Công văn 5820/TCHQ-PC

On November 13, 2020, the National Assembly passed the Law No. 67/2020/QH14 on Amendments and Supplements to certain Articles of the Law on Handling of Administrative Violations which comes into force from January 01, 2022. On November 16, 2021, the Government promulgated the Decree No. 102/2021/ND-CP on amendments to some Articles of Decrees on penalties for administrative violations against regulations on tax and invoicing; customs; insurance business and lottery business; management and use of public property, thrift practice and wastefulness combat; national reserve; state treasury; accounting and independent audit whose entry into force is the same as that of the Law No. 67/2020/QH14.

The Law No. 67/2020/QH14 on Amendments and Supplements to certain Articles of the Law on Handling of Administrative Violations and Decree No. 102/2021/ND-CP have made some changes to the Law on Handling of Administrative Violations 2012 and Decree No. 128/2020/ND-CP dated October 19, 2020 (The changes are included in the document enclosed with this Official Dispatch).

In order to implement these documents in a timely, sufficient and lawful manner as they come into force, the General Department of Vietnam Customs requests that:

1. Directors General of Customs Departments of provinces and cities, Director General of Smuggling Investigation and Prevention Department and Director General of Department of Post-Clearance Inspection request their officials to carefully study and implement the regulations laid down in these documents.

The Law No. 67/2020/QH14 and Decree No. 102/2021/ND-CP dated November 16, 2021 be also disclosed and disseminated to customs declarants and taxpayers for their compliance.

2. Difficulties that arise during the implementation of this Official Dispatch be promptly reported to the General Department of Vietnam Customs (through the Department of Legal Affairs) for consideration and resolution.

For your information and compliance./.

INTRODUCTORY DOCUMENT

LAW ON AMENDMENTS AND SUPPLEMENTS TO CERTAIN ARTICLES OF THE LAW ON HANDLING OF ADMINISTRATIVE VIOLATIONS 2020 AND DECREE NO. 102/2021/ND-CP DATED NOVEMBER 16, 2021
(Promulgated together with the Official Dispatch No. 5820/TCHQ-PC dated December 10, 2021 of the General Department of Vietnam Customs)

On November 13, 2020, the National Assembly passed the Law No. 67/2020/QH14 on Amendments and Supplements to certain Articles of the Law on Handling of Administrative Violations. This Law comes into force from January 01, 2022.

On November 16, 2021, the Government promulgated the Decree No. 102/2021/ND-CP on amendments to some Articles of Decrees on penalties for administrative violations against regulations on tax and invoicing; customs; insurance business and lottery business; management and use of public property, thrift practice and wastefulness combat; national reserve; state treasury; accounting and independent audit (hereinafter referred to as “the Decree No. 102/2021/ND-CP”). Accordingly, Article 2 of this Article amends some Articles of the Government’s Decree No. 128/2020/ND-CP dated October 19, 2020 on penalties for administrative customs offences. The Decree No. 102/2021/ND-CP comes into force from January 01, 2022.

The General Department of Vietnam Customs hereby introduces several new and primary contents of the Law No. 67/2020/QH14 and Decree No. 102/2021/ND-CP. To be specific:

1. General provisions

The Law No. 67/2020/QH14 and Decree No. 102/2021/ND-CP amends several general provisions in the first section of the Law on Handling of Administrative Violations. To be specific:

1.1. Regarding the definition of “recidivism”

Clause 1 Article 1 of the Law No. 67/2020/QH14 provides a definition of “recidivism” clearer than that specified in clause 5 Article 2 of the Law on Handling of Administrative Violations. “recidivism” means the act of repeating a violation by an individual or organization against which an administrative sanction decision has been imposed before the period of being considered that such decision is not enforced yet expires.

1.2. Principles of imposing penalties for administrative violations in cases where multiple administrative violations are committed

Point d clause 1 of Article 3 of the Law on Handling of Administrative Violations prescribes that: If a person “commits administrative violation(s) in multiple times”, he/she shall be sanctioned for each violation”. Meanwhile, point b clause 1 Article 10 of the Law on Handling of Administrative Violations prescribes that “the act of committing administrative violation(s) in multiple times” is treated as an aggravating circumstance which is considered by a competent person when he/she decides to impose a penalty. Hence, the Law No. 67/2020/QH14 amends the principles of imposing penalties for multiple administrative offences specified in point d clause 1 of Article 3 of the Law on Handling of Administrative Violations as follows: If a person commits multiple administrative violations or commits administrative violation(s) in multiple times, he/she shall be sanctioned for each violation, except when the act of committing administrative violation(s) in multiple times is regulated as an aggravating circumstance by the Government.

