hereinafter referred to as supervise) as prescribed in Articles 35 and 36 in relation to information mentioned clause 3 Article and he/she deems that the request for inspection of the officer on duty has not well-grounded to issue such an inspection decision.

3. If the head of market surveillance authority who receives the report on existing or potential violation in Article 8 is not an inspection decision-maker or the matter in the report does not fall under his/her jurisdiction, place or field designated, he/she shall take the following actions:

a) If such report does not fall under administrative jurisdiction of market watchdog authorities, he/she shall personally forward, or guide the report maker to forward, the report to the competent authority or person as per the law;

b) If such report falls under administrative jurisdiction of market watchdog authorities, he/she shall, without delay, forward the report to the head of other market surveillance authority who is also an inspection decision-maker within their designated jurisdiction, place or field as prescribed in clause 2. The report forwarded shall be also sent to the heads of superior market surveillance authorities of both persons from and to which the report is forwarded for handling.

Article 10. Actions as to results of gathering, verification or supervision of the report on existing or potential violation

If the gathering, verification or supervision mentioned in point b clause 2 Article 9 is performed, the head of the market authority cum inspection decision-maker shall, upon receipt of the performance report, promptly take the following actions:

1. If no existing or potential violation is found, the head shall notify the report maker in writing as prescribed in points c, d and e clause 1 Article 8, unless otherwise required.

2. If an existing or potential violation is found, the head shall issue an inspection decision at his discretion as prescribed in point a clause 2 Article 9 or, if the report does not fall under his/her jurisdiction, place or field designated, forward the report to the inspection decision-maker as prescribed in point b clause 3 Article 9.

Article 11. Inspection proposal

1. In performing the practices mentioned in Articles 34, 35 and 36 or in conducting inspection and actions taken, if any existing or potential violation is found, the market watchdog officer shall make a report and propose an inspection in writing to the head of market surveillance authority cum inspection decision-maker, except as provided in point a clause 2 Article 17.

2. Such a proposal for inspection in clause 1 shall be made in a report on result of performance of practices or inspection and actions taken of market watchdog officer or a written inspection proposal and shall at least contain:

a) Full name, position, workplace of the person making the inspection proposal;

b) Grounds for inspection proposal;

c) Name and address of entity or place to be inspected;

d) Matters to be inspected;

dd) Time limit and time for inspection;

e) Administrative violations and legislative documents applicable;

g) Full name and signature of the person making the inspection proposal.

3. The market watchdog officer who proposes the inspection shall be held accountable to the inspection decision-maker and to the law as to the contents of the inspection proposal.

Article 12. Surprise inspection plan

1. Before issuing a surprise inspection decision, the inspection decision-maker or a duly authorized person thereof shall issue a surprise inspection plan as to the compliance with law in business (hereinafter referred to as inspection plan) to ensure the inspection complies with law and is productive, except for inspection as planned and surprise inspection for emergencies as prescribed in clause 2.

2. Upon receipt of a report on existing or potential violation and it finds just cause to believe that if the inspection is not carried out immediately, the offender will run away, exhibits and means of violations may be dispersed or destroyed or possible consequences may occur (hereinafter referred to as emergencies), the person with authority shall issue a surprise inspection decision and be held accountable for that decision.

3. An inspection plan specified in clause 1 of this Article must at least contain:

a) Grounds for the inspection plan;

b) Name and address of entity or place to be inspected;

c) Inspection checklist;

d) Anticipated starting and closing time of the inspection;

dd) Administrative violations and legislative documents applicable;

e) Predicted circumstances and handling measures, including preventive measures and measures to deal with administrative violations (if any);

g) Composition of inspectorate, including coordinating entities (if any);

h) Estimated facilities and other means for the inspection;

i) Full name, title and signature of the inspection plan-issuer and seal.

3. The inspection plan-issuer shall direct and supervise the performance of the inspection plan by the inspectorate.

Chapter IV

CONTENTS AND PROCEDURES FOR INSPECTION AND ACTIONS AGAINST ADMINISTRATIVE VIOLATIONS

Article 13. Issuance of inspection decision

1. The inspection must be made in writing by the inspection decision-maker as per the law.

2. The inspection decision-maker may only issue an inspection decision if there are ground as provided in Article 20 of the Ordinance on Market Management

3. The inspection decision must specify the main contents provided for in clause 2 Article 19 of the Ordinance on Market Management. The contents of the inspection decision must meet the following requirements:

a) Within the scope of inspection specified in Article 17 of the Ordinance on Market Management;

b) Under the jurisdiction, place or field designated;

c) With proper entity and matters to be inspected in the inspection plan approved or issued as prescribed in this Circular or proper entity and content of existing or potential violation as provided in clause 2 Article 12.

