Decision No. 100 TC/QLCS dated January 23, 1997 of the Ministry of Finance issuing the regulation on the management and handling of property when a decision is issued to confiscate and remit it to the state fund and transfer it to state ownership

DECISION

ISSUING THE REGULATION ON THE MANAGEMENT AND HANDLING OF PROPERTY WHEN A DECISION IS ISSUED TO CONFISCATE AND REMIT IT TO THE STATE FUND AND TRANSFER IT TO STATE OWNERSHIP

THE MINISTER OF FINANCE

Pursuant to the Civil Code of the Socialist Republic of Vietnam;

Pursuant to the Ordinance on the Handling of Administrative Violations of July 6, 1995;

Pursuant to the Ordinance on the Enforcement of Civil Verdicts of April 21, 1993;

Pursuant to Decree No.86-CP of December 19, 1996 of the Government on the issue of the Regulations on Property Auctions;

Pursuant to Decree No.15-CP of March 2, 1993 of the Government on the task, powers and responsibility of State management of the Ministries and ministerial-level agencies;

Pursuant to Decree No.178-CP of October 28, 1994 of the Government on the task, powers and organization of the apparatus of the Ministry of Finance;

In order to ensure unified State management of the property when a decision is issued to confiscate and remit it to the State fund and transfer it to State ownership,

DECIDES:

Article 1.- To issue together with this Decision the Regulation on the management and handling of the property when a decision is issued to confiscate and remit to the State fund and transfer it to State ownership.

Article 2.- This Decision takes effect from the date of its signing. All earlier stipulations which are contrary to this Decision are now annulled.

Article 3.- The Ministers, the Heads of ministerial-level agencies, of the agencies attached to the Government, and the Presidents of the People’s Committees of the provinces and cities directly under the Central Government in furtherance of their functions, tasks and powers shall direct the units concerned to organize the implementation of this Regulation.

The Head of the Department of Public Property Management and the Directors of the Finance - Pricing Services of the provinces and cities directly under the Central Government shall have to help the Minister of Finance and the Presidents of the People’s Committees of the provinces and cities in guiding and checking the implementation of the Regulation as stipulated by this Decision.

REGULATION

ON THE MANAGEMENT AND HANDLING OF PROPERTY WHEN A DECISION IS ISSUED TO CONFISCATE AND REMIT IT TO THE STATE FUND AND TRANSFER IT TO STATE OWNERSHIP
(issued together with Decision No.100-TC/QLCS of January 23, 1997 of the Minister of Finance)

Chapter I

GENERAL PROVISIONS

Article 1.- The properties managed and handled according to this Regulation are the following:

1. All the properties used in committing administrative violations which the branches and competent authorities have issued a decision to confiscate and remit to the State fund as stipulated by the Ordinance on the Handling of Administrative Violations of July 6, 1995;

2. The properties confiscated and remitted to the State fund by the court and the authorized agencies as stipulated by law;

3. The properties transferred to State ownership as stipulated by Articles 247, 248, 249 and 647 of the Civil Code of the Socialist Republic of Vietnam:

- Immovables disowned by the owners;

- Antiques, historical or cultural relics, and properties of great value worth at least 10 million VND buried, sunken or washed away and found;

- Antiques, historical or cultural relics and objects of great value worth at least 10 million VND dropped, forgotten and whose owners are unidentified;

- The inheritances without inheritors by will or by law, or with inheritors who are illegible or who refuse to inherit.

4. The properties which are presented by local organizations or individuals, or handed over to organizations or individuals and transferred to State ownership by the competent authorities.

Article 2.- The authorized agencies shall issue decisions to confiscate and remit such properties to the State fund and transfer them to State ownership as stipulated in Points 1, 2, 3, and 4, Article 1, of this Regulation (hereunder referred to as decision-issuing agencies). When issuing a decision, the financial agency shall organize the transfer and takeover, manage and handle it in accordance with the stipulations of this Regulation.

