Decree No. 112/2010/ND-CP dated December 01, 2011 of the Government amending and supplementing a number of Articles of the Government's Decree No. 06/2008/ND-CP dated January 16, 2008, on sanctioning of administrative violations in commercial activities

THE GOVERNMENT

Decree No. 112/2010/ND-CP of December 1, 2010, amending and supplementing a number of articles of the Government’s Decree No. 06/2008/ND-CP of January 16, 2008, on sanctioning of administrative violations in commercial activities

THE GOVERNMENT

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

Pursuant to the June 14, 2005 Commercial Law;

Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations and the April 2, 2008 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations (below referred to as the Ordinance);

At the proposal of the Minister of Industry and Trade,

DECREES:

Article 1. To amend and supplement a number of articles of the Government’s Decree No. 06/2008/ND-CP of January 16, 2008, on sanctioning of administrative violations in commercial activities, as follows:

1. To amend and supplement Article 4 as follows:

“Article 4. Sanctioning principles

Principles of sanctioning administrative violations in commercial activities comply with Article 3 of the Ordinance and Article 3 of the Government’s Decree No. 128/2008/ND-CP of December 16, 2008, detailing a number of articles of the Ordinance (below referred to as Decree No. 128).”

2. To amend and supplement Article 5 as follows:

“Article 5. Extenuating and aggravating circumstances

Extenuating or aggravating circumstances applicable in sanctioning administrative violations in commercial activities specified in this Decree comply with Articles 8 and 9 of the Ordinance and Article 6 of Decree No. 128.”

3. To amend and supplement Clause 5, Article 6 as follows:

“5. The method of counting the statute of limitations for sanctioning administrative violations in commercial activities complies with Article 9 of Decree No. 128.”

4. To amend and supplement Clause 6, Article 6 as follows:

“6. Past the statute of limitations specified in Clause 1, 2, 3 or 4 of this Article, a violator shall not be sanctioned for his/her administrative violation but is still subject to the remedies specified in Clause 3, Article 12 of the Ordinance if this Decree provides for the application of remedies with respect to such violation.”

5. To amend and supplement Article 7 as follows:

“Article 7. Time limit after which violators are regarded as having not yet been administratively handled

1. The time limit after which violators are regarded as having not yet been handled for administrative violations in commercial activities complies with Clause 1, Article 11 of the Ordinance and Article 7 of Decree No. 128.

2. The method of counting the time limit after which violators are regarded as having not yet been handled for administrative violations in commercial activities complies with Article 9 of Decree No. 128.”

6. To amend and supplement Point b, Clause 3, Article 8 as follows:

“b/ Confiscation of material evidence or means used in administrative violations will apply when this Decree provides for the application of additional sanctions with respect to such violations. Material evidence or means used in administrative violations include things, cash, goods, tools and means directly related to administrative violations. Material evidence and means which are appropriated or illegally used by violators shall not be confiscated but shall be returned to their lawful owners or managers or users under Clause 2, Article 17 of the Ordinance and Clause 2, Article 12 of Decree No. 128.”

7. To amend and supplement Clause 6, Article 8 as follows:

“6. Past the time limit for issuing a sanctioning decision under Clause 1, Article 56 of the Ordinance and Article 23 of Decree No. 128, the person with sanctioning competence may not issue such decision but shall still issue a decision to confiscate material evidence used in an administrative violation which is banned from sale or circulation and apply remedies if this Decree provides for confiscation as an additional sanction and remedy for such violation.”

8. To amend and supplement Clause 2, Article 9 as follows:

“2. Persons with sanctioning competence shall sanction administrative violations in commercial activities according to their competence. Authorization of administrative sanctioning complies with Article 41 of the Ordinance and Article 16 of Decree No. 128.”

9. To amend and supplement Article 10 as follows:

“Article 10. Violations of regulations on enterprise registration certificates

1. A fine of between VND 1 million and 3 million shall be imposed for trading in business lines or commodities or at places other than those indicated in enterprise registration certificates.

2. A fine of between VND 3 million and 5 million shall be imposed for doing business as enterprises without enterprise registration certificates as required.

3. A fine of between VND 5 million and 10 million shall be imposed for continuing doing business when having enterprise registration certificates revoked by competent state management agencies.

4. A fine doubling the fine specified in Clauses 1 thru 3 of this Article shall be imposed for trading in goods or services restricted from business or subject to conditional business or goods subject to application of the urgent measure of forced recall, sale suspension or conditional sale by competent state management agencies or for which a license is required.

