Nghị định 44/2000/ND-CP

DECREE

ON SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE FIELD OF PRICE

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Ordinance on Handling of Administrative Violations of July 6, 1995;
Pursuant to the Commercial Law of May 10, 1997;
At the proposal of the head of the Government Pricing Committee,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

1. Administrative violations in the field of price mean acts of breaching the State’s regulations on price, intentionally or unintentionally committed by individuals or organizations, which are not so serious enough for penal liability examination but must be administratively sanctioned according to the provisions of law.

2. Administrative violations in the field of price stipulated in this Decree include:

a/ Violations of the regulations on price posting and reporting;

b/ Failure to strictly comply with the price bracket and price levels prescribed by the State;

c/ Violations of the regulations on price plan elaboration and reporting and elaboration of other reports with the price-related contents;

d/ Violations of the regulations on the use of price and freight subsidies as well as the money amounts provided in support of implementation of the price policy;

e/ Violations of the regulations on pricing;

f/ Violations of the regulations on the sale promotion price.

Article 2.- Objects of regulation

All organizations and individuals committing acts of administrative violation in the field of price shall be administratively sanctioned according to this Decree and other relevant law provisions on sanctioning administrative violations.

Foreign organizations and individuals committing acts of administrative violation in the field of price on the Vietnamese territory shall be sanctioned like the Vietnamese ones, except otherwise provided for by international agreements which Vietnam has signed or acceded to.

Article 3.- Sanctioning principles

1. The sanctioning of administrative violations in the field of price must be effected by the competent persons in strict compliance with the provisions of this Decree.

2. The handling of administrative violations in the field of price must be conducted in a quick, just and lawful manner. Upon the detection of any violation, a decision on the termination thereof must be issued.

3. An administrative violation in the field of price shall be sanctioned only once. An individual or organization committing different administrative violations shall be sanctioned for each of such violations. Many individuals and/or organizations jointly committing an administrative violation shall each be sanctioned therefor.

4. The sanctioning of administrative violations in the field of price must be based on the nature and seriousness of violations as well as the extenuating and aggravating circumstances so as to decide the appropriate sanctioning forms and levels.

Article 4.- Extenuating and aggravating circumstances for acts of administrative violation in the field of price

1. Extenuating circumstances:

The violators have prevented or lessened harms caused by their violations or voluntarily overcome consequences and pay compensation for the damage caused by their violations.

2. Aggravating circumstances:

a/ Committing violations in an organized manner;

b/ Committing violations more than once or recidivism;

c/ Abusing one’s position and/or power;

d/ Taking advantage of the situation of wars, natural calamities or other particular difficult situations of the society;

e/ Committing violations while serving criminal sentences or decisions on handling of administrative violations;

f/ Evading or covering an administrative violation after committing it;

Article 5.- Statute of limitations for sanctioning

1. The statute of limitations for sanctioning an administrative violation in the field of price is 2 years after such violation is committed.

2. Where an individual is sued, prosecuted or brought to trial according to the criminal procedures, if there’s a decision to suspend the investigation or the case, he/she shall be administratively sanctioned, provided that there are signs of an administrative violation; the time-limit for sanctioning administrative violation in this case shall be 3 months after the suspension decision is issued.

3. Within the time-limits prescribed in Clauses 1 and 2 of this Article, if concerned individuals or organizations commit new administrative violations or deliberately evade or obstruct the sanctioning, the statute of limitations mentioned in Clauses 1 and 2 of this Article shall not apply. The statute of limitations shall be re-calculated as from the time the new administrative violation arises or the act of evading or obstructing the sanctioning is committed.

Article 6.- Statute of limitations for execution of decisions on sanctioning administrative violations in the field of price

A decision on sanctioning an administrative violation in the field of price shall cease to be effective one year after its issuance; in cases where the sanctioned individual or organization deliberately evades or delays the execution of the sanctioning decision, the statute of limitations stipulated in this Article shall not apply.

Article 7.- Time-limit for being considered as having not been administratively sanctioned

One year after executing the sanctioning decisions or after the sanctioning decisions cease to be effective, if the administratively sanctioned organizations or individuals do not relapse into the violations, they shall be considered as having not been administratively sanctioned.

Article 8.- Sanctioning forms

1. For every act of administrative violation in the field of price, the violating individual or organization shall be subject to one of the following main sanctioning forms:

a/ Warning;

b/ Pecuniary penalty.

2. Depending on the nature and seriousness of their administrative violations in the field of price, the violating individuals or organizations may also be subject to the additional sanctioning form of confiscating all the price differences acquired from the administrative violations.