Article 3.- The Ministry of Finance shall exercise unified State management of all properties which is confiscated and remitted to the State fund by a competent decision and the properties transferred to State ownership as stipulated in Article 1 of this Regulation.

Chapter II

TRANSFER, MANAGEMENT AND HANDLING OF PROPERTIES CONFISCATED AND REMITTED TO STATE FUND AND TRANSFERRED TO STATE OWNERSHIP

Article 4.- With regard to properties which is confiscated by a competent decision and sold and the proceeds of which is remitted to the State fund, or properties transferred to State ownership (hereunder referred to as properties remitted to State fund), the decision-issuing agency shall consider the State regulations, the nature of the properties and the contents of the Decision and transfer them and the relevant papers to the financial agency of district or higher levels on this principle: The decision-issuing agency shall transfer the property and relevant papers to the financial agency of the district or the province where the property is confiscated and remitted to the State fund, and the property is transferred to State ownership according to the following procedure:

1. The properties which are confiscated by a competent decision and remitted to the State fund or properties transferred to State ownership by the authorized agencies of communes, wards or townships (called communal level) and the authorized agencies of districts, precincts and towns (called district level), or the authorized agencies equivalent to district and communal levels shall be transferred together with the relevant papers to the Financial Section of the district.

2. The properties which are confiscated by a competent decision and remitted to the State fund or which are transferred to State ownership by the authorized agencies of the provinces or cities directly under the Central Government (called provincial level) or the authorized agencies equivalent to the provincial level shall be transferred together with the relevant papers to the Finance-Pricing Service of provincial level.

Article 5.- The State agencies which issue decisions to confiscate properties and remit them to the State fund shall have the following responsibility:

1. When deciding to confiscate a property and remit them to the State fund, the decision-issuing agency must make a report clearly recording the name, quantity, type, registration number (if any), and state of the property (the report must be signed by the confiscator, the person fined, or a representative of the organization fined, and a witness), and notify the financial agency thereof;

2. To organize immediate sale of those properties which are perishable goods and which are decided to be confiscated and remitted to the State fund. The proceeds from the sale shall be deposited in the temporary account of the Financial Section of district or higher level opened at the State Treasury as stipulated;

3. To remit immediately to the State Treasury those properties confiscated and remitted to the State fund which are Vietnamese or foreign currencies, gold, silver, gems, or other precious metals, and transfer the relevant papers, documents or vouchers to the financial agency;

4. Cooperate with the financial agency to organize the transfer of those properties confiscated and remitted to the State fund to those State agencies assigned to manage and use those properties as stipulated by the State;

5. Transfer the properties confiscated and sold and the proceeds remitted to the State fund together with the confiscation decision, the confiscation report, copies of the relevant dossier, papers and documents to the financial agency as stipulated in Article 4 of this Regulation.

Article 6.- The State agency which issues a decision to transfer the property to State ownership has the following responsibilities:

1. When issuing a decision to transfer a disowned property to State ownership; properties buried, sunken or washed away and found, and properties dropped or forgotten long enough to become State properties, and the inheritances without inheritors as stipulated by law, the decision-issuing agency must record clearly the origin, quantity, quality, types, registration number (if any), and state of the properties transferred to State ownership, and notify the financial agency thereof;

2. To remit to the State Treasury the properties transferred to State ownership which are Vietnamese and foreign currencies, gold, silver, gems and other precious metals, and transfer the relevant papers, documents and vouchers to the financial agency;

3. To cooperate with the financial agency in organizing the sale of those properties which are immovables and whose owners are unidentified, and those properties transferred to State ownership which are not antiques or historical or cultural relics of great value;

4. Cooperate with the financial agency in transferring the properties which have been transferred to State ownership to those State agencies assigned to manage and use them, or the financial agency for management and use, or to sell them as decided.

