Circular 65/2022/TT-BTC detailing Decree 98/2020/ND-CP penalties on administrative violations in commercial activities

CIRCULAR

Detailing provisions of Clause 2 Article 91 of the Government’s Decree No. 98/2020/ND-CP dated August 26, 2020, on providing the penalties on administrative violations in commercial activities, production of, trading in counterfeit or banned goods and protection of consumer rights

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Pursuant to the Law on Handling of Administrative Violations dated June 20, 2012;

Pursuant to the Law Amending and Supplementing a Number of Articles of the Law on Handling of Administrative Violations dated November 13, 2020;

Pursuant to the Commercial Law dated June 14, 2005;

Pursuant to the Civil Code dated November 24, 2015;

Pursuant to the 2017 Law on Foreign Trade Management;

Pursuant to the Government’s Decree No. 98/2020/ND-CP dated August 26, 2020, on providing the penalties on administrative violations in commercial activities, production of, trading in counterfeit or banned goods and protection of consumer rights;

Pursuant to the Government’s Decree No. 17/222/ND-CP dated January 31, 2022, amending and supplementing a number of articles of Decrees providing the penalties on administrative violations in the fields of chemicals and industrial explosive materials; electricity, hydroelectric dam safety, effective and efficient use of energy; commercial activities, production of and trading in counterfeit or banned goods and protection of consumer rights; petrol and oil activities, trading in petrol and oil;

Pursuant to the Government's Decree No. 118/2021/ND-CP dated December 23, 2021, detailing a number of articles of the Law on Handling of Administrative Violations;

Pursuant to the Government’s Decree No. 87/2017/ND-CP dated July 26, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Department of Legal Affairs;

The Minister of Finance hereby promulgates the Circular detailing provisions of Clause 2 Article 91 of the Government’s Decree No. 98/2020/ND-CP dated August 26, 2020, on providing the penalties on administrative violations in commercial activities, production of, trading in counterfeit or banned goods and protection of consumer rights.

Article 1. Scope of regulation

This Circular details provisions of Clause 2 Article 91 of Decree 98/2020/ND-CP, regarding illicit profits earned through the commission of administrative violations being taken the remedial measure which is forcible refund of illegal benefits being money, valuable papers, assets, objects and other assets gained from committing administrative violations, or forcible refund of money amounts equivalent to the value of administrative violation material evidences or means which have been illegally sold, dispersed or destroyed in commercial activities, production of, trading in counterfeit or banned goods and protection of consumer rights, for the latter to remit into the state budget.

Article 2. Subjects of application

1. Vietnamese or foreign individuals and organizations that commit administrative violations in the territory of Vietnam under Clause 2 Article 91 of Decree 98/2020/ND-CP, and are applied the remedial measure which is forcible refund of illegal benefits being money, valuable papers, assets, objects and other assets gained from committing administrative violations, or forcible refund of money amounts equivalent to the value of administrative violation material evidences or means which have been illegally sold, dispersed or destroyed in commercial activities, production of, trading in counterfeit or banned goods and protection of consumer rights, for the latter to remit into the state budget.

2. Persons competent to make written records of administrative violations and persons competent to sanction administrative violations as prescribed in Chapter III of Decree No. 98/2020/ND-CP and Clauses 43, 44, 45, 46, 47, 48, 49, 50, 51, and 52 Article 3 of Decree No. 17/2022/ND-CP.

Article 3. Principles for determination of illicit profits earned through the commission of administrative violations

1. Persons competent to sanction administrative violations shall determine illicit profits and such shall be recorded in the decision on sanctioning administrative violation or decision on applying remedial measures.

2. Illicit profits shall be determined from the time the organizations and individuals commit administrative violations to the time of ending such violations or to the time on which the decision on sanctioning administrative violations or decision on applying remedial measures is issued.

3. If an organization or an individual’s commits many acts of administrative violation, illicit profits earned in each act of administrative violation shall be determined.

If an organization or an individual’s commits an administrative violation many times, illicit profits earned in each time of violation shall be determined.

Article 4. Illicit profits

Illicit profits earned through the commission of administrative violations prescribed in Article 37 of the Law on Handling of Administrative Violations; Point e Clause 3 Article 4 of Decree No. 98/2020/ND-CP and Clause 2 Article 3 of Decree No. 17/2020/ND-CP mean objects, money, valuable papers or other assets gained from the individual’s or organization’s commission of administrative violations in commercial activities, production of, trading in counterfeit or banned goods and protection of consumer rights.

