Quyết định 376/QD-TCHQ

DECISION

MANUAL ON IMPOSING PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN CUSTOMS

DIRECTOR GENERAL OF GENERAL DEPARTMENT OF CUSTOMS

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

Pursuant to Law on Complaints dated November 11, 2011;

Pursuant to Law on Customs dated June 23, 2014;

Pursuant to Decree No.81/2013/ND-CP dated July 19, 2013 of the Government on elaborating to Law on Penalties for Administrative Violations and Decree No. 97/2017/ND-CP dated August 18, 2017 on amendments to Decree No. 81/2013/ND-CP ;

Pursuant to Decree No. 115/2013/ND-CP dated October 3, 2013 of the Government on management and preservation of suspended, confiscated exhibits, devices under administrative procedures and Decree No. 31/2020/ND-CP dated March 5, 2020 on amendments to Decree No. 115/2013/ND-CP; 

Pursuant to Decree No. 166/2013/ND-CP dated November 12, 2013 of the Government on enforcement of implementation of decision on penalties for administrative violations;

Pursuant to Decree No. 124/2020/ND-CP dated October 19, 2020 of the Government on elaborating to Law on Complaints;

Pursuant to Decree No. 126/2020/ND-CP dated October 19, 2020 of the Government on elaborating to Law on Tax Administration;

Pursuant to Decree No.128/2020/ND-CP dated October 19, 2020 of the Government on imposing penalties for administrative violations in customs;

Pursuant to Circular No. 90/2020/TT-BTC dated November 11, 2020 of Ministry of Finance on forms for imposing penalties for administrative violations in customs;

Pursuant to Decision No. 65/2015/QD-TTg dated December 17, 2015 of Prime Minister on functions, tasks, powers, and organizational structure of General Department of Customs affiliated to Ministry of Finance;

Pursuant to Decision No. 166/QD-TCHQ dated January 18, 2021 of Director General of General Department of Customs on procedures for imposing penalties for administrative violations, settling disputes and administrative decisions relating to penalties for administrative violations in customs;

At request of General Director of Department of Legal Affairs.

HEREBY DECIDES

Article 1. Manual on imposing penalties for administrative violations in customs is attached hereto and consists of 7 parts:

Part I. Identification of administrative violations.

Part II. Research and recommendations for penalties for administrative violations.

Part III. Draft decisions on imposing penalties for administrative violations.

Part IV. Suspension of exhibits of administrative violations as per administrative procedures.

Part V. Issuance and monitor of compliance with decision on imposing penalties.

Part VI. Receipt and resolution of complaints regarding penalties for administrative violations in customs.

Part VII. Storage and management of documents on penalizing and resolving complaints regarding penalties for administrative violations in customs.

Article 2. This Decision comes into effect from the day of signing.

Article 3. Heads of entities affiliated to General Department of Customs are responsible for implementation of this Decision./.

MANUAL

ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN CUSTOMS
(Attached to Decision No. 376/QD-TCHQ dated March 3, 2021 of Director General of General Department of Customs)

PREFACE

Imposing penalties for administrative violations is one of many professional operations serving to ensure compliance with customs laws. In recent years, penalties for administrative violations have been adequately imposed by entities in customs sector. Entities have identified demands and importance of this affair and have thus actively publicized legislative documents to affiliated officials, organized professional training to improve skills related to imposing penalties for administrative violations in customs, monitored and acknowledged arising issues to promptly report to General Department of Customs.    In essence, detection of violations against the laws, preparation of documents on resolving, dealing with administrative violations have been implemented in a timely, effective and legally compliant manner.

Difficulties relating to imposing penalties for administrative violations have been dealt with by General Department of Customs and Ministry of Finance via guiding documents thereby enabling entities in customs sector to comply with regulations and law while imposing penalties for administrative violations in customs.

However, in addition to the achievements, imposition of penalties for administrative violations and participation in administrative proceeding in courts in customs sector observe drawbacks and limitations in identification of violations, issuance of administrative violation records, issuance of decisions on imposing penalties for administrative violations, etc. which diminish effectiveness of penalties for administrative violations and lead to complaints and lawsuits in recent time.

Reform personnel management method based on working position according to Law on Officials and Public Officials and Law on Public Employees; General Department of Customs develops Manual on imposing penalties for administrative violations in customs (hereinafter referred to as “Penalty Manual”)to enable customs officials imposing penalties for administrative violations to acknowledge basic understanding of procedures for imposing penalties for administrative violations in customs.  On said basis, the Penalty Manual shall be adopted on a case-by-case basis to achieve the highest effectiveness.

Penalty Manual is developed on the basis of recent legislative documents on imposing penalties for administrative violations, applicable laws on imposing penalties for administrative violations in customs and final conclusion, assessment results of practical situations of imposing penalties for administrative violations in customs sector.

Draft of Penalty Manual shall serve to improve effectiveness of penalties for administrative violations in customs, enable heads of authorities to control operation of customs officials, participate in preventing and taking strict actions against administrative violations in customs and minimize cases in which organizations and/or individuals complain or file lawsuits against customs authorities and/or customs officials in administrative courts.

Part I

IDENTIFICATION OF ADMINISTRATIVE VIOLATIONS

1. Detection of violations

a) Upon conducting customs operations (customs procedures, customs inspection, customs supervision, customs control, post-clearance inspection, specialized inspection, suspicion-based inspection, etc.), if customs officials detect customs state management details within their profession inconsistent with regulations and law, review in detail to determine:

- Violation:

What is the violation? Which regulations regarding customs state management (customs procedures, tax procedures, foreign trade management policies, etc.) are violated? Is the violation a result of failure to comply or failure to adequately comply with regulations and law (on customs management)? Which regulation is inadequately complied with?

- Entity committing violation:

What entity is responsible for implementing state management details as per the law? What is the entity committing the violation? What is the position of the entity committing the violation (under their responsibilities, obligations or authorization of other individuals)?  Is the entity an individual or an organization?

+ In case an individual commits the violation: clarify name, age, permanent address according to personal ID documents; is the individual old enough to be subject to penalties for administrative violations according to Point a Clause 1 Article 5 of Law on Imposing Penalties for Administrative Violations? Determine specific age group: under 14 years of age, from 14 years of age to under 16 years of age, from 16 years of age to under 18 years of age, 18 years of age or older.

+ In case an organization commits the violation, who is the representative? Is the representative legal representative or authorized representative (consult Article 85 of the Civil Code regarding presence of juridical person and Article 138 of the Civil Code regarding authorized representative)? What is the basis for determining representation? (Determination of organization committing the violation shall conform to Clause 2 Article 1 of Decree No. 81/2013/ND-CP and amendments thereto under Decree No. 97/2017/ND-CP dated August 18, 2017 and Clause 4 Article 2 of Decree No. 128/2020/ND-CP).

- Exhibits and means of violation:

Customs officials must identify whether exhibits and/or means of violation are present, specify type, quantity, unit, value, conditions, and necessity for adoption of preventive measures and assurance for implementation of penalty decisions (is suspension of exhibits and/or means necessary, is inspection of transport necessary, etc.).

- Penalties for violations:

In case the violation is determined to be an administrative violation, on the basis of identification of violation and Decree on Imposing Penalties for Administrative Violations in customs and other relevant Decrees, determine which Article(s), Clause(s), Point(s) of which documents are applied to impose penalty for the administrative violation. 

- Does the violation require preparation of record of administrative violation:

+ No in case warning or monetary fine of up to VND 250,000 for individual, VND 500,000 for organization is imposed against the violation.

+ Yes in all remaining cases.

b) Record of sign of violation

In case of insufficient ground to determine all details specified under Point a of this Clause, officials shall record the case and produce record using Form MBB 20 attached to Circular No. 90/2020/TT-BTC to serve as the basis for producing record of administrative violation upon having sufficient evidence.

c) Upon detecting administrative violations in customs, if case files have sufficient evidence for violations suspected of crimes, comply with regulations and law on criminal proceeding.

2. Preparation of record of administrative violations

a) As soon as details under Point a Clause 1 of this Part are identified, customs officials on duty shall prepare record using Form MBB 01 attached to Circular No. 90/2020/TT-BTC .

b) Record of administrative violations can be made printed and filled in manually or composed on computer and printed.

Pens for filling in record of administrative violation must be fountain pens or ball-point pens (do not use pens with red ink, pencils, pens with volatile ink, etc.) and use a single ink color throughout the same record.  In case of handwriting, only one person shall fill in record of administrative violations using the same lower case font, do not use uppercase unless accurate description of violating articles and transport in foreign languages is required.   Records must not contain writings that have been erased, edited, crossed out, written over or altered. Do not use acronyms in all situations (unless otherwise prescribed by the law). In case details under record are edited, record producers and relevant individuals must countersign each edited section.

c) Record of administrative violations shall be prepared and filled in as stated in the form. To be specific:

(i) Presentation of name of agencies, organizations issuing the record: specify name of agencies of competent individuals capable of preparing record.   Do not specify name of supervisory authorities of competent individuals capable of preparing record.

Example: If individuals preparing record of administrative violation are affiliated with Supervision team of Customs Sub-department B, specify “Customs Sub-department B” in the “agency” section.

(ii) Name of record of administrative violation: What field does the record of administrative violation fall into? (specify Record of customs administrative violations if the record deals with customs sector, specify Record of environment administrative violations if the record deals with environmental sector, etc.).

 (iii) Location and time of record preparation (location, time and date) must be reasonable and logical (at the same time or after the time in which administrative violation is recorded according to Point b Clause 1 of this Section or specified under record of administrative violations).

(iv) Individual preparing record of administrative violation: refers to competent individual capable of preparing record of administrative violation according to Article 27 of Decree No. 128/2020/ND-CP. According to which, competent individuals capable of preparing records are officials assigned to conduct tasks in customs areas or officials conducting customs affairs (namely registration for customs procedures, customs inspection, customs supervision, post-clearance inspection, specialized inspection, etc.). Competent individuals capable of preparing record of administrative violation shall only prepare records under assigned field.

In case multiple officials prepare the same record of administrative violations, specify full name, position and agency of each official.

(v) Organization/individual committing the violation:

- In case of an individual, specify full name, year of birth, gender, nationality, ID Card number/personal ID number/passport number/laissez-passer number/number of document allowing international travel, current residence and other information according to Record of administrative violations.

- In case of an organization, specify name, headquarter, enterprise ID number, etc., full name and title of legal representative, etc.

Information on representatives or individuals acting on behalf of organizations which commit the violation (full name, title, ID Card number, etc.) that has been recorded in documents in case files such as case witness record, etc. is included in note section (section 6) of record of administrative violation (these documents and written authorization for representation or task assignment, etc. are stored together with documents on imposing penalties for administrative violation). Meanwhile, competent individuals shall prepare record of administrative violations to record information of representatives of organizations that commit violations in section 8 “Committed administrative violations” of record of administrative violations. 

(vi) Cases in which preparation of record of administrative violation requires witnesses:

In case individuals committing violations are absent, intentionally evading or refusing to sign the record out of objective reasons, the record must bear signatures of representatives of authorities where the violations take place or be witnessed by 2 witnesses.  Witnesses must not be representatives of agencies, organizations that commit violations or officials affiliated to agencies, entities preparing record of administrative violations.

In case of witnesses, specify full name, occupation, current residence, etc. of the witnesses; in case of representatives of local governments or local authorities (namely supervisory agencies of economic zones, industrial parks) or other cooperative forces (Market Administration, Economic Police, Border Guard, Coast Guard), specify full name, title, workplace and other information instructed on record of administrative violations.

(vii) Case description:

Officials in charge of filling in the record shall describe violation of individuals, organizations in detail and with honesty on the basis of documents recording administrative violations. In addition to specifying the violations (e.g. do not specify “pursuant to post-clearance inspection record/verification record/inspection conclusion record No ………, Company A declares incorrect code thereby leading to insufficient tax payables...”, provide detail description of the violation and which import, export declarations of which individuals/organizations do the violations relate to?   In what form? Declaration date and location? Detected under which circumstances? (if the violations involve multiple declarations, prepare lists of all related declarations and attach to record of violations)).  If multiple violations are committed, specify each violation individually. E.g.

- In case of violations regarding deadline for procedures and submission of customs documents: specify date on which commodities arrive at border checkpoints or deadline of document submission, etc.  and date on which individuals/organizations adopt customs procedures/submit customs documents.

- In case of discrepancy between amount of commodities practically imported/exported and amount of commodities declared: According to declarations or customs documents, what are imported/exported commodities?  How many? Compare inspection results of customs authorities/analysis and classification results/assessment results/state inspection results to determine what the discrepancy between practical commodities and declarations is (specify in detail, to be specific: commodity quantity/weight/value/code/origin inconsistent with declaration, the missing tax in case the missing tax has been identified, etc.).  

Meanwhile, cite regulations under legislative documents infringed by this violation (e.g. import of old electronic appliances, air-conditioning appliances prohibited from import, export according to Clause 4 Section 2 Annex I attached to Decree No. 69/2018/ND-CP dated May 15, 2018 of the Government) under case description.

In case mitigating circumstances and/or aggravating circumstances are identified at the time of preparing record of administrative violations, record each circumstance specifically in the record.

(viii) Identification of violations and penalties for violations:

On the basis of the case, officials preparing records must determine which regulations under Decree on imposing penalties for administrative violations in customs or Decrees on imposing penalties for administrative violations in other section have the violations of individuals/organizations infringed (specify Points, Clauses and Articles of Decrees.).   Identification of violations and penalties for administrative violations must agree with one another (e.g. violation description of “incorrect declaration of commodity name as humanitarian supply” has violated Clause 1 Article 8 of Decree No. 128/2020/ND-CP).

For violations under Points b, c, and d Clause 3 Article 9 of Decree No. 128/2020/ND-CP in which individuals, organizations committing the violations have submitted adequate missing tax payables, tax that has been exempted, reduced, reimbursed or incorrectly collected (with attached tax submission notice) prior to preparation of record of administrative violations, specify: …………. (individual/organization) has adequately submitted missing tax, tax that has been exempted, reduced, reimbursed or incorrectly collected according to deposit No. …… dated ………

 (ix) Specify adoption of preventive measures:

In case preventive and assurance measures for implementation of penalty decision are adopted, record the preventive measures in record of administrative violations.   In case of suspension of documents, exhibits and/or means of administrative violations, specify under the record of administrative violations or record of suspension of exhibits, means of administrative violations and refer to record of suspension of exhibits, means of administrative violations.

In case of suspension of operating permit and/or license, fill in all criteria depending on the record form.

- In case list of exhibits, means of violations is extensive, do not specify in detail in record of administrative violations but rather refer and specify: “details of exhibits, means of administrative violations suspended under record of suspension of exhibits, means of administrative violations No. ……/BB-TGTVPTGPCC dated ……………… of …………”.   

(x) Regarding details related to accountability of individuals/organizations committing violations:

Only specify deadline and accountability right in the record if the violations require accountability according to Article 61 of Law on Imposing Penalties for Administrative Violations.

(xi) Conclude record preparation:

- Specify the time in which the record is complete: record completion must take place at a reasonable time after record initiation time.   Refrain from specifying the same time for both record initiation and record completion.  In case individuals committing violations are foreigners (who are unable to speak, read or write in Vietnamese), request interpreters to translate the record for the violating individuals, if the violating individuals have any feedback (in foreign languages), request the interpreters to translate into Vietnamese and specify in the record (in both source languages and translated section).

- Officials in charge of filling in the record shall examine all details before requesting individuals whose names are mentioned in the record to sign and write full name over the signature. In case a record consists of multiple pages, individuals whose names are mentioned in the record must sign every page. Lines that are not written on (blank lines) must be crossed and not filled with other details.

- Sign the record:

Officials in charge of preparing the record must request individuals whose names are mentioned in the record (violating individuals or representatives of violating organizations, individuals in charge of preparing the record, witnesses, interpreters, authority representatives) to sign in their designated sections (e.g. violating individuals must sign at the end of the record in the section: “Người vi phạm hoặc đại diện tổ chức vi phạm” (Violating individual or representative of violating organization)).   In case an illiterate individual is requested to sign the record, request the individual to append fingerprints in their designated signature section and individuals in charge of preparing the record shall write the individual’s name next to the appended fingerprints.  In case of multiple violating individuals, each individual must sign or append fingerprints in designated section of violating individual.

- In case violating individuals/representatives of violating organizations fail to sign the record, provide specific reasons on a case-by-case basis: violating individuals/representatives of violating organizations are absent or intentionally evade or other objective reasons, etc.

(xii) Cases in which record of administrative violations are erroneous

In case an administrative violation has been recorded after which competent agencies, individuals detect errors in the record of administrative violations, do not dispose prepared record to produce new record of administrative violations.  Competent agencies and individuals capable of imposing penalties for administrative violations once detect errors in prepared record of administrative violations may produce record for verifying facts of the administrative violations according to Clause 2 Article 59 of Law on Imposing Penalties for Administrative Violations to revise the errors in prepared record of administrative violations.   

The verification record must be produced according to Article 58 of Law on Imposing Penalties for Administrative Violations and bear signatures of all relevant individuals: violating individuals or representatives of violating organizations; witnesses; victims or representatives of victim organizations (if any) and attached to record of administrative violations for submission to competent individuals for decisions on imposing penalties and storage with documents on imposing penalties for administrative violations.

Part II

RESEARCH AND RECOMMENDATIONS FOR PENALTIES FOR ADMINISTRATIVE VIOLATIONS

Once officials assigned to act as consultants and propose resolutions for administrative violations in customs receive documents on imposing penalties for administrative violations, the officials shall conduct following affairs:

1. Identifying whether violations under record of administrative violations should be imposed with penalties or not

Step 1. Research contents of record of administrative violations and cases where penalties are not required to identify whether the violations should be imposed with penalties or not. 

Step 2. If violations of individuals described under record of administrative violations fall under cases in which penalties are not required or decisions on imposing penalties are not required as per the law (Article 11 and Article 65 of Law on Imposing Penalties for Administrative Violations; Article 6 of Decree No. 128/2020/ND-CP) or penalties are not prescribed by the law, penalties/decisions on imposing penalties for administrative violations are not required.

In such cases, officials assigned to accept case files shall produce consolidated reports and request competent individuals to approve the fact that no penalties are imposed on administrative violations/decisions on imposing penalties for administrative violations are not required and store the case files; competent individuals may issue decisions on confiscating and transferring to state budget or disposing exhibits of administrative violations prohibited for circulation and adopting remedial measures according to Clause 1 Article 28 of Law on Imposing Penalties for Administrative Violations 2012 (if any); update case resolution results to violation management system of customs as per the law.

Step 3. If violations of individuals described under record do not fall under cases where penalties or penalty decisions are not required specified under Step 2 above, follow Point 2 below.

2. Consulting and proposing penalties for administrative violations.

Officials assigned to consult and deal with cases shall perform following affairs:

Step 1. Based on specific case files, officials assigned to consult and propose solution for the cases shall identify whether the basis for issuing decisions on imposing penalties is sufficient or not.  Based on nature, severity and method of committing violations; officials must refer to the Criminal Code and Law on Imposing Penalties for Administrative Violations to verify one more time whether the violations show signs of crimes?    In case of violations show signs of crimes, conform to procedures for criminal proceedings. In case of sufficient basis for issuing decisions on imposing penalties, comply with Part III of the Penalty Manual.

Step 2. Produce record of violation verification

If case files are unclear or contain insufficient basis for proposing issuance of decisions on imposing penalties, assigned officials shall verify all facts of the administrative violations. Verification of facts of the violations shall be carried out as follows:

a) Whether or not administrative violations have occurred in practice? Which legislative documents have been infringed by the violations? Whether the legislative documents above are effective or have been amended or annulled by other documents? Identify the legal basis for imposing penalties.

b) Has identification of subjects committing violations under record of administrative violations been accurate? 

- For individuals: review age for assuming administrative responsibility (to determine amount of fine).

- For organizations: Only consider imposing penalties when all following conditions are present (according to Clause 2 Article 1 of Decree No. 81/2013/ND-CP and amendments under Decree No. 97/2017/ND-CP):

(i) The violating organizations are juridical person as per civil laws or other organizations established as per the law; and

(ii) Administrative violations are committed by representatives, assigned individuals on behalf of the organizations or individuals under direction, coordination, assignment or allowance of organizations and must be imposed with penalties for administrative violations. 

c) Whether the errors identified under the record of violations are accurate or not, whether the violations are administrative violations or criminal violations; whether the violations are recidivism or multiple violations; other aggravating circumstances and mitigating circumstances;

Identify aggravating circumstances in recidivism:

Identification of aggravating circumstances must conform to Clause 5 Article 2 of Law on Imposing Penalties for Administrative Violations. According to which, after consulting administrative violation management system, the case where violating individuals and organizations are found to commit the same violations for which they have been previously sanctioned within 6 months from the date on which they finish complying with decisions on penalties in form of penalty or within 1 year from the date on which they finish other decisions on imposing penalties for administrative violations shall be considered as recidivism.  

The case where violating individuals and organizations commit multiple different violations within the same periods as mentioned above shall not be considered as recidivism.

d) Nature and severity of administrative violations;

dd) Commodities, exhibits of violations, documents, instrument that requires expertise; evidence that requires verification, addition or clarification;

e) Other circumstances that serve as the basis for considering and deciding on penalties;

g) Review explanation:

For cases where accountability is required, if accountability of violating individuals and organizations is received, officials receiving the case files shall:

(i) In case written explanation is received, receiving officials must review, analyze, assess written explanation of violating individuals and organizations and include in consolidated reports to submit to competent individuals for consideration and decision.

(ii) In case violating individuals or organizations request customs authority in writing to enable them to provide explanation in person, within 5 days from the date on which request of violating individuals or organizations is received, receiving officials shall request competent individuals capable of resolving the case to sign notice informing the violating individuals or organizations about time and location of direct accountability sessions. 

Direct explanation shall be kept in record prepare using Form No. MBB 2 attached to Circular No. 90/2020/TT-BTC and bear signature of relevant parties; in case a record consists of multiple pages, all parties must sign each page individually.  This record shall be attached to documents on imposing penalties and given to violating individuals, organizations or legal representatives thereof.

Explanation of violating individuals or violating organizations must be reviewed, analyzed, assessed and included in consolidated reports to submit to competent individuals for consideration and decision.

(iii) In case individuals receiving written explanation of violating individuals or violating organizations are incapable of resolving the violations, the receiving individuals must immediately transfer the written explanation to competent individuals capable of resolving the case.

h) Prepare record verifying facts of the violations

On the basis of violation verification results mentioned in Step 1 above, officials in charge of the case shall produce records verifying violation facts using Form No. MBB 15 attached to Circular No. 90/2020/TT-BTC .

Step 3. Verify value of exhibits of violations to identify entitlement for imposing penalties and fine bracket

For cases where value of exhibits of violations must be identified to determine entitlement for imposing penalties and fine bracket such as: violations where confiscation of exhibits of violations is required or fine bracket is classified by value of exhibits of violations, verify value of exhibits of violations.

Identification of value of exhibits of violations shall conform to Article 60 of Law on Imposing Penalties for Administrative Violations.

In case entities committing violations cannot be identified, competent individuals shall not issue decisions on imposing administrative violations but may issue decisions on confiscating exhibits and instrumentalities for committing administrative violations. According to which, in case of insufficient evidence for determining violations committed by organizations, entitlement for confiscating exhibits and instrumentalities for committing administrative violations shall be determined according to entitlement for imposing penalties on individuals.

Step 4. Produce consolidated reports (do not apply to officials issuing decisions on imposing penalties within their competence)

On the basis of 3 steps from 1 through 3 mentioned above, officials accepting the case shall produce consolidated reports.

a) Details of consolidated reports: on the basis of fact verification results of the violations, customs officials assigned to research case files and propose solutions must clarify details above and produce “Consolidated report” using form attached to Decision No. 166/QD-TCHQ dated January 18, 2021 of General Department of Customs on Guidelines for imposing penalties for administrative violations, resolving disputes about administrative decisions relating to imposing penalties for administrative violations in customs.

Consolidated reports must display: Full description of the violations; analysis of facts of the violations and reference to regulations and law in order to determine acts of violations and entities committing violations; aggravating circumstances, mitigating circumstances; nature and severity of the violations (administrative violations or criminal violations); consider explanation of violating individuals, organizations (if any); determine details that require further verification to serve as the basis for determining legitimacy of the violations; determine if extension of deadline for issuance of penalty decisions, duration of suspension of exhibits of violations; determine entitlement or imposing penalties for violations; propose case resolution.  

Propositions to competent agencies must specify case resolution in any of following methods:

(i) Issue penalty decisions if well-grounded (attach draft penalty decisions + draft authorization for imposing penalties in case heads assign vices to impose penalties); or

(ii) Request direct superior to extend deadline for issuing penalty decisions, decisions on suspending exhibits of violations if necessary (attach draft request for extension); or

(iii) Consult specialized agencies; or

 (iv) Solicit expertise for exhibits of violations (attach written solicitation for expertise); or

(v) Report to superior agencies (Departments or General Departments) for direction (attach draft reports); or

(vi) Request establishment of consulting council for resolution (for General Department of Customs or Customs Departments); or

 (vii) Transfer case files to competent individuals capable of imposing penalties (attach draft written transfer of documents) for cases beyond competence of individuals accepting case files or heads of officials assigned to accept case files; or   

b) Consolidated reports can be produced multiple times during case resolution;

c) If competent authorities allow import within 30 days from the date on which decisions on imposing penalties and adopting remedial measures (mandatory expulsion from Vietnam or mandatory re-export) are issued and commodities have not left Vietnam, these commodities may be imported. In this case, officials accepting the case shall produce consolidated reports on not adopting remedial measures based on specific reasons above and store in the case files.

d) Deadline for completion of consolidated reports: 3 days (for simple cases) and 10 days (for complicated cases), from the date on which records of administrative violations are prepared according to Clause 2 Article 19 of Decision No. 166/QD-TCHQ dated January 18, 2021 of Director General of General Department of Customs.

Step 5. On the basis of consolidated reports mentioned above, competent individuals capable of imposing penalties shall consider and decide on penalty forms according to propositions of officials accepting the case files or other directions.

Step 6. Resolve according to approval of competent individuals

On the basis of competent individuals in Step 5, officials accepting the case shall perform as follows:

(i) In case competent individuals approve imposing penalties, officials accepting the case shall draft decisions on imposing penalties. Drafting decisions on imposing penalties shall conform to Part III hereof.

(ii) In case competent individuals request direct superior to extend deadline for issuing decisions on imposing penalties and decisions on suspending exhibits of violations (attach draft request for extension), officials accepting the case shall draft request for extension according to Point 6 Part II hereof.

(iii) In case competent individuals approve consulting specialized agencies or report to superior agencies for direction, officials accepting the case shall draft documents on consulting and reports according to Point 4 Part II hereof.

(iv) In case competent individuals approve soliciting expertise for commodities and exhibits of violations, officials accepting the case shall draft request and send to competent agencies capable of performing expertise.

(v) In case competent individuals approve meeting of consulting councils, officials accepting the case shall propose relevant affairs for meeting of consulting councils.

(vi) In case competent individuals approve transfer of case files to competent individuals capable of imposing penalties, officials accepting the case shall draft documents and attach the case files to transfer to competent individuals capable of considering and resolving the case.  Case file transfer shall conform to Point 3 Part II hereof.

3. Transferring request for issuance of decisions on imposing penalties for violations exceeding competence of individuals accepting the case

Step 1. Identify document recipients

- Cases within competence of team leaders affiliated to Sub-departments shall be transferred to heads of Sub-departments for decision on imposing penalties.

- Cases within competence of heads, team leaders of customs control teams affiliated to Customs Departments of provinces and central-affiliated cities; team leaders of anti-smuggling control teams; sea captains of control teams at sea; team leaders of intellectual property right protection and control teams shall be transferred to respective heads, team leaders and sea captains.

- Cases within competence of Director of Customs Departments, Director of Anti-smuggling Department or Director of Post-clearance Inspection Department shall be transferred to respective Directors. 

- For cases beyond competence of Director of Customs Departments, officials accepting the case files shall consult and request heads of Departments to transfer the case to Chairpersons of People’s Committees for issuance of decisions on imposing penalties. 

- For cases beyond competence of Director of Anti-smuggling Department or Director of Post-clearance Inspection, officials accepting the case shall consult and request heads of Departments to report to Director General of General Department of Customs.

Step 2. Procedures for document transfer for cases in which documents are transferred to People’s Committees of provinces and Director General of General Department of Customs

a) Deadline for reporting and transferring documents to People’s Committees of provinces, cities or Director General of General Department of Customs is as follow:

Within 4 days from the date on which records of administrative violations are produced, Directors of Customs Departments of provinces, central-affiliated cities, Director of Anti-smuggling Department, Director of Post-clearance Inspection Department shall send request (and case files), propose penalties for administrative violations to enable competent individuals to consider and decide.

For administrative violations with multiple complicated facts and not requiring explanation or requiring explanation for cases under Clause 2 and Clause 3 Article 61 of Law on Imposing Penalties for Administrative Violations, the deadline shall be 20 days from the date on which records of administrative violations are produced.

For administrative violations subject to decisions on imposing penalties eligible for deadline extension, within 10 days from the date on which decisions on imposing penalties for administrative violations are extended, Directors of Customs Departments of provinces and central-affiliated cities shall send request (and case files) and propose penalties for administrative violations to enable Chairpersons of People’s Committees of provinces to consider and issue decisions on imposing penalties within their competence; Director of Anti-smuggling Department and Director of Post-clearance Inspection Department shall send request (and case files) and propose penalties for administrative violations to enable Director General of General Department of Customs to consider and decide within their competence.  

b) Request for issuance of decisions on imposing penalties include: written request (or presentation) stating case details and propositions, draft decisions on imposing penalties and case files.

* Note: Deadline for producing reports and transferring documents to Customs Departments shall be similar to deadline for producing reports and transferring documents to Chairpersons of People’s Committees of provinces, cities or Director General of General Department of Customs.

4. Consulting

Step 1. Identify cases where consulting is necessary

Officials accepting the case shall rely on specific case details to determine cases where consulting specialized agencies or superior agencies is required (e.g. complicated violations, violations that have difficulty being distinguished as administrative violations or criminal violations, cases with difficulty in adopting regulations and law, etc.).  On the basis of identifying cases that require consultation, follow Step 2.

Step 2. Identify details that require consultation and draft documents for consultation

In this step, officials accepting the case must identify issues and agencies for consultation.  According to which, consultation request must specify case details and issues in resolving the case (specify case situations, regulations and law or affairs not prescribed by the law leading to issues arising in case resolution); specify viewpoints of entities accepting the case, proposed resolutions and deadline for receiving reply. 

Step 3. Send consultation documents and process consultation results

- Customs officials accepting the case shall request competent individuals of agencies accepting the case to consult and send photocopy of case files to relevant agencies in writing. Consultation must guarantee deadline for issuing decisions on imposing penalties as per the law. If criminal proceedings agencies do not reply within 10 days from the date on which consultation documents are issued or before deadline for issuance of decisions on imposing penalties expires, competent individuals capable of imposing penalties for administrative violations must issue decisions on imposing penalties and send 1 copy thereof to consulted agencies.

- Upon receiving reply, officials accepting the case shall look into the reply and propose case resolution.

5. Transferring case files for criminal process and receiving case files from criminal proceedings agencies for administrative process

5.1. File transfer for violations suspected of crimes according to Article 62 of Law on Imposing Penalties for Administrative Violations

a) In case decisions on imposing penalties have not been issued:

Step 1. Officials accepting the case shall draft decisions on transferring case files of administrative violations suspected of crimes for criminal prosecution using Form No. MQD 26 attached to Circular No. 90/2020/TT-BTC .

In case of multiple case files and/or exhibits of violations, produce lists attached to decisions.

Step 2. Transfer case files to proceeding agencies. Transferred documents include: Decisions on transferring case files of administrative violations suspected of crimes for criminal prosecution and specific case files.  Document transfer must be recorded in record of transfer of case files/exhibits of administrative violations using Form No. MBB 18 attached to Circular No. 90/2020/TT-BTC.

b) In case decisions on imposing penalties have been issued:

b.1) In case compliance with decisions on imposing penalties is in progress:

Step 1. Officials accepting the case shall draft decisions on suspending compliance with decisions on imposing penalties using Form No. MQD 27 attached to Circular No. 90/2020/TT-BTC.

Step 2. Draft decisions on transferring case files of administrative violations suspected of crimes for criminal prosecution using Form No. MQD 26 attached to Circular No. 90/2020/TT-BTC .

Step 3. Transfer case files to proceeding agencies. Transferred documents include: Decisions on transferring case files of administrative violations suspected of crimes for criminal prosecution and specific case files.  Document transfer must be recorded in record of transfer of case files/exhibits of administrative violations using Form No. MBB 18 attached to Circular No. 90/2020/TT-BTC.

Deadline for transfer: within 3 days from the date on which decisions on suspending compliance with decisions on imposing penalties.

b.2) In case compliance with decisions on imposing penalties is complete:

Step 1. Officials accepting the case shall draft decisions on transferring case files of administrative violations suspected of crimes for criminal prosecution using Form No. MQD 26 attached to Circular No. 90/2020/TT-BTC .

In case of multiple case files and/or exhibits of violations, produce lists attached to decisions.

Step 2. Transfer case files to proceeding agencies. Transferred documents include: Decisions on transferring case files of administrative violations suspected of crimes for criminal prosecution and specific case files.  Document transfer must be recorded in record of transfer of case files/exhibits of administrative violations using Form No. MBB 18 attached to Circular No. 90/2020/TT-BTC.

b.3) In case proceeding agencies decide to charge the case:

Officials accepting the case shall draft decisions on annulling decisions on imposing penalties for administrative violations using Form No. MQD 34 attached to Circular No. 90/2020/TT-BTC , transferring all exhibits of administrative violations and documents regarding compliance with decision on imposing penalties to criminal proceedings agencies.

5.2. Receiving documents from criminal proceedings agencies for administrative process

a) In case decisions on imposing penalties have not been issued:

Upon receiving case files and request for administrative process from criminal proceedings agencies, officials accepting the case shall rely on case files transferred to by criminal proceedings agencies to propose case resolution.

Research and proposition for resolution shall conform to Part I, Points 1, 2, 3, and 4 Part II hereof.

b) For cases with decisions on imposing penalties and/or decisions on suspending compliance with decisions on imposing penalties issued by customs authority: 

Step 1. Officials accepting the case shall draft decisions on terminating suspension of compliance with decisions on imposing penalties for administrative violations using Form No. MQD 28 attached to Circular No. 90/2020/TT-BTC.

Step 2. Officials accepting the case shall send decisions on terminating suspension of compliance with decisions on imposing penalties to individuals/organizations imposed with penalties and monitor compliance with decisions on imposing penalties according to Part V hereof.

6. Extending deadline for issuing decisions on imposing penalties

6.1. Request for extension of deadline for issuing decisions on imposing penalties

Step 1. Identify cases eligible for extension

Pursuant to Clause 1 Article 66 of Law on Imposing Penalties for Administrative Violations, cases shall be eligible for extension of deadline for issuing decisions on imposing penalties if they satisfy all following requirements: 

(i) Particularly serious cases involve multiple complicated facts;

(E.g. cases that involve multiple entities that require verification; violations that involve foreign factors; cases where violating entities cannot be identified with ease, cases where record of violating entities needs to be clarified; cases where difficulties in identifying violations and penalties thereof require consultation with relevant agencies; commodities that require expertise or verification, collection of evidence for basis for imposing penalties; cases involved in consultation with proceeding agencies (Procuracy, Investigating authority) to determine whether suspicions of crime are present or not, etc.).

(ii) Violations require accountability according to Clause 1 Article 61 of Law on Imposing Penalties for Administrative Violations;

(iii) Violating individuals have provided written explanation within the deadline specified under Paragraph 2 Clause 2 Article 61 (extended deadline for providing explanation) or direct explanation according to Clause 3 Article 61 of Law on Imposing Penalties for Administrative Violations that require additional time for evidence verification and collection.

According to which, request for extension of deadline for imposing penalties must have written explanation of violating individuals, organizations attached thereto within the deadline under Paragraph 2 Clause 2 Article 61 of Law on Imposing Penalties for Administrative Violations or record of direct explanation session according to Clause 3 Article 61 of Law on Imposing Penalties for Administrative Violations.

Step 2. Extension request preparation and submission

(i) Officials accepting the case shall draft official dispatches requesting extension. Official dispatches shall include: summary of violations, time of preparation of record of administrative violations, deadline for issuing decisions on imposing penalties, reason for requesting extension.

(ii) For cases accepted and resolved by Sub-departments or equivalent, submit extension request to Directors of Customs Departments.  For cases accepted and resolved by Departments, submit extension request to Director General of General Department of Customs.

(iii) Submission method: Extension request can be submitted via postal service or fax. In case of submission via fax, only fax documents directly related to affairs requested for extension namely: official dispatches requesting extension, summary, declaration, record of violations, written explanation of violating individuals/organizations, etc.

6.2. Extension of deadline for issuing decisions on imposing penalties

(This step applies to consulting officials in Departments and General Department)

Step 1. Consultation and proposition for extension of deadline for issuing decisions on imposing penalties

Officials assigned to provide consultancy for extension of deadline for issuing decisions on imposing penalties shall rely on Article 66 of Law on Imposing Penalties for Administrative Violations to recommend extension or retention of deadline for issuing decisions on imposing penalties. 

Retention of deadline for issuing decisions on imposing penalties shall be applied for cases under Clause 4 Article 18 of Decision No. 166/QD-TCHQ dated January 18, 2021 of Director General of General Department of Customs:

a) Cases ineligible for extension according to Article 66 of Law on Imposing Penalties for Administrative Violations;

b) Extension request is submitted after deadline for issuing decisions on imposing penalties has expired or competent individuals receive extension request after deadline for issuing decisions on imposing penalties has expired;

c) Statute of limitations of the violations has expired.

Step 2. Preparation of written reply

(i) In case of rejection, assigned officials shall produce reports, request competent individuals to sign the written reply and specify reason for rejection.

(ii) In case of approval: assigned officials shall produce reports, request competent individuals to sign the written reply and specify the extended period (no more than 30 days from the date on which original deadline for issuing decisions on imposing penalties expires).

Part III

DRAFT DECISIONS ON IMPOSING PENALTIES

1. Imposing penalties for administrative violations without records

a) In case of not producing record of administrative violations: Competent individuals capable of imposing penalties according to Article 29 of Decree No. 128/2020/ND-CP shall impose penalties for administrative violations as per the law.  Usually, in this case, customs officials shall issue decisions on imposing penalties.

b) Regarding procedures for imposing penalties: Issue decisions on imposing penalties using Form No. MQD 01 attached to Circular No. 90/2020/TT-BTC .

2. Imposing penalties for administrative violations with records of administrative violations

2.1. Format of decisions

a) Decisions on imposing penalties for administrative violations shall be drafted using Form No. MQD 02 attached to Circular No. 90/2020/TT-BTC .

b) In case a single individual/organization imposed with penalties for multiple violations simultaneously, issue one decision on imposing penalties which dictates penalty form and severity for each administrative violation.

c) In case multiple individuals and organizations commit a single administrative violation, may issue one or many decisions on imposing penalties which dictate penalty form and severity for each violating individual and organization.   

d) In case multiple individuals and organizations commit multiple different administrative violations in the same case, may issue one or many decisions on imposing penalties which dictate penalty form and severity for each violation of each violating individual and organization.  

2.2. Contents of decisions on imposing penalties

a) Regarding basis for issuance of decisions:

(i) Specify full basis for issuance according to Form No. MQD 02 attached to Circular No. 90/2020/TT-BTC .

(ii) Basis for issuance of decisions on imposing penalties for administrative violations must include Decree on Imposing Penalties for Administrative Violations in respective field (document name; document number; date of issue; issuing agencies and document title).

E.g.

“Pursuant to Article 57 and Article 68 of Law on Imposing Penalties for Administrative Violations;

Pursuant to Decree No.128/2020/ND-CP dated October 19, 2020 of the Government on imposing penalties for administrative violations in customs…”

Or:

“Pursuant to Article 57 and Article 68 of Law on Imposing Penalties for Administrative Violations;

Pursuant to Decree No. 98/2020/ND-CP dated August 26, 2020 of the Government on imposing penalties for administrative violations in commercial activities, manufacturing and trading of counterfeits, prohibited commodities and protection of consumers’ rights;

b) Detail section of decisions on imposing penalties:

(i) In case of issuance of one decision on imposing penalties on one individual/organization which commits one or multiple administrative violations:

Detail section of decisions on imposing penalties must specify each violation committed by said individual/organization. E.g. Individual/organization commits 2 administrative violations: incorrect declaration of taxable import commodity code without affecting payable tax according to Point b Clause 1 Article 8 and import of commodities prohibited from import where value of exhibits of violations is below VND 20,000,000 under Point a Clause 1 Article 15 of Decree No. 128/2020/ND-CP , specify as follows:  

“... Committed administrative violation: Incorrect declaration of taxable import commodity code without affecting payable tax.

Pursuant to Point b Clause 1 Article 8 Decree No.128/2020/ND-CP dated October 19, 2020 of the Government on imposing penalties for administrative violations in customs.

Committed administrative violation: import of commodities prohibited from import where value of imported exhibits of violations is below VND 20,000,000.

Pursuant to Point a Clause 1 Article 15 Decree No.128/2020/ND-CP dated October 19, 2020 of the Government on imposing penalties for administrative violations in customs…”

* Note:

- Do not specify the whole contents of Point b Clause 1 Article 8 or Clause 1 Article15 of Decree No. 128/2020/ND-CP in cases where incorrect declaration of commodity code and import of commodities prohibited from import are clearly defined.

- For violations where fine is dependent on value of exhibits of violations, specify name of violation together with value of exhibits of violations as shown in example above.

(ii) In case of issuance of one decision on imposing penalties on multiple individuals organizations which commit one administrative violation:

Detail section of decisions on imposing penalties must specify each violating individual and organization and committed violation. E.g.

Mr. Nguyen Van A and Mr. Nguyen Van B both committed “disposal of commodities to avoid customs inspection, examination and control” and thus, the detail section of the decision on imposing penalties shall specify as follows:

“Article 1. Impose penalties for administrative violations committed by:

1. Mr. Nguyen Van A, gender: Male

Date of birth:  Nationality:

Occupation:

Current residence ……………………………………………………, personal ID/ID Card/Citizen Identity Card/laissez-passer/international travel document number: …………, date of issue: …………

1.1. Has committed the administrative violation of: disposal of commodities to avoid customs inspection, examination and control.

1.2. Pursuant to Point d Clause 5 Article 13 of Decree No. 128/2020/ND-CP dated October 19, 2020 of the Government on imposing penalties for administrative violations in customs.

1.3. Aggravating circumstances:

1.4. Mitigating circumstances:

1.5. Is imposed with following penalties and remedial measures:

a) Primary penalty: Fine.

To be specific: A fine of VND 50,000,000.

b) Additional penalty: Confiscation of exhibits of violations (exhibits of violations are detailed under record of suspension of exhibits of violations No. ……… dated …………).

2. Mr. Nguyen Van B, gender: Male

Date of birth:  Nationality:

Occupation:

Current residence ……………………………………………………, personal ID/ID Card/Citizen Identity Card/laissez-passer/international travel document number: …………, date of issue: …………

2.1. Has committed the administrative violation of: disposal of commodities to avoid customs inspection, examination and control.

2.2. Pursuant to Point d Clause 5 Article 13 of Decree No. 128/2020/ND-CP dated October 19, 2020 of the Government on imposing penalties for administrative violations in customs.

2.3. Aggravating circumstances:

2.4. Mitigating circumstances:

2.5. Is imposed with following penalties and remedial measures:

a) Primary penalty: Fine.

To be specific: A fine of VND 50,000,000.

b) Additional penalty: Confiscation of exhibits of violations (exhibits of violations are detailed under record of suspension of exhibits of violations No. ……… dated …………)…”

(iii) In case of issuance of one decision on imposing penalties on multiple individuals and organizations which commit multiple different administrative violations in the same case:

Detail section of decisions on imposing penalties must specify each violating individual and organization and committed violation. E.g.

Mr. Nguyen Van A committed “disposal of commodities to avoid customs inspection, examination and control”; Mr. Nguyen Van B committed “import of commodities prohibited from import where value of exhibits of violations is below VND 20,000,000” and thus the detail section of the decision on imposing penalties shall specify as follow:

“Article 1. Impose penalties for administrative violations committed by:

1. Mr. Nguyen Van A, gender: Male

Date of birth:  Nationality:

Occupation:

Current residence ……………………………………………………, personal ID/ID Card/Citizen Identity Card/laissez-passer/international travel document number: …………, date of issue: …………

1.1. Has committed the administrative violation of: disposal of commodities to avoid customs inspection, examination and control.

1.2. Pursuant to Point d Clause 5 Article 13 of Decree No.128/2020/ND-CP dated October 19, 2020 of the Government on imposing penalties for administrative violations in customs.

1.3. Aggravating circumstances:

1.4. Mitigating circumstances:

1.5. Is imposed with following penalties and remedial measures:

a) Primary penalty: Fine.

To be specific: A fine of VND 50,000,000.

b) Additional penalty: Confiscation of exhibits of violations (exhibits of violations are detailed under record of suspension of exhibits of violations No. ……… dated …………).

2. Mr. Nguyen Van B, gender: Male

Date of birth:  Nationality:

Occupation:

Current residence ……………………………………………………, personal ID/ID Card/Citizen Identity Card/laissez-passer/international travel document number: …………, date of issue: …………

2.1. Committed administrative violation: import of commodities prohibited from import where value of imported exhibits of violations is below VND 20,000,000.

2.2. Pursuant to Point a Clause 1 Article 15 of Decree No. 128/2020/ND-CP dated October 19, 2020 of the Government on imposing penalties for administrative violations in customs

2.3. Aggravating circumstances:

2.4. Mitigating circumstances:

2.5. Is imposed with following penalties and remedial measures:

a) Primary penalty: Fine.

To be specific: A fine of VND 5,000,000.

b) Additional penalty: Confiscation of exhibits of violations (exhibits of violations are detailed under record of suspension of exhibits of violations No. ……… dated …………)

(iv) Methods of specifying additional penalty:

Methods of specifying additional penalty of confiscating exhibits and instrumentalities for committing violations: specify name of exhibits of administrative violations confiscated, unit, quantity, type, conditions, quality or monetary value (in both number and letter) of exhibits of violations suspended as a result of appropriation and/or illicit use in case of confiscation, and specify whether a record is attached or not.

For cases with large quantity of confiscated exhibits of violations, specify additional penalty as follows:

- In case confiscated exhibits of administrative violations are all exhibits specified under record of suspension of exhibits of administrative violations, specify as follows: 

“Additional penalty: Confiscation of exhibits of violations (exhibits of violations are detailed under record of suspension of exhibits of violations No. ……… dated ………… and records related to the suspension (if any))

- In case confiscated exhibits of administrative violations are parts of/inconsistent with suspended exhibits of violations or in case exhibits of violations are not suspended prior to issuance of decisions on imposing penalties (without records of suspension of exhibits of violations), prepare list of confiscated exhibits of violations, attach to decisions on imposing penalties and specify as follows: 

“Additional penalty: Confiscate exhibits of violations according to list attached hereto”.

(v) Methods of specifying remedial measures namely mandatory disposal of exhibits of violations in case exhibits of violations have been disposed according to decisions on disposing exhibits of violations before decisions on imposing penalties are issued:

In this case, under remedial measure section, specify as follows: exhibits of violations have been disposed under decision No. ………… dated ……… of …………. (competent individuals capable of signing decisions on disposal).

c) Signing decisions on imposing penalties:

Under the section “Individual issuing decision”:

(i) In case competent individuals capable of imposing penalties directly sign decisions on imposing penalties, specify titles of the competent individuals, for example: if a head of Sub-department signs a Decision, specify as follows:

“HEAD OF SUB-DEPARTMENT

(Signature and stamp)

Nguyen Van A”.

(ii) Incase competent individuals capable of imposing penalties assign their vices to sign decisions on imposing, for example: if a head of a Sub-department assigns their deputy to sign a Decision, specify as follows:

“DEPUTY OF SUB-DEPARTMENT

(Signature and stamp)

Nguyen Van B”.

3. Amendments, corrections and issuance of new decisions on imposing penalties for administrative violations

Officials accepting the case shall rely on Article 6a, 6b, 6c, and 6d of Decree No. 81/2013/ND-CP dated July 19, 2013 and amendments thereto under Clauses 8, 9, 10, and 11 of Decree No. 97/2017/ND-CP dated August 18, 2017 to provide advice and request competent individuals to amend, correct and issue decisions as per the law.

3.1. Amendment to decisions on imposing penalties for administrative violations

Step 1. Officials accepting the case shall identify inconsistent details under decisions on imposing penalties that need amending. Identification shall conform to Clause 1 Article 6a of Decree No. 81/2013/ND-CP dated July 19, 2013 and amendments thereto under Decree No. 97/2017/ND-CP dated August 18, 2017.

Step 2. Draft decisions on amendments to decisions on imposing penalties using Form No. MQD 32 attached to Circular No. 90/2020/TT-BTC and request competent individuals to sign and issue.

Identify competent individuals to sign decisions on amendments to decisions on imposing penalties: heads of entities capable of imposing penalties for administrative violations are responsible for amending decisions on imposing penalties issued by them or their deputy.

3.2. Correction of decisions on imposing penalties

Step 1. Officials accepting the case shall identify inconsistent details under decisions on imposing penalties that need correction. Identification shall conform to Clause 2 Article 6a of Decree No. 81/2013/ND-CP dated July 19, 2013 and amendments thereto under Decree No. 97/2017/ND-CP dated August 18, 2017.

Step 2. Draft decisions on correction to decisions on imposing penalties using Form No. MQD 33 attached to Circular No. 90/2020/TT-BTC and request competent individuals to sign and issue.

Identify competent individuals sign decisions on correction to decisions on imposing penalties: heads of entities capable of imposing penalties for administrative violations are responsible for amending decisions on imposing penalties issued by them or their deputy.

3.3. Annulment of decisions on imposing penalties

Step 1. Officials accepting the case shall identify decisions on imposing penalties with detail section that is partially or entirely erroneous.  Identification shall conform to Clause 1, Clause 2 Article 6b of Decree No. 81/2013/ND-CP dated July 19, 2013 and amendments thereto under Decree No. 97/2017/ND-CP dated August 18, 2017.

Step 2. Draft decisions on annulment of decisions on imposing penalties using Form No. MQD 34 attached to Circular No. 90/2020/TT-BTC and request competent individuals to sign and issue.

Identify competent individuals sign decisions on annulment of decisions on imposing penalties: heads of entities capable of imposing penalties for administrative violations are responsible for annulling decisions on imposing penalties issued by them or their deputy.

3.4. Issuance of new decisions on imposing penalties for administrative violations

Step 1. Officials accepting the case shall identify cases eligible for issuance of new decisions on imposing penalties.  Identification shall conform to Clause 3 Article 6b of Decree No. 81/2013/ND-CP dated July 19, 2013 and amendments thereto under Decree No. 97/2017/ND-CP dated August 18, 2017.

Step 2. Draft decisions on imposing penalties using Form No. MQD 02 attached to Circular No. 90/2020/TT-BTC and request competent individuals to sign and issue.

Identify competent individuals to issue new decisions on imposing penalties: conform to Article 29 of Decree No. 128/2020/ND-CP.

Part IV

SUSPENSION OF EXHIBITS OF ADMINISTRATIVE VIOLATIONS AS PER ADMINISTRATIVE PROCEDURES

Primary tasks and skills

1. Upon detecting violations, officials who detect the violations shall consult Clause 1 Article 125 of Law on Imposing Penalties for Administrative Violations to determine cases where exhibits of administrative violations must be confiscated; produce reports and submit to competent individuals capable of issuing decisions on suspending exhibits of violations. 

2. Identify competent individuals capable of suspending exhibits of administrative violations 

(i) Competent individuals capable of suspending exhibits of administrative violations are competent individuals capable of imposing penalty of confiscating exhibits of administrative violations (heads of Customs Sub-departments; heads of Post-clearance Inspection Sub-departments; team leaders of control teams affiliated to Customs Sub-departments of provinces and central-affiliated cities and provinces; team captains of anti-smuggling teams, sea captains of control teams at sea and team leaders of intellectual property right protection teams affiliated to Anti-smuggling Department of General Department of Customs; Directors of Customs Departments of provinces and central-affiliated cities; Director of Anti-smuggling Department; Director of Post-clearance Inspection Department; Director General of General Department of Customs).   

(ii) If deputies of competent individuals capable of confiscating exhibits of violations mentioned above are authorized, they may suspend exhibits of violations. 

(iii) Direct superior of customs may suspend exhibits of administrative violations but must report to their superior who are capable of suspending exhibits of administrative violations within 24 hours for issuance of decisions on suspension of exhibits of administrative violations.  

3. Issue decisions on suspension of exhibits of administrative violations 

(i) Officials accepting the case shall draft decisions using Form No. MQD 19 attached to Circular No. 90/2020/TT-BTC and request competent individuals capable of issuing decisions on suspending exhibits of administrative violations to sign.

(ii) Duration of suspending exhibits of violations shall conform to Clause 8 Article 125 of Law on Imposing Penalties for Administrative violations, to be specific:

Duration of suspending exhibits of administrative violations shall be 7 days from date of suspension. Duration of suspension may be extended for complicated cases or cases that required verification but for no more than 30 days from the initial date of suspension.

For cases eligible for extension according to Law on Imposing Penalties for Administrative Violations which require more time for verification, competent individuals dealing with the case must report to their direct superior in writing to request for extension of suspension duration; permission for extension must be in written form and extended duration must not exceed 30 days. 

4. Implement decisions on suspension of exhibits of administrative violations 

Tasks to be completed:

4.1. Preparing record of suspension and record of seal

- Based on physical inspection record of exhibits of administrative violations, officials complying with decisions on suspending exhibits of administrative violations must produce record of suspension of exhibits of administrative violations using Form No. MBB 07 attached to Circular No. 90/2020/TT-BTC ; record of suspension must include name, quantity, type, conditions (new, old, damaged, fragile, etc.) of suspended exhibits of administrative violations.

- Seal with customs seal and produce record of seal for exhibits of administrative violations (if necessary).

Seal must be conducted at presence of violating individuals or their families, representatives of organizations, authorities and witnesses if violating individuals are absent.

- Give 1 copy of decisions on suspension, record of suspension of exhibits of administrative violations to violating individuals and organizations.

4.2. Transferring and receiving exhibits of administrative violations for management and preservation 

a) Officials accepting the case shall produce records of transfer of exhibits of administrative violations using Form No. MBB 18 attached to Circular No. 90/2020/TT-BTC and transfer exhibits to individuals assigned to manage, preserve exhibits of administrative violations.

In case officials accepting the case are assigned to management, preserve exhibits of administrative violations, do not perform this step.

b) Upon receiving suspended violating exhibits of administrative violations, individuals assigned to manage, preserve shall cooperate with individuals transferring the exhibits in:

b.1) examining decision on suspension, record of suspension and other relevant documents.

b.2) accepting and verifying conditions and characteristics of exhibits; comparing suspended exhibits with record of suspension and manifest in terms of commodity, quantity, weight, model, label, origin.  In special cases where exhibits must be transferred with seals intact, examine seal conditions.

b.3) receiving documents, suspended exhibits and performing receipt procedures as per the law if exhibits are consistent with documents mentioned as shown in examination.  In case of discrepancies, do not receive and report to individuals issuing decisions on suspending or heads of customs authority where exhibits are managed and preserved for resolution.

b.4) producing records of transfer of suspended exhibits of violation using Form No. MBB 18 attached to Circular No. 190/2020/TT-BTC, which specify quantity, quality, weight, model, label, origin and conditions (if any). Records of transfer and receipt of documents and exhibits must be made into 3 copies; the transferring party shall keep 1 copy for document storage, the receiving party shall keep 1 copy and accountant of receiving party shall keep 1 copy.

b.5) recording in logbook; transferring exhibits of violations to suspension storage.

4.3. Managing and preserving suspended exhibits

Management and preservation of suspended exhibits shall conform to Article 125 of Law on Imposing Penalties for Administrative Violations, Decree No. 115/2013/ND-CP dated October 3, 2013 and amendments thereto under Decree No. 31/2020/ND-CP dated March 5, 2020 and Circular No. 173/2013/TT-BTC dated November 20, 2013 of Ministry of Finance.

4.3.1. For suspended exhibits of administrative violations that are perishable commodities

a) Perishable commodities are identified according to Article 2 of Circular No. 173/2013/TT-BTC dated November 20, 2013 of Ministry of Finance, to be specific:

- Raw food, perishable food, food that is difficult to preserve.

- Explosive commodities (liquefied gasoline, oil, gas and other explosives);

- Medicine, veterinary drugs and agrochemical with less than 60 days until expiry date according to labeling;

- Processed food and other commodities with less than 30 days until expiry date according to labeling;

- Seasonal commodities (seasonal consumer products serving holidays, New Year) high quality electronic appliances (tablets, smart phones) and other commodities, products which if not immediately disposed after decisions on suspension or confiscation are issued will be spoiled, unsuited for sale or expired.

b) Disposal method for exhibits of violations that are perishable commodities:

(i) Disposal for spoiled, unusable commodities:

Step 1. Issue decisions on disposal:

Officials accepting the case shall draft decisions on disposing exhibits using Form No. MQD 14 attached to Circular No. 90/2020/TT-BTC , and request competent individuals to sign.

Step 2. Establish Council for disposal:

Council for disposal shall be established according to Point a Clause 2 Article 4 of Circular No. 173/2013/TT-BTC dated November 20, 2013 of Ministry of Finance. According to which, officials accepting the case or individuals assigned to manage, preserve exhibits shall draft decisions on establishment of councils for disposal of spoiled commodities and request individuals issuing decisions on suspension to sign decisions on council establishment.

Council for disposal consists of:

- Individuals issuing decisions on suspension or authorized individuals shall act as Chairperson.

- Other members: representatives of finance authority of the same level or finance authority in administrative divisions where the violations take place and representatives of relevant specialized agencies.

Step 3. Dispose

- Determine method of disposal: officials accepting the case shall rely on nature and characteristics of commodities and environment hygiene requirements to select appropriate disposal methods (chemical use, mechanical use, cremation, burial, other methods as per the law).

- Identify disposal entities (e.g. invite entities capable of dealing with environmental issues to dispose commodities causing environmental pollution); expenditure on disposal.

- Produce reports and request individuals issuing decisions on suspension to decide on methods of disposal; expenditure on disposal; disposal entities.

- Organize disposal according to approved disposal methods:

+ Invite Council for disposal.

+ Prepare exhibits for disposal.

+ Transfer exhibits for disposal to disposal entities.

+ Produce records of disposal using Form No. MBB 10 attached to Circular No. 90/2020/TT-BTC .

(ii) Sell directly (without bidding) for cases where disposal is not required:

- Entitlement for deciding: Individuals issuing decisions on suspension.

- Responsibility for organizing quality control of sold exhibits: individuals issuing decisions on suspension shall be responsible for organizing quality control. If necessary, individuals issuing decisions on suspension shall invite specialized agencies to cooperate in performing quality control for commodities.

- Sale of perishable commodities must be made into records. Primary contents of records include: basis for sale; location and time of sale; sellers; name, model, origin, quantity and current conditions of commodities at the time of sale; unit price and payment value; buyers and other relevant contents.

- Commodities within conditional business lines namely explosive commodities, medicine, veterinary drugs, agrochemical shall only be sold to organizations and individuals eligible for conducting business as per the law.

c) Management of revenue generated from disposal of perishable exhibits of violations when decisions on confiscation and transfer to state budget have not been issued:

(i) All revenue generated from disposal of perishable exhibits of violations must be sent to impound accounts opened by agencies of competent individuals capable of issuing decisions on suspension at State Treasury.

(ii) In case exhibits are not confiscated and transferred to state budget, all revenue generated from the sale thereof must be returned to legal owners, managers or users of the exhibits. Return of revenue shall be performed as follows:

Step 1. Officials accepting the case shall adopt procedures for collecting deposit from impound accounts.

Step 2. Produce records on return of revenue generated from sale of perishable exhibits of violations.

4.3.2. For non-perishable exhibits of violations

Management and preservation of suspended exhibits of violations shall conform to Article 125 and Article 126 of Law on Imposing Penalties for Administrative Violations and Decree No. 115/2013/ND-CP dated October 3, 2013 of the Government on management and preservation of confiscated, suspended exhibits (and amendments thereto under Decree No. 31/2020/ND-CP dated March 5, 2020). Specific tasks are similar to those under Point 7 Part V hereof.

4.3.3. Procedures for returning suspended exhibits of violations

a) Return of suspended exhibits of violations must be permitted by decisions of competent individuals using Form No. MQD 21 attached to Circular No. 90/2020/TT-BTC .

b) Upon returning suspended exhibits, individuals assigned to manage and preserve exhibits are responsible for:

b.1) examining decisions on returning suspended exhibits of violations; dispatch note; personal ID/ID card/Passport number and other relevant documents of recipients. For cases where exhibits of violations are appropriated and used illegally in order to commit administrative violations, upon returning suspended exhibits of violations to legal owners, managers or users according to Clause 1 Article 126 of Law on Imposing Penalties for Administrative Violations, examine documents proving ownership, management right, use right or equivalent documents for properties required by the law to register ownership and use right.

Recipients of exhibits of violations must be individuals/legal representatives of organizations specified under decisions on returning suspended exhibits of violations. If individuals above authorize other individuals to receive exhibits of violations, written authorization is required by the law.

b.2) requesting recipients to compare with records of suspension to examine name, quantity, characteristics, model, quantity, quality, number, label, code, origin, year of manufacture, engine number, chassis number, volume (if any), conditions of suspended exhibits of violations in presence of individuals assigned to manage, preserve.  

b.3) producing records of returning suspended exhibits of violations using Form No. MBB 08 attached to Circular No. 90/2020/TT-BTC with signature of transferring party and receiving party. The records must specify quantity, quality, model, brand, origin, conditions (if any).  Record of returning suspended exhibits of violations must be given to recipients and violating individuals, organizations (if they are not the recipients) 1 copy each; store 1 copy and transfer 1 copy to accountants.

b.4) recording in logbook as per the law.

4.3.4. Disposal of exhibits of violations exceeding suspension duration

Within 3 days from the date on which suspension period of exhibits of administrative violations specified under decisions on suspension expire, if violating individuals fail to provide reasons for not receiving the exhibits of violations or violating individuals cannot be identified, individuals issuing decisions on suspension must make announcement on mass media of central government or local government where exhibits of violations are suspended and post publicly in head offices of competent individuals capable of suspending exhibits of violations; if violating individuals fail to receive or cannot be identified after the 30 days period, competent individuals must issue decisions on confiscating exhibits of administrative violations for disposal as per the law. 

Agencies of individuals capable of issuing decisions on suspending exhibits of violations are responsible for managing and preserving exhibits of violations that have exceeded suspension duration where violating individuals do not receive the exhibits of violations or cannot be identified and during the period in which public post and announcement via mass media are implemented until the exhibits of violations are confiscated and disposed as per the law.

Part V

ISSUANCE AND MONITOR OF COMPLIANCE WITH DECISIONS ON IMPOSING PENALTIES

1. Issuance of decisions on imposing penalties

a) For decisions on imposing penalties issued by officials and team leaders:

Officials issuing decisions on imposing penalties or officials assigned to accept the case shall review and examine signed decisions in terms of format and contents to assure compliance with regulations and law; collect decision number according to document regulations of entities and issue seals of Customs Sub-departments (round seal on the upper left corner where decision number is located).

b) For decisions on imposing penalties issued by heads of Sub-departments, Directors of Departments and Director General:

Collection of number and seal issuance for decisions on imposing penalties performed by heads of Sub-departments, Directors of Departments and Director General shall conform to document regulations.

2. Transfer to decisions on imposing penalties to violating individuals, organizations

Within 2 working days from the date on which decisions on imposing penalties for administrative violations are produced with records, competent individuals capable of imposing penalties must send the decisions to sanctioned individuals, organizations, agencies collecting fine and other relevant agencies (if any).

a) In case of delivery via postal service: performed by postal entities. If decisions on imposing penalties are not received after 10 days from the date on which the decisions are delivered for the third time, deliver the decisions to local government where sanctioned individuals reside or where sanctioned organizations are based to post publicly. In case violating individuals are determined to avoid receiving decisions on imposing penalties on a well-grounded basis, the decisions shall be considered to have been delivered. 

b) In case of delivery in person:

Officials accepting the case shall give sanctioned individuals, organizations 1 copy of decisions on imposing penalties; request sanctioned individuals, organizations to countersign and specify date of receiving decisions on imposing penalties in recipient section of the decisions or countersign in delivery number section of decisions on imposing penalties. In case violating individuals and organizations intentionally refuse to receive decisions on imposing penalties which are delivered in person, produce records regarding failure to receive with confirmation of local government where agencies of individuals issuing decisions on imposing penalties are based or local government where violating individuals reside, where violating organizations are based.

c) In case minors are imposed with warning penalty, send decisions on imposing penalties to their parents or guardians.

3. Monitor of compliance with decisions on imposing penalties

a) Officials accepting the case shall rely on Article 73 and Article 74 of Law on Imposing Penalties for Administrative Violations to monitor compliance of sanctioned individuals and organizations with decisions on imposing penalties.

If sanctioned individuals and organizations fail to comply with decisions on imposing penalties after 10 days from the date on which they receive the decisions, officials accepting the case must produce reports and submit to competent individuals for implementation of following enforcement measures:

a.1) For decisions on imposing penalties according to Article 9, Article 14, Clause 2 Article 25 of Decree No. 128/2020/ND-CP , conform to Law on Tax Administration in 2019, Decree No. 126/2020/ND-CP dated October 19, 2020 of the Government on elaborating to Law on Tax Administration.

Form of record and decision on enforcement shall conform to Decree No. 126/2020/ND-CP dated October 19, 2020.

a.2) For other decisions on imposing penalties, conform to Law on Imposing Penalties for Administrative Violations in 2012 and Decree No. 166/2013/ND-CP dated November 12, 2013 of the Government on enforcement for implementation of decisions on imposing penalties for administrative violations.

Form of record and decision on enforcement shall conform to Circular No. 90/2020//ND-CP.

b) In case sanctioned individuals decease or sanctioned organizations dissolve or go bankrupt within the effective period of decisions on imposing penalties, officials accepting the case shall conform to Article 9 of Decree No. 81/2013/ND-CP dated July 19, 2013 of the Government.

c) Monitor re-export of exhibits of violations:

In case decisions on imposing penalties include a remedial measure of mandatory expel from Vietnam territory or mandatory re-export for exhibits of violations, exhibits of violations subject to mandatory expel from Vietnam territory or mandatory re-export must be closely monitored from exhibit storage to border checkpoint for re-export.

Monitor results must be confirmed by customs authority of border checkpoints in writing and sent to entities issuing decisions on imposing penalties within 5 days from the date on which the exhibits are brought out of Vietnam territory or re-exported for case file storage.

4. Fine submission

a) In case violating individuals and organizations submit fine on the spot to competent individuals capable of imposing penalties: fine collectors must give notice on fine collection to fine payers and, within 2 working days from the date on which the fine is collected, submit the fine to State Treasury or accounts of State Treasury in person.

Notice on fine collection shall conform to Circular No. 153/2013/TT-BTC dated October 31, 2013 of Minister of Finance on procedures for collection, submission of fine, fine invoice and state funding for guaranteeing operation of entities imposing penalties for administrative violations and Circular No. 105/2014/TT-BTC dated August 7, 2014 of Minister of Finance on amendments to Circular No. 153/2013/TT-BTC.

b) In case sanctioned individuals and organizations are incapable of submitting fine on the spot, officials accepting the case shall instruct violating individuals to submit fine in person at State Treasury or in commercial institutions that are authorized by State Treasury to collect fine according to decisions on imposing penalties or to accounts of State Treasury according to decisions on imposing penalties.

c) Procedures for submitting fine in installments

In case fined individuals and organizations apply for submitting fine in installments, officials accepting the case shall conform to Article 79 of Law on Imposing Penalties for Administrative Violations.

5. Suspension of compliance with decisions on imposing fine; fine exemption and reduction

a) In case fined individuals applied for suspension of compliance with decisions on imposing fine, officials accepting the case shall conform to Article 76 of Law on Imposing Penalties for Administrative Violations to propose resolution as follows:

In case the fined individuals are eligible for suspension of compliance with decisions on imposing fine or fine exemption or fine reduction, officials accepting the case shall draft decisions on suspending compliance with decisions on imposing fine using Form No. MQD 03 attached to Circular No. 90/2020/TT-BTC .

Individuals issuing decisions on imposing fine are entitled to sign decisions on suspending compliance with decisions on imposing fine.

b) Fine exemption and reduction:

b.1) For Decisions on imposing penalties according to Article 9, Article 14, Clause 2 Article 25 of Decree No. 128/2020/ND-CP , fine exemption shall conform to Article 34 of Decree No. 128/2020/ND-CP .

b.2) For other decisions on imposing penalties, fine exemption and fine reduction shall conform to Article 77 of Law on Imposing Penalties for Administrative Violations.

Officials accepting the case shall draft decisions on exempting/reducing the remainder/all of the fine for administrative violations using Form No. MQD 04 attached to Circular No. 90/2020/TT-BTC and request competent individuals to sign.

Entitlement for signing decisions on reducing, exempting fine:

- Direct superior of individuals issuing decisions on imposing penalties.

- Chairpersons of People’s Committees of provinces in case decisions on imposing penalties are issued by Chairpersons of People’s Committees of provinces.

c) In case fined individuals are ineligible for suspension of compliance with decisions on imposing fine, fine exemption or fine reduction, officials in charge of the case shall respond the fined individuals in writing.  The written respond must include reasons.

6. Adoption of procedures for confiscating exhibits of administrative violations

Upon confiscating exhibits of administrative violations under decisions on imposing penalties or decisions on confiscating exhibits of violations, officials accepting the case shall conform to Article 81 of Law on Imposing Penalties for Administrative Violations.

Step 1. Adopt procedures for inviting sanctioned individuals or representatives of sanctioned individuals to adopt procedures for confiscating exhibits of violations and sign records of confiscating exhibits of violations.

Step 2. Officials accepting the case shall examine seals (if any), conditions of suspended exhibits waiting to be confiscated. Produce records of unsealing (if previously sealed) using Form No. MBB 17 attached to Circular No. 90/2020/TT-BTC (if any).

In case seals and/or exhibit conditions are changed compared decisions on suspension, produce records on these changes using Form No. MBB 22 attached to Circular No. 90/2020/TT-BTC.  The records must bear signature of individuals producing records, individuals in charge of suspending and witnesses.

Step 3. After examining conditions of exhibits of administrative violations, officials accepting the case shall produce records using Form No. MBB 09 attached to Circular No. 90/2020/TT-BTC after confiscating exhibits of administrative violations.

Step 4. Produce records of transferring confiscated exhibits to individuals assigned to preserve using Form No. MBB 18 attached to Circular No. 90/2020/TT-BTC .

7. Management and preservation of confiscated exhibits

Management and preservation of confiscated exhibits shall conform to Decree No. 115/2013/ND-CP dated October 3, 2013 of the Government on management and preservation of suspended, confiscated exhibits of administrative violations, Decree No. 31/2020/ND-CP dated March 5, 2020 of the Government on amendments to Decree No. 115/2013/ND-CP, Circular No. 173/2013/TT-BTC dated November 20, 2013 of Ministry of Finance guiding implementation of regulations regarding management and disposal of suspended, confiscated exhibits of administrative violations according to administrative procedures and Circular No. 47/2014/TT-BCA dated October 17, 2014 of Ministry of Public Security on elaborating to Decree No. 115/2013/ND-CP.

Tasks to be completed:

7.1. Receiving confiscated exhibits

Upon receiving confiscated exhibits, individuals assigned to manage and preserve shall:

7.1.1. examine decisions on confiscation, records of confiscation and other relevant documents.

7.1.2. compare confiscated exhibits with records of confiscation and manifest in terms of commodity name, quantity, quality, weight, model, brand, origin, seal conditions (if any), record in logbook and request transferring party to sign the logbook.

7.1.3. record and specify time and date of receipt, return and transfer of exhibits of administrative violations, conditions of exhibits of violations, decision number, time, reasons for confiscating in details and full name, titles of individuals signing decisions, transferring individuals and receiving individuals.

7.2. Preserving confiscated exhibits

Officials assigned to preserve confiscated exhibits must:

7.2.1. stringently comply with regulations on management and preservation of confiscated exhibits. To be specific:

a) Suspended and confiscated exhibits must be closely, safely managed, preserved, arranged in a reasonable manner to enable easy inspection, avoid confusion, prevent environmental pollution and disease spread.

b) Preserve value, quality and standards of suspended, confiscated exhibits.

c) Only receive, return, transfer suspended exhibits or receive, transfer confiscated exhibits to agencies, organizations and individuals under decisions of competent individuals.

7.2.2. prohibit:

a) Appropriating, selling, exchanging, mortgaging, swapping, replacing suspended or confiscated exhibits and other acts for personal gain.

b) Infringing seal, bringing suspended, confiscated exhibits out of storage area illegally.

c) Causing missing, losses, vandalizing or intentionally damaging suspended, confiscated exhibits.

7.2.3. regularly examine suspension location; promptly detect missing, damaged exhibits or unsafe suspension location to adopt remedial measures immediately.

7.2.4. on a daily basis, list and produce periodic reports to heads of agencies managing suspended, confiscated exhibits on:

a) Quantity of suspended, confiscated exhibits.

b) Exhibits returned to legal owners, managers or users.

c) Number of exhibits exceeding suspension period without being received by legal owners, managers or users.

d) Number exhibits transferred to competent agencies.

dd) Total number of exhibits currently suspended.

8. Disposal of confiscated exhibits of administrative violations

Disposal of confiscated exhibits of administrative violations shall conform to Law on Management and Use of Public Property; Decree No. 29/2018/ND-CP dated March 5, 2018 of the Government on procedures for establishing general public ownership of property and disposal of property established with general public ownership; Circular No. 57/2018/TT-BTC dated July 5, 2018 of Minister of Finance guiding implementation of Decree No. 29/2018/ND-CP dated March 5, 2018; Decision No. 268/QD-BTC dated February 19, 2019 of Minister of Finance on decentralization of entitlement for establishing general public ownership of property and decentralization of entitlement for deciding approval of disposal of confiscated exhibits of administrative violations under Decree No. 29/2018/ND-CP dated March 5, 2018; Decision No. 739/QD-BTC dated March 18, 2020 of Minister of Finance on decentralization of entitlement for disposal of perishable exhibits of administrative violations according to Clause 4 Article 4 of Circular No. 57/2018/TT-BTC dated July 5, 2018 of Minister of Finance in order to inform competent individuals capable of disposing exhibits of violations. To be specific:

8.1. Properties transferred to specialized regulatory authorities for preservation:

a) Properties that are national treasure, antique and other items with historical, cultural value.

b) Properties that are weapons, explosive ordinances, combat gears, professional technical equipment, specialized equipment and other properties relating to national defense and security.

c) Properties that are Vietnamese currency, foreign currency, valuable instrument, gold, silver, jewels, precious metal.

d) Properties that are radioactive substances.

dd) Properties that are organs (specimen) of rare wild animals categorized within IB class.

e) Properties that are rare forestry products prohibited from use for commercial purposes, other than those specified under Point d of this Clause.

8.2. Sale (bidding, sale by appointment, public price post) according to regulations and law on management and use of public property and relevant law provisions.       With respect to properties that are perishable commodities (raw, easily spoiled, difficult to preserve food, explosive commodities, processed food with less than 30 days until expiry date, dead wild animals not required by law to be disposed, etc.); commodities that are bulky, in heavy weight transported by watercrafts which lead to costly unloading; properties that are commodities prohibited from import, subject to mandatory export where only one business entity is capable of performing re-export for said commodities, may perform sale by appointment or post price publicly. 

8.3. Disposal for commodities that are perishable commodities that cannot be sold; properties that cannot be used or commodities specified under list of commodities prohibited from manufacture, sale and circulation as per the law including: Toxic cultural products, narcotics, counterfeits, items causing harm to human health, domestic animals, plants, dead wild animals and other properties that require disposal. In special cases where other forms of disposal are required for cost efficiency and effectiveness, entities in charge of managing properties shall report to Ministry of Finance or request superiors (if any) to report to Ministry of Finance for consideration.

Part VI

RECEIPT AND RESOLUTION OF COMPLAINTS REGARDING PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN CUSTOMS

Section 1. RECEIPT, CLASSIFICATION AND RESOLUTION FOR COMPLAINTS ABOUT DECISIONS ON IMPOSING PENALTIES FOR ADMINISTRATIVE VIOLATIONS

Primary tasks and skills

Officials assigned to receive written complaints about decisions on imposing penalties for administrative violations shall:

Step 1. Receive written complaints from postal departments and review the complaints to ensure legitimacy (containing name, address of senders, etc.; name of decisions on imposing penalties in question; details of complaints).

In case of inadequate complaints, report to heads of direct supervisory agencies to process the complaints as inadequate complaints.

If complaints are beyond their competence, report to heads of direct supervisory agencies immediately and transfer the complaints to entities responsible for dealing with said complaints while inform individuals submitting the complaints in writing about entities resolving the complaints. 

Step 2. Classify complaints by sector: (complaints about penalties for administrative violations; complaints about penalties for tax); first-instance complaint resolution applications, second-instance complaint resolution applications.

Step 3. Record complaint resolution in logbook or in database system for monitor.

Step 4. Report or request heads of entities in charge of approving, assigning officials to assume responsibility for proposing consultation and resolving.

Section 2. EXAMINING COMPLAINED DECISIONS ON IMPOSING PENALTIES 

Primary tasks and skills

Heads of entities or individuals assigned to advise and resolve complaints shall:

Step 1. Examine the complaints and relevant documents thereof thoroughly in order to determine details under the written complaints and complained details under decisions on imposing penalties.

Step 2. Examine decisions on imposing penalties thoroughly, including: documents which serve as the basis for issuing the decisions; match complained details under decisions on imposing penalties with documents causing administrative violations (customs declarations, records of certification, records of administrative violations, inspection conclusion, etc.); match complained details (violations, fine, confiscated and/or suspended exhibits, etc.) with relevant law provisions depending on violations or sanctioned violations, namely regulations and law on customs procedures, customs inspection, supervision and control; regulations on sector management policies, policies on tariffs of import, export commodities; regulations and law on imposing penalties for administrative violations regarding complained details.

Step 3. Report or present complaint conditions, details and examination results of decisions on imposing penalties; estimated resolutions for complained details, etc. to heads in charge. 

Heads in charge of resolving complaints about decisions on imposing penalties for administrative violations shall approve reports and assign officials in charge of consultation affairs to adopt activities serving complain resolution.

Section 3. IDENTIFYING COMPLAINTS WITHIN COMPLAINED DECISIONS ON IMPOSING PENALTIES FOR ADMINISTRATIVE VIOLATIONS

Primary tasks and skills

Identify complaints within decisions on imposing penalties to clarify or add to information given under written complaints or other relevant details, documents that must be collected in order to issue accurate decisions on complaint resolution.

Step 1. Heads in charge of resolving complaints about decisions on imposing penalties shall assign officials to consult and propose issues under complained decisions to be verified; compose decisions on assigning an official or establishing a team for verifying details under written complaints (if necessary).

Step 2. Officials or teams assigned to verify complaints must immediately conduct verification affairs, namely:

Prepare plans for verifying complaints. The plans must specify all affairs, assigned officials, details to be specified, results to be achieved, verification period for each affair and produce reports on concluding verification affairs.

Step 3. Publicize decisions on verifying complained details

Heads in charge of resolving complaints shall publicize verification decisions, verification plans, according to which: send verification decisions and verification plans to necessary locations such as: entities producing certification records or records of administrative violations, inspection conclusion records, etc.; entities, organizations and agencies submitting written complaints about decisions on imposing penalties to clarify or verify details specified under written complaints.  

Step 4. Work directly with individuals producing the written complaints or representatives thereof. According to verification plans, assigned officials shall contact individuals producing written complaints or legal representatives thereof to verify details and propositions mentioned under the written complaints.  According to which, verification officials shall arrive at workplace or residence of individuals producing written complaints or representatives thereof to verify and both parties shall agree whether complaints about decisions on imposing penalties are legitimate and whether written complaints about decisions on imposing penalties are submitted by sanctioned individuals or legal representatives thereof.  At the end of verification session, verification officials shall produce records of affairs or certification records.  The records must specify full name of verification officials, location, starting time, ending time, verified details, verification results, post-verification remarks (if any) of individuals producing the written complaints or legal representatives thereof; full name of witnesses (if any); signatures of verification officials and individuals producing written complaints or representatives thereof.

Step 5. Work directly with individuals issuing complained decisions (in case of dealing with first-time complaints about decisions).   Verification officials or teams, according to approved plans, shall contact individuals or entities issuing complained decisions to verify relevant details or information under complained decisions on imposing penalties.  At the end of verification sessions, verification officials or teams shall produce records of affairs between verifying individuals and individuals issuing complained decisions on imposing penalties. Records of affairs must include all verification details and remarks of individuals issuing complained decisions (if any).

Step 6. Request relevant agencies, organizations, entities and individuals to provide information, documents and evidence.  For details under complained decisions on imposing penalties which involve other organizations or individuals (e.g. complaints involve conformity to regulations, conformity to standards), propose and advise individuals in charge of dealing with complaints to sign documents sent to relevant organizations, agencies, entities or individuals requesting information, documents evidence or respond to specialized details within their competence and professional scope which serve as the basis for dealing with complaints.  

Step 7. Receive and process information, documents and evidence. Verification officials or teams are responsible for preserving, classifying, analyzing and assessing information, documents and evidence provided by relevant agencies, organizations, entities and individuals under verification request in terms of complained details under complained decisions on imposing penalties while consolidating and summarizing in a single document to monitor throughout complain resolution process. 

Step 8. Solicit expertise for situations related to commodities. For complained details under decisions on imposing penalties (namely HS Code analysis, classification results of commodities, etc.), verification officials or teams shall propose, consult and report to heads in charge of resolving complaints to organize expertise at independent expertise institutions to guarantee transparency and accuracy in classifying HS Code of commodities thereby ensuring accuracy in complaint resolution.  

Step 9. Report verification results regarding complained details After finishing verification plans, verification officials or teams are responsible for producing reports on verification results which include implementation, verified details, organizations, agencies and entities involved in verification, new issues, discoveries during verification process, verified details that have no results; cases where verification is refused, etc.; request for direction for remaining issues and subsequent affairs serving complaint resolution.  

Section 4. ORGANIZING DISCUSSIONS ABOUT COMPLAINED DECISIONS ON IMPOSING PENALTIES 

Primary tasks and skills

Step 1. Officials assigned to advise and propose resolution of complaints about decisions on imposing penalties shall research case files to identify cases where discussions are required. For cases where discussions are required, assigned officials shall advise and propose discussion plans, programs and contents; request issuance of official dispatches inviting individuals producing written complaints (or legal representatives thereof), relevant organizations, entities and individuals; request issuance of notice to convene discussions for relevant customs entities and officials.

Step 2. Organize discussions. Officials advising on resolution of complaints shall prepare necessary affairs for discussion session, namely meeting room, meeting materials, drinking water and other necessities. Discussions must include individuals filing the complaints (or legal representatives or authorized individuals thereof), representatives of entities and individuals related to the complaints.  During discussions, remarks of parties to the discussions must be fully recorded.

Step 3. Produce records of discussion  At the end of discussion sessions, officials assigned to advise and propose resolution for complaints shall produce records of discussions. Records of discussion must specify details, issues of discussions, remarks of individuals about details and issues mentioned in the discussions; signature and full name of individuals or representatives of agencies, organizations and customs entities in records of discussions.

Section 5. RESOLVING COMPLAINED DECISIONS ON IMPOSING PENALTIES 

Primary tasks and skills

Step 1. Assign officials. Officials assigned to advise and propose resolution for complaints about decisions on imposing penalties shall review all case files to propose specific resolutions.

Step 2. Seek consultancy in resolving complaints.  If specialized remarks of relevant entities and individuals are required, report to heads in charge of resolving complaints and draft documents collecting feedback of individuals and entities to add and clarify details related to complaints under decisions on imposing penalties.  If the complaints involve multiple specialized management details, involve multiple customs management sectors or result in difficulty determining whether to retain penalties or amend/annul decisions on imposing penalties, establish consulting councils to collect feedback on unclear and/or controversial details.

Step 3. Suspend compliance with complained decisions. Officials assigned to advise and propose complaint resolution shall consolidate and assess details related to the complaints; refer to law provisions directly related to the cases; propose optimal measures to resolve complaints as per the law.

Step 4. Suspend complaint resolution. If individuals filing complaints or representatives thereof request to withdraw the written complaints about decisions on imposing penalties or file lawsuits against decisions on imposing penalties in courts to resolve by administrative proceeding procedures in courts, officials assigned to advise and propose complaint resolution shall produce reports or presentation and submit to heads of entities in charge of resolving complaints to request consideration, approval and issuance of decisions on suspending complaint resolution for complained decisions on imposing penalties.

Step 5. Issue decisions on resolving complaints. Officials assigned to advise and propose complaint resolution shall consolidate, analyze and propose complaint resolution; draft decisions on complaint resolution; report to heads for consideration and approval of presentation and signing of decisions on complaint resolution.

Officials assigned to enforce decisions on complaint resolution shall examine details under decisions on complaint resolution again to guarantee adequate document composing technique; examine recipient section to guarantee sender name and address, and recipient address (entities and individuals supervising, monitoring or cooperating in carrying out decisions on complaint resolution).   Cooperate with postal department of recipients in calculating adequate number of senders, recipients and copies for storage; and seal all copies and master registers of decisions on complaint resolution.

Section 6. IMPLEMENTING DECISIONS ON COMPLAINT RESOLUTION FOR COMPLAINED DECISIONS ON IMPOSING PENALTIES 

Primary tasks and skills

Step 1. Heads in charge shall directly assign entities and officials to assume responsibilities for implementing decisions on complaint resolution for complained decisions on imposing penalties.

Officials assigned to organize implementation of decisions on complaint resolution shall examine sender and recipient address. Send decision on complaint resolution to sender and recipient address.

Step 2. Publicize decisions on resolving complaints. Officials assigned to implement decisions on complaint resolution for complained decisions on imposing penalties for administrative violations shall publicize these decisions on system for information and office affair resolution of General Department of Customs (edoccustoms); update violations to regulations and law in customs.    Record in logbook for monitoring resolution for complaints about decisions on imposing penalties for administrative violations or electronic database on resolution for complaints about decisions on imposing penalties.

Part VII

STORAGE AND MANAGEMENT OF DOCUMENTS ON IMPOSING PENALTIES AND RESOLVING COMPLAINTS REGARDING PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN CUSTOMS

Section 1. STORAGE OF DOCUMENTS ON IMPOSING PENALTIES AND RESOLVING COMPLAINTS REGARDING PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN CUSTOMS

Primary tasks and skills

Officials assigned to advise, propose penalties for administrative violations and resolve complaints for complained decisions on imposing penalties for administrative violations shall process and manage documents to propose and advise in case individuals imposed with penalties complain about decisions on imposing penalties or complain about decisions on complaint resolution for complained decisions on imposing penalties.  Specific tasks:

Step 1. Initiate documents on imposing penalties and resolving complaints for penalties for administrative violations. Officials assigned to advise and request competent individuals to issue decisions on imposing penalties for administrative violations and decisions on complaint resolution for decisions on imposing penalties after requesting heads in charge to approve and issue decisions on imposing penalties and decisions on complaint resolution for decisions on imposing penalties shall initiate documents to serve subsequent professional affairs (monitoring, resolving complaints, serving administrative affairs in court, providing information, etc.). Documents must have covers and files serving consultation for issuance of decisions on imposing penalties or decisions on complaint resolution for decisions on imposing penalties, be numbered and coded according to post and storage affairs in customs.

Step 2. Collect and classify documents, files and produce annexes for management. Officials assigned to advise and propose resolution for certain cases shall be responsible for collecting documents and files directly related to the cases, produce documents in order: starting from the first documents received (documents assigned by heads) to the last documents concluding the case (decisions on imposing penalties or decisions on complaint resolution).

Step 3. Conclude documents on imposing penalties and resolving complaints for penalties for violations. Documents on imposing penalties for administrative violations and resolving complaints for decisions on imposing penalties after receiving all adequate documents shall be concluded and preserved closely according to security principles.

Step 4. Arrange, produce annexes and transfer documents on imposing penalties and resolving complaints for penalties for violations. Officials assigned to advise and propose penalties for administrative violations or resolve complaints for decisions on imposing penalties, store documents in 1 year from the date on which the cases are resolved and concluded (the date on which decisions on imposing penalties or decisions on complaint resolution for decisions on imposing penalties are issued).  Once the period mentioned above passes, transfer documents to storage department of entities for long-term storage and serving other professional activities (namely inspection, examination, accounting, etc.).  During transfer, produce lists of all documents under records of transfer and guarantee signature between transferring parties and receiving parties.

Section 2. MANAGEMENT OF DOCUMENTS ON IMPOSING PENALTIES AND RESOLVING COMPLAINTS REGARDING PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN CUSTOMS

Primary tasks and skills

Step 1. Assign officials. Officials/departments assigned to manage documents on imposing penalties for administrative violations/complaint resolution for decisions on imposing penalties for administrative violations are responsible of accepting transfer of penalty documents and decisions on complaint resolution for decisions on imposing penalties from officials advising and proposing case resolution.  According to which, receive documents according to prepared list and countersign in records of transfer: name, number of documents practically transferred; check contents of documents compared the list produced by transferring officials; in case documents do not contain adequate contents as produced, consult transferring officials for timely addition.

Step 2. Preserve documents on imposing penalties and resolving complaints for penalties for administrative violations in customs  Officials assigned to manage and store documents on decisions on imposing penalties and decisions on complaint resolution for decisions on imposing penalties must be responsible for considering and consulting regulations of sector and of Ministry of Finance on deadline for storing these documents in local storage to serve other professional management affairs (inspection, examination, accounting, etc.). These documents must be classified, numbered, coded and stored independently in separate locations to enable extraction, transfer and supply for state management tasks of other specialized agencies and entities. 

Step 3. Provide documents on imposing penalties and resolving complaints for penalties for administrative violations in customs.  Officials assigned to manage and store documents on imposing penalties and documents on complaint resolution for decisions on imposing penalties shall provide documents upon receiving written request and approval of heads in charge of imposing penalties and resolving complaints for decisions on imposing penalties.  Supply in form of photocopies of copies from master registers must be recorded and bear countersignature of receiving individuals/entities. Provision of files in each document must be fully listed, include specific document conditions (copies or photocopies from master registers) and countersignature between suppliers and receivers and be stored with master registers.

Step 4. Store documents on imposing penalties and resolving complaints for penalties for administrative violations in customs.  Officials/entities assigned to preserve and store documents locally are responsible during the period in which documents are preserved and stored in their units. At the end of preservation and storage period (deadline for complaint, deadline for initiating administrative proceeding), produce list and transfer to storage departments of Customs Departments or of sector to store and preserve documents according to storage policies of the Government./.

REFERENCE REGARDING PENALTIES FOR ADMINISTRATIVE VIOLATIONS

1. Law on Imposing Penalties for Administrative Violations No. 15/2012/QH13.

2. Decree No. 81/2013/ND-CP dated July 19, 2013 of the Government on elaborating to Law on Penalties for Administrative Violations and Decree No. 97/2017/ND-CP dated August 18, 2017 on amendments to Decree No. 81/2013/ND-CP .

3. Decree No.128/2020/ND-CP dated October 19, 2020 of the Government on imposing penalties for administrative violations in customs.

4. Circular No. 90/2020/TT-BTC dated November 11, 2020 of Ministry of Finance on forms for imposing penalties for administrative violations in customs.

5. Decree No. 20/2016/ND-CP dated March 30, 2016 of the Government on national database for penalties for administrative violations.

6. Pursuant to Decree No. 115/2013/ND-CP dated October 3, 2013 of the Government on management and preservation of suspended, confiscated exhibits, devices under administrative procedures and Decree No. 31/2020/ND-CP dated March 5, 2020 on amendments to Decree No. 115/2013/ND-CP.

7. Decree No. 112/2013/ND-CP dated October 2, 2013 of the Government on expelling, detaining and escorting violating individuals under administrative procedures and managing foreigners violating Vietnamese laws during adoption of procedures for expelling.

8. Pursuant to Decree No. 166/2013/ND-CP dated November 12, 2013 of the Government on enforcement of implementation of decision on penalties for administrative violations.

9. Pursuant to Decree No. 126/2020/ND-CP dated October 19, 2020 of the Government on elaborating to Law on Tax Administration.

10. Circular No. 173/2013/TT-BTC dated November 20, 2013 of Ministry of Finance guiding implementation of provisions on management and disposal of confiscated, suspended means of administrative violations under administrative procedures.

11. Circular No. 153/2013/TT-BTC dated October 31, 2013 of Ministry of Finance on procedures for collecting and submitting fine, fine invoices and state funding financing for guaranteeing operation of entities imposing penalties for administrative violations.

12. Circular No. 105/2014/TT-BTC dated August 7, 2014 of Minister of Finance on amendments to Circular No. 153/2013/TT-BTC dated October 31, 2013 of Minister of Finance on procedures for collection, submission of fine, fine invoice and state funding for guaranteeing operation of entities imposing penalties for administrative violations.

13. Joint Circular No. 239/2009/TTLT-BTC-VKSNDTC-TANDTC dated December 21, 2009 of Ministry of Finance, People’s Supreme Procuracy and Supreme People’s Court guiding notice, submission and provision of information and documents relating to violating individuals and organizations.

14. Circular No. 16/2018/TT-BTP dated December 14, 2018 of Ministry of Justice on reporting regime in management of law compliance regarding imposing penalties for administrative violations and monitor for compliance with regulations and law.