5. The provisions of Clauses 1 thru 4 of this Article are also applicable to sanctioning violations of regulations on investment licenses, investment certificates and operation registration certificates of enterprises’ branches and representative offices in provinces and cities.”

10. To amend and supplement Article 11 as follows:

“Article 11. Violations of regulations on business household registration certificates

1. Caution or a fine of between VND 100,000 and 300,000 shall be imposed for trading in business lines or commodities or at places other than those indicated in business household registration certificates.

2. A fine of between VND 300,000 and 500,000 shall be imposed for doing business as business households without business household registration certificates as required.

3. A fine of between VND 500,000 and 1,000,000 shall be imposed for continuing doing business when having business household registration certificates revoked by competent state management agencies.

4. A fine doubling the fine specified in Clauses 1 thru 3 of this Article shall be imposed for trading in goods or services restricted from business or subject to conditional business or goods subject to application of the urgent measure of forced recall, sale suspension or conditional sale or for which a license is required.”

11. To amend and supplement Article 12 as follows:

“Article 12. Sanctioning of administrative violations in business registration

Administrative violations of regulations on business registration procedures, business offices and places or traders’ signboards and other violations of regulations on enterprise registration certificates or business household registration certificates shall be sanctioned under regulations on sanctioning of administrative violations in relevant state management domains.”

12. To amend and supplement Article 18 as follows:

“Article 18. Violations of regulations on goods banned from business

1. Caution or a fine of between VND 500,000 and 1,000,000 shall be imposed for trading in goods banned from business which are valued at up to VND 5 million.

2. A fine of between VND 1 million and 2 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 5 million and 10 million.

3. A fine of between VND 2 million and 3 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 10 million and 20 million.

4. A fine of between VND 3 million and 5 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 20 million and 30 million.

5. A fine of between VND 5 million and 10 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 30 million and 50 million.

6. A fine of between VND 10 million and 20 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 50 million and 70 million.

7. A fine of between VND 20 million and 30 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 70 million and under 100 million.

8. A fine of between VND 30 million and 35 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at VND 100 million or more if violators are not subject to penal liability examination.

9. A fine doubling the fine specified in Clauses 1 thru 8 of this Article shall be imposed in either of the following cases:

a/ Violations are committed by producers, subcontract producers, processors, manufacturers, recyclers, classifiers, assemblers, bottlers, chargers, packers or importers of goods banned from business;

b/ Goods banned from business are toxic chemicals, preventive and curative medicines for human use, veterinary drugs, plant protection drugs, food additives, food processing aids, irradiated food, genetically modified food and medical equipment not yet permitted for use in Vietnam.

10. The fines specified in Clauses 1 thru 9 of this Article shall also be imposed on:

a/ Owners or operators of vehicles who transport goods banned from business;

b/ Owners of warehouses, wharves, storing yards or houses who store or hide goods banned from business;

c/ Goods delivery service providers who deliver goods banned from business.

11. Additional sanctions and remedies:

a/ Forced destruction of goods or articles harmful to human or animal health, plants or the environment, toys harmful to child personality education and health, and harmful cultural products, for the violations specified in this Article. When forced destruction is inapplicable or violators fail to destroy the goods, such goods shall be confiscated for destruction under regulations;

b/ Confiscation of goods banned from business, for the violations specified in this Article, except cases specified at Point a, Clause 11 of this Article;

c/ Confiscation of material evidence or means used for production, subcontract production, processing, manufacture, re-processing, classification, assembly, bottling, charging or packing of goods banned from business, for the violations specified at Point a, Clause 9 of this Article;

d/ Confiscation of vehicles carrying goods banned from business, for the violations specified at Points a and c, Clause 10 of this Article, if such violations are intentional in any of the following cases: involved goods are valued at over VND 70 million; repeated violations or recidivism; using number plates of other vehicles or number plates not granted by competent state management agencies; using vehicles converted for transporting banned goods; shirking or obstructing persons on duty, except the cases specified in Clause 2, Article 17 of the Ordinance and Clause 2, Article 12 of Decree No. 128.”

13. To amend and supplement Article 22 as follows:

“Article 22. Sanctioning of acts of trading in illegal imports

1. Caution or a fine of between VND 300,000 and 500,000 shall be imposed for trading in illegal imports valued at up to VND 5 million.

2. A fine of between VND 500,000 and 1,000,000 shall be imposed for the violations specified in Clause 1 of this Article involving imports valued at between over VND 5 million and 10 million.

3. A fine of between VND 1 million and 2 million shall be imposed for the violations specified in Clause 1 of this Article involving imports valued at between over VND 10 million and 20 million.

