Nghị định 81/2013/ND-CP

Decree No. 81/2013/NĐ-CP of July 19, 2013, on elaborating some articles and enforcement of the Law on handling administrative violations

Nội dung toàn văn Decree No. 81/2013/NĐ-CP elaborating the Law on handling administrative violations


THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness

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No. 81/2013/NĐ-CP

Hanoi, July 19, 2013

 

DECREE

ON ELABORATING SOME ARTICLES AND ENFORCEMENT OF THE LAW ON HANDLING ADMINISTRATIVE VIOLATIONS

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

Pursuant to the Law on Handling administrative violations dated June 20, 2012;

At the request of the Minister of Justice;

The Government promulgates a Decree elaborating some articles and enforcement of the Law on Handling administrative violations

Chapter 1.

ELABORATING PENALTIES FOR ADMINISTRATIVE VIOLATIONS AND ADMINISTRATIVE MEASURES

Article 1. Subjects of penalties for administrative violations

The subjects of penalties for administrative violations are the organizations and individuals defined in Clause 1 Article 5 of the Law on Handling administrative violations.

The officials and public servants that commit violations, which relate to their duties, shall face penalties in accordance with the laws on officials and public servants, not the Laws on handling administrative violations.

The state agencies that commit violations related to their duties shall face penalties in accordance with relevant laws, not the Laws on handling administrative violations.

Article 2. Definition of administrative violations, penalties, fine rates, and remedial measures in Decrees on penalties for administrative violations in various fields

1. The definition of administrative violations must:

a) Define the obligations, responsibility, and prohibitions related to administrative management order;

b) Meet the requirements of administrative management order;

c) The administrative violations must be clearly and specifically defined to ensure practicality.

2. The decision on penalties and rates of fines for each administrative violation must be based on:

a) The nature and the severity of infringement of administrative management order of the violations; the violations that are not severe shall be warned;

b) The income and living standards of the people in each period;

c) The educational meaning, reasonability, and feasibility of the penalties.

3. The remedial measures for each administrative violation must be taken based on the requirements below:

a) Severe damage is caused or likely to be caused;

b) The measures meet the requirements for restoring administrative management order;

c) The measures are clearly and specifically described to ensure practicality and feasibility.

4. The fine bracket for each administrative violation must be specific. The distance between the lowest and highest fine must not be too great. The fine brackets in an Article must be arranged in ascending order.

5. The administrative violations must be defined in Decrees on penalties for administrative violations related to corresponding fields, and suitable for the nature of such violations. Where an administrative violation against the law on one field has characteristics related to another field, it shall be penalized in accordance with the Decrees on the other field. In this case, the forms and level of penalties must be consistent with the Decrees on penalties for administrative violations related to the corresponding field.

Article 3. Temporary revocation of licenses, practice certificates, or confiscation of exhibits

1. The temporary revocation of licenses and practice certificate must be based on:

a) The violations of the contents in the license or practice certificate;

b) The violation is severe and threatens administrative management order.

The duration of revocation of the license and practice certificate must be specified in the form of time brackets. The distance between the shortest and longest duration must not be too great.

2. The confiscation of exhibits of administrative violations (hereinafter referred to as exhibits) must be based on:

a) The severe violations that are deliberately committed;

b) The items, money, goods, vehicles that are exhibits of the administrative violations, or are used for committing the administrative violations, which would not have been committed without them.

If the exhibits are drugs, weapons, explosives, combat gears, items having historical or cultural meaning, national treasures, relics, antiques, rare forestry products, and items banned from circulation shall be confiscated.

Article 4. Deciding whether the temporary revocation licenses, practice certificate, or temporary suspension of operation are the primary or additional forms of penalties in Decrees on penalties for administrative violations

Whether the temporary revocation licenses, practice certificate, or temporary suspension of operation are the primary or additional forms of penalties in Decrees on penalties for administrative violations shall be decided pursuant to Article 21 and Article 25 of the Law on Handling administrative violations, Clause 1 Article 3 of this Decree, and characteristics of each field.

Article 5. Identification of the power to impose penalties

1. The power to impose fines of each position must be specified in Decrees on penalties for administrative violations. For the Decrees that regulate multiple fields, this power must be specified in each field.

If the powers to impose fines of the positions in Article 38, Article 39, Article 40, Article 41, and Article 46 of the Law on Handling administrative violations are expressed in percentage of the maximum fines in the corresponding fields specified in Clause 1 Article 24 of the Law on Handling administrative violations, the fines must be expressed is specific amount.

2. For the fields mention in Clause 3 Article 24 of the Law on Handling administrative violations, in which the fines vary according to the recurrence or value of the illegal items, the powers to impose penalties of the positions in Article 38, Article 39, Article 40, Article 41, and Article 46 of the Law on Handling administrative violations shall vary according to the percentage of maximum fines in the field, and converted in to specific amounts.

3. If a Decree on penalties for administrative violations allows multiple positions to impose penalties in various fields, the Decree must specify the power to impose penalties of those positions in separate Articles.

If the Decree specifies typical administrative violations in a specific field according to Clause 5 Article 2 of this Decree, the positions that have the power to impose penalties in a specific field are also entitled to impose penalties for the typical violations specified in the Decree on penalties for administrative violations in another field.