3. Beside the above-mentioned main and additional sanctioning forms, individuals or organizations committing administrative violations may also be subject to one or all of the following measures:

a/ Compensation of the whole sum of money lost due to the administrative violations in the field of price;

b/ Recovery of the price and freight subsidies as well as money amounts provided in support of implementation of the price policy, which are acquired from the false declaration or distortion of dossiers and vouchers; price and freight subsidies as well as money amounts provided in support of implementation of the price policy, which have been used for the wrong purposes;

c/ Bearing all costs of reimbursing the difference arising from the wrong application of prices to individuals and/or organizations to which the prices have been wrongly applied;

d/ Retrospective collection of the evaded money amounts which must have been paid for implementation of the price policy as prescribed.

4. The main and additional sanctioning forms as well as measures applicable to acts of administrative violation in the field of price are stipulated in Chapter II of this Decree. The additional sanctioning forms and other measures shall only be applied together with the main sanctioning form. Where the statute of limitations for sanctioning an administrative violation expires, no main sanction is applied but the measures stipulated in Clause 2 and at Points a, b, c and d, Clause 3 of this Article may be applied thereto.

5. Where the pecuniary penalty is applied, the specific fine level for an administrative violation in the field of price is the average level of the fine bracket corresponding to such violation as defined in this Decree; if the violation involves extenuating circumstances, the fine level may be reduced but must not be lower than the minimum level of the fine bracket; if the violation involves aggravating circumstances, the fine level may be increased but must not be higher than the maximum level of the fine bracket.

Chapter II

ACTS OF ADMINISTRATIVE VIOLATION IN THE FIELD OF PRICE, SANCTIONING FORMS AND LEVELS

Article 9.- Acts of failing to strictly comply with the regulations on price posting and reporting

1. Warning or a fine of between VND 50,000 and 200,000 for act of failing to post up the goods buying and selling prices as well as the service charges as prescribed.

2. A fine of between VND 1,000,000 and 5,000,000 for act of failing to strictly comply with the regulations on reporting the price-formulating factors to the pricing agencies, regarding goods and services with prices set by the State.

Article 10.- Acts of wrongly applying prices

1. Warning or a fine of between VND 100,000 and 500,000 for act of buying and/or selling goods or providing services at prices or charges different from the posted ones.

2. Warning or a fine of between VND 500,000 and 2,000,000 for act of buying and/or selling goods or providing services at prices or charges different from the specific price levels and price limits set by the competent agencies.

3. A fine of between VND 1,000,000 and 5,000,000 for act of taking advantages of natural calamities or other particularly difficult situations to raise or depress prices, thus causing damage to producers and/or consumers.

4. Organizations and individuals committing acts of administrative violation defined in Clauses 1, 2 and 3 of this Article shall also be subject to the confiscation of all the price difference acquired from the administrative violations.

5. In addition to the sanctioning forms stipulated in Clauses 1, 2, 3 and 4 of this Article, individuals and organizations committing administrative violations defined in Clauses 1 and 2 may also be subject to the following measures:

a/ Forcible compensation of the whole sum of money lost due to the wrong application of prices;

b/ Bearing all costs of the price difference reimbursement to individuals and/or organizations to which the prices have been wrongly applied.

Article 11.- Acts of tricking in compiling the price-declaration dossiers

1. A fine of between VND 2,000,000 and 5,000,000 for act of falsely declaring or untruthfully reporting the production costs and other factors related to the elaboration of goods and/or services price plans to be submitted to the prescribed competent agencies.

2. A fine of between VND 5,000,000 and 10,000,000 for act of falsely declaring the goods buying and selling prices, service charges and other relevant factors in order to evade the payment of the prescribed money amounts to be paid for implementation of the price policy.

3. A fine of between VND 10,000,000 and 20,000,000 for act of making false declaration or distorting dossiers to receive the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy.

4. In addition to fines, individuals and organizations committing administrative violations stipulated in this Article may also be subject to the following measures:

a/ Retrospective collection of the prescribed amounts to be paid for implementation of the price policy, which have been evaded, for administrative violations stipulated in Clause 2 of this Article.

b/ Recovery of the price subsidies and freight subsidies as well as money amounts provided in support of implementation of the price policy, which are acquired from the false declaration or distortion of dossiers, for administrative violations stipulated in Clause 3 of this Article.

Article 12.- Acts of setting wrong prices or setting prices ultra vires

1. A fine of between VND 2,000,000 and 3,000,000 for act of setting goods buying and selling prices or service charges at variance with the price levels and price limits prescribed by the competent agencies.

2. In addition to fines, individuals and organizations committing acts of violation stipulated in this Article may also be subject to the confiscation of all the price difference acquired from the administrative violations stipulated in Clause 1 of this Article.