Article 7.- The State agencies and organizations to which local organizations or individuals present or hand over properties for management and use shall have the following responsibilities:

1. Report to the financial agency of the same level on their origin, quantity, type, registration number (if any), state and value;

2. To record the increase in properties and register the properties (which must be registered) according to the guidance of the financial agency; organize their management in strict compliance with the regime of public property management stipulated by the State.

Article 8.- When the decision-issuing agency transfers the properties confiscated and remitted to the State fund and the properties which are transferred to State ownership to the financial agency and the State Treasury, or to the agencies assigned to manage and use them as stipulated in Points 3, 4, and 5, Article 5, and Points 2, 3 and 4, Article 6, of this Regulation, they shall make reports on the transfer and takeover, clearly record the full names of the representatives of the sides that transfer and take over, and the representative of the financial agency; the quantity, type, state, quality, origin, the seal number (if any) of the properties and the relevant papers and dossiers, together with the signatures of the transferer and receiver, and the representative of the financial agency according to the model form "Report on the transfer and takeover of properties remitted to the State fund".

Article 9.- Those State agencies which issue decisions to confiscate and remit properties to the State fund and properties that are transferred to State ownership shall have to carefully manage them till they are transferred to the financial agency for management, or continue to manage all or part of them in their storage as mandated by the financial agency till those properties are completely handled or sold and the proceeds are remitted to the State funds. To cooperate with the financial agency to organize an auction of those properties confiscated and remitted to the State fund and the properties that are transferred to State ownership as stipulated in this Regulation.

Article 10.- The financial agencies of different levels shall have the following responsibility:

1. Within 15 days at the latest, from the date when they receive a notice from the decision-issuing agencies, they must organize the takeover of the properties confiscated and remitted to the State fund and the properties transferred to State ownership as stipulated in Point 3, Article 1, of this Regulation, or empower the decision-issuing agencies to continue managing a part of or all those properties till they are completely handled or sold and the proceeds have been remitted to the State fund;

The letter of procuration to the decision-issuing agency to manage or sell those properties and submit the proceeds to the State fund must clearly record the full name and position of the authorized person; the quantity, type, state, quality, origin and seal number (if any) of the properties which the person so empowered is to manage or sell; the responsibility and regime of commission of the State agency so empowered according to the model form "Letter of procuration for management or sale of properties remitted to the State fund".

2. They shall have to manage and suggest ways of using, handling or organizing the sale of those properties confiscated and remitted to the State fund and the properties transferred to State ownership which they have already taken over and are keeping in their storage, supervise the management of those properties which have been entrusted to the decision-issuing agency for management, and guide and supervise the decision-issuing agency in organizing their sale;

With regard to those properties which are Vietnamese and foreign currencies, gold, silver, gems, or other precious metals remitted to the State Treasury, the financial agency shall have to keep the relevant dossier and documents for subsequent control and handling.

With regard to those properties confiscated and remitted to the State funds and the properties transferred to State ownership which are houses and land, architectural structures attached to the houses and land, while managing them and working out ways of using them for submission to the decision-issuing agency, the financial agency shall be permitted to lease them to collect rent for the budget and to recoup the expenses on their management as stipulated.

3. Set up a Council to set the auction prices; organize an auction of the properties confiscated and remitted to the State fund and the properties transferred to State ownership (called properties remitted to the State fund) in accordance with the stipulations on auction in this Regulation and other stipulations of the State.

4. Remit all the proceeds from the sale of the properties remitted to the State fund and other relevant revenues to the State Budget after deducting the expenses stipulated in Article 18 of this Regulation. The financial agency shall have to guide and consider the disbursement of those expenses in accordance with the State regime.

Chapter III

ORGANIZING THE SALE OF PROPERTIES CONFISCATED AND REMITTED TO THE STATE FUNDS AND PROPERTIES TRANSFERRED TO STATE OWNERSHIP

Article 11.- Within 30 days at the latest (concerning the properties remitted to the State fund which are common consumer goods), 60 days (concerning cars, motorbikes, vessels, machines, specialized equipment...) from the date when these properties are taken over, the financial agency must set up a Council to set the auction prices and organize an auction of those properties.

1. The Auction Price-Setting Council (called Auction Council) is composed of:

- A representative of the financial agency as Chairman of the Council;

- A representative of the decision-issuing agency as Vice-Chairman of the Council.

The Chairman of the Council can designate a number of members of the financial agency and the decision-issuing agency to serve as assistants to the Council.

In addition, depending on the nature and importance of the properties confiscated, the complexity and relations involved in the auction of the properties remitted to the State funds, the Chairman of the Council shall decide to invite other members concerned such as those from the Procuracy, Police, the Inspectorate and the professional, technical agency to supervise the auction of those properties.

2. The Council to set the auction prices of the properties submitted to the State funds shall be set up by decision for each auction and shall work part-time.

Article 12.- The Chairman of the Auction Council considering Article 13 of the Regulations on the Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government, other stipulations of the State, and depending on each type of property remitted to the State fund, shall specify those who are eligible to take part in each auction.

Article 13.- The auction of the properties remitted to the State funds shall be conducted on the principle of direct, open and genuine sale, and of protecting the right and legitimate interests of the parties involved.

Article 14.- The Auction Price-Setting Council shall have the following obligations:

1. Organizing auctions of properties in accordance with the principle and procedure stipulated in this Regulation.

2. Openly, fully and accurately announcing and putting up notices on the necessary information concerning the properties put on auction.

3. Displaying and letting buyers see and study the dossiers of the properties put on auction.

4. Recording the auction in the auction registration book and making invoices for the auctioned properties.

5. Delivering properties to the buyers in accordance with the stipulations of Article 25 and Article 26 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government.

6. Filling the procedure for transferring the ownership of the properties auctioned which under the Property Law must be registered.

Article 15.- The Auction Price-Setting Council shall have the following rights:

1. Setting the minimum prices for the properties put on auction.

2. Requesting the buyers to make their payments in accordance with the stipulations of Article 22, Article 23 and Article 24 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government.

3. Collecting advance payment in accordance with the stipulations of Article 14 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government and fees from the organizations and individuals taking part in the buying of the auctioned properties. The collection of fees and their management and use shall comply with the stipulations of the Ministry of Finance.

Article 16.- The order and procedure of an auction shall be as follows:

1. Setting the minimum prices: The Chairman of the Auction Price-Setting Council shall set the minimum prices with the participation of the members of the Council.

2. The Auction Price-Setting Council shall put up notices on the auction; publicly announce the auction; display the properties put on auction, and conduct the auction as stipulated in Article 11, Article 12, Article 15 and Article 16 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government.

3. The Chairman of the Auction Price-Setting Council shall conduct the auction in accordance with the stipulations of Article 16 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government.

4. At the end of the auction, the Auction Price-Setting Council must make an invoice on the auction; this invoice must conform to the stipulations of Article 17 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government.

Article 17.- With regard to the organizations and individuals taking part in the auction:

1. Those organizations and individuals that want to take part in the auction (called buyers) of properties remitted to the State fund must register for buying at least two days before the opening of the auction; with regard to those organizations and individuals that want to take part in the auction of immovable properties or properties having a minimum price of 10 million VND, they should comply with Article 14 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government.

2. At the auction, if the person who has offered the highest price withdraws his/her offer, the auction shall immediately be organized again in accordance with the stipulations of Article 18 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government.

3. After an invoice is made and the buyer refuses to buy, Article 19 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government shall apply.

4. The buyer of a property auctioned which belongs to the type whose ownership must be registered shall comply with Article 20 and Article 21 of the Regulations on Auction of Properties issued together with Decree No.86-CP of December 19, 1996 of the Government.

Chapter IV

MANAGEMENT AND USE OF PAYMENTS FROM THE SALE OF PROPERTIES CONFISCATED AND REMITTED TO THE STATE FUND AND PROPERTIES TRANSFERRED TO STATE OWNERSHIP

Article 18.- All the payments collected from the sale of the properties confiscated and remitted to the State fund and properties transferred to State ownership organized by the financial agency of district or higher level or by the decision-issuing agency mandated by the financial agency; the fees collected from the auction; and the fines for violation of a buying and selling contract (if any), shall be deposited in the temporary account of the financial agency of district or higher level opened at the State Treasury, and shall be handled as follows:

1. The financial agency shall consider the rationality and legality of the expenses concerning the handling of the properties confiscated and remitted to the State fund and properties transferred to State ownership (called properties remitted to the State fund) proposed by the Auction Council and the decision-issuing agency to pay the following items:

a/ Expenses for the investigation, identification, seizure and handling of violations, expenses for unearthing and salvage, and expenses for loading and unloading, transport, management, testing and evaluation of properties, and compensations for the loss (if any) of properties remitted to the State fund due to objective reasons till the time when these properties are transferred to the financial agency for management, handling and sale;

If the decision-issuing agency has been granted storage space, staff and regular funding by the State, the financial agency shall not have to pay the expenses concerning the transport and management of those properties.

b/ Expenses for management, storing, space, transport, loading and unloading from the time when the properties remitted to the State fund are transferred to and received by the financial agency to the time when these properties are handled and auctioned;

c/ Disbursement of supplementary funding for the purchase of equipment necessary for the management of goods to the decision-issuing agency and the management and handling agency appointed by the authorized level;

d/ Expenses for the fixing of prices and the auction of the properties remitted to the State fund as stipulated by the State;

e/ Spendings for the granting of subsidies and rewards to the organizations and individuals that have taken part and obtained achievements in the discovery and handling of the properties transferred to State ownership according to the current regime of the State as decided by the authorized agency;

f/ Spendings for the technical examination and evaluation of the properties transferred to State ownership (if necessary);

g/ Spendings for the repair of properties remitted to the State funds for sale (if any).

2. All the money left over must be transferred from the temporary account to the State Budget; if the payment collected is not enough to cover all the above-mentioned expenses, or the properties are handled without any payment collected, the State Budget shall grant additional funding in accordance with the current regime of budget allocation.

The Minister of Finance and the Presidents of the People�s Committees at different levels shall have to consider and decide these spendings.

Article 19.- The district Financial Section, the Finance-Pricing Service and the Department of Public Property Management (of the Ministry of Finance) shall have to help the People�s Committee at different levels and the Minister of Finance in managing the payments collected and the spendings incurred by the handling of the properties confiscated and the properties transferred to State ownership in accordance with this Regulation and the guidance of the State.

At the year�s end, the agencies authorized to handle properties remitted to the State fund must make a statement of accounts on the collection of payments and the disbursement of spendings concerning the handling and sale of properties confiscated and properties transferred to State ownership to the financial agencies at different levels. The Finance-Pricing Service shall sum it up and make quarterly and annual reports to the Ministry of Finance.

The Ministry of Finance shall guide the opening of an account to register, manage and balance these revenues and spendings in accordance with the State�s current regime of financial management.

Chapter V

HANDLING OF VIOLATIONS

Article 20.- If the decision-issuing agency and the agency which directly manage, handle and auction the properties confiscated and properties transferred to State ownership fail to comply with or deliberately violate the stipulations of this Regulation, they shall be strictly sanctioned in accordance with law.

Article 21.- If the agencies or individuals that are mandated to manage, preserve and organize an auction of the properties remitted to the State fund deliberately damage or cause losses to the properties in kind or in value, they must pay material compensations, and depending on the seriousness of the violation, shall be sanctioned administratively or prosecuted before the Law.