Article 5. Determination of illicit monetary profits

1. Illicit monetary profits mean the entire amount of money that an organization or individual earned through the commission of administrative violations. Such profits are calculated by the money amount gained from the transfer and sale of violated goods, or provision of violated services, on the basis of dossiers and documents proving the legitimacy and validity of such costs that are provided by the violator.

2. The money amount earned by an organization or individual through the commission of administrative violations shall be equal to (=) the quantity of goods, the volume of services that have been transferred or consumed, multiply by (x) the unit price minus (-) costs directly constituting the goods or services (if the violating organization or individual has sufficient dossiers and documents to prove the legitimacy and validity of such costs). To be specific:

a) The quantity of goods, the volume of services that have been transferred or consumed shall be determined on the basis of declaration of the violating organization or individual and the inspection, verification of the person competent to handling violations;

b) The unit price of goods or services shall be determined on the basis of dossiers and documents of the violating organization or individual. In case where the dossiers and documents are unavailable, the unit price shall be determined according to the market price of similar goods or services at the time of detecting the violations.

In case where the quantity, volume and unit price are undefinable, earned illicit profits shall be the entire amount of money that organization or individual gained from the illegal transfer, sale, dispersion or destruction.

3. In case where an organization or individual receiving orders to process goods for foreign traders commits violations relating to the origin of imported or exported goods and has to return the illicit profits earned through the commission of the violations, then the illicit profits gained from the processing of goods shall be the entire amount of money that organization or individual earned from the processing of goods (costs for placing processing order and processing) minus (-) costs directly constituting the costs for placing processing order and processing (if the violating organization or individual has sufficient dossiers and documents to prove the legitimacy and validity of such costs).

In case where the violating organization or individual has illegally transferred, sold, dispersed or destroyed such goods, the illicit profits remitted into the state budget shall be the entire money mentioned above plus (+) the amount equal to the value of the material evidences of administrative violations gained through the illegal transfer, sale, dispersion or destruction.

4. In case of transferring or selling counterfeit, banned or smuggled goods, or providing services subject to conditional business, the earned illicit monetary profits shall be the entire amount of money that organization or individual gained from the transfer, sale or provision of such goods or services.

Article 6. Determination of the amount of illicit profits that are valuable papers

1. Earned illicit profit amounts that are valuable papers mean the whole valuable papers that an organization or individual earned through the commission of administrative violations.

2. Valuable papers specified in Clause 1 of this Article are valuable papers as prescribed in the Civil Code and other valuable papers as prescribed by specialized laws.

3. If the valuable papers are transferred, the amount of illicit profits shall be determined by the actual money amount collected at the time of transfer.

If the valuable papers are dispersed or destroyed, the amount of illicit profits shall be determined according to the book value of the organization issuing valuable papers at the time of dispersion or destruction.

Article 7. Determination of the amount of illicit profits that are other assets and objects

1. Illicit profits earned through the commission of administrative violations, which are other assets and objects, are other assets as prescribed by the Civil Code.

2. Objects specified in Clause 1 of this Article shall be determined in accordance with Articles 110, 111, 112, 113 and 114 of the Civil Code.

3. Other assets specified in Clause 1 of this Article shall be determined in accordance with Articles 105, 107, 109 and 115 of the Civil Code.

4. In case objects and other assets (other than counterfeit, banned or smuggled goods) have been transferred, sold or destroyed, the illicit profit amount shall be determined according to the amount equivalent to the market value of similar assets, or determined according to the book value of assets (if the normal value is unavailable), or determined according to the monetary value of assets recorded on the import or export declarations (for imports or exports) of the violator, after deducting the cost directly constituting the goods, on the basis of dossiers and documents proving the legitimacy and validity of such costs.

In case objects and other assets that are counterfeit, banned or smuggled goods have been transferred or sold, the illicit profit amount shall be equal to the total money amount received by that organization or individual when transferring them.

Article 8. Determination of the refundable amount in case material evidences or means of administrative violations have been illegally sold, dispersed or destroyed

In case material evidences or means of administrative violations have been illegally sold, dispersed or destroyed, the violator must refund the amount of money equivalent to the value of material evidences or means of administrative violations that have been illegally sold, dispersed or destroyed.

Article 9. Effect

1. This Circular takes effect from January 01, 2023, and replaces the Minister of Finance's Circular No. 149/2014/TT-BTC dated October 10, 2014, on prescribing illicit profits earned through the commission of administrative violations for forfeiture into the state budget.

2. In case legal documents referred to in this Circular are amended, supplemented or replaced, the amending, supplementing or replacing ones shall prevail.

Any problems arising in the course of implementation should be promptly reported to the Ministry of Finance for consideration and settlement./.