According to the regulations set out in the Law No. 67/2020/QH14, Article 2a is added after Article 2 of the Decree No. 128/2020/ND-CP by clause 1 Article 2 of the Decree No. 102/2021/ND-CP so as to elaborate on the abovementioned regulation of the Law No. 67/2020/QH14 as follows: a violation shall be imposed for each violation, a penalty shall be imposed for a violation while the repeat of that violation shall be taken into account as an aggravating circumstance. To be specific:

 “Article 2a. Principles of imposing penalties for administrative customs offences in cases where multiple administrative offences are committed

Any organization or individual that commits multiple administrative offences shall face a penalty for each offence, unless an offence in point a, b or d clause 1, point a clause 3 Article 7; clause 1, 2 or 3, point d clause 4, point a, b, c or d clause 6 Article 8; point a clause 1, point b clause 2 Article 11 of this Decree which involves multiple declarations/documents in the customs dossier is committed at different times of customs declaration registration and discovered at the same time but has yet to be considered, a penalty shall be imposed for that offence while the repeat of that offence shall be taken into account as an aggravating circumstance provided that the prescriptive time limit for penalty imposition has not yet expired.”

1.3. Regarding regulations on completed and in-progress administrative violations

Clause 3 Article 1 of the Law No. 67/2020/QH14 assigns the Government to prescribe completed and in-progress administrative violations to form a basis for determining prescriptive time limits for imposing penalties as specified in Article 6 of the Law on Handling of Administrative Violations. Clause 2 Article 2 of the Decree No. 102/2021/ND-CP amends Article 4 of the Decree 128/2020/ND-CP by adding clauses 5 and 6 to Article 4 of the Decree 128/2020/ND-CP to prescribe the method for determining whether a violation or group of violations is completed or in progress. According to the exclusion principle, after determining the group of violations which are treated as completed ones and corresponding ending dates of such violations, the remaining violations are treated as in-progress ones. To be specific:

“5. Offences considered to have been ended and ending dates of offences are as follows:

a) The ending date of an administrative offence specified in Article 7 hereof is the date on which the customs procedures are followed or tax dossier is submitted;

b) The ending date of an administrative offence specified in Article 8 hereof is the date on which the customs declaration is registered; the date on which the goods manifest, the passenger list or the baggage declaration included in the dossier on the vehicle entering and leaving Vietnam or the vehicle in transit is submitted;

c) The ending date of an administrative offence specified in Article 10 hereof is the date on which the person entering or leaving Vietnam completes customs declaration;

d) The ending date of an administrative offence specified in point a clause 1 Article 11 hereof is the date on which the documents in the customs dossier are submitted, produced or sent to the customs authority according to the registered customs declaration;

dd) The ending date of an administrative offence specified in point b clause 1 Article 11 hereof is the date on which the taxpayer makes an amendment to the statement;

e) The ending date of an administrative offence specified in point c clause 2 Article 11 hereof is the date on which the taxpayer submits the statement;

g) The ending date of an administrative offence specified in point a clause 7 Article 11 hereof is the date on which the documents are declared, submitted or produced to the customs authority;

h) The ending date of an administrative offence specified in point b clause 7 Article 11 hereof is the date on which the illegal use of another entity’s account or digital signature to follow customs procedures is terminated;

i) The ending date of an administrative offence specified in point c clause 7 Article 11 hereof is the illegal access to, falsification or destruction of the customs information system is terminated;

k) The ending date of an administrative offence specified in Article 9; Clause 8 Article 11; points b, c, dd, e or h clause 1 Article 14; clause 1 Article 15; Article 16; Article 17; Article 18; Article 19; Article 20; Article 21; Article 22 hereof is the date on which the customs declaration is registered.

6. The administrative offences specified in this Decree other than those specified in Clause 5 of this Article are treated as in-progress offences.”

1.4. Regarding amount of fine imposed for a violation committed under an aggravating or mitigating circumstance

Clauses 3 and 8 Article 1 of the Law No. 67/2020/QH14 (amending Article 4 and clause 4 Article 23 of the Law on Handling of Administrative Violations) assign the Government to prescribe the penalty and specific amount of fine for an administrative violation committed under an aggravating or mitigating circumstance. Pursuant to these regulations, clause 3 Article 2 of the Decree No. 102/2021/ND-CP provides specific regulations on the percentage (%) increase or decrease corresponding to each aggravating or mitigating circumstance when determining the amount of fine in the fine range imposed for each violation. According to, points dd and e are added after point d clause 3 Article 5 of the Decree No. 128/2020/ND-CP as follows:

 “dd) With respect to fines, the specific amount of fine for an administrative offence prescribed in Article 7, 8, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23 or 24 or clause 1, 3 or 4 Article 25 hereof must be the average of specific fines in the range for such offence. For a mitigating circumstance that exists, the average fine for an offence in the fine range shall be reduced by 10% provided that the fine amount imposed for such offence is not lower than the minimum fine in that range. Meanwhile, for an aggravating circumstance that exists, the average fine for an offence in the fine range shall be increased by 10% provided that the fine amount imposed for such offence is not greater than the maximum fine in that range.

e) When determining the fine amounts imposed on entities that commit offences under both aggravating and mitigating circumstances, the aggravating circumstance shall be reduced or relieved according to the one-for-one rule under which a mitigating circumstance is offset against an aggravating circumstance.”