4. The written delegations of the power specified in Article 54, Clause 2 Article 87, and Clause 2 Article 123 of the Law on Handling administrative violations must specify the range, contents, and duration of the delegation. Written delegations must be numbered, dated, signed, and stamped; if the delegator has no seal, the seal of a superior agency shall be appended.

The legal basis of the decision on penalties for administrative violations of the delegated person must specify the numbers and dates of the written authorizations.

5. The person appointed as the head of an agency that has the power to impose penalties also has the power to impose penalties and delegate the power to impose penalties.

Article 6. Making records on administrative violations and decisions on penalties for administrative violations

1. The persons entitled to make records on administrative violations include the persons entitled to impose penalties, officials and public servants; captains of airplanes and ships, and the persons delegated to make records by the captains.

The positions entitled to make records shall be specified in Decrees on penalties for administrative violations in each field.

2. The persons entitled to make records on administrative violations defined in Clause 1 of this Article may only make records on the violations related to their duties, and shall take responsibility for such records.

3. Only one record and one decision on penalties shall be made for a violation. Where a record is made but no decision on penalties is imposed, if the organization or individual refuses to comply with the request or order of the person entitled to impose penalties and deliberately commit the violation, the person entitled to impose penalties shall take preventive measures and impose suitable penalties to stop the violation. When making a decision on penalties, the person entitled to impose penalties may consider aggravating circumstances specified in Point i Clause 1 Article 10 of the Law on Handling administrative violations, or impose penalties for the failure to comply with the request or order made by the person entitled to impose penalties if a record is made but no decision on penalties is imposed.

If a decision on penalties is made, but the violator has not implemented the decision, or keep committing the violation after implementing the decision, it shall be considered a new violation.

4. If multiple violations are committed in the same case, the record on administrative violations must specify each violation. The decision on penalties shall be made in accordance with Clause 3 Article 67 of the Law on Handling administrative violations.

5. When remedial measures are taken, according to Clause 5 Article 85 of the Law on Handling administrative violations, the decision on penalties must indicate the person that incurs the remediation cost.

6. For the violations that must be announced, according to Clause 1 Article 72 of the Law on Handling administrative violations, the decision on penalties for administrative violations must specify the basis, the announcement contents, the newspaper, the websites of ministerial, provincial agencies, or People’s Committee of the province where the violation is committed.

Article 7. Revoking licenses and practice certificates

1. When an individual or organization commits multiple administrative violations, two violations among which have the same license or practice certificate revoked, the longest duration revocation shall apply.

2. The power to revoke licenses and practice certificates does not depend on the issuer, and shall comply with the Law on Handling administrative violations.

3. Within 05 working days from the day on which the decision to revoke the license or practice certificate is made, the person entitled to make such decision shall send a written notification to the issuer of such license or practice certificate.

4. If the license, practice certificate, certificate of registration is found falsified, or the papers in the application for its issuance are forged, the person entitled to impose penalties shall revoke it and notify the issuer.

Article 8. Announcing penalties incurred by organizations and individuals that commit administrative violations on the media

1. For the violations that must be publicly announced, according to Clause 1 Article 72 of the Law on Handling administrative violations, the head of the agency of the person that made the decision on penalties shall send a written notification of the announcement and a copy of the decision on penalties for administrative violations to the person in charge of newspaper or website of a ministerial, provincial agency, or the People’s Committee of the province where violations are committed within 03 working days from the day on which the decision on penalties is issued.

2. The announcement must specify the full name and occupation of the individual, or name and address of the organization that commits violations, the violations, the consequences or impacts of the violations; the penalties, remedial measures, and implementation time.

3. When receiving the written request for announcement, the person in charge of the newspaper or website shall post all the information that need announcing.

4. The head of the agency of the person that makes the decision on penalties for administrative violation is responsible for the announced information, and shall adjust the false information within 01 working day from the day on which the false information is found or a request for adjustment is made. The cost of adjustment shall be incurred by the agency of the person that makes the decision on penalties. The person in charge of the newspaper or website shall make the adjustment within 01 working day on the website or on the next issue of the newspaper from the time the request is made.

If the website or newspaper does not accurately post the information in Clause 2 of this Article, the adjustment must be made in the same position or column within 01 working day.

5. If announcement cannot be made punctually due to force majeure, the competent person shall send a report to the head, and immediately make the announcement after the force majeure passes.

6. The cost of announcement shall be covered by the regular budget of the agency of the person deciding the announcement.

Article 9. Enforcing decisions on penalties for administrative violations in case the penalized person is dead or missing, or the penalized organization is dissolved or bankrupt

1. In case the penalized individual is dead or missing, or the penalized organization is dissolved or bankrupt, according to Article 75 of the Law on Handling administrative violations, and the statute of limitations has not expired, the person who makes the decision on penalties shall make a decision on enforcing part of the decision on penalties for administrative violations within 60 days from the day on which the penalized person dies written in the death certificate, or the missing date written the missing person declaration, or the dissolution or bankruptcy date written in the decision on dissolution or bankruptcy. The decision on enforcement shall specify:

a) The suspension of penalties and reasons for such suspension, except for the cases in Point b of this Clause;

b) The exhibits that must be confiscated and remedial measures that must be taken.

2. The individual or organization in charge of the exhibits shall implement the decision on exhibit confiscation.

The inheritor of assets, according to the laws on inheritance, shall implement take the remedial measures in the decision on penalties

Incase the penalized organization is dissolved or bankrupt, the decision on implementation part of the decision on penalties for administrative violations shall be sent to the organization or individual entitled to settle the dissolution or bankruptcy, and the legal representative of the dissolved or bankrupt organization.

3. Within 03 working days from the day on which the decision on implementing part of the decision on penalties for administrative violations is made, it must be sent to the organizations and individuals mentioned in Clause 2 of this Article.

4. The procedure for implementing part of the decision on penalties in Point b Clause 1 of this Article is specified in Section 2 Chapter III Part 2 of the Law on Handling administrative violations. If the organizations and individuals mentioned in Clause 2 of this Article fail to take remedial measures by the deadline for implementing the decision, the agency of the person entitled to impose penalties shall take such measures. The cost of remediation shall be deducted from the inheritance left by the left by the penalized person or the assets left by the penalized organization that is dissolved or bankrupt, and shall be considered prioritized payables.

5. If no inheritance are left by the penalized person, or no asset is left by the penalized organization, remedial measures shall be taken in accordance with Clause 4 Article 85 of the Law on Handling administrative violations.

6. The inheritor of the penalized person who is dead or missing, the legal representative of the penalized organization that is bankrupt or dissolved are entitled to supervise and file lawsuits against the cost and payment for the cost of remediation defined in Clause 4 of this Article.

Article 10. Method and procedure for collecting and paying fines

1. The violators shall pay fines as follows:

a) Paying directly at State Treasuries or commercial banks delegated to collect fines by State Treasuries, which are written in the decision on penalties;

b) Paying directly or sending money to accounts of State Treasuries, which are written in the decision on penalties;

c) Paying directly to the person entitled to impose penalties according to Clause 1 Article 56, Clause 2 Article 78 of the Law on Handling administrative violations, or paying directly to the port authority or airport authority if the penalized person is a passenger that transits through Vietnam, the aircrew of the transit flight, the aircrew of a foreign airline that takes off from Vietnam.

2. If the decision on penalties only impose fines, and the penalized person does not reside, or the penalized organization does not situate in the locality where the violation is committed, the person entitled to impose penalties shall decide the method of fine payment in accordance with Point b Clause 2 of this Article at the request of the penalized organization or penalized person, and send the decision on penalties to the organization or individual by express mail within 2 working days from the day on which the decision on penalties is made.

The penalized person or organization shall pay fines to the account of the State Treasury written in the decision on penalties by the deadline in Clause 1 Article 73 of the Law on Handling administrative violations.

Within 05 working days from the day on which the fine is sent to the account of the State Treasury, the person who impounds the papers that ensure the penalty imposition, according to Clause 6 Article 125 of the Law on Handling administrative violations, shall return them to the penalized person or organization by express mail. The cost of sending the decision on penalties and returning the papers shall be incurred by the penalized person or organization.

3. If the individual wishes to delay the decision on imposing fines, or the organization or individual wishes to pay the fine in installments according to Article 76 and Article 79 of the Law on Handling administrative violations, a written request shall be sent to the person that makes the decision on penalties within 05 working days from the day on which the decision on penalties is received.

4. If the person asks for a reduction in the residual or the whole fine, according to Article 77 of the Law on Handling administrative violations, a written request shall be sent to the person that makes the decision on penalties within 10 working days, before the deadline for delay written in the decision to delay enforcing the decision on penalties.

5. Within 05 working days from the day on which the written request for paying the fine in installments, the person who makes the decision on penalties shall send a written reply to the requester. Explanation must be provided if the request is rejected.

6. If the fines in paid late, according to Clause 1 Article 78 of the Law on Handling administrative violations, the agency that collects fines shall calculate and collect late payment interest based on the decision on penalties.

7. The decision to delay enforcing the decision on penalties; reducing or canceling the residual or the whole fine; paying fines in installments must be made in writing.

The period during with the reduction or cancellation of the residual fine, or the fine payment in installments is considered shall not be included period of late payment.

8. The Minister of Finance shall cooperate with other Ministers and agencies in providing guidance on the collection and fines for administrative violations prescribed in Clause 1 and Clause 2 of this Article.

Article 11. Receipts of payments of fines and late payment interest

1. The receipts of payments of fines and late payment interest shall be uniformly printed, issued, managed, and used nationwide in accordance with law to determine the amount of money paid to the agencies authorized to collect fines by penalized persons and organizations.

2. Receipts of payments of fines and late payment interest include:

a) The fine receipts that have the amount of fines preprinted to serve immediate imposition of penalties, according to Clause 2 Article 69 and Clause 2 Article 78 of the Law on Handling administrative violations (up to 250,000 VND incurred by individuals, and 500,000 VND incurred by organizations);

b) The fine receipts that do not have the amount of fines preprinted, which are used for other cases and when collecting late payment interest;

c) Written confirmations of remittance to accounts of State Treasuries (if any);

d) Other receipts defined by law.

3. The fine receipts shall be issued as follows:

a) The Ministry of Finance shall provide fine receipts for the agencies of the persons entitled to impose penalties and the agencies that collect fines according to law;

b) The issuer must make a written announcement before introducing a new form of fine receipts;

c) The organizations and individuals provided with fine receipts shall manage and use them in accordance with this Decree and relevant regulations.

4. Using fine receipts:

a) The organizations and individuals that collect fines must compare information on the decision on penalties for administrative violations and the information on the fine receipts when using fine receipts. The total amount written on the fine receipt must match the fine written in the decision on penalties;

When collecting late payment interest, according to Clause 1 Article 78 of the Law on Handling administrative violations, the receipt must specify the collected amount, and indicate that it is late payment interest.

b) The fine payers may refuse to pay fines if they find that the fine receipts are not conformable, not consistent with the decision on penalties, or the fine, late payment interest (if any) is not correct, and shall notify the agency authorized to collect fines.

5. Managing fine receipts:

a) Fine receipts shall be managed in accordance with current management regulations on each kind of receipts;

b) The agencies provided with fine receipts must monitor and preserve receipts under current accounting regime, make monthly and quarterly reports on the use of fine receipts; and finalize fine receipts annually;

c) The invalidation of fine receipts must comply with current regulations on each kind of receipts.

6. The Minister of Finance shall specify the contents and appearance of fine receipts, organize the printing, publishing, management, and use of fine receipts.

Article 12. Procedure for transferring confiscated exhibits to put up for auction

1. For the confiscated exhibits that do not fall into the cases in Points a, b, c, d Clause 1 Article 82 of the Law on Handling administrative violations, the agency that makes the decision on confiscation sign an auction contract with local auction company within 30 days from the day on which the decision is made.

If no auction company is hired, an auction council shall be established by the agency that makes the decision. The composition of the council and the procedure for auctioning shall comply with the laws on property auction.

2. After the auction contract is signed, the agency that makes the decision shall transfer the exhibits and make a note of transfer. The note must specify the date of transfer, the transferor, the transferee, the signatures and seals (if any) of the transferor and the transferee, the quantity and condition of the confiscated exhibits, the responsibility to preserve the exhibits confiscated for auction.

If the confiscated exhibits are bulky or in large quantity, the auction company shall sign a preservation contract with the place where such exhibits are stored. The auction shall be held where the exhibits are stored.

3. The agency that decides the confiscation must provide the auction company with the relevant documents when transferring the exhibits. The documents include the note of transfer, the decision on confiscation, the papers related to the right to ownership and right to enjoyment (if any), the written valuation, the other invoices or receipts that indicate the values of confiscated exhibits.

4. If the confiscated exhibits are not put up for auction, or the money collected after the auction is not enough to defray the cost mentioned in Clause 4 Article 82 of the Law on Handling administrative violations, the state budget shall provide supports in accordance with the laws on the state budget management.

Article 13. Identifying ages of persons that incurred administrative penalties

1. The age of the person that incurs administrative penalties shall be identified based on his or her birth certificate. If the birth certificate is not available, the date of birth shall be identified based on the ID card, passport, household registration book, or other papers issued by competent authorities which specify the date of birth.

If the papers mentioned above are not available, the age shall be identified based on the book of civil status or other documents of state agencies.

If the dates of birth written on those papers are not consistent, the date of birth that is most advantageous to the person.

2. If the papers mentioned in Clause 1 of this Article do not specify the date of birth, it shall be identified as follows:

a) If the month is identified, but not a specific day is identified, the last day of that month shall be the date of birth;

b) If the quarter is identified, but not a specific day and month is identified, the last day of the last month of that quarter shall be the date of birth;

c) If the first or the last six months is identified, but not a specific day and month is identified, the 30th of June or the 31st of December of that year shall be the date of birth;

d) If the specific year is identified, but not a specific day and month is identified, the 31st of December of that year shall be the date of birth.

3. The identification of age specified in Clause 1 and Clause 2 of this Article must be made in writing.

Article 14. Penalties for administrative violations incurred by minors

1. When imposing administrative penalties on a minor, if his or her accurate age is not identified, the person entitled to impose penalties shall decide on penalty that is most advantageous to the minor.

2. Before issuing a warning to a minor that commits an administrative violation, the persons entitled to impose administrative penalties shall consider the conditions for giving reprimands according to Article 139 of the Law on Handling administrative violations and Article 15 of this Decree. Only issue warnings to a minor if the conditions for giving reprimands are not satisfied.

Article 15. Reprimands

1. Reprimands are educational measures that are used in place of warnings, which are given to the minors to make them aware of the violations they commit.

2. Reprimands shall be given when:

a) Minors from 14 years of age to under 16 years of age commit administrative violations and voluntarily report, admit their violations, and regret committing them.

b) The minors from 16 years of age to under 18 years of age commit administrative violations, voluntarily make confession, admit their violations, and regret committing them.

3. The person entitled to impose penalties shall consider giving reprimands based on the conditions in Clause 2 of this Article. Reprimands shall be given verbally, not in writing.

Article 16. Applying for administrative measures

1. Applications for educational actions shall be made when the person that commits the violations defined in Clause 3 and Clause 5 Article 90 the Law on Handling administrative violations, has incurred penalties for the same violations twice within 06 months.

2. Applications for sending a person to reform schools shall be made when that person commits the violations in Clause 4 Article 92 Clause 1 of the Law on Handling administrative violations, has incurred educational actions and at least two administrative penalties for the same violations within 06 months.

3. The persons local following detoxification programs in accordance with drug law shall not be sent to detoxification centers.

Article 17. Notifying the application and inspecting legitimacy of the application for administrative measures

1. Within 03 working days after the application is made according to in Clause 4 Article 97, Clause 3 Article 99, Clause 3 Article 101, and Clause 3 Article 103 of the Law on Handling administrative violations, the application maker shall notify the violator, parent or guardian of the underage violator. The notification must specify the administrative measures in the application, the right to read, record, and photocopy necessary information in the application.

2. The legitimacy of the application for administrative measures in Clause 1 of this Article shall be inspected by the official in charge of judicial affairs and civil status of the commune, or the Director of the Judicial Departments of the district, to ensure the legitimacy and adequacy, in particular:

a) The papers mentioned in Clause 3 Article 97, Clause 1 and Clause 2 Article 99, Clause 1 and Clause 2 Article 101, Clause 1 and Clause 2 Article 103 of the Law on Handling administrative violations;

b) The statute of limitations in Clause 2 Article 6 of the Law on Handling administrative violations, the persons that incur administrative penalties mentioned in Article 90, Article 29, and Article 96 of the Law on Handling administrative violations;

c) The power to apply, the procedure for applying for administrative measures.

3. The written legitimacy inspection must bear the seal and signature of a competent person, and the certified by People’s Committees of communes if it is within the competence of communes. The written legitimacy inspection shall be enclosed with the application for administrative measures.

Article 18. Responsibilities of persons authorized to imposed penalties for administrative violations

1. When imposing penalties for administrative violation considering taking administrative measures, the authorized person must:

a) Have the order, wear uniforms and badges as prescribed;

b) Quickly and properly handle the violations in accordance with the laws on penalties for administrative violations and the regulations of each field;

c) Express politeness and seriousness, not harass or ask for money or property from the violators, not tolerate or screen the violators, not commit prohibited acts.

2. The persons that commit the violations in Clause 1 of this Article or the regulations on prohibited acts in Article 12 of the Law on Handling administrative violations, or violate other legislation shall face disciplinary actions or criminal prosecution, depending on the nature and severity of the violations, and pay compensation for any damage in accordance with legislation on state liability for compensation.

Chapter 2.

STATE MANAGEMENT OF ENFORCEMENT OF THE LAWS ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS

SECTION 1. CONTENTS OF STATE MANAGEMENT OF ENFORCEMENT OF THE LAWS ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS

Article 19. Formulation and completion of the laws on handling administrative violations

1. Researching, formulating, and completing policies and the laws on handling administrative violations.

2. Promulgate or request competent authorities to promulgate legislative documents on handling administrative violations.

3. Reviewing and monitoring the implementation of legislative documents on handling administrative violations in order to find unfeasible, impractical, or inconsistent to amend them or request competent authorities to amend them.

4. Summarize the implementation to complete the system of legislative documents on handling administrative violations.

Article 20. Propagating law, providing guidance and training in the laws on handling administrative violations

1. Researching and compiling documents serving the training in the laws on handling administrative violations.

2. Providing training for persons in charge of handling administrative violations.

3. Propagate the laws on handling administrative violations in various forms.

4. Providing guidance on application of the laws on handling administrative violations

Article 21. Inspecting conformity with the laws on handling administrative violations

1. The inspection of conformity with the laws on handling administrative violations includes:

a) The promulgation of legislative documents on handling administrative violations;

b) The propagation of laws, provision of training, distribution of resources, and other conditions for ensuring conformity with the laws on handling administrative violations within the Ministries, agencies and local governments;

c) The application of the laws on handling administrative violations;

d) The making of statistics on penalties for administrative violations;

dd) The development and management of the database about penalties for administrative violations and provision of information to integrate into the national database;

e) The settlement of complaints and denunciation of penalties for administrative violations.

2. Inspections shall be carried out in the cases below:

a) At the request of the Prime Minister;

b) At the request of the Ministries, agencies and provincial People’s Committees;

c) At the request of Services of Justice and Divisions of Justice based on the conformity with the laws on handling administrative violations;

c) The conformity with the laws on handling administrative violations within the interdisciplinary management that face difficulties, irrationality, or complication.

3. Method of inspection:

a) Periodic inspections, thematic inspections, local inspections;

b) Unscheduled inspections;

c) Interdisciplinary inspections.

4. The power to make decisions on inspections:

a) The Minister of Justice shall make decisions on inspection in the cases in Points a, b, and d Clause 2 of this Article. The Minister of Justice shall request the Prime Minister to consider and make decisions in the complicated, interdisciplinary, and nationwide cases in Point d Clause 2 of this Article;

b) Presidents of People’s Committees of provinces and districts shall make decisions on inspection in the cases in Point c and Point d Clause 2 of this Article that arise locally.

5. The decision on inspection must specify the composition of the inspectorate, the time, content, and location of inspection, the inspected unit, responsibilities of the inspectorate, and be sent to the inspected organization.

6. Reporting inspection results:

a) Within 15 days from the day on which the inspection is finished, the chief inspector shall send a written report on the inspection results to the person that made the decision to establish the inspectorate, and to the inspected organization.

If the report on the inspection results requests the inspected organization to consider the recommendations given by the inspectorate, the inspected organization shall consider them and send a report to the person that made the decision to establish the inspectorate within 30 days from the day on which the report on inspection results is received;

b) The report on inspection results must specify the conformity with the laws on penalties for administrative violations; accomplishments, difficulties, irrationalities, reasons, and recommendations.

Article 22. Cooperation in inspecting the conformity with the laws on handling administrative violations

the Ministry of Justice shall cooperate with other Ministries, ministerial agencies, and specialized agencies of provincial People’s Committees and district-level People’s Committee in inspecting the conformity with the laws on penalties for administrative violations when receiving feedbacks from the press and other organizations and individuals about the infringement of their lawful rights and interests during the implementation of the laws on penalties for administrative violations.

Article 23. The national database about penalties for administrative violations

1. The national database about penalties for administrative violations is developed based on the integration of electronic data from the database about penalties for administrative violations of Ministries, ministerial agencies, and People’s Committees.

2. The development, management, and use of the national database must comply with the Decrees on the national database about penalties for administrative violations.

Article 24. Producing statistics on penalties for administrative violations

1. Statistical information on penalties for administrative violations are the basis for assessing an forecasting the propensity of administrative violations, suggesting solutions, completing policies and legislation, serving the making of reports on conformity of the laws on penalties for administrative violations and management foreign of penalties for administrative violations.

2. Statistical information about handling administrative violations shall be collected in accordance with the laws on statistics.

Article 25. Reporting the enforcement of the laws on handling administrative violations

1. Reports on the enforcement of the laws on penalties for administrative violations include reports on penalties for administrative violations and the administrative measures taken every 06 months and every year.

2. A report on penalties for administrative violations contains:

a) General assessment of administrative violations and penalties for administrative violations locally;

b) The discovered and penalized violations, violators, the forms of penalties, remedial measures, preventive measures, and measures for ensuring penalties for administrative violations, common violations;

c) The results of enforcement of decision on penalties for administrative violations: The total amount of fines collected, quantity of confiscated exhibits, quantity of temporarily revoked licenses and practice certificates, the number of suspensions of business, the number of decisions on penalties that have not enforced, the number of decisions on delaying, reducing, or canceling fines, the number of enforcements, the number of complaints and denunciations;

d) The reprimands given to minor violators in place of administrative penalties;

dd) The cases suspected of criminal offence shall be transferred to initiate criminal prosecutions;

e) The difficulties and irrationalities that arise during the enforcement of the laws on penalties for administrative violations; recommendations.

3. A report on administrative measures contains:

a) General assessment of educational actions, and applications for administrative measures; the number of complaints and denunciations;

b) The number of local persons that incur educational actions, and the number of applications for taking administrative measures sent to the court;

c) The number of minors that incur familial educational actions in place of administrative penalties;

d) The enforcement of decisions to take administrative measures made by the court; the number of delays and cancellations of such decisions, the conditions of the persons eligible for such delays and cancellations Article 113 of the Law on Handling administrative violations;

dd) The number of patients in detoxification centers; the number of patients eligible for reduction, suspension, or cancellation of detoxification; the number of persons without identified residences that are eligible for suspension or cancellation of detoxification;

e) The number of persons in reform schools; the number of persons eligible for reduction, suspension, or cancellation; the number of persons without identified residences that are eligible for suspension or cancellation;

g) The number of persons without identified residences that are underage, elderly, sick, or incapable of work and sent to social protection facilities;

h) Difficulties, irrationalities, and recommendations.

4. The period during which information is obtained is from the 1st of October of the previous year to the 31st of March of the next year - for biannual reports, and from the 1st of October of the previous year to the 30th of September of the next year - for annual reports.

SECTION 2. RESPONSIBILITY TO STATE MANAGEMENT OF ENFORCEMENT OF LEGISLATION ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS

Article 26. Responsibilities of the Ministry of Justice

The Ministry of Justice is responsible to the Government for the state management of enforcement of legislation on penalties for administrative violation, and has the tasks and entitlements below:

1. Develop and complement the laws on handling administrative violations:

a) Request competent authorities to develop and complete the legislation on handling administrative violations;

b) Promulgate or request competent authorities to promulgate documents that provide guidance on the enforcement of the Law on Handling administrative violations;

c) Cooperate with Office of the Government, other Ministries, and ministerial agencies in formulating Decrees on measures for enforcement of the Law on Handling administrative violations; providing guidance, urging other Ministries and ministerial agencies to give recommendations and formulate Decrees.

d) Request the amendment and complementation of the laws on handling administrative violations based on the recommendations of other organizations and individuals and the practical enforcement of the laws on penalties for administrative violations; cooperate with Office of the Government and relevant agencies in providing solutions for the difficulties and irrationalities in the application of the laws on penalties for administrative violations;

dd) Summarize the enforcement of the laws on handling administrative violations.

2. Monitor the enforcement of the laws on handling administrative violations.

a) Provide guidance, inspect and urge other Ministries, ministerial agencies, People’s Councils, and People’s Committees to implement the laws on handling administrative violations, find and irrationalities, and provide solutions;

b) Give recommendations about the application of the laws on handling administrative violations under the assignment of the Government and the Prime Minister.

3. Provide guidance on the laws on penalties for administrative violations within there area of competence or at the request of Ministries, ministerial agencies, and local governments.

4. Provide guidance on the propagation of the laws on handling administrative violations; cooperate with other Ministries and ministerial agencies in providing guidance and training in the implementation of the laws on penalties for administrative violations.

5. Cooperate with other Ministries, ministerial agencies, and relevant organization in carrying out inspections of the enforcement of the laws on penalties for administrative violations in the cases mentioned in Point a, Point b, and Point d Clause 2 Article 21 of this Decree.

6. Request other Ministries and ministerial agencies to carry out inspections when receiving feedbacks from other organizations and individuals about the infringement of their lawful rights and interests constituted by the application of the laws on penalties for administrative violations; participate in interdisciplinary inspectorates established by Ministries and ministerial agencies.

7. Develop the national database about penalties for administrative violations; provide guidance on the management and use of the national database about penalties for administrative violations in accordance with law.

8. Establish and maintain the operation of web portals to receive feedbacks, recommendations, and results of settlement of administrative violations.

9. Promulgate and implement regulations on making statistics on penalties for administrative violations.

10. Send reports on the enforcement of the laws on handling administrative violations to competent authorities.

11. Fulfill the responsibilities mentioned in Article 27 of this Decree.

Article 27. Responsibilities of other Ministries and ministerial agencies

1. Develop and complement the laws on penalties for administrative violations within their management, according to Article 19 of this Decree.

2. Make reports on the penalties for administrative violations within the competence of Ministries and ministerial agencies, in accordance with Clause 2 Article 25 of this Decree, and send it to the Ministry of Justice before the 20th of April - for biannual reports, or before the 20th of October - for annual reports.

The Ministry of Labor, War Invalids and Social Affairs shall report the compulsory detoxifications according to Points d, dd, g, and h Clause 3 Article 25 of this Decree.

The Ministry of Public Security shall send reports on the persons that incur educational actions and are sent to reform schools according to Points a, b, d, e, and h Clause 3 Article 25 of this Decree.

3. Make statistics under the management of Ministries and ministerial agencies.

4. Develop the database about penalties for administrative violations within the competence of Ministries and ministerial agencies; instruct other agencies and units to provide information to serve the development of the database about penalties for administrative violations, and integrate them into the national database about penalties for administrative violations at the Ministry of Justice.

Instruct the units affiliated to Ministries and ministerial agencies to provide and send information about penalties for administrative violations to the Ministry of Justice for developing the national database about penalties for administrative violations.

5. Inspect the enforcement of the laws on penalties for administrative violations within the management of Ministries and ministerial agencies.

6. Provide training in application of the laws on handling administrative violations under the management of Ministries and ministerial agencies.

7. Develop the infrastructure, strengthen the organizational structure, and distribute resource to initiate the enforcement of the laws on penalties for administrative violations in accordance with Clause 2 Article 4 of the National Assembly’s Resolution No. 24/2012/QH13 on enforcement of the Law on Handling administrative violations.

8. Legal departments of Ministries and ministerial agencies shall assist the Ministers and Heads of ministerial agencies in monitoring the enforcement of the laws on penalties for administrative violations under the management of Ministries and ministerial agencies as prescribed in Clause 2, Clause 5, and Clause 6 of this Article, and other tasks on request.

Article 28. Responsibilities of the Ministry of Home Affairs

1. Fulfill the responsibilities mentioned in Article 27 of this Decree.

2. Request the Prime Minister to prescribe the regulations to ensure the enforcement of the laws on handling administrative violations based on the requests of the Ministry of Justice and other agencies concerned.

Article 29. Responsibilities of the Ministry of Home Affairs

1. Fulfill the responsibilities mentioned in Article 27 of this Decree.

2. Cooperate with the Ministry of Justice in providing guidance and budget for state management of enforcement of the laws on penalties for administrative violations, and organize the implementation of the laws on penalties for administrative violations in accordance with the Law on State budget.

Article 30. Responsibilities of People’s Committees

Within the area of their competence, People’s Committees shall:

1. Report the enforcement of the laws on handling administrative violations, in particular:

a) Presidents of People’s Committees of communes shall report the enforcement of the laws on penalties for administrative violations under their management to People’s Committees of districts before the 05th of April - for biannual reports, or before the 05th of October - for annual reports;

The Department of Justice shall assist Presidents of the People’s Committees of districts in reporting the local enforcement of the laws on penalties for administrative violations.

a) Heads of specialized agencies affiliated to provincial People’s Committees and People’s Committees of districts shall report the enforcement of the laws on penalties for administrative violations under their management to Services of Justice before the 10th of April - for biannual reports, or before the 10th of October - for annual reports. Services of Justice shall summarize them and send reports to provincial People’s Committees.

Services of Justice shall assist Presidents of provincial People’s Committees in reporting the local enforcement of the laws on penalties for administrative violations;

c) Presidents of provincial People’s Committees shall report the enforcement of the laws on penalties for administrative violations under their management to the Ministry of Justice before the 20th of April - for biannual reports, or before the 20th of October - for annual reports;

d) The Presidents of the People’s Committees, within their area of competence, shall report the information prescribed in Clause 2 Article 25 of this Decree.

Presidents of provincial People’s Committees shall report the information prescribed in Points a, b, c, g, and h Clause 3 Article 25 of this Decree.

2. During the enforcement of the laws on penalties for administrative violations, if the regulations on penalties administrative violations are found unfeasible, impractical, or inconsistent, People’s Committees shall request the compiling agencies or the Ministry of Justice to consider amending them.

3. Perform statistical tasks under the management of local governments.

4. Provide training in application of the laws on handling administrative violations under the management of local governments.

5. Establish interdisciplinary inspectorates to inspect the enforcement of the laws on penalties for administrative violations in the cases mentioned in Point b, c, and d Clause 2 Article 21 of this Decree.

6. Carry out inspections at the request of Services of Justice or when receiving feedbacks from the press or other local organizations and individuals about the infringement of their lawful rights and interests constituted by the application of the laws on penalties for administrative violations, according to Article 22 of this Decree.

7. Providing guidance on developing infrastructure, strengthening the organizational structure, and distributing resource to initiate the enforcement of the laws on penalties for administrative violations, according to Clause 2 Article 4 of the National Assembly’s Resolution No. 24/2012/QH13 on enforcement of the Law on Handling administrative violations.

8. Provincial People’s Committees shall develop the database about penalties for administrative violations, and instruct Service and other agencies to provide information serving the development of the database about penalties for administrative violations.

Services of Justice shall assist provincial People’s Committees in developing the database about penalties for administrative violations and integrate them into the national database about penalties for administrative violations at the Ministry of Justice.

Chapter 3.

IMPLEMENTATION

Article 31. Budget for organizing the enforcement of the laws on penalties for administrative violations

1. The budget for the state management of the enforcement of the laws on penalties for administrative violations shall be provided by the state budget and allocated in state budget estimates of relevant agencies and units in accordance with the Law on State budget.

2. Central and local agencies shall estimate the budget for enforcement of the laws on penalties for administrative violations when making annual budget estimate, and send them to the finance authorities at the same level for consideration.

Article 32. The forms used for imposition of penalties for administrative violations

The forms used for imposition of penalties for administrative violations are provided in the Appendix to this Decree.

Based on the forms provided in the Appendix to this Decree, ministers, Heads of ministerial agencies, and provincial People’s Committees may promulgate their own forms, and prescribe the use of such forms for the imposition of penalties for administrative violations. If necessary, Ministers and Heads of ministerial agencies may promulgate the other forms to serve the state management after a consensus with the Ministry of Justice is achieved.

Article 33. Effect

1. This Decree takes effect on July 19, 2013.

2. This Decree supersedes the Government's Decree No. 128/2008/NĐ-CP dated December 16, 2008, elaborating some Articles of the Ordinance on Handling administrative violations in 2002 and the Ordinance on amendments to the Ordinance on Handling administrative violations in 2008; the Government's Decree No. 124/2005/NĐ-CP dated October 06, 2005 on fine receipts, the management and use of fines for administrative violations.

3. The regulations on provision of budget for the organizations authorized to impose penalties for administrative violations from the fines for penalties for administrative violations in Clause 7 Article 32 of the Government's Decree No. 48/2011/NĐ-CP dated June 21, 2011 on penalties for administrative violations of legislation on maritime; Clause 3 Article 52 of the Government's Decree No. 34/2010/NĐ-CP which supersedes the Decree No. 152/2005/NĐ-CP; Clause 3 Article 47 of the Government's Decree No. 117/2009/NĐ-CP dated December 31, 2009 on penalties for violations of legislation on environment protection; Clause 2 Article 11 of the Government's Decree No. 72/2010/NĐ-CP dated July 08, 2010 on prevention and suppression of crimes and other violations of legislation on environment; Clause 2 Article 70 of the Government's Decree No. 23/2009/NĐ-CP dated February 27, 2009 on penalties for administrative violations of legislation on construction, real estate business, production and trading of building materials, management of infrastructures, management and development of housing and offices; Clause 1 Article 36 of the Government's Decree No. 73/2010/NĐ-CP dated July 12, 2010 on penalties for administrative violations of legislation on security, social safety and order; Clause 1 Article 30 of the Government's Decree No. 68/2010/NĐ-CP dated June 15, 2010 on penalties for violations of legislation on electricity, are repealed from the effective date of this Decree.

Article 34. Responsibility for the implementation

Ministers, Heads of ministerial agencies, Heads of Governmental agencies, Presidents of provincial People’s Committees, and relevant organizations are responsible for the implementation of this Decree./.

 

 

FOR THE GOVERNMENT
THE PRIME MINISTER





Nguyen Tan Dung

 


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      Decree No. 81/2013/NĐ-CP elaborating the Law on handling administrative violations
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