4. A fine of between VND 2 million and 3 million shall be imposed for the violations specified in Clause 1 of this Article involving imports valued at between over VND 20 million and 30 million.

5. A fine of between VND 3 million and 5 million shall be imposed for the violations specified in Clause 1 of this Article involving imports valued at between over VND 30 million and 50 million.

6. A fine of between VND 5 million and 7 million shall be imposed for the violations specified in Clause 1 of this Article involving imports valued at between over VND 50 million and 70 million.

7. A fine of between VND 7 million and 10 million shall be imposed for the violations specified in Clause 1 of this Article involving imports valued at between over VND 70 million and under 100 million.

8. A fine of between VND 10 million and 20 million shall be imposed for the violations specified in Clause 1 of this Article involving imports valued at VND 100 million or more.

9. A fine doubling the fine specified in Clauses 1 thru 8 of this Article shall be imposed in either of the following cases:

a/ Illegal imports are banned or suspended from import;

b/ Violators directly import such goods.

10. Violators who illegally import goods valued at VND 100 million or more but are not subject to penal liability examination shall be fined at the levels specified in Clauses 8 and 9 of this Article.

11. The fines specified in Clauses 1 thru 10 of this Article shall also be imposed on:

a/ Owners or operators of vehicles who intentionally transport illegal imports;

b/ Owners of warehouses, wharves, storing yards or houses who intentionally store or hide illegal imports;

c/ Goods delivery service providers who intentionally deliver illegal imports.

12. For illegal imports banned from business, violators shall be administratively sanctioned under Article 18 of this Decree; illegally imported liquor and tobacco shall be handled under relevant regulations on administrative sanctioning.

13. Additional sanctions and remedies:

a/ Forced destruction of goods or articles harmful to human or animal health, plants or the environment, toys harmful to child personality education and health, and harmful cultural products, for the violations specified in this Article. When forced destruction is inapplicable or violators fail to destroy the goods, such goods shall be confiscated for destruction under regulations;

b/ Confiscation of illegal imports, for the violations specified in this Article, except the cases specified at Point a, Clause 13 of this Article;

c/ Confiscation of vehicles carrying  illegal imports, for the violations specified at Points a and c, Clause 11 of this Article in any of the following cases: illegal imports are valued at VND 100 million or more; repeated violations or recidivism; using number plates of other vehicles or number plates not granted by competent state management agencies; using vehicles converted for transporting illegal imports; or shirking or obstructing persons on duty, except the cases specified in Clause 2, Article 17 of the Ordinance and Clause 2, Article 12 of Decree No. 128.”

14. To amend and supplement Article 23 as follows:

“Article 23. Violations of regulations on goods labeling

1. Trading in goods with hidden, torn or faded labels (including supplementary labels) which are wholly or partially unreadable; goods with labels which are printed with improper font sizes of Vietnamese and foreign languages, language and units of measurement, shall be sanctioned as follows:

a/ Caution or a fine of between VND 50,000 and 100,000, if involved goods are valued at up to VND 5 million;

b/ A fine of between VND 100,000 and 200,000, if involved goods are valued at between over VND 5 million and 10 million;

c/ A fine of between VND 200,000 and 500,000, if involved goods are valued at between over VND 10 million and 20 million;

d/ A fine of between VND 500,000 and 1,000,000, if involved goods are valued at between over VND 20 million and 30 million;

e/ A fine of between VND 1 million and 3 million, if involved goods are valued at between over VND 30 million and 50 million;

f/ A fine of between VND 3 million and 5 million, if involved goods are valued at between over VND 50 million and 70 million;

g/ A fine of between VND 5 million and 7 million, if involved goods are valued at between over VND 70 million and 100 million;

h/ A fine of between VND 7 million and 10 million, if involved goods are valued at over VND 100 million.

2. Trading in goods with labels (including supplementary labels) or attached documents which are printed with incomplete or incorrect compulsory contents based on the goods’ characteristics under the law on goods labeling; imports with original labels in a foreign language without supplementary labels in Vietnamese as required, shall be sanctioned as follows:

a/ Caution or a fine of between VND 100,000 and 200,000, if involved goods are valued at up to VND 5 million;

b/ A fine of between VND 200,000 and 500,000, if involved goods are valued at between over VND 5 million and 10 million;

c/ A fine of between VND 500,000 and 1,000,000, if involved goods are valued at between over VND 10 million and 20 million;

d/ A fine of between VND 1 million and 2 million, if involved goods are valued at between over VND 20 million and 30 million;

e/ A fine of between VND 2 million and 5 million, if involved goods are valued at between over VND 30 million and 50 million;

f/ A fine of between VND 5 million and 7 million, if involved goods are valued at between over VND 50 million and 70 million;

g/ A fine of between VND 7 million and 10 million, if involved goods are valued at between over VND 70 million and 100 million;

h/ A fine of between VND 10 million and 15 million, if involved goods are valued at over VND 100 million.

