Decree No. 107/2006/ND-CP dated September 22, 2006 of the Government defining responsibilities of heads of agencies, organizations and units for corruption occurring in their agencies, organizations or units

DECREE

DEFINING RESPONSIBILITIES OF HEADS OF AGENCIES, ORGANIZATIONS AND UNITS FOR CORRUPTION OCCURRING IN THEIR AGENCIES, ORGANIZATIONS OR UNITS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 29, 2005 Anti-Corruption Law;

Pursuant to the December 21, 1999 Penal Code;

Pursuant to the February 26, 1998 Ordinance on Cadres and Civil Servants; the April 28, 2000 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Cadres and Civil Servants; and the April 29, 2003 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Cadres and Civil Servants;

At the proposal of the Minister of Home Affairs,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

This Decree defines responsibilities of heads of agencies, organizations and units for corruption occurring in their agencies, organizations or units.

Article 2.- Subjects of application

1. This Decree applies to heads of agencies, organizations and units within state bodies, political organizations, socio-political organizations, people's armed forces units, non-business units, state enterprises, and other agencies, organizations and units that use state budget and property.

2. Deputy heads of agencies, organizations and units defined in Clause 1 of this Article shall also be responsible for corruption occurring in the working domains or units under their assigned management.

Article 3.- Severity of corruption cases

1. The severity of corruption cases shall serve as a basis for defining responsibilities of heads and deputy heads of agencies, organizations and units.

2. Corruption cases shall be classified based on the extent of their severity as follows:

a/ Less serious corruption case means a case in which a person commits an act of corruption which is not serious enough for examination of penal liability or is subject to penal liability examination and a penalty in the form of non-custody re-education of up to 3 years or imprisonment of up to 3 years;

b/ Serious corruption case means a case in which a person committing an act of corruption is subject to imprisonment of between 3 and 7 years;

c/ Very serious corruption case means a case in which a person committing an act of corruption is subject to imprisonment of between 7 and 15 years;

d/ Particularly serious corruption case means a case in which a person committing an act of corruption is subject to imprisonment of at least 15 years, life imprisonment or death penalty.

Article 4.- Principles for handling heads and deputy heads of agencies, organizations and units

1. Heads or deputy heads of agencies, organizations or units who are directly responsible for acts of corruption committed in their agencies, organizations or units shall be disciplined under the provisions of this Decree or shall, if there exist full elements of a crime, be examined for penal liability according to the provisions of law.

2. Heads of agencies, organizations or units who are jointly responsible for acts of corruption committed in their agencies, organizations or units shall be disciplined according to the provisions of this Decree.

3. Where a corruption case involves many agencies, organizations or units, apart from agencies, organizations or units where the corruption case occurs, heads or deputy heads of the involved agencies, organizations or units having violators shall also be jointly responsible therefor according to the provisions of this Decree.

Article 5.- Interpretation of terms

1. "Deputy head" of an agency, organization or unit defined in this Decree means a person assigned to assist the head of such agency, organization or unit in managing or taking charge of a certain working domain in the agency, organization or unit or of several attached units of the agency or organization.

2. "Direct responsibility" means responsibility of the head or deputy head of an agency, organization or unit for acts of corruption committed by persons whom he/she directly manage or assign tasks to, or committed in the working domain, agency, organization or unit under his/her management.

3. "Joint responsibility" means responsibility of the head of an agency, organization or unit for acts of corruption committed in the working domains or units under his/her deputy's management; or of the head or deputy head of the involved agency, organization or unit having violators, if the corruption case involves many agencies, organizations or units.

Chapter II

DISCIPLINING OF HEADS OF AGENCIES, ORGANIZATIONS AND UNITS

Article 6.- Principles of examination and disciplining

The disciplining of heads or deputy heads of agencies, organizations or units where corruption occurs and of heads or deputy heads of involved agencies, organizations or units defined in Clause 3, Article 4 of this Decree shall, apart from complying with the principles of disciplining cadres and civil servants specified in the Government's Decree No. 35/2005/ND-CP of March 17, 2005, on disciplining of cadres and civil servants, also comply with the following principles:

1. The task assignment and management decentralization within agencies, organizations or units shall serve as a basis for the determination of direct or joint responsibility.

2. The relations between the managing heads or deputy heads and persons under their management who commit acts of corruption shall serve as a basis for disciplining.

Article 7.- Disciplining forms

Heads or deputy heads of agencies, organizations or units where corruption occurs shall, depending on the nature and severity of the corruption cases, be disciplined as follows:

1. Heads or deputy heads of agencies, organizations or units who are cadres or civil servants defined at Points b, c, d, e, f and h, Clause 1, Article 1 of the Ordinance on Cadres and Civil Servants (which was amended and supplemented on April 29, 2003, by the National Assembly Standing Committee, and is hereinafter referred to as the Ordinance on Cadres and Civil Servants) and managers of state enterprises shall be subject to one of the following disciplining forms:

a/ Reprimand;

b/ Caution;

c/ Dismissal.

2. Heads or deputy heads of agencies, organizations or units who are cadres or civil servants defined at Points a and g, Clause 1, Article 1 of the Ordinance on Cadres and Civil Servants shall be disciplined according to the provisions of law and the charters of their political organizations or socio-political organizations.

3. Heads or deputy heads of agencies, organizations or units belonging to socio-political-professional organizations, socio-professional organizations or social organizations shall be disciplined according to the charters of those organizations.

4. Heads or deputy heads of agencies, organizations or units who are officers, non-commissioned officers or professional army men in the people's army or people's police shall be disciplined according to the provisions of law applicable to officers, non-commissioned officers and professional army men in the people's army or people's police.