1.5. Regarding prohibited acts upon imposition of penalties for administrative violations

Clause 5 Article 1 of the Law No. 67/2020/QH14 add some prohibited acts upon imposition of penalties for administrative violations to Article 12 of the Law on Handling of Administrative Violations as follows: identifying administrative violations incorrectly; adopting sanctioning forms, rates, and remedial or mitigation measures in an incorrect and incomplete manner with respect to administrative violations; failing to monitor, urge, inspect and take charge of enforcing the execution of sanction decisions or remedial or mitigation measures.

1.6. Regarding abrogation, promulgation, correction, amendment of administrative sanction decisions

Clause 7 Article 1 of the Law No. 67/2020/QH14 amends clause 3 Article 18 of the Law on Handling of Administrative Violations in a manner that assigns the Government to elaborate on the abrogation, promulgation, correction and amendment of an administrative sanction decision. Accordingly, a draft Decree replacing the Decree No. 81/2013/ND-CP and Decree No. 97/2017/ND-CP is being prepared. It contains regulations on cases of abrogation, promulgation, correction, amendment and partial abrogation of administrative sanction decisions; time limit for implementation thereof and contents of correction, amendment and partial or total abrogation of decisions; entry into force, time limit and prescriptive time limit for implementation of decisions on correction, amendment and partial or total abrogation of decisions and newly promulgated decisions.

2. Regarding the authority to sanction administrative violations

2.1. Amendments to sanctioning authority of the customs with respect to some titles

Pursuant to clause 15 Article 1 of the Law No. 67/2020/QH14 on amendments to Article 42 of the Law on Handling of Administrative Violations, clause 4 Article 2 of the Decree No. 102/2021/ND-CP amends the regulations laid down in Article 29 of the Decree No. 128/2020/ND-CP in a manner that adds such titles having sanctioning authority of the customs as:

Team Leaders, Group Leaders of Customs Sub-departments; Leaders of Groups in Control Teams affiliated to provincial, inter-provincial or central-affiliated city Customs Departments have the same sanctioning authority as that of Team Leaders of Customs Sub-departments.

Customs Sub-departments, leaders of criminal investigation teams, leaders of anti-smuggling, counterfeit product control and intellectual property teams affiliated to the Smuggling Investigation and Prevention Department, Directors of Post-clearance Inspection Sub-departments as an affiliate of the Post-clearance Inspection Department.

2.2. Amendments to regulations on power to confiscate exhibits involved in commission of administrative violations

Pursuant to clause 15 Article 1 of the Law No. 67/2020/QH14 on amendments to Article 42 of the Law on Handling of Administrative Violations, several additional titles have the power to confiscate exhibits involved in commission of administrative violations. According to the abovementioned regulation, clause 4 Article 2 of the Decree No. 102/2021/ND-CP amends the regulations laid down in Article 29 of the Decree No. 128/2020/ND-CP as follows:

Directors of Customs Sub-departments and equivalent titles have the power to confiscate any exhibit involved in commission of administrative violations if its value is not 02 times as high as the fine amount within their power (Confiscate the exhibit whose value does not exceed VND 50,000,000 if the administrative violation is committed by an individual or VND 100,000,000 if the administrative violation is committed by an organization).

Directors General of provincial, inter-provincial or central-affiliated city Customs Departments have the power to confiscate any exhibit involved in commission of administrative violations regardless of value of the exhibits notwithstanding regulations of the applicable Law on Handling of Administrative Violations.

2.3. Regarding the sanctioning authority of titles in case where their names are changed

Law No. 67/2020/QH14 amends specific regulations on cases where names of titles are changed but duties or powers of these titles remain unchanged; and cases where duties or powers are changed (names remain unchanged or are changed), the sanctioning authority of such titles shall be prescribed by the Government after obtaining consent from the National Assembly’s Standing Committee. (Clause 27 Article 1 of the Law No. 67/2020/QH14 amending Article 53 of the Law on Handling of Administrative Violations).

2.4. Regarding delegation of sanctioning authority

Clause 28 Article 1 of the Law No. 67/2020/QH14 amending Article 54 of the Law on Handling of Administrative Violations contains the following regulations:

The heads may assign deputies to exercise the authority to sanction administrative violations. The delegation of the authority to sanction administrative violations must be frequent or depend on specific cases, and must take place at the same time as the delegation of the authority to enforce injunction and guarantee fulfillment of obligations to address administrative violations.