4. For the same entity with varied places to be inspected, the inspection decision-maker may issue single or multiple inspection decision(s) or a document to direct the inferior inspection decision-makers to issue inspection decisions as to such inspected entity in every place to be inspected corresponding to their place or field designated.

5. The establishment of the inspectorate as provided in clause 1 Article 23 of the Ordinance on Market Management shall be stated in the inspection decision.

Article 14. Responsibilities of the inspection decision-maker

1. Personally enforce, or appoint a qualified market watchdog officer as the chief inspector to enforce, the inspection decision.

2. Personally document, or designate an officer authorized to keep the journal of the market surveillance authority to document, full name, badge (if any) of the inspectorate member; name and address of the inspected entity and inspection checklist in the journal before enforcement of the inspection decision.

3. Fulfill the responsibilities as prescribed in Article 26 of the Ordinance on Market Management.

Article 15. Composition of the inspectorate

1. Composition of the inspectorate:

a) Chief inspector who is a qualified market watchdog officer as provided for in point b and obtains a market inspection card;

b) Qualified market watchdog officers as provided for in clause 2 and clause 3 Article 23 of the Ordinance on Market Management;

c) Persons designated by coordinating agencies in relation to matters associated with public administration of multiple fields and fields as prescribed in clause 2 Article 36 of the Ordinance on Market Management.

2. The inspection decision-maker shall decide in writing the replacement of the chief inspector or inspectorate members if they are sick, meet accidents, die, are lost, legally incapacitated, dismissed, disciplined or, for other objective causes, cannot keep performing the inspection and actions taken.

If the head of market surveillance authority cum inspection decision-maker has his/her market inspection card revoked or suspended or he/she is replaced, the substitute or the acting head of that market surveillance authority or the head of the superior market surveillance authority shall decide the replacement of the chief inspector or inspectorate members.

Article 16. Enforcement of inspection decision

1. An inspection decision shall be enforced as per clause 3 Article 19 of the Ordinance on Market Management. If, when the inspection decision is enforced, the inspected entity’s business is not operated or suspended, the inspectorate shall take a record to document the failure to enforce the inspection decision with the presence of the representative of the People’s Committee of commune or police office of commune, and then report it to the inspection decision-maker for consideration.

2. At the beginning of the inspection, the chief inspector must initiate the following procedures:

a) Present the market inspection card; publish and assign the inspection decision to the inspected individual or the representative of the inspected entity;

b) Notify the inspected individual or the representative of the inspected entity of the composition of the inspectorate and witnesses (if any);

c) Request the inspected individual or the representative of inspected entity to abide by the inspection decision of the competent person and work with the inspectorate;

d) In case the inspected individual or the representative of inspected entity is not present at the inspection site, the inspectorate shall still announce the inspection decision and conduct the inspection in the presence of the representative of People's Committee of commune or representative of police office of commune and witnesses.

3. The tasks and powers of the inspectorate, the responsibilities of the chief inspector and members of the inspectorate, on inspection duty, shall comply with  Articles 24 and 25 of the Ordinance on Market Management.

4. Rights and responsibilities of the inspected entity are specified in Articles 30 and 31 of the Ordinance on Market Management.

Article 17. Handling unexpected circumstances upon enforcement of the inspection decision at the inspection site

1. Unexpected circumstances arising when the inspection decision is enforced at the inspection site:

a) Existing or potential violation committed by the inspected entity, not indicated in the inspection decision, is found;

b) The inspection, because of its delicate nature, requires extension as prescribed in point b clause 2 Article 22 of the Ordinance on Market Management;

c) The chief inspector or inspectorate member is replaced;

d) Other circumstances that affect the enforcement of the inspection decision.

2. The unexpected circumstances in point a clause 1 shall be dealt with as follows:

a) Where an existing violation committed by the inspected entity, not indicated in the inspection decision, is found, the inspectorate shall document it in the inspection report;

b) Where a potential violation committed by the inspected entity, not indicated in the inspection decision, is found, the chief inspector shall request the inspection decision-maker  to amend the existing inspection decision. The inspectorate may only carry out an inspection of the potential violation after they obtain an amended inspection decision by the inspection decision-maker.

3. Where an unexpected circumstance in point b or d clause 1 arises, the inspectorate shall report it to the inspection decision-maker for decision.

4. The unexpected circumstances mentioned in point c clause 1 shall be dealt with in accordance with clause 2 Article 15 of this Circular.