Article 8.- Application of reprimand

Reprimand shall be applied to the head or deputy head of an agency, organization or unit where a serious corruption case occurs or many less serious corruption cases occur.

Article 9.- Application of caution

Caution shall be applied to the head or deputy head of an agency, organization or unit where a very serious corruption case occurs or many serious corruption cases occur.

Article 10.- Application of dismissal

Dismissal shall be applied to the head or deputy head of an agency, organization or unit where a particularly serious corruption case occurs or many very serious corruption cases occur.

Article 11.- Cases of exclusion of responsibility; exemption, extenuation or aggravation of discipline

1. The responsibility of heads or deputy heads of agencies, organizations or units shall be excluded in case they cannot know or have applied necessary measures to prevent or stop acts of corruption.

2. If heads or deputy heads of agencies, organizations or units where corruption occurs voluntarily apply for resignation before they are disciplined in the form of reprimand, and their resignation has been approved by competent authorities, they shall be exempt from disciplining.

3. Heads or deputy heads of agencies, organizations or units where corruption occurs shall be subject to an immediate lower discipline in one of the following cases:

a/ They have filed applications for resignation, which are approved by competent authorities;

b/ They have applied necessary measures to prevent or overcome the consequences of acts of corruption; or have strictly handled and promptly reported acts of corruption to competent agencies or organizations.

4. Heads or deputy heads of agencies, organizations or units where corruption occurs who fail to take necessary measures to prevent or overcome the consequences of acts of corruption, or who discover acts of corruption but fail to strictly handle them or to promptly report voluntarily apply for resignation them to competent agencies or organizations shall be subject to an immediate higher discipline.

Article 12.- Disciplining of ministers, heads of ministerial-level agencies and government-attached agencies and persons holding equivalent positions, chairmen of provincial/municipal People's Councils and presidents of provincial/municipal People's Committees

Ministers, heads of ministerial-level agencies or government-attached agencies or persons holding equivalent positions, chairmen of provincial/municipal People's Councils or presidents of provincial/municipal People's Committees who let particularly serious corruption cases occur in their respective ministries, branches or localities, causing adverse political, economic or social impacts, shall bear responsibility therefor and be disciplined according to the provisions of Clause 1 or Clause 2, Article 7 of this Decree.

Chapter III

DISCIPLINING COMPETENCE, PROCESS AND PROCEDURES

Article 13.- Responsibility to consider discipline

Within 30 days after obtaining competent bodies' official conclusions on corruption cases or after the judgments on corruption cases take legal effect, heads of immediate superior agencies, organizations or units shall consider the discipline or report the cases to competent authorities to consider the disciplining of heads or deputy heads of agencies, organizations or units who are directly or jointly responsible for the corruption cases.

Article 14.- Competence to decide on discipline

The competence to decide on disciplining heads of agencies, organizations or units where corruption occurs shall comply with the current regulations on decentralization of management of cadres and civil servants.

Article 15.- Disciplinary councils

1. Heads of immediate superior agencies, organizations or units of agencies, organizations or units where corruption occurs must set up disciplinary councils to consider the disciplining of heads or deputy heads of the agencies, organizations or units where corruption occurs.

2. Members of a disciplinary council include:

a/ The council chairman being the head or deputy head of the immediate superior agency, organization or unit of the agency, organization or unit where corruption occurs;

b/ A member being a representative of the immediate superior Party committee of the Party committee of the agency, organization or unit where corruption occurs;

c/ A member being a representative of the trade union executive board of the agency, organization or unit where corruption occurs.

3. The disciplinary council shall work under the collective regime and make decisions based on majority vote by secret ballot. Its meeting shall only be held when it is attended by all their members.

4. The setting up of councils for disciplining ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairmen of provincial/municipal People's Councils, presidents of provincial/municipal People's Committees or persons holding equivalent positions shall be considered and decided by competent agencies or organizations according to the provisions of law.

Article 16.- Process of consideration of disciplining

1. The head or deputy head of the agency, organization or unit where corruption occurs shall make a self-criticism report and acknowledge a disciplining form.

2. The immediate superior leader shall convene and preside a meeting to criticize the head or deputy head defined in Clause 1 of this Article. Participants in the meeting shall include holders of leading positions in the agency, organization or unit. The immediate superior leader shall decide on the meeting's participants. The meeting's minutes must state the disciplining form proposed by the agency, organization or unit.

3. The disciplinary council of the immediate superior agency, organization or unit shall consider and vote on the disciplining form by secret ballot and propose the head of its agency, organization or unit or competent authorities to decide on the discipline.

Article 17.- Other regulations on the process of consideration of disciplining

Other regulations on the process of considering the disciplining of heads and deputy heads of agencies, organizations and units such as those on the statute of limitations for disciplining; suspension of working; management of disciplinary dossiers; termination of the validity of disciplinary decisions; complaints and settlement of complaints about disciplinary decisions, and regulations related to disciplined cadres and civil servants shall comply with the Government's Decree No. 35/2005/ND-CP of March 17, 2005, on disciplining of cadres and civil servants.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 18.- Implementation effect

This Decree shall take effect 15 days after its publication in "CONG BAO."

Article 19.- Implementation guidance

1. The Minister of Home Affairs shall provide guidance on the implementation of this Decree in state non-business units and enterprises, social organizations and socio-professional organizations which use state budget and property.

2. Competent agencies shall guide the application of the provisions of this Decree to agencies, organizations and units belonging to political organizations, socio-political organizations or socio-political-professional organizations.

Article 20.- Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, presidents of provincial/municipal People's Committees, and concerned agencies, organizations and individuals shall implement this Decree.