The Law No. 67/2020/QH14 assigns the Government to elaborate on this Article. Accordingly, a draft Decree replacing the Decree No. 81/2013/ND-CP and Decree No. 97/2017/ND-CP is expected to contain an Article elaborating on cases of delegation of authority, cases of terminating delegation of authority and form of decision on authority delegation, etc.

3. Regarding procedures for imposing administrative penalties

Compared to the applicable Law on Handling of Administrative Violations, the Law No. 67/2020/QH14 amends the regulations on making records of administrative violations and some regulations on procedures for imposing administrative penalties. To be specific:

3.1. Regarding making of records of administrative violations

Clause 29 Article 1 of the Law No. 67/2020/QH14 amends Article 58 of the Law on Handling of Administrative Violations as follows:

3.1.1. Regarding recording venue

An administrative violation record must be made at the scene of that violation. If an administrative violation record is made at the office of the person authorized to make administrative violation records or at other places, the reasons for this must be clearly stated in the record.

3.1.2. Cases where a violator or representative of the violating organization fails to sign the record

According to the applicable Law on Handling of Administrative Violations, if the representative of the violating organization is not present at the scene of the violation or deliberately evades or for an objective reason, fails to sign the record, the record must bear the signature of the representative of the local authority of the area where the violation occurs or of at least 02 witnesses.

The Law No. 67/2020/QH14 amends the said regulation as follows: In case the violator or the representative of the violating organization does not sign the record, the record must bear the signature of the representative of the local authority of the commune where the violation occurs, or of at least 01 witness certifying the violating person or organization has not signed the record.

3.1.3. Cases where an administrative violations does not fall under the sanctioning authority of the record maker

The applicable Law on Handling of Administrative Violations prescribes that if an administrative violations does not fall under the sanctioning authority of the record maker, the record shall be immediately transfer to the person having sanctioning authority. The Law No. 67/2020/QH14 amends the said regulation as follows: In case of administrative violations not falling under the sanctioning competence of the record makers, the records and other related documents must be transferred to persons having sanctioning authority within 24 hours from the date of making such records, except for cases where administrative violation records are made aboard airplanes, ships or trains.

3.1.4. Cases where an administrative violation record contain errors

The Law No. 67/2020/QH14 adds instructions on handling the case where an administrative violation record contain errors. To be specific: In case any administrative violation record contains errors or does not fully and accurately show the details specified in clauses 3 and 4 of this Article, facts of the administrative violation cases must be verified according to regulations defined in Article 59 of this Law as a basis for issuing sanction decisions. The verification of facts of the administrative violation case shall be documented in a verification report. The verification report serves as a document attached to the administrative violation record and needs to be kept in the sanctioning file.

3.1.5. Other regulations on administrative violation records

The Law No. 67/2020/QH14 adds some regulations on methods and procedures for making administrative violation records as follows:

- Administrative violation records can be made and sent electronically in case agencies in charge of persons having sanctioning authority, violating individuals or organizations satisfy infrastructure, technical and information requirements;

- Administrative violation records must be made in compliance with this Law’s regulations on the contents, representation formats, and procedures prescribed in this Law and shall serve as a basis to issue administrative sanction decisions.

3.2. Regulations on implementation of remedial measures in the customs field

According to clause 3 Article 1 of the Law No. 67/2020/QH14, the Government is assigned to elaborate on issues concerning implementation of remedial measures, procedures and methods for implementation thereof.

Pursuant to this regulation, clause 8 Article 2 of the Decree No. 102/2021/ND-CP adds Article 33a after Article 33 of the Decree No. 128/2020/ND-CP so as to elaborate upon implementation of remedial measures in the field of state management of customs as follows:

“1. When an individual or organization is compelled to remove from the territory of the Socialist Republic of Vietnam or re-export the exhibit or instrumentality involved in an administrative offence, the customs authority shall carry out a close supervision from the place of storing goods involved in the offence to the border checkpoint of re-export.

The supervision result must be certified by the border checkpoint customs in writing or by other electronic means and sent back to the customs authority that issued the administrative penalty imposition decision within 05 (five) days from the date on which the exhibit or instrumentality involved in an administrative offence is removed from the territory of Vietnam or re-exported for keeping of the case file.

2. The enforced removal from the territory of the Socialist Republic of Vietnam or enforced re-export at the import checkpoint of an exhibit or instrumentality involved in an administrative offence shall be carried out as follows:

a) If the exhibit or instrumentality involved in the administrative offence is being stored at the border checkpoint area, the customs authority must carry out a close supervision thereof to ensure that it has been removed at the checkpoint of import. The supervision result is specified in a record for keeping purpose;

b) If the exhibit or instrumentality involved in the administrative offence is no longer stored at the border checkpoint area, the customs authority must carry out a close supervision from the place of storing the exhibit or instrumentality involved in the offence to the border checkpoint through which it was imported for re-export. The supervision result must be certified by the border checkpoint customs in writing or by other electronic means and sent back to the customs authority that issued the administrative penalty imposition decision within 05 (five) days from the date on which the exhibit or instrumentality involved in an administrative offence is removed from the territory of Vietnam or re-exported for keeping of the case file.