3. In addition to the sanctioning forms defined in Clauses 1 and 2 of this Article, individuals and organizations committing administrative violations may also be subject to one or all of the following measures:

a/ Forcible compensation of the whole sum of money lost due to making wrong pricing decisions;

b/ Bearing all costs of reimbursing money due to the wrong price application, to individuals and/or organizations to which the prices have been wrongly applied.

Article 13.- Acts of violating regulations on commercial goods prices and service charges in the sale promotion period

1. Warning or a fine of between VND 50,000 and 200,000 for act of failing to post up the sale promotion duration, the common goods selling prices as well as the commercial service charges before the sale promotion time; the goods selling prices as well as the commercial service charges during the sale promotion period according to the stipulations of the competent agencies.

2. A fine of between VND 500,000 and 2,000,000 for act of selling goods or providing commercial services in the sale promotion period at prices lower than 70% of the pre-sale promotion goods prices or commercial service charges.

3. A fine of between VND 500,000 and 2,000,000 for act of promoting the sale with goods and/or services valued at 30% higher than the pre-sale promotion goods prices or commercial service charges.

4. In addition to fines, individuals and organizations committing administrative violations related to goods and/or services with prices set by the State may also be compelled to repay the whole sum of money lost due to the acts of violation stipulated in Clauses 2 and 3, this Article.

Article 14.- Acts of using for wrong purposes the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy

1. A fine of between VND 5,000,000 and 10,000,000 for act of using for wrong purposes the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy.

2. Individuals and organizations committing administrative violations stipulated in this Article shall, apart from being fined under the provisions of Clause 1 of this Article, be compelled to refund the price subsidies, freight subsidies as well as money amounts provided in support of implementation of the price policy, which have been used for the wrong purposes.

Article 15.- Transfer of dossiers of administrative violations in the field of price for penal liability examination

When deeming that an act of administrative violation in the field of price shows signs of a criminal offense, the competent person(s) shall have to compile a dossier and transfer it to the competent agency for handling according to criminal procedures.

To strictly prohibit the retaining of cases of administrative violations with signs of criminal offenses for administrative sanctions.

Chapter III

COMPETENCE AND PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE FIELD OF PRICE

Article 16.- Competence of the People’s Committees of all levels for sanctioning administrative violations in the field of price

1. The presidents of the commune/ward/township People’s Committees shall have the right to:

a/ Serve warning;

b/ Impose fines of up to VND 200,000;

c/ Propose the competent agencies to apply appropriate sanctioning forms according to the order stipulated in this Decree, to individuals and organizations that commit graver administrative violations.

2. The presidents of the People’s Committees of districts, provincial towns and cities shall have the right to:

a/ Serve warning;

b/ Impose fines of up to VND 10,000,000;

c/ Confiscate all the price difference acquired from administrative violations;

d/ Compel the compensation of the whole sum of money lost due to administrative violations;

e/ Propose the competent agencies to apply appropriate sanctioning forms according to the order stipulated in this Decree, to individuals and organizations that commit graver administrative violations.

3. The presidents of the People’s Committees of the provinces and centrally-run cities shall have the right to:

a/ Serve warning;

b/ Impose fines of up to VND 100,000,000;

c/ Confiscate all the price difference acquired from administrative violations;

d/ Compel the compensation of the whole sum of money lost due to administrative violations;

e/ Recover the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy, which have been acquired from false declarations or dossier distortion; as well as the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy, which have been used for wrong purposes;

f/ Retrospectively collect the evaded money amounts which must have been paid for the implementation of the price policy as prescribed.

Article 17.- Competence of the specialized inspectorates for sanctioning administrative violations

1. The finance-pricing inspectors, while on official duty, shall have the right to:

a/ Serve warning;

b/ Impose fines of up to VND 200,000;

c/ Propose the competent agencies to apply appropriate sanctioning forms according to the order defined in this Decree, to individuals and organizations that commit graver administrative violations.

2. The chief inspectors and heads of the department-level agencies performing the finance-pricing specialized inspection function shall have the right to:

a/ Serve warning;

b/ Impose fines of up to VND 10,000,000;

c/ Confiscate all the price difference acquired from administrative violations;

d/ Compel the compensation of the whole sum of money lost due to administrative violations;

e/ Recover the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy, which have been acquired from false declarations or dossier distortion; as well as the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy, which have been used for the wrong purposes;

f/ Propose the competent agencies to retrospectively collect the evaded money amounts for the funds for implementation of the price policy as prescribed.

3. The chief inspector of the Government Pricing Committee shall have the right to:

a/ Serve warning;

b/ Impose fines of up to VND 20,000,000;

c/ Confiscate all the price difference acquired from administrative violations;

d/ Compel the compensation of the whole sum of money lost due to administrative violations;

e/ Recover the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy, which have been acquired from false declarations or dossier distortion; as well as the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy, which have been used for wrong purposes;

f/ Retrospectively collect the evaded money amounts which must have been paid for implementation of the price policy as prescribed.

4. The specialized inspectorates of the ministries and branches shall, within the price management competence of their respective ministries and branches already determined by the Government, have the competence to sanction administrative violations in the field of price like the finance-pricing specialized inspectorate according to the provisions of this Decree.

Article 18.- Determination of sanctioning competence

Where an administrative violation in the field of price falls under the handling competence of different State management agencies, the sanctioning shall be effected by the agency being the first to receive and process the case dossier according to the provisions of this Decree.

Article 19.- Procedures for sanctioning

1. The procedures for and order of sanctioning administrative violations in the field of price shall comply with the provisions in Articles 45, 46, 47, 48 and 49 of the July 6, 1995 Ordinance on Handling of Administrative Violations.

2. The collected fines must be remitted into the State budget through accounts opened at the State Treasury. The regime of managing fine receipts and money shall comply with the current regulations.

3. Organizations and individuals subject to the recovery of the price subsidies, freight subsidies and money amounts provided in support of implementation of the price policy; to the confiscation of price difference; the forcible payment of money lost due to administrative violations; or retrospective payment of money for implementation of the price policy as prescribed, shall have to pay them at places stated in the sanctioning decisions so that the agencies assuming the prime responsibility for sanctioning may consider the refunding of money to the damage-suffering parties or remit it into the State budget.

4. The Finance Ministry shall assume the prime responsibility and coordinate with the Government Pricing Committee in providing detailed guidance for handling money amounts payable by organizations or individuals that commit administrative violations prescribed in Clause 3 of this Article.

Article 20.- Execution of sanctioning decisions and coercive execution of sanctioning decisions

1. Organizations and individuals administratively sanctioned according to the provisions of this Decree shall have to strictly execute decisions on sanctioning administrative violations, issued by the competent agencies and persons.

2. Organizations and individuals subject to administrative sanctions, if failing to execute the sanctioning decisions or deliberately evade the execution thereof, shall be compelled to do so with the following measures:

a/ Deduction of part of their salaries or incomes or deposits in the bank accounts;

b/ Inventory of assets with value equivalent to the fine, the money amount to be confiscated, recovered, forcibly paid or retrospectively paid, for auction.

c/ Application of other coercive measures for the execution of sanctioning decisions.

The persons with sanctioning competence shall also be competent to issue coercive decisions and have to organize the coercion.

3. Banking institutions, State Treasuries and people’s police force shall have to coordinate with the State agencies in organizing the execution of coercive decisions at the latters request.

4. The coerced individuals and organizations shall bear all costs of organizing the implementation of the coercive measures.

Chapter IV

COMPLAINT, DENUNCIATION AND HANDLING OF VIOLATIONS

Article 21.- Complaint, denunciation and settlement of complaints and denunciations

The complaint and denunciation as well as the settlement of complaints and denunciations about decisions on sanctioning administrative violations in the field of price shall comply with the provisions of the Law on Complaints and Denunciations.

Pending the settlement of their complaints and denunciations, individuals and organizations subject to administrative sanctions in the field of price shall have to strictly abide by sanctioning decisions of the competent agencies. The complaint about a decision on sanctioning administrative violation shall not halt the execution of such decision.

Article 22.- Handling of violations

If persons competent to sanction administrative violations in the field of price commit acts for personal interests or lack responsibility, cover, ignore the handling of, or handle the violations not in time, not correspondingly to their seriousness or not according to their competence as prescribed, they shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability; if causing damage to the State, organizations or individuals they shall have to pay the compensation therefor according to law provisions.

If persons subject to administrative sanctions in the field of price commit acts of obstructing, opposing officials on inspection duty or deliberately delaying, evading the execution of sanctioning decisions, they shall, depending on the nature and seriousness of their violations, be administratively handled or examined for penal liability according to law provisions.

Chapter V

IMPLEMENTATION PROVISIONS

Article 23.- This Decree takes effect 15 days after its signing; to annul Articles 2, 3, 7, 8, 9 and 10 as well as the provisions on handling competence of the pricing inspectors in Article 5 of the August 4, 1986 Decree No.91/HDBT of the Council of Ministers (now the Government), providing for the price application as well as the inspection, examination and handling of violations of the States regulations on price. To annul the provisions on handling competence in economic aspect, of the Director of the State Pricing Committee, the ministers, the presidents of the Peoples Committees at all levels, and the heads of the production and/or business units, in Clauses 1 and 2, Article 1 of the June 10, 1987 Decree No.88/HDBT of the Council of Ministers (now the Government) amending Article 4 of the August 4, 1986 Decree No.91/HDBT of the Council of Ministers.

Article 24.- The head of the Government Pricing Committee shall have to guide the implementation of this Decree.

Article 25.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.