3. Trading in goods with labels containing images, pictures, letters, signs, symbols, medals, prizes and other information which are untruthful about such goods; goods with labels (including original or supplementary labels of imports) which are erased or modified to distort information on such goods, shall be sanctioned as follows:

a/ Caution or a fine of between VND 200,000 and 500,000, if involved goods are valued at up to VND 5 million;

b/ A fine of between VND 500,000 and 1,000,000, if involved goods are valued at between over VND 5 million and 10 million;

c/ A fine of between VND 1 million and 2 million, if involved goods are valued at between over VND 10 million and 20 million;

d/ A fine of between VND 2 million and 5 million, if involved goods are valued at between over VND 20 million and 30 million;

e/ A fine of between VND 5 million and 8 million, if involved goods are valued at between over VND 30 million and 50 million;

f/ A fine of between VND 8 million and 12 million, if involved goods are valued at between over VND 50 million and 70 million;

g/ A fine of between VND 12 million and 16 million, if involved goods are valued at between over VND 70 million and 100 million;

h/ A fine of between VND 16 million and 20 million, if involved goods are valued at over VND 100 million.

4. Trading in unlabeled goods for which labels are required under regulations or imports without original labels or with original labels which have been fraudulently exchanged shall be sanctioned as follows:

a/ Caution or a fine of between VND 500,000 and 1,000,000, if involved goods are valued at up to VND 5 million;

b/ A fine of between VND 1 million and 2 million, if involved goods are valued at between over VND 5 million and 10 million;

c/ A fine of between VND 2 million and 5 million, if involved goods are valued at between over VND 10 million and 20 million;

d/ A fine of between VND 5 million and 10 million, if involved goods are valued at between over VND 20 million and 30 million;

e/ A fine of between VND 10 million and 15 million, if involved goods are valued at between over VND 30 million and 50 million;

f/ A fine of between VND 15 million and 20 million, if involved goods are valued at between over VND 50 million and 70 million;

g/ A fine of between VND 20 million and 25 million, if involved goods are valued at between over VND 70 million and 100 million;

h/ A fine of between VND 25 million and 30 million, if involved goods are valued at over VND 100 million.

5. A fine doubling the fine specified in Clauses 1 thru 4 of this Article in either of the following cases:

a/ Violations involve food, curative and preventive medicines, functional food, cosmetics, animal feeds, fertilizers, veterinary drugs, plant protection drugs, plant varieties, animal breeds, cement, construction steel and helmets for motorcycle riders;

b/ Violations are committed by goods producers, subcontract producers, processors, mixers, manufacturers, re-processors, bottlers, chargers, packers, assemblers or importers.

6. Giving untruthful information on the shelf life of goods on labels shall be sanctioned under Article 26 of this Decree.

7. Trading in goods with fake labels or packings under Point b, Clause 8, Article 3 of this Decree shall be sanctioned under Article 24 of this Decree.

8. Remedies:

a/ Forced recall of marketed goods with violating labels, for the violations specified in this Article;

b/ Forcing traders responsible for goods labeling to remedy label-related violations, for the violations specified in this Article;

c/ Forced destruction of goods which are unsafe for humans, livestock or plants or affect the environment, for the violations specified in Clauses 1 thru 5 of this Article. When forced destruction is inapplicable or violators fail to destroy the goods, such goods shall be confiscated for destruction under regulations.”

15. To amend and supplement Article 24 as follows:

“Article 24. Sanctioning of trading in fake goods

1. Caution or a fine of between VND 300,000 and 500,000 shall be imposed for trading in fake goods valued at up to VND 1 million.

2. A fine of between VND 500,000 and 1,000,000 shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 1 million and 3 million.

3. A fine of between VND 1 million and 2 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 3 million and 5 million.

4. A fine of between VND 2 million and 5 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 5 million and 10 million.

5. A fine of between VND 5 million and 10 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 10 million and 20 million.

6. A fine of between VND 10 million and 20 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 20 million and 30 million.

7. A fine of between VND 20 million and 30 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at VND 30 million or more if violators are not subject to penal liability examination.

8. A fine doubling the fines specified in Clauses 1 thru 7 of this Article shall be imposed in either of the following cases:

a/ Violations are committed by producers, processors, mixers, subcontract producers, assemblers, re-processors, manufacