Nghị định 166/2013/ND-CP

Decree No. 166/2013/ND-CP dated November 12, 2013, on enforcement of decisions to impose administrative penalties

Nội dung toàn văn Decree 166/2013/ND-CP enforcement of decisions to impose administrative penalties


THE GOVERNMENT
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 166/2013/ND-CP

Hanoi, November 12, 2013

 

DECREE

ON ENFORCEMENT OF DECISIONS TO IMPOSE ADMINISTRATIVE PENALTIES

Pursuant to the Law on Government Organization dated December 25, 2001;

Pursuant to the Law on Administrative Actions against Violations dated June 20, 2012;

Upon the request of the Minister of Public Security,

The Government hereby issues the Decree on enforcement of decisions to impose administrative penalties.

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of application

This Decree prescribes principles, processes and procedures for application of measures to enforce the decision to impose administrative penalties or the decision to impose administrative remedies instead of administrative penalties (hereinafter referred to as enforcement), responsibility for compliance and provision of security for compliance with enforcement decisions.

Article 2. Subjects of application

1. An affected Vietnamese or foreign person or entity subject to an administrative penalty that has not voluntarily complied with the decision to impose an administrative penalty by the stipulated deadlines, the deadline for postponement of compliance with that decision or the prescribed deadline for compliance with the decision to impose an administrative remedy.

Where otherwise prescribed by any international treaty of which the Socialist Republic of Vietnam is the member state, such international treaty shall prevail.

2. Competent persons, entities charged with carrying out administrative enforcement, and organizations or individuals engaged in administrative enforcement.

Article 3. Principles of application

1. Enforcement shall be carried out only if the written enforcement decision issued by a competent person is obtained.

2. Decision to impose enforcement actions shall be made taking into consideration inclusions, nature, extent and requirements for implementation of the enforcement decision and practical conditions of specific local jurisdictions.

3. The person having competence in making the enforcement decision shall decide to impose enforcement measures according to the processes referred to in Clause 2 Article 86 of the Law on Handling of Administrative Penalties. Other subsequent measures may be applied to the extent of whether it is unlikely that the abovementioned enforcement measures are not applied or the amount of monetary penalty specified in the enforcement decision has not been collected in full.

Article 4. Withholding or disallowance of monetary amounts, distraint of property imposed on an entity subject to enforcement actions

1. If the affected entity that is a state authority, armed force unit, political organization or socio-political organization is subject to enforcement measures such as withholding or disallowance of monetary amounts, distraint of property and payment of costs for enforcement activities, its reimbursed or distributed budget of expenditure shall be withheld or deducted.

2. If the affected entity that is a revenue- generating public service provider prescribed by laws or armed force unit obtaining permission to carry out revenue-generating activities is subject to enforcement measures such as withholding or disallowance of monetary amounts, distraint of property and payment of costs for enforcement activities, its amount of revenue and property generated from its revenue-generating activities shall be withheld or deducted.

3. If the affected entity that is a social organization, occupation-related social organization, non-governmental organization, social fund or charity fund is subject to enforcement measures such as withholding or disallowance of monetary amounts, distraint of property and payment of costs for enforcement activities, its own monetary amounts or property shall be withheld or deducted.

4. If the affected entity that is an enterprise or cooperative is subject to enforcement measures such as withholding or disallowance of monetary amounts, distraint of property and payment of costs for enforcement activities, its own monetary amounts, property, cash or property income shall be withheld or deducted.

Article 5. Service of an enforcement decision upon affected and/or interested persons or entities

1. Immediately after issuing an enforcement decision, the person having jurisdiction to issue enforcement decisions shall serve that enforcement decision upon affected and/or interested persons or entities.

In case of enforcement activities carried out by applying enforcement measures referred to in Point b, c and d Clause 2 Article 86 of the Law on Handling of Administrative Violations, the enforcement decision shall be sent in advance to the Chairman of People's Committee of the commune where enforcement activities are conducted to seek his/her cooperation in implementation of that enforcement decision.

2. The enforcement decision shall be served, whether by direct delivery or registered mail services, and shall be notified to affected and/or interested persons or entities.

If an affected and/or interested person or entity intentionally rejects the enforcement decision sent by direct delivery service, the competent person shall give a written notice of such rejection attested by a relevant local authority and consider that the enforcement decision has been successfully served.

If the enforcement decision, once being sent by the registered mail service, is returned 10 days after the third delivery attempt fails by reason of intentional rejection of the affected person or entity; the enforcement decision has been published on the notice board of the local jurisdiction where the affected person resides or the affected entity is based; or it is established that the affected person has evaded receiving the enforcement decision, that enforcement decision shall be considered successfully delivered.

3. The duration to implement the enforcement decision shall be 15 days from the date of receipt thereof; where the enforcement decision prescribes that the duration for implementation thereof is longer than 15 days, the latter shall prevail.

Article 6. Responsibility for implementation of the enforcement decision

1. The enforcement decision maker shall be responsible for carrying out enforcement activities for the decision to impose administrative penalties issued by himself/herself and his/her junior staff.

2. With respect to enforcement decisions issued by Chairmen of People's Committees at all levels, the Chairman shall, based on functions and duties of specialized subordinate divisions of the People's Committee, issue the enforcement decision to mandate these divisions to undertake implementation of that enforcement decision. Such mandate must be based on the specialization principle according to which matters would be assigned to respective specialized divisions; in case where a matter involves multiple divisions, the decision on which division would undertake such mater shall be made depending on the specific circumstances.

3. Organizations or individuals concerned shall be obliged to cooperate with persons having jurisdiction to issue the enforcement decision or entities mandated to undertake enforcement activities in applying measures to implement the enforcement decision.

Article 7. Orderly and safe implementation of the enforcement decision

1. People’s Police forces shall be responsible for ensuring orderly and safe implementation of the enforcement decisions issued by Chairmen of same-level People’s Committees or the enforcement decisions issued by other state regulatory authorities as requested.

In order to request a People’s Police force to participate in protection of orderly and safe implementation of the enforcement decision, the entity charged with implementing the enforcement decision must send a written request to the same-level police authority 05 days before commencement of enforcement activities in order for them to arrange their personnel.

2. When participating in enforcement activities, the People’s Police force shall have the burden of deterring or preventing any disturbance or attack against law enforcement officers, and maintaining order and safety.

Chapter 2.

PROCESSES AND PROCEDURES FOR IMPOSITION OF ENFORCEMENT MEASURES

SECTION 1. WITHHOLDING OR DISALLOWANCE OF PART OF SALARY OR INCOME

Article 8. Subjects of withholding or disallowance of part of salary or income

1. Persons subject to these enforcement measures are public officials or public servants who are working for and paid salary or income by an entity or organization.

2. Persons subject to these enforcement measures are those who are paid social security benefits.

Article 9. Verification of salary and income

1. The person having jurisdiction to issue enforcement decisions shall assume responsibility for verifying information about salary, income and amount of social security benefits received by affected persons as the basis for making the enforcement decision.

2. Affected persons, entities or persons that manage salary or income, and interested entities or persons, must provide information about salary, income or amount of social security benefits of persons subject to enforcement within the duration of 03 business days of receipt of the request for provision of such information and bear legal liability for provided information.

Article 10. Enforcement decision on withholding or disallowance of part of personal salary or income

The enforcement decision on withholding or disallowance of part of personal salary or income shall specify the decision number, date of issue of the decision, bases for issue of the decision, full name, title, workplace of the decision maker, full name and address of the person subject to such enforcement decision, name and address of the entity managing salary or income of the person subject to such enforcement decision, the amount withheld or disallowed, reasons for such withholding or disallowance, name and address of the receiving State Treasury; method of payment of the amount withheld or disallowed to the State Treasury, implementation time, signature of the decision maker and seal affixed by the decision-making authority.

Article 11. Withholding or disallowance rate of part of personal salary or income

A part of personal salary or income may be withheld or disallowed by installments at the following rates:

1. The rate of salary or social security benefits withheld or disallowed in each instalment shall not exceed 30% of total salary or social security benefit.

2. The rate of other income withheld or disallowed in each instalment shall not exceed 50% of total income.

Article 12. Responsibility of entities, organizations or employers currently managing salary or income of persons subject to withholding or disallowance

1. Entities, organizations or employers currently managing salary or income of persons subject to withholding or disallowance of a part of salary or income shall be responsible for strictly complying with an enforcement decision imposed by a competent authority.

2. On the latest date of payment of salary or income, the entity, organization or employer currently managing salary or income of persons subject to withholding or disallowance of a part of their personal salary or income shall be responsible for withholding or disallowing a part of salary or income which is transferred into the State Treasury’s account as defined in the enforcement decision, and concurrently notifying the competent authority issuing enforcement decisions.

3. Where the amount withheld or disallowed is not adequate in comparison with the amount specified in the enforcement decision but the person subject to enforcement has terminated his/her contract under which (s)he is paid salary or income, the entity, organization or employer must promptly notify the authority having jurisdiction to issue the enforcement decision.

4. Where the entity, organization or employer currently managing salary or income paid to persons subject to withholding or disallowance of a part of personal salary or income intentionally rejects compliance with the enforcement decision issued by the competent authority, it shall be subject to sanctions prescribed by laws.

SECTION 2. WITHHOLDING OR DISALLOWANCE OF MONEY FROM AN ACCOUNT

Article 13. Subjects of withholding or disallowance of money from the account

Organizations or persons that do not voluntarily comply with the decision to impose administrative penalty or the decision to impose administrative remedy, do not pay or pay in full enforcement costs, and deposit their money at credit institutions in Vietnam, shall be subject to an enforcement measure that takes the form of withholding or disallowance of money from their accounts.

Article 14. Verification of information about accounts of affected persons or organizations subject to enforcement

1. The person having jurisdiction to issue the enforcement decision on withholding or disallowance of money from accounts shall be vested with the right to request credit institutions to provide information about accounts of persons or organizations subject to enforcement in accordance with applicable laws and regulations; in cases where the person having jurisdiction to issue enforcement decisions is not authorized to request information about accounts, that person can petition another person having jurisdiction to do so to request credit institutions to provide required information. The person provided with information shall be responsible for protecting confidentiality of provided information.

2. Persons or organization subject to enforcement shall be responsible for advising the person having jurisdiction to issue the enforcement decision on withholding or disallowance of money from accounts of names of credit institutions where their accounts are opened, numbers of their accounts as requested.

Article 15. Enforcement decision on withholding or disallowance of money from accounts

1. The enforcement decision on withholding or disallowance of money from accounts shall specify the decision number, date of issue of the decision, bases for issue of the decision, full name, title, workplace of the decision maker, the amount of money withheld or disallowed, reasons for such withholding or disallowance, full name and account number of person or organization subject to such withholding or disallowance, name and address of the credit institution where subjects of withholding or disallowance open their accounts, name, address and account number of the receiving State Treasury; method of payment of the amount withheld or disallowed to the State Treasury, method for transferring the withheld or disallowed amount of money from credit institutions to the State Treasury; signature of the decision maker and stamp affixed by the decision-making authority.

2. Upon receipt of the enforcement decision on withholding or disallowance of money from accounts, persons or organizations subject to enforcement shall be responsible for requesting the credit institution where they open accounts to transfer the amount of money from their accounts to the State Treasury which is defined in the enforcement decision on withholding or disallowance of money from accounts.

Article 16. Responsibility assumed by the credit institution where persons or organizations subject to enforcement open accounts

1. Provide information in writing about accounts of persons or organizations subject to enforcement that currently open their accounts at credit institutions whenever requested by the person having jurisdiction to issue enforcement decisions.

2. Maintain the amount of money in accounts of affected organizations or persons subject to enforcement that is equivalent to the amount of money that they have to pay upon the request of the person having jurisdiction to issue the enforcement decision.

3. Transfer the amount of money payable by affected organizations or persons from their accounts to the state budget through accounts opened at the State Treasury.

Where affected organizations or persons do not comply with Clause 2 Article 15 hereof, credit institutions shall notify them of such transfer; such transfer shall not require consent from affected organizations or persons.

4. In either case where there is not money left in the account or money left in the account is not enough to cover the withheld or disallowed amount, credit institutions shall, after withholding or disallowing the available amount of money, notify in writing the authority issuing the enforcement decision on withholding or disallowance of money from accounts opened at credit institutions in order for this authority to apply another enforcement measure, i.e. distraint of property, in accordance with Section 3 Chapter II hereof.

5. If credit institutions fail to transfer money left in the account balance of organizations or persons subject to enforcement as the withheld or disallowed amount specified in the enforcement decision issued by the competent person, they shall be sanctioned in accordance with applicable laws and regulations.

Article 17. Procedures and documentation requirements for collection of the withheld or disallowed amount

1. Withholding or disallowance of a part of income, or money from accounts opened at credit institutions, of affected organizations or persons shall be based on collection proofs or evidencing documents prescribed by applicable laws and regulations. Collection proofs or evidencing documents used for processing withholding or disallowance of salary or income shall be sent to interested parties.

2. After collection, the State Treasury that collects the withheld or disallowed amount shall be responsible for notifying the person having competence in issuing enforcement decision.

SECTION 3. DISTRAINT OF PROPERTY WHOSE VALUE IS EQUAL TO THE PENALTY AMOUNT FOR AUCTION

Article 18. Subjects of the enforcement measure in which property whose value is equal to the penalty amount is distrained for auction

1. Persons who are not paid salaries or income or social security benefits by an entity or organization, and do not hold any account or whose money deposited in their accounts opened at credit institutions is not enough to cover the amount that is withheld or disallowed according to the enforcement measure to withhold or disallow money from accounts.

2. Organizations that do not hold any account or whose money deposited in their accounts opened at credit institutions is not enough to cover the amount that is withheld or disallowed according to the enforcement measure to withhold or disallow money from accounts.

Only property of an affected organization or person whose value is equal to the penalty amount specified in the decision to impose administrative penalties or the decision to impose administrative remedies and the amount of costs incurred from carrying out enforcement activities shall be distrained.

Article 19. Property exempted for being distrained

1. Only houses of persons and families of persons subject to enforcement that have the minimum space as prescribed by laws on residence.

2. Medicines, food and food supplies used for meeting basic demands of persons and families of persons subject to enforcement.

3. Working tools or common property necessary for daily life of persons and families of persons subject to enforcement.

4. Articles or objects for worship, relics, medals or merit certificates.

5. Property used for national defence and security.

6. Property put up as a legal pledge or collateral.

Article 20. Verification of information about property owned by subjects of enforcement measures

1. The person having jurisdiction to issue enforcement decisions shall assume responsibility for verifying information about property of subjects of enforcement, conditions for implementation of the enforcement decision on distraint of property whose value is equivalent to the penalty amount.

2. Interested entities, organizations or persons shall be responsible for providing information about property of subjects of enforcement upon the request of the authority issuing the enforcement decision.

Article 21. Enforcement decision on property distraint

1. The enforcement decision on distraint of property shall specify the decision number, date of issue of the decision, bases for issue of the decision, full name, title, workplace of the decision maker, full name, residence and workplace of person or organization subject to property distraint, penalty amount, distraint location, signature of the decision maker and stamp affixed by the decision-making authority.

2. Distraint of property shall be notified to the person or organization subject to distraint, People's Committee of the commune where that person resides or that organization’s office is located or workplace of that person 05 working days prior to commencement of such distraint, unless such notification causes any difficulty in carrying out such distraint.

Article 22. Process for carrying out property distraint activities

1. Property distraint activities shall be carried out during daylight and time frame of 8 a.m. to 5 p.m.

2. The enforcement decision maker or the person authorized to implement enforcement decisions shall undertake distraint activities.

3. Upon distraint of property, it is required that affected persons or legally mature family members having full civil capacity, representatives of affected organizations, representatives of local authorities and witnesses must be present.

If affected persons or legally mature family members are intentionally absent, property distraint activities may be carried out as usual in the presence of representatives of local authorities and witnesses.

4. Affected organizations or persons can suggest which property should be distrained first and the person authorized to undertake distraint activities must approve such request when considering that it will not cause any adverse impact on enforcement activities.

If affected persons or organizations do not make the said suggestion on which property should be distrained first, the property under private ownership shall be distrained first.

5. Property under shared ownership between the affected person and others is distrained only if that affected person has none of his/her own property or his/her own property is not enough to ensure discharge of obligations defined in the enforcement decision. In the event that property to be distrained is in dispute, distraint activities shall be carried out as normal and explanation for the right to initiate civil proceedings shall be given to the persons who have the shared ownership interest in such property.

The authority carrying out distraint activities shall be responsible for notifying time and location of distraint to co-owners of such property. Upon expiration of the stipulated duration of 03 months from the date of distraint, if civil proceedings have not been brought, distrained property shall be auctioned in accordance with laws on property auction.

Article 23. Record of property distraint

1. Distraint of property must be recorded or documented. The record of such distraint must specify time, location of distraint; full name, title of the person in charge of distraint; representative of the affected organization or person or their legal representative; witness; representative of local authority (or host entity of the affected person); description of name, condition and characteristics of specific distrained property.

2. The person undertaking distraint activities, representative of the affected organization or person or their legal representative, witness, or representative of local authority (or host entity of the affected person), shall sign the record. If the record text contains multiple pages, they must sign all single pages. In case where any of them are absent or any of participants that are present refuses to sign the record, such absence or refusal must be noted down in the record that should give relevant explanations.

3. The record of distraint shall be made into 02 copies of which one is deposited with the decision-making authority and the other is kept by the organization or person subject to distraint immediately after completion of creation of such record.

Article 24. Safekeeping of distrained property

1. The person undertaking distraint activities shall choose one of the following forms of safekeeping of distrained property:

a) Entrusting the person subject to enforcement, relatives of the person subject to enforcement or the person currently operating and managing such property with safekeeping of such distrained property;

b) Entrusting one of the co-owners with safekeeping of such distrained property, if such property is held under shared ownership;

c) Entrusting accredited organizations or persons for safekeeping of such property.

2. Property that is a gold, precious metal, jewel or foreign currency shall be entrusted for the State Treasury’s safekeeping; property that is an industrial explosive material, support instrument, historical, cultural artifact, national treasure, antique or previous forestry products shall be entrusted for safe custody by a sectoral state authority.

3. Upon entrustment of distrained property for safekeeping, the person undertaking distraint activities shall make a record of this. The record of such safekeeping should specify time of entrustment for safekeeping, full name of the person undertaking enforcement activities, person or representative of the organization subject to enforcement, person entrusted for safekeeping of the property, witness of handover of the property for safekeeping, quantity and condition (quality) of such property, rights and obligations of the person entrusted with safekeeping of the property.

The person undertaking distraint activities, the person entrusted with safekeeping of the property, person or representative of the organization subject to enforcement and witness shall attach their signature to the record. If the record text contains multiple pages, they must sign all single pages. In either case where any of them are absent or any of participants that are present refuses to sign the record, such absence or refusal must be noted down in the record that should give relevant explanations.

Each copy of the record text shall be deposited with the person entrusted with safekeeping of the distrained property, person or representative of the organization subject to enforcement, witness and the person undertaking distraint activities.

4. The person entrusted with safekeeping of the distrained property shall be paid actual and reasonable costs for safekeeping of the distrained property, unless otherwise prescribed by Point a Clause 1 of this Article.

5. If the person entrusted with safekeeping of the distrained property damages, fraudulently replace, lose or destroy the property, (s)he shall be responsible for paying compensation and, depending on the nature and extent of violation, shall be sanctioned in accordance with applicable laws.

Article 25. Valuation of distrained property

1. Valuation of distrained property shall be carried out at the home of the person or the office of the organization subject to distraint or the place of safekeeping of that distrained property, except if establishment of the Council for valuation of property is required.

2. The distrained property shall be valued under the agreement between the person undertaking implementation of the enforcement decision, on one side, and the representative of the organization or person subject to enforcement and co-owners in case of distraint of property under shared ownership, on the other side. The duration to reach an agreement on price of the distrained property shall not exceed 05 business days from the distraint date.

Where these parties fail to reach an agreement on price, the person issuing the enforcement decision shall make a decision on establishment of the Council for property valuation within the duration of no more than 10 business days from the distraint date. The Council shall be composed of the person making the enforcement decision that will be appointed as the Chair, the representative of a financial institution at the same level and the representative of a relevant specialized entity.

Within the duration of 07 business days from the establishment date, the Council shall carry out valuation activities. Valuation of the distrained property shall be based on the market value defined upon the valuation date. With respect to the property of which price is solely managed by the Government, valuation of such property shall be based on the State-regulated prices.

The Council for property valuation shall work according to the principles of collective bargaining. The meeting for valuation of the distrained property shall be convened by the Council’s Chair and must be attended by at least two thirds of membership. In the valuation meeting, each member must give his/her own opinion on value of the distrained property. The Council shall make its decision on value of the distrained property after obtaining approval from more than a half of membership. If the voting result is tied, the Chair or the person authorized to chair the meeting shall have the deciding vote. The person subject to distraint or the representative of the organization whose property is distrained may give his/her opinion on valuation but the right to approve the price of the distrained property is granted to the Council for property valuation.

3. Valuation of the distrained property must be documented into a record that specifies time and location of valuation, composition of participants in valuation, name and value of the property after valuation, signatures of members participating in valuation and of the property owner.

Article 26. Transfer of the distrained property for auction

1. The starting price of the property distrained for auction shall be determined in accordance with Article 25 hereof. Within the duration of 15 business days from the distraint date, the person making the enforcement decision shall sign an auction contract with the professional auctioneer operating within a centrally-affiliated city and province where the property is distrained for auction; where there is no auction contract with the professional auctioneer, the Council for auction of property must be established.

Auction of the distrained property shall be conducted in accordance with laws on property auction.

2. After signing an auction contract, the person undertaking distraint activities shall transfer the distrained property for auction. Transfer of the distrained property must be documented into a record that clearly specifies transfer time, transferor, receiver, signature of the transferor and receiver, quantity and condition of the property. Documentation on transfer of the distrained property to the entity in charge of auction shall comprise the decision on enforcement of distraint, documents or materials relating to the legal right to own and use such property (if any), written document on valuation of the property and written document evidencing transfer of that property.

3. Where the distrained property is a bulky commodity or a commodity in large quantity, but the authority in charge of auction is not able to provide storage of the property, after completion of procedures for transfer of the property, that authority may sign a contract for safekeeping of the property with the provider of facility for safekeeping of that property. Costs incurred from executing of a safekeeping contract shall be covered by using the amount of money earned from auction.

4. Upon auction of the commonly shared property, co-owners shall be given priority to buy such property.

5. In case where the amount of money earned from auction of the distrained property is more than the amount specified in the decision to impose administrative penalty and enforcement costs, within the duration of 10 business days after the date of completion of auction, the authority implementing the enforcement measure by distraining property for auction shall carry out required procedures for refunding the surplus amount to the affected organization or person.

Article 27. Transfer of the property ownership interest

1. The buyer’s ownership of the distrained property shall be recognized and protected by laws.

2. The competent authority shall be responsible for carrying out procedures for transferring the ownership interest to the buyer in accordance with laws.

3. Dossiers of transfer of ownership interest shall be composed of the followings:

a) The duplicate copy of the enforcement decision that take the form of distraint of property for auction;

b) The report on the property auction;

c) Other documents relating to the property (if any).

SECTION 4. COLLECTION OF MONETARY AMOUNT OR ACQUISITION OF OTHER PROPERTY FROM SUBJECTS OF ENFORCEMENT OF COMPLIANCE WITH ADMINISTRATIVE PENALTIES THAT IS HELD BY OTHER ORGANIZATIONS OR PERSONS IN CASE OF ILLEGAL CONCEALMENT OF PROPERTY BY VIOLATING ORGANIZATIONS OR PERSONS

Article 28. Requirements for application of the measure to enforce collection of monetary amount or acquisition of other property from subjects of enforcement of compliance with administrative penalties that is held by other organizations or persons in case of illegal concealment of property by violating organizations or persons

The measure to enforce collection of monetary amount or acquisition of property of subjects of enforcement that is held by other organizations or persons (hereinafter referred to as third party) shall be applied if:

1. The person issuing the enforcement decision fails to apply or has already applied the enforcement measures referred to in Section 1, 2 and 3 Chapter II hereof, but the specified penalty amount has not been fully collected, enforcement costs has yet to be paid or has not been paid in full.

2. The person having jurisdiction to issue enforcement decisions has sufficient proof that the third party is holding money and property of subjects of enforcement.

Article 29. Verification of information about money or property of subjects of enforcement that is held by the third party

1. The person having jurisdiction to issue enforcement decisions shall assume responsibility for verifying information about money or property of subjects of enforcement, conditions for implementation of the decision to enforce collection of money or acquisition of property that is held by the third party, and providing proof of illegal concealment of money or property of subjects of enforcement after commission of violation.

2. Interested entities, organizations or persons shall be responsible for providing information about money or property of subjects of enforcement and about illegal concealment by subjects of enforcement upon the request of the authority issuing the enforcement decision.

Article 30. Responsibility assumed by the third party that currently holds money or property of subjects of enforcement

1. Provide the authority having jurisdiction to issue enforcement decisions information about the amount of money or property currently held by subjects of enforcement upon request.

2. Upon receipt of the written request from the authority having jurisdiction to issue enforcement decisions, the third party is not allowed to transfer money or property to subjects of enforcement till the date of payment to the state budget or transfer of property to the authority having jurisdiction to issue enforcement decisions for implementation of auction procedures.

3. Where the third party does not comply with the request of the authority having jurisdiction to issue enforcement decisions or illegally conceal money or property of subjects of enforcement that it is currently held, it shall be sanctioned in accordance with applicable laws.

Article 31. Decision to enforce collection of monetary amount or acquisition of other property from subjects of enforcement that is held by the third party in case of illegal concealment of property by violating organizations or persons

The decision to enforce collection of money or acquisition of property of subjects of enforcement that is currently held by the third party in case of illegal concealment of property by violating organizations or persons shall specify the decision number, date of issue of the decision, bases for issue of the decision, full name, title, workplace of the decision maker, full name and address of person or organization subject to enforcement, full name and address of person or organization currently holding money or property, amount of money collected or value of property acquired, signature of the decision maker and stamp affixed by the decision-making authority.

Article 32. Conduct of enforcement of collection of monetary amount or acquisition of other property from subjects of enforcement that is held by the third party in case of illegal concealment of property by violating organizations or persons

1. Prior to commencement of enforcement activities, if the third party is holding money or property of subjects of enforcement voluntarily complies with the enforcement decision, the entity undertaking enforcement activities shall recognize such voluntary compliance in writing.

2. The representative of local authority and witness must be present during the process of enforcing collection of monetary amount or acquisition of other property from subjects of enforcement that is held by the third party in case of illegal concealment of property by violating organizations or persons.

3. The enforcement shall be documented into a record. The record should clearly specify time, location of enforcement, authority undertaking enforcement activities, full name and address of organization or person subject to enforcement, full name and address of organization or person currently holding money or property, representative of the local jurisdiction where enforcement activities are carried out, witness, amount of money collected and value of property acquire and condition of property acquired.

4. Person or representative of the organization subject to enforcement, person or representative of the organization currently holding money or property, representative of the authority issuing enforcement decisions, representative of local jurisdiction and witness shall be required to sign the record. If the record text contains multiple pages, they must sign all single pages. In either case where any of them are absent or any of participants that are present refuses to sign the record, such absence or refusal must be noted down in the record that should give relevant explanations.

5. In case where the person or organization subject to enforcement, person or representative of the organization currently holding money or property is intentionally absent, enforcement activities shall be carried out as normal but the representative of local authority and witness must be present.

SECTION 5. ENFORCEMENT OF ADMINISTRATIVE REMEDIES

Article 33. Decision to enforce administrative remedies

The decision to enforce administrative remedies shall specify the decision number, date of issue of the decision, bases for issue of the decision, full name and title of the decision maker, full name and address of person or organization subject to enforcement, remedy that must be sought, time of completion of enforcement, person or organization taking responsibility for undertaking enforcement activities, entities responsible for getting involved in such enforcement activities, signature of the decision maker and stamp affixed by the decision-making entity.

Article 34. Conduct of enforcement of administrative remedies

1. Upon receipt of the decision to enforce administrative remedies, the person or organization charged with conducting implementation of the enforcement decision shall cooperate with relevant authorities in mobilization of forces or equipment to carry out enforcement measures specified in the enforcement decision.

2. Prior to commencement of enforcement activities, if the organization or person subject to enforcement voluntarily complies with the enforcement decision, the entity undertaking enforcement activities shall recognize such voluntary compliance in writing.

3. In the course of enforcement of administrative remedies, representative of local authority and witness must be present.

4. In case where the person or organization subject to enforcement is intentionally absent, enforcement activities shall be carried out as normal but the representative of local authority and witness must be present.

5. Where the organization or person is required to comply with the decision to enforce demolition and relocation of illegal construction works or handover of land associated with property that is not subject to enforcement, the person conducting enforcement activities can force the affected organization or person subject to the enforcement decision and other persons present within the precinct of such works or land site to move out of such site and force them to move their own property out of such site as well. If they refuse to do so, the person conducting enforcement activities shall request enforcement forces to force them to move their property out of such works and land site.

In case they refuse to accept their property, the person conducting enforcement activities shall keep a record of the number, classification and condition of specific property item, and hire an authorized organization or person to provide custody of their property or keep their property at the storage facility of the entity issuing enforcement decisions and notify them of location or time for their claim of such property. The person or organization subject to such enforcement shall be liable for costs of transportation, custody or storage of their property.

Upon expiration of the stipulated duration of 06 months from the date of receipt of the said notification, if the organization or person subject to such enforcement does not contact to claim their property back, the property shall be up for auction in accordance with applicable laws. The amount of money collected from which costs of transportation, custody, storage or handling of property have been deducted shall be deposited into indefinite-term saving accounts at the credit institution and notify the organization or person subject to such enforcement to contact to receive such amount of money. In the event that the property subject to such enforcement is damaged and become invalid for use, the person conducting enforcement activities shall eliminate the property in accordance with laws. The person conducting enforcement activities shall be required to keep a clear record of condition of the property prior to such elimination.

6. In case where the organization or person subject to the enforcement decision is required to pay back illegal proceeds earned from commission of administrative violations or is forced to pay back the amount of money equal to value of exhibits and means of administrative violations that have been illegally consumed, concealed or eliminated, but the affected person subject to enforcement has not yet to promptly comply, the person having jurisdiction to issue the enforcement decision shall apply one of enforcement measures referred to in Point a, b and c Clause 2 Article 86 of the Law on Handling of Administrative Violations.

Article 35. Record of implementation of the decision to enforce administrative remedies

1. Implementation of the decision to enforce administrative remedies shall be documented into a record and a copy of that record shall be deposited with the person subject to enforcement. The record should clearly specify time, location of enforcement, authority undertaking enforcement activities, the affected organization or person subject to enforcement, representative of the local jurisdiction, witness, and results of implementation of such enforcement decision.

2. Person or representative of the organization subject to enforcement, representative of the authority issuing enforcement decisions, representative of local jurisdiction and witness shall be required to sign the record. In either case where any of them are absent or are present but refuse to sign the record, such absence or refusal must be noted down in the record that should give clear explanations.

Chapter 3.

GUARANTEE OF COMPLIANCE WITH THE ENFORCEMENT DECISION

Article 36. Guarantee measures for compliance with the enforcement decision

1. Upon receipt of the decision to impose enforcement measures, if it is established that the organization or person subject to enforcement measures performs any act of concealment or damaging of money or property, the person issuing the enforcement decision may request organizations or entities concerned, local jurisdiction where the person subject to enforcement resides or works, or the organization subject to enforcement is based, to take measures to prevent acts of concealment of money or property.

2. Where the organization or person subject to enforcement performs acts of protest against the enforcement decision after turning out any encouragement, explanation or persuasion, the person issuing the enforcement decision can mobilize personnel and equipment to guarantee compliance with the enforcement decision.

3. If the person subject to enforcement has yet to comply or evade obligations to comply with the enforcement decision, (s)he shall be prohibited from leaving Vietnam.

Article 37. Movement of the enforcement decision for guarantee of implementation thereof

1. Where the person or organization subject to enforcement resides in this province but has registered their permanent residence or office at another province and does not have necessary conditions for compliance with the enforcement decision at the local jurisdiction where they have committed violation, the enforcement decision shall be moved to the authority having jurisdiction to carry out enforcement at the same level of local jurisdiction where the person is residing or the organization's office is located to carry out enforcement procedures. If the local area where the person is residing or the organization’s office is located does not have the authority having jurisdiction to perform enforcement activities at the same level, the enforcement decision shall be moved to the district-level People’s Committee for its conduct of enforcement activities.

Where the person or organization subject to enforcement resides at a district of a mountainous or islandish province or another remote or isolated region with difficult traffic conditions and they do not have necessary conditions for compliance with that enforcement decision at the area where they have received the enforcement decision, that enforcement decision shall be moved to the authority of the same-level local jurisdiction where the person is residing or the organization’s office is located for its conduct of enforcement activities.

2. The authority moving and sending the enforcement decision shall be responsible for delivering all case documentation to the authority of the same-level local jurisdiction where the person is residing or the organization's office is located for its conduct of enforcement activities.

Within the duration of 10 business days from the date of receipt of the notification of movement and delivery of such case documentation, the authority of the same-level local jurisdiction where the affected person subject to enforcement is residing or the affected organization’s office is located shall be responsible for conducting implementation of the enforcement decision.

Article 38. Enforcement measures applied to organization or person subject to both the decision to impose administrative penalty and the decision to impose one or more administrative remedies

1. Where the person or organization does not comply with both the decision to impose administrative penalty and the decision to impose one or more administrative remedies, the person having jurisdiction to issue the enforcement decision shall, at the same time, apply all enforcement measures, stipulated by Section 1, 2, 3 or 4 Chapter II and Section 5 Chapter II hereof, to that organization or person, unless otherwise provided by Article 74 of the Law on Handling of Administrative Violations.

2. Where the person or organization complies with the decision to impose administrative penalty but does not comply with the decision to impose administrative remedies or vice versa, the person having jurisdiction to issue the enforcement decision shall apply enforcement measures, stipulated by Section 1, 2, 3 or 4 Chapter II and Section 5 Chapter II hereof, to that organization or person.

Chapter 4.

ENFORCEMENT COSTS

Article 39. Determination of enforcement costs

1. Enforcement costs shall be determined on the basis of actual costs already arising during the process of implementation of the enforcement decision provided that these costs match prices quoted at specific local jurisdictions.

2. Enforcement costs shall include:

a) Costs of organization of personnel for implementation of the enforcement decision.

b) Costs incurred from remunerations paid to professional valuers for auction, and costs of property auction activities;

c) Costs incurred from renting of equipment for dismantling and carriage of objects or property items;

d) Costs incurred from hiring services for safekeeping or storage of distrained property;

dd) Other actual costs (where available).

Article 40. Advanced payment and repayment of enforcement costs

1. Enforcement costs shall be disbursed in advance by the state budget and such advanced disbursement shall be repaid promptly after receipt of money paid by the affected organization or person subject to enforcement.

2. The Ministry of Finance shall be responsible for providing instructions for management, disbursement, advanced allocation and repayment of enforcement costs in accordance with laws on the State Budget.

Article 41. Payment of enforcement costs

The organization or person subject to enforcement shall be liable for all costs of enforcement activities. If that organization or person does not voluntarily repay or make full repayment of enforcement costs, the person having jurisdiction to issue the enforcement decision can issue the decision to apply enforcement measures prescribed by Point a, b and c Clause 2 Article 86 of the Law on Handling of Administrative Violations.

Chapter 5.

IMPLEMENTARY PROVISIONS

Article 42. Entry into force

This Decree shall enter into force from December 28, 2013 and replace the Government’s Decree No. 37/2005/ND-CP dated March 18, 2005 on procedures for application of measures to enforce administrative penalties.

Article 43. Responsibility for implementation

1. The Minister of Public Security shall undertake and cooperate with Ministries or sectoral departments in provision of guidance on implementation of this Decree.

2. Ministers, Heads of Ministry-level agencies, Heads of Governmental bodies, and Chairmen of People's Committees of centrally-affiliated cities or provinces, shall be responsible for implementation of this Decree./.

 

 

 

PP. THE GOVERNMENT
THE PRIME MINISTER




Nguyen Tan Dung

 


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Thuộc tính Văn bản pháp luật 166/2013/ND-CP

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Số hiệu166/2013/ND-CP
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Ngày ban hành12/11/2013
Ngày hiệu lực28/12/2013
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