Article 18. Taking of inspection report and administrative offense report

1. Based on the inspection result, the inspectorate shall take and sign the inspection report to document the inspection result and make a conclusion on the inspected matters (if any) right after completing the inspection at the inspection site.

2. The inspection report or administrative violation report shall be taken at the inspection site as follows:

a) If every item in the inspection checklist is found compliant with the law, the inspectorate shall take an inspection report to document the inspection result;

b) If, in the inspection checklist, all items are found associated with administrative violations, or some items are found associated with administrative violations and some items are found compliant with law and not stipulated in point c of this clause, the inspectorate shall take an inspection report to document the inspection result; take an administrative offense report or issue a decision on penalty for administrative offense without report if the offender receives a warning or a fine of VND 250,000 (for individual) or VND 500,000 (for organization) in accordance with law on actions against administrative violations, except provided for in clause 4 Article 13 of this Circular;

c) If, with regard to an item of inspection checklist, a potential violation requiring further verification, is found, the inspectorate shall take an inspection report to document the inspection result, and propose the inspection decision-maker to conduct further verification to take extra proof as prescribed in Article 35, adopt preventive and guaranteeing measures per the law.

3. The inspection report shall be made using the given form and comply with the following:

a) Upon taking an inspection report, the inspected entity or the representative thereof must be present; if the inspected entity or the representative thereof is absent or intentionally evades, the presence of the representative of the People’s Committee of commune or police office of commune and witnesses are required;

b) If the inspected entity or the representative thereof refuses to sign the inspection report, the presence of the representative of the People’s Committee of commune or police office of commune and 02 witnesses are required and reasons for refusal must be documented.

4. Contents of inspection report:

a) The inspection report must specify adequate and accurate inspection result as to every item of the inspection checklist; opinions of the inspected entity or the representative thereof, the representative of the coordinating agency, witnesses (if any); assessment, recommendations and proposals of the inspectorate towards the inspection case;

b) The inspection report must be fully signed by representatives of the parties involved in the inspection and taking of the inspection report.  In case the report has many pages and many copies, the signatures of these persons must be included on each page and every copy of the report, including the appendix and list enclosed with the inspection report.

Article 19. Handling inspection result

1. Where appropriate, in the course of inspection or based on the inspection result, the chief inspector shall adopt, at their discretion, or propose the competent person to adopt preventive and guaranteeing measures. The adoption of the preventive and guaranteeing measures shall comply with law on actions against administrative violations and Chapter V of this Circular.

2. Within 02 business days of taking the inspection report, the chief inspector must report and make a proposal for handling of inspection result in writing together with the inspection case file to the inspection decision-maker as prescribed in Clause 3 of this Article.

3. Except for the case specified in Clause 4 of this Article, right after receiving the inspection case file from the inspectorate, the inspection decision-maker shall consider handling the inspection result as follows:

a) If an administrative offense report has been taken as prescribed in point b clause 2 Article 18, the inspection decision-maker shall, at their discretion, issue a penalty decision if the violation falls under their jurisdiction, or forward the case file to the competent penalty decision-maker as per the law on actions against administrative violations and this Circular;

b) If a potential violation is found but there are inadequate grounds to consider it an administrative violation, the inspection decision-maker shall initiate practices to gather and verify information to take extra proof as prescribed in Article 35.

4. In case of inspection at the request of the competent person as prescribed in clause 4 Article 13 or, at the same time, the inspected entity is also subject to the inspection and actions taken by another market surveillance authority, the inspection decision-maker shall propose the handling of inspection result to the head of the superior market surveillance authority; forward or receive the inspection case file and initiate practices under direction of the competent person.

The head of the superior market surveillance authority shall direct or decide the gathering and verification of information to take extra proof; make a conclusion regarding the inspection case, direct the taking of administrative offense report and penalties for administrative violations, or request or forward the administrative offense case file to the competent penalty decision-maker as per the law on actions against administrative violations and this Circular.

Article 20. Handling verification result 

1. Except for the case of inspection at the request of the competent person specified in clause 4, Article 13 of this Circular, within 03 business days from the date of completion of verification, the inspection decision-maker must make a conclusion regarding the case and handle as follows:

a) If no existing violation is found, he/she must notify the inspected entity in writing according to  point d, clause 4, Article 27 of the Ordinance on Market Management;

b) If an existing violation is found, he/she must direct the taking of administrative offense report and issue a penalty decision under his/her jurisdiction, or request or forward the administrative offense case file to the competent penalty decision-maker as per the law on actions against administrative violations and this Circular;

c) If a potential criminal violation is found, he/she shall forward the offense case file to the criminal proceedings agency for further criminal prosecution as provided in clause 2 Article 22.

2. In case of inspection at the request of the competent person specified in clause 4, Article 13 of this Circular, within 02 business days from the date of completion of verification, the inspection decision-maker must report the verification result to the competent person to make a conclusion regarding the case and handle as established in points a, b and c clause 2 of this Article.

Article 21. Imposition of administrative penalties

The power of and procedures for imposing penalties for administrative violations, enforcement of administrative penalty decisions and coercive enforcement of administrative penalty decisions are specified in the law on actions against administrative violations.

Article 22. Procedures for forwarding administrative violation cases to competent agencies of other branches

1. For a case where the administrative violation report has been made according to point b, clause 2, Article 18 or clause 4, Article 19 or Article 20 of this Circular, but the case does not fall under the jurisdiction of the market surveillance authority, the market surveillance authority of the inspection decision-maker or presiding officer must:

a) Forward the administrative violation case, in writing, to the competent penalty decision-maker;

b) Hand over all of the files and temporarily seized exhibits (if any) related to the violation;

c) Make a record on the handover of the files and temporarily seized exhibits (if any) between the transferor and the receiver.

2. If a violation is found by the market watchdog force but it is deemed a potential criminal violation, the market surveillance authority of the inspection decision-maker or presiding officer shall forward the offense case file to the criminal proceedings agency for further criminal prosecution as per the law. The forwarding procedure shall be done as prescribed in clause 1 hereof.

Article 23. Procedures for receiving and accepting administrative violation cases forwarded by other regulatory agencies to market surveillance authorities

1. The market surveillance authority shall only receive and accept administrative violation cases transferred by other regulatory agencies when these cases fall under functions, tasks, powers and penalty competence of market watchdog authorities.

2. Procedures for receiving and accepting administrative violation cases forwarded by other regulatory agencies to market surveillance authorities shall be done as follows:

a) The transferring agency transfers the administrative violation case in writing to the market surveillance authority;

b) The head of the market surveillance authority that receives the case forwarded shall consider receiving it and direct the making of record of handover of files and temporarily seized exhibits (if any) between the transferor and receiver.

3. Within the time limit prescribed by the law on handling of administrative violations, the head of the market surveillance authority that receives the case forwarded shall consider imposing a penalty for the administrative violation within their authority or request the competent penalty decision-maker to do so as per the law.

4. Where appropriate, the head of the market surveillance authority that receives the case forwarded may decide to gather and verify information to take extra proof as a basis for the penalty decision.

Article 24. Procedures for submitting administrative violation cases within the market surveillance authority

1. Except for the case specified in clause 2, Article 20 and point a, clause 1, Article 25 of this Circular, for a case beyond the power to impose penalties for administrative violations, the leader of market watchdog team in charge of that case is responsible for:

a) Immediately after taking an administrative offense report, requesting the head of the superior market surveillance authority in writing to impose a penalty on such administrative violation;

b) Forwarding the complete case file of the administrative violation and taking a record of handover between the transferor and the receiver;

c) Keeping preserving temporarily seized exhibits (if any) upon the forward of administrative violation case, unless otherwise requested by the superior market surveillance authority.

2. Immediately after receiving the case file of the administrative violation, the Director shall:

a) Consider imposing a penalty within the time limit prescribed by the law on handling of administrative violations if the case falls under his/her jurisdiction.

b) Submit the case file of administrative violation to the Director General for imposing a penalty under the authority of the General Director, except for cases specified in clause 3 and 4, Article 25 of this Circular.  Procedures for submitting case files of administrative violation are similar to those specified at points a, b and c, clause 1 of this Article;

c) Request the market watchdog division or team to verify more details to supplement the case file in case there are insufficient grounds to handle administrative violations.  The request for additional documents is made in writing.

3. Within the time-limit prescribed by the law on handling of administrative violations, the General Director shall:

a) Consider imposing a penalty on administrative violation according to his/her competence;

b) Request relevant entities to verify more details to supplement the case file in case there are insufficient grounds to handle administrative violations.  The request for additional documents is made in writing.

Article 25. Procedures for submitting administrative violation cases to the President of People’s Committee

1. The market surveillance authority shall request the President of People's Committee that is a competent penalty decision-maker to consider issuing a penalty decision in the following cases:

a) The case involves many administrative violations in varied fields of state management, including administrative violations which do not fall under the jurisdiction of the market surveillance authorities;

b) The administrative violation case goes beyond the power to impose penalties for administrative violations of the Director of Department of province.