3. When an individual or organization is compelled to transport the goods involved in the merchanting trade transactions, goods being moved to another custom post outside the checkpoint area or temporarily imported goods at the correct border checkpoint or on the correct route, the Sub-department of Customs from which the goods are transported shall supervise the goods transported and cooperate with the Sub-department of Customs to which the goods are transported or related agencies to ensure that the goods are transported at the correct border checkpoint or on the correct route.

4. Upon being compelled to discard a goods package or label that is changed because of an offence, the individual or organization involved in the administrative offence may strip, remove or restore the original condition of the goods package or label.

Upon being compelled to remove the illegal elements of the goods before they are removed from the territory of the Socialist Republic of Vietnam, the individual or organization involved in the administrative offence may delete, strip or remove such elements.

5. Upon being compelled to destroy the goods or item detrimental to human, animal and plant health and the environment or indecent material, the individual or organization involved in the offence shall, according to the nature and characteristics of the goods or item and environmental safety requirements, destroy it using the following methods: use of chemicals, mechanical method, burning, burial or another method prescribed by law. The customs authority shall supervise the direct destruction or carry out supervision by other technical means (if any).

Upon destruction of goods or items, the individual or organization involved in the administrative offence shall make a destruction record according to the form enclosed with the Decree on elaboration of some Articles and measures for implementation of the Law on Handling of Administrative Violations.

The destruction record shall bear signatures of participants in the destruction and representative of the customs authority supervising the destruction. After the destruction, the individual or organization involved in the administrative offence shall submit 01 destruction record and documents about the destruction to the customs authority that issued the administrative penalty imposition decision, within 05 (five) days from the date of destruction.

6. Upon being compelled to pay an amount equal to the value of the exhibit that has been sold, concealed and disguised or destroyed against the law, the individual or organization involved in the administrative offence shall pay the corresponding amount written on the penalty imposition decision.

7. Upon being compelled to pay the outstanding tax; the tax incorrectly exempted, reduced, refunded or cancelled which is written on the decision on tax imposition, the individual or organization involved in the administrative offence shall make a full payment thereof to the State Treasury’s account and send 01 photocopy of the payment slip (if making the payment in cash) to the customs authority that issued the administrative penalty imposition decision for keeping of the case file.

8. Upon being compelled to stick the “Vietnam duty not paid” stamp, the individual or organization involved in the administrative offence shall stick the stamp before selling goods at a duty-free shop or transferring goods to the purchaser in the case where the goods are directly dispatched from the duty-free warehouse to the purchaser. The “Vietnam duty not paid” stamp location shall comply with the Government’s regulations on duty-free business.”.

3.3. Regarding time limit for valuation of exhibits

The Law No. 67/2020/QH14 increases the time limit for valuation of exhibits and instrumentalities involved in commission of administrative violations specified in clause 3 Article 60 of the Law on Handling of Administrative Violation from 24 hours to 48 hours to ensure the feasibility and practicality.

3.4. Cases of explanation and procedures for providing explanations

3.4.1. In case of explanations given in writing, violating individuals or organizations must send written explanations to persons having authority to sanction administrative violations “within 05 working days” from the issue date of administrative violation records (“within 05 days” in the Law on Handling of Administrative Violations). Where a violation case involves many complicated facts, persons having sanctioning authority can extend the aforesaid duration for submission of written explanations to no more than 05 working days at the request of the violating individual or organization (within 05 days in the Law on Handling of Administrative Violations).

The Law No. 67/2020/QH14 at the same time clearly prescribes that the extension approved by the person having sanctioning authority must be documented.

3.4.2. In case of explanations given directly, the Law No. 67/2020/QH14 prescribes that the person having sanctioning authority must notify in writing the violator of the time and place of the meeting session for direct explanation “within 05 working days” from the receipt of the violator’s request (“within 05 days” in the Law on Handling of Administrative Violations).

Moreover, the Law No. 67/2020/QH14 adds 01 clause (clause 4 Article 61) prescribing that in case individuals, organizations committing administrative violations do not request explanations, but then do so before expiration of the time limit, the persons having authority to sanction administrative violations shall be responsible to consider the explanations of the violating individuals or organizations.

3.5. Regarding confiscation of exhibits involved in commission of administrative violations and enforcement of remedial measures in case of failure to issue administrative sanction decisions, expiry of prescriptive time limit for execution of sanction decisions, prescriptive time limit for enforcement of execution of sanction decisions

3.5.1. The Law No. 67/2020/QH14 prescribes that as for administrative violations specified at points a, b, c and d of clause 1 of this Article, though competent persons do not issue administrative sanction decisions, they have to issue decisions to confiscate an exhibit or instrumentality involved in commission of administrative violations in the event that such exhibit or instrumentality involved in commission of administrative violations are classified as those banned from storage or circulation, or those subject to a penalty imposed in a form of confiscation and remedial measures prescribed by laws.

In this case, the confiscation of the exhibit or instrumentality involved in commission of administrative violations, and enforcement of remedial measures shall not be deemed as being subject to administrative sanctions.

3.5.2. After the expiry of the prescriptive time limit for execution of a sanction decision (specified in clause 1 Article 74 of the Law on Handling of Administrative Violations), execution of such decision shall not be needed any more, except if the sanction decision prescribes a penalty imposed in a form of confiscation of the exhibit or instrumentality involved in commission of the administrative violation, and remedial measures.

3.5.3. Enforcement of execution of sanction decisions

Regarding the authority to enforce the execution: clause 44 Article 1 of the Law No. 67/2020/QH14 amending Article 87 of Law on Handling of Administrative Violations adds titles having the authority to issue enforcement decisions, including leaders of anti-smuggling, counterfeit product control and intellectual property teams affiliated to the Smuggling Investigation and Prevention Department; Directors of Post-clearance Inspection Sub-departments as an affiliate of the Post-clearance Inspection Department.

Persons having the authority to issue enforcement decisions may delegate the authority to issue enforcement decisions to their deputies (the Law on Handling of Administrative Violations prescribes that the heads delegate the authority to their deputies only when they are absent).

In addition, clause 45 Article 1 of the Law No. 67/2020/QH14 adds clause 2a to Article 88 of the Law on Handling of Administrative Violations as follows: after expiry of the prescriptive time limit for execution of an enforcement decision, that enforcement decision shall not be executed, except if the sanction decision prescribes the imposition of a penalty in a form of confiscation of the exhibit or instrumentality involved in commission of the administrative violation, and remedial measures.

3.6. Regarding time limit for issuance of administrative sanction decisions

Clause 34 Article 1 of the Law No. 67/2020/QH14 amending Article 66 of the Law on Handling of Administrative Violations prescribes the time limit for issuing administrative sanction decisions as follows:

3.6.1. For the normal cases and matters, the time limit for issuing a sanction decision shall be 07 working days from the date of making a written record of administrative violation; for cases where files thereof must be transferred to persons having sanctioning authority, the time limit for issuing a sanction decision shall be 10 working days from the date of making a written record of administrative violation (within 07 days in the Law on Handling of Administrative Violations).

3.6.2. As for cases and matters in which individuals or organizations request explanations or verification of relevant facts and details specified in Article 59 of the Law on Handling of Administrative Violations, the limitation period for issuance of a sanction decision shall be 01 month from the date of making and issuing an administrative violation record; As for cases and matters in which individuals or organizations request explanations or verification of relevant facts and details, if they are extremely serious and involve complicated facts and details, and more time are needed to carry out further verification and collection of evidence, the time limit for issuance of a sanction decision shall be 02 months from the date of making an administrative violation record. (30 days and 60 days in the Law on Handling of Administrative Violations).

In addition, the Law No. 67/2020/QH14 no longer prescribes the time limit for extending a sanction decision.

4. Regarding measures for temporary impoundment of exhibits and instrumentalities

4.1. The Law No. 67/2020/QH14 adds a regulation stipulating that temporary impoundment authority shall not vary, depending on values of exhibits or instrumentalities involved in commission of administrative violations to clause 3 Article 125 of the Law on Handling of Administrative Violations

4.2. Regarding the time limit for temporary impoundment

Clause 64 Article 1 of the Law No. 67/2020/QH14 amends Article 125 of the Law on Handling of Administrative Violations on the time limit for temporary impoundment as follows:

The time limit for temporary impoundment of exhibits and instrumentalities involved in commission of administrative violations, licenses or practicing certificates shall not exceed 07 working days from the commencement date; if any case or matter requires the transfer of relevant documents and records to persons having sanctioning authority, the time limit for temporary impoundment shall not be longer than 10 working days from the commencement date. (07 days in the Law on Handling of Administrative Violations).

As for cases and matters in which individuals or organizations request explanations or verification of relevant facts and details specified in Article 59 of the Law on Handling of Administrative Violations, the time limit for temporary impoundment may be extended but not exceeding 01 month from the commencement date. As for cases and matters in which individuals or organizations request explanations or verification of relevant facts and details, if they are extremely serious and involve complicated facts and details, and more time are needed to carry out further verification and collection of evidence, the time limit for temporary impoundment may be extended but not exceeding 02 months from the commencement date. (30 days and 60 days in the Law on Handling of Administrative Violations).

In addition, the Law No. 67/2020/QH14 no longer prescribes the procedures for extending the time limit for temporary impoundment of exhibits and instrumentalities involved in commission of administrative violations.

The time limit for temporary impoundment of exhibits and instrumentalities involved in commission of administrative violations, licenses or practicing certificates shall start from the date on which they are temporarily impounded in reality.

In cases where the temporary impoundment is needed as a way to secure performance of obligations to execute sanction decisions as provided in point c clause 1 of Article 125m the time limit for temporary impoundment shall expire after completely executing sanction decisions.

4.3. Regarding procedures for temporary impoundment of exhibits and instrumentalities

The Law No. 67/2020/QH14 amends the regulations set out in clauses 4 and 9 Article 125 of the Law on Handling of Administrative Violations as follows:

(i) The person having authority to make administrative violation records who is handling a case or matter shall make a record of temporary impoundment of the exhibit and/or instrumentality involved in commission of the administrative violation; afterwards, within 24 hours from the time when the record is made, the record maker must report to the person having temporary impoundment authority on the temporarily impounded exhibit and/or instrumentality involved in commission of the administrative violation for issuance of decision on temporary impoundment;

(ii) The regulation stipulating that the person having temporary impoundment authority must sign the temporary impoundment record is abrogated;

(iii) In the course of the temporary impoundment, it is required to seal the temporarily impounded exhibit and/or instrumentality, excluding: Live animals and plants; Goods or articles that are perishable or difficult to be stored under laws; if the violator is absent, the sealing must be witnessed by the representative of the violator’s family, the violating organization’s representative or the representative of the commune-level authority or by at least 01 person.

5. Regarding handling of temporarily impounded and confiscated exhibits and instrumentalities involved in commission of administrative violations

5.1. For temporarily impounded exhibits and instrumentalities involved in commission of administrative violations, clause 4 Article 126 elaborates upon the notification and openly posting of temporarily impounded exhibits and instrumentalities (notification attempts, time limit for notification, disposal of property after expiry of the time limit for notification, openly posting, etc.). To be specific:

Upon expiration of the time limit for the temporary impoundment of the exhibits, if legitimate violators, owners, custodians or users do not come to claim them without any sound reasons, they shall be disposed of as follows:

- In case legitimate violators, owners, custodians or users of exhibits and/or instrumentalities are identified, persons issuing temporary impoundment decisions must notify them twice. The first notification must be issued within 03 working days from the expiration of the time limit for the temporary impoundment thereof. The second notification must be issued within 07 working days from the date of issue of the first notification. After the period of 01 month from the second notification date, if legitimate violators, owners, custodians or users do not come to claim them, within 05 working days, competent persons must issue decisions to confiscate the exhibits and/or instrumentalities involved in commission of administrative violations.

- In case legitimate violators, owners, custodians or users of exhibits and/or instrumentalities are unidentifiable, persons issuing temporary impoundment decisions must make two attempts in notifying this via central or local mass media at localities where they are temporarily impounded. The first notification must be issued within 03 working days from the expiration of the time limit for the temporary impoundment thereof. The second notification must be issued within 07 working days from the date of issue of the first notification. After the period of 01 year from the second notification date, if legitimate violators, owners, custodians or users do not come to claim them, within 05 working days, competent persons must issue decisions to confiscate the exhibits and/or instrumentalities involved in commission of administrative violations.

- For exhibits and/or instrumentalities involved in commission of administrative violations which are temporarily impounded to assure the execution of sanction decisions, if individuals or organizations that are sanctioned for administrative violations fail to execute sanction decisions upon expiration of the time limit for execution of sanction decisions, within 05 working days after the expiration of the time limit for execution of sanction decisions, the persons having temporary impoundment authority must transfer exhibits and/or instrumentalities involved in commission of administrative violations to persons having authority to enforce the execution of sanctioning decisions to decide on the distraint or auction thereof in accordance with laws to assure the execution of sanction decisions.

- If exhibits and/or instrumentalities involved in commission of administrative violations subject to the sanction of being confiscated are secured by the collateral provided as the registered guarantee in accordance with the civil legislation, the Law No. 67/2020/QH14 stipulates that the obligee may claim back these exhibits and/or instrumentalities or amounts equivalent to the value of the guaranteed obligations; violating individuals and organizations must pay amounts equivalent to the values of exhibits and/or instrumentalities involved in commission of administrative violations into the state budget.

5.2. For exhibits and/or instrumentalities involved in commission of administrative violations which are confiscated to ensure the consistency with regulations of the Law on Management and Use of Public Property 2017 and its guiding documents, the Law No. 67/2020/QH14 stipulates that: “Any exhibits and/or instrumentalities involved in commission of administrative violations of which decisions on revocation or withdrawal have already been issued shall be handled under laws on management and use of public property” (adding clause 3 after clause 2 Article 81 of the Law on Handling of Administrative Violations), and at the same time, abrogates Article 82 of the Law on Handling of Administrative Violations.

6. Regarding execution of administrative sanction decisions

Compared to the applicable Law on Handling of Administrative Violations, the Law No. 67/2020/QH14 amends the regulations on adjournment of execution or enforcement of sanction decisions, and fine reduction or exemption specified in Articles 76 and 77 of the Law on Handling of Administrative Violations. Accordingly, the regulation stipulating that organizations are also granted adjournment of execution of a sanction decision, fine reduction or exemption and some regulations on conditions therefor are added. To be specific:

6.1. Adjournment of execution or enforcement of sanction decisions shall be required if the following conditions are fully met:

(i) The violating individual is fined 2,000,000 VND or more or the violating organization is fined 100,000,000 VND or more;

(ii) The violating individual is facing economic difficulties due to natural disasters, calamities, fires, epidemics, dangerous diseases or accidents; the violating organization is facing special or unexpected economic difficulties caused by natural disasters, disasters, fires or epidemics. The violating individual shall, as the case may be, must obtain the certification of the following organizations: the People's Committee of the commune where he/she is residing or the organization where he/she is studying or working; a medical establishment at the district or higher level; the People's Committee of the commune, the Management Board of industrial parks, export processing zones, hi-tech zones or economic zones, the directly supervisory tax authority or the directly superior authority.

6.2. The reduction in a part of the fine specified in a sanction decision against the violating individual and organization that have already obtained permission for adjournment of execution of the sanction decision shall be granted if the following regulations are met:

(i) The violating individual continues to be in a difficult economic situation caused by natural disaster, conflagration, calamity, accident, and obtains certification from the People's Committee of the commune where he/she is residing or the organization where he/she is studying or working.

(ii) The violating organization is facing economic difficulties due to natural disaster, catastrophe, fire or epidemic, and obtains the certification of the People's Committee of commune, Management Board of industrial parks, export processing zones, hi-tech zones or economic zones, or the directly supervisory tax authority or the directly superior authority.

6.4. The Law No. 67/2020/QH14 adds a regulation stipulating that organizations are also granted an exemption from payment of the residual amount of fine and payment of the entirety of the fine stated in the sanction decision in addition to the regulation on granting exemption from fine to individuals as specified in the applicable Law on Handling of Administrative Violations. However, to be exempted from payment of the residual amount of fine stated in the sanction decision, organizations shall fully meet the following conditions:

(i) They have been granted a reduction in a part of the fine prescribed in clause 1 of this Article or have already paid the fine for the first or second installment if they are entitled to installment payment of the fine under the provisions of Article 79 of this Law;

(ii) Supplementary penalties and remedial measures stated in sanction decisions have been completely executed.

(iii) They continue to face economic difficulties due to natural disaster, catastrophe, fire or epidemic, and obtains the certification of the People's Committee of commune, Management Board of industrial parks, export processing zones, hi-tech zones or economic zones or the directly supervisory tax authority or the directly superior authority.

The violating organization shall be exempt from payment of the entirety of the fine stated in the sanction decision if the following conditions are fully met:

(i) Adjournment of execution or enforcement of the fine charge decision prescribed under Article 76 of this Law has been granted.

(ii) Supplementary penalties and remedial measures stated in sanction decisions have been completely executed.

(iii) They continue to face economic difficulties due to natural disaster, catastrophe, fire or epidemic, and obtains the certification of the People's Committee of commune, Management Board of industrial parks, export processing zones, hi-tech zones or economic zones or the directly supervisory tax authority or the directly superior authority.

7. Regarding forms used in handling of administrative violations: the Law No. 67/2020/QH14 stipulates that forms used in handling of administrative violations shall conform to the Government's regulations.

8. Apart from the abovementioned issues, the Law No. 67/2020/QH14 also adds cases where administrative sanction imposed in the detention form is applied according to administrative procedures specified in Article 122 of the Law on Handling of Administrative Violations; abrogates regulations on biannual reporting of implementation of law on handling of administrative violations specified in Article 17 of the Law on Handling of Administrative Violations and requesting ministries, local authorities, authorities and units to directly consolidate reports.

Despite the fact that some regulations of the Law on Handling of Administrative Violations referred to in the Decree No. 128/2020/ND-CP are amended and do not affect the regulations set out in the Decree, the former needs amending. (specifically in clause 3 Article 4, clause 1 Article 26, point c clause 1 Article 28, clause 1 Article 33, Article 34, clause 2 Article 36 of the Decree No. 128/2020/ND-CP)./.