2. The market watchdog team in charge of the administrative violation case shall:

a) Submit the case to the President of the People's Committee of the district where the administrative violation is committed for imposing a penalty as specified at point a, clause 1 of this Article;

b) Forward the case to the superior Department for consideration, and then submit it to the President of the People's Committee of the province in a case where the case specified at point a, clause 1 of this Article goes beyond power to impose penalty of the President of the People's Committee of district.

3. The Department of province shall submit the case to the President of the People's Committee of the province where the administrative violation is committed for imposing a penalty as specified at point b, clause 1 or point b clause 2 of this Article;

4. The Department of Practices shall submit the case to the President of the People's Committee of the province where the administrative violation is committed for imposing a penalty as specified at point a, clause 1 of this Article.

Article 26. Documenting, preserving and archiving the case file of the inspection and actions taken

1. The case file of the inspection and handling of administrative violations (hereinafter referred to as case file) includes all documents related to the case of inspection and handling of administrative violations, which are documented, managed and archived according to the following principles:

a) The case file shall be documented in an honest and adequate manner in conformity with the assigned functions and tasks; and prevail as the basis for the timely, lawful and effective settlement of the work of the agency;

b) Documents kept in the case file must properly and fully reflect the handling process and actual developments of the inspection and handling of administrative violations; ensure legal validity in handling cases;

c) Documents must be arranged and numbered before being forwarded to the archives of the agency for further use and search.

2. At the end of the inspection and handling of administrative violations, the head of the market surveillance authority specified in clause 4 of this Article shall designate an officer to document that case and keep the case file according to  clause 3 of this Article.

3. The case file shall be documented as follows:

a) The case file must have a cover designed and printed according to the national standard TCVN 9251: 2012 on case file covers and it shall be archived according to regulations.  The officer in charge shall document fully and in detail the contents of the items printed on the cover of the file;

b) Documents available in the case file must be arranged, numbered and listed on the list printed on the cover or label of the case file.  The officer in charge must list, number and arrange documents in the order from the case file page No. 1 to the last one;

c) The case file pages shall be numbered in ascending order in the order of each document sheet in the case file.  A case file page is numbered once. The case file page shall numbered in the top right, and front corner of each sheet. Each sheet is marked with a number. The numbering of the case file pages is done according to the chronological order of receipt.  In case a number of documents is received at a time, the case file pages shall be numbered in the order of document issuance time.

4. The case file shall be preserved and archived as follows:

a) The market surveillance authority of the penalty decision-maker shall keep the original of the case file when the case is completed;

b) In case the President of the People's Committee of the province is the penalty decision-maker, Department of province or Department of Practices shall request to keep a copy of the case file, unless the People's Committee of province has other requirements;

b) In case the President of the People's Committee of the district is the penalty decision-maker, the market watchdog team shall request to keep a copy of the case file, unless the People's Committee of district has other requirements.

5. The case file must be received, preserved, archived and destroyed when they cease to be valid according to  law on archives.

Article 27. Confidentiality

1. Every information and document in the case file related to the inspection and actions against existing or potential administrative violations provided for in this Circular must be kept confidential as per the law.

2. A market watchdog officer who intentionally discloses or makes a statement on a case of inspection and actions taken or information related to the result of performance of practices by the market surveillance force, without a permission of the competent authority, depending on the seriousness of the violation, he/she may face a disciplinary action or criminal prosecution in accordance with the law.

Chapter V

ADOPTION OF PREVENTIVE AND GUARANTEEING MEASURES TO DEAL WITH ADMINISTRATIVE VIOLATIONS

Article 28. General provisions on adoption of preventive and guaranteeing measures

1. Based on the inspection result or the result of the performance of practices, the competent person of the market surveillance authority shall decide to adopt preventive and guaranteeing measures.

2. The competent person of the market surveillance authority who decides to adopt preventive and guaranteeing measures shall:

a) Ensure that the adoption of preventive and guaranteeing measures is grounded in accordance with the law on handling of administrative violations;

b) Organize, direct, and adopt preventive and guaranteeing measures in accordance with the law on handling of administrative violations.

Article 29. Search proposal

1. When receiving and processing information according to  Articles 8, 9 and 10 of this Circular or when taking assigned practices or in the case specified in clause 1, Article 19 of this Circular. , if there are grounds to believe that exhibits of administrative violations are hidden inside bodies or in means of transport, objects or in hiding places, the market watchdog officer on duty shall search people, search means of transport and objects according to their competence or propose a competent person of the market surveillance authority to issue a decision to search people, search means of transport, objects or search where exhibits and means of administrative violations are hidden (hereinafter referred to as search decision) in accordance with the law on handling of administrative violations.

2. A search proposal under  clause 1 of this Article shall be made in writing and must contain the following:

a) Full name, position, workplace of the person who makes the search proposal;

b) Basis of proposal;

c) The person, mean of transport, object or place to be searched;

d) Scope of search;

dd) Expected time and place for the search;

e) Proposed administrative violation and relevant exhibits and means of administrative violation;

g) Full name and signature of the person making the inspection proposal.

3. The market watchdog officer who proposes the search shall be held accountable to the search decision-maker and to the law as to the contents of the search proposal.

Article 30. Search plan

1. Before issuing a search decision, the competent search decision-maker or the duly authorized person thereof must issue a search plan to ensure that the search is lawful and effective, except for cases that there are grounds to believe that if the search is not conducted immediately, exhibits and means of administrative violations will be dispersed or destroyed.

2. A search plan specified in clause 1 of this Article must at least contain:

a) Grounds for the search plan;

b) The person, mean of transport, object or place to be searched;

c) Reasons for search;

d) The location and scope of the search;

dd) Anticipated starting and closing time of the search;

e) Unexpected circumstances and actions taken (if any);

g) Administrative violations and legislative documents applicable;

h) Estimated number and composition of the inspectorate performing the search, including coordinating entities (if any);

i) Expected facilities for the search (if any);

k) Full name, title and signature of the search plan-issuer and seal.

Article 31. Issuance of search decision

1. Regarding every case of body search, search of means of transport and objects, search of places where exhibits and/or means of administrative violations are hidden according to administrative procedures (hereinafter referred to as search cases), a search decision made by the competent person is required, except for the case specified in clause 2, clause 2, Article 127 or clause 3, Article 128 of the Law on handling of administrative violations.

2. The competent person of the market surveillance authority shall only issue a search decision when it meets the following requirements:

a) The search case falls under his/her jurisdiction, geographical area or field designated;

b) He/she has a search plan in place as prescribed in Article 30 of this Circular or there are grounds to believe that if the search is not conducted immediately, exhibits and means of administrative violation will be dispersed or destroyed.

Article 32. Procedures for enforcing the search decision and handling of search result

1. Procedures for enforcing the search decision, taking report of body search according to administrative procedures, report of search of means of transport and objects according to administrative procedures and report of search of places where exhibits and/or means are hidden, and taking report of administrative offense report and penalties imposed shall comply with the law on handling of administrative violations.

2. The processing of search result, verification result; forwarding, receipt and submission of case files of administrative violations for penalties imposed; documenting, revision and archival of case files of administrative violations and information confidentiality are similar to the inspection activities specified in Articles 19, 20, 22, 23, 24, 25, 26 and 27 of this Circular.

Article 33. Application of measures to temporarily seize exhibits, means, licenses and practice certificates according to administrative procedures, temporarily detain persons according to administrative procedures and escort offenders

1. The chief inspector shall apply, according to their competence, or propose competent persons to apply measures of temporary seizure of exhibits, means, licenses or practice certificates according to administrative procedures, temporary detention of persons according to administrative procedures, or escort offenders when there are grounds specified in the Law on handling of administrative violations. The proposal is made in writing or written in the search report, the search report of the inspectorate.

2. Competence and procedures for the application of measures to temporarily seize exhibits and means of administrative violations, permits, practice certificates, detain persons according to administrative procedures and escort offenders shall comply with regulations of the law on handling of administrative violations.

Chapter VI

POWER AND PROCEDURES FOR PERFORMANCE OF PRACTICES

Article 34. Management of business organizations and individuals by geographical areas

1. Entities subject to management activities by geographical areas include:

a) Business organizations and individuals in the geographical area of the market watchdog authorities;

b) Places of production, business, delivery, preservation and storage of goods; terminal facilities, domestic airports, seaports, ports, inland wharves, railway stations, post offices; shopping malls, duty-free shops, supermarkets, and markets within the geographical area of the market watchdog authorities;

c) Places of production, business, delivery, preservation and storage of goods; terminal facilities, domestic airports, seaports, ports, inland wharves, railway stations, post offices; shopping malls, duty-free shops, supermarkets, and markets, etc. and organizations and individuals engaged in production and trading of commercial goods and services within the geographical area of customs but not subject to management of the customs in accordance with the law.

2. The contents of management activities by geographical areas are specified in clause 1, Article 33 of the Ordinance on Market Management.

3. The assignment of management by geographical areas is decided in writing by the leader of market watchdog team to one or more officers for implementation.  In case there are many officers assigned to manage the same geographical area, the leader of the market watchdog team shall appoint one officer to be the chief who is responsible for regularly reporting or consolidating information on the management of the area.

4. The assignment decision must clearly state the specific management geographical area, the list of officers, the matters to be managed and the reporting regime.  Any officer who performs management activities by geographical area outside the head office of the market watchdog team must document a journal for management and supervision.

5. The leader of the local market watchdog team is responsible for consolidating, building, managing and using the management information database within the assigned geographical area and implementing the reporting regime at the request of the Director of the Department of province.

6. The Director of Department of province is responsible for consolidating, building, managing and using the management information database within the assigned geographical area and implementing the reporting regime at the request of the General Director.

7. The General Director is answerable to the Minister of Industry and Trade for building, managing and developing the information database system on management of geographical areas; guide the exploitation, use and ensure maintenance, operation, keeping confidentiality, security of the management database system nationwide.

Article 35. Gathering and verification of information

1. The gathering and verification of information by the market watchdog authorities specified at point b, clause 1, Article 32 of the Ordinance on Market Management shall be carried out in the following cases:

a) Collect information to serve the consultation and formulation of routine inspection plans or themed inspection plans;

b) Verify reports on existing or potential violations as a basis for issuance of surprise inspection decisions or adoption of preventive or guaranteeing measures;

c) Gather and verify information to supplement documents and evidences proving administrative violations in the process of handling inspection result, results of application of search measures or receipt and acceptance of administrative violation cases forwarded by other state agencies to market surveillance authorities;

d) Gather and verify information serving the enforcement of decisions on administrative sanctions, coercive enforcement of decisions on administrative penalties in accordance with the law on handling of administrative violations;

dd) Gather and verify information under the direction of the superior market surveillance authority or at the request of other market surveillance authority.

2. Entities subject to gathering and verification of information:

a) Entities being inspected under the inspection decision of the competent person of the market surveillance authority;

b) Entities that incurred the administrative or criminal penalties in business but are likely to commit recidivism; entities that likely to commit administrative violations or are involved in administrative violations in business;

c) Other entities relevant to the inspection and actions taken by the market watchdog authorities.

3. Information to be gathered and verified is stipulated in clause 2 Article 33 of the Ordinance on Market Management.

4. According to the specific requirements of each case, the gathering and verification of information may take one or more of the following forms:

a) Invite inspected entity; owner of mean of transport, object or operator of transport mean or object examined; owner, guardian or user of the temporarily seized exhibit or mean of violation; the owner of the searched place or the representatives of the above entities come to work;

b) Work with entities specified at point a of this clause at their request;

c) Work with other entities related to the inspection and application of preventive and guaranteeing measures;

d) Designate persons to conduct verification or request relevant regulatory agencies to assist and coordinate in verification;

dd) Take samples of goods and send them to specialized agencies or organizations for testing and assessment;

e) Seek professional opinions of relevant experts or specialized regulatory agencies;

g) Other forms as prescribed by law.

5. Based on the assigned functions and tasks, the head of the market surveillance authority shall assign officers to perform the tasks of gathering and verifying information specified at points a and d, and dd clause 1 of this Article in accordance with relevant laws.

6. The gathering and verification of information specified at points b and c, clause 1 of this Article shall comply with the following provisions:

a) Based on clause 3, Article 8 and point b, clause 2, Article 9 of this Circular or on the basis of the proposal of the inspectorate, the head of the market surveillance authority that is initiating the case shall designate officers to perform the tasks of gathering and verifying information;

b) The written assignment of tasks to the officer must clearly state the information to be gather and verified; the name of the officer assigned to the task and the deadline for information gathering and verification.  In case of the gathering and verification of information specified at point c, clause 2, Article 18 of this Circular, the time limit for gathering and verification shall comply with clause 4, Article 27 of the Ordinance on Market Management;

c) The market watchdog officer assigned the task shall immediately gather and verify information in accordance with the content of the written assignment of task; report to the person who assigns the task on the results thereof, and propose (if any) in writing actions to be taken according to  Article 10 or Article 20 of this Circular.

7. The gathering and verification of information by the market watchdog officer assigned tasks under the market watchdog team under the Department of province or the Division of Practices under the Department of Practices which are conducted outside the office must be documented in the journal diary for management and supervision.

Article 36. Supervision of business with potential violations

1. Entities and subjects to be supervised:

a) Organizations and individuals showing signs of trading, transporting or possessing smuggled goods or producing or trading fake goods, banned goods, goods of unknown origin, infringing intellectual property rights, violating the law on quality, measurement, price, food safety, violating the law on protection of consumer interests and commercial fraud;

b) Organizations or individuals that are committing or in preparation to commit law violations reported from the information provider;

c) Means of transport, place of business, places of gathering, storing or hiding goods, means and objects showing signs of law violation;

d) Other business activities with potential violations.

2. The contents of supervision activities are specified in clause 3, Article 33 of the Ordinance on Market Management.

3. Supervision activities are carried out as follows:

a) Based on the direction of the head of the superior market surveillance authority or the officer’s report or suggestion or collected information or the report from the information provider, the head of the market surveillance authority cum inspection decision-maker shall issue a written assignment of supervision concerning entities and subjects specified in clause 1 of this Article;

b) The written assignment specified at point a of this clause must clearly state the basis for performing the supervision, the list of officers performing the supervision, the entities and subjects to be supervised and the time for supervision;

c) Market management officers assigned the task of supervision shall comply with the content of the written assignment of tasks; report to the result to the supervisor and make written proposals and recommendations (if any) for handling in accordance with  law and this Circular.

4. Any market watchdog officer who performs supervision activities must document a journal for management and supervision.

Article 37. Establishment of information provider network

1. The market surveillance authorities may employ people who are not on the payroll, are qualified to participate as collaborators in performing the task of providing information and contact points to regularly provide information sources for the operation of market surveillance authorities.

2. The heads of the Department of Practices, Department of province, and market watchdog teams decide and take responsibility for the development, classification, management and use of information providers on the following principles:

a) Confidential, single line;

b) Information about collaborators' identities, records of information source supply process, contact points are classified, managed and used according to the confidentiality regime as prescribed by law.

3. Information and documents provided by information providers must be collected, verified and verified in accordance with Article 35 of this Circular before being used as a basis for inspection and handling of administrative violations.

4. Amounts and procedures for payment of expenditures on for buying information and rewards to information providers with achievements in the process of participating in the arrest and confiscation of exhibits and means in violation of law in the field of anti-smuggling, trade fraud, fake goods shall comply with law.

Chapter VII

IMPLEMENTATION

Article 38. Responsibilities

1. The General Director of Market Surveillance shall:

a) Direct, monitor, urge, guide and inspect market surveillance authorities in the inspection and actions taken and performance of practices in accordance with law and this Circular;

b) Apply information technology in the inspection, actions against administrative violations and performance of practices by market watchdog authorities as per the law and this Circular;

c) Direct the professional training and refresher course and ensure funding and working regime for the market surveillance authorities and officers assigned to perform the inspection and actions taken and performance of practices;

d) Report to the Minister of Industry and Trade on the results of the implementation of the inspection program orientation and the results of the inspection and actions taken by the market management authorities according to regulations;

dd) Propose to the Minister of Industry and Trade measures for implementation and amendments to this Circular when necessary.

2. Director of the Department of Practices, Directors of the Department of province shall:

a) Perform the inspection and actions taken and the practices in accordance with law and this Circular;

b) Enforce written inspection directions of competent authorities or coordinate with the Department of Practices, Departments of province to inspect and handle administrative violations when requested;

c) Direct, monitor, urge, guide and inspect affiliated market watchdog teams in the inspection and actions taken and performance of practices in accordance with law and this Circular;

d) Direct the professional training and refresher course and ensure funding and working regime for the market watchdog teams and officers assigned to perform the inspection and actions taken and performance of practices;

dd) Make reports to the General Director, President of the People's Committee of province on the situation and results of their inspection and actions taken according to regulations.

3. The leader of market watchdog team shall:

a) Perform the inspection and actions taken and the practices in accordance with law and this Circular;

b) Report to the superior Director, the President of the People's Committee of district on the situation and results of the inspection and actions taken in the district or in the field assigned.

4. Other entities relevant to the inspection and actions taken by the market surveillance authorities shall:

a) Provide information, documents and evidences related to the inspection and actions taken at the request of the market surveillance authority;

b) Coordinate in the inspection and actions taken at the request of market surveillance authorities;

c) Coordinate in enforcement of inspection decisions, search decisions, penalty decisions and other decisions of the heads of competent market surveillance authorities.

Article 39. Entry in force

1. This Circular comes into force as of December 1, 2020.

2. This Circular supersedes Circular No. 35/2018/TT-BCT dated October 12, 2018 of the Minister of Industry and Trade on contents of and procedures for inspection of administrative violations and actions taken and practices performed by market surveillance authorities.

3. Director of the General Department of Market Surveillance, Director of Market Surveillance Practices, Director of Market Surveillance Department of province, leaders of market watchdog teams, Heads of units under the Ministry of Industry and Trade and relevant agencies, organizations and individuals shall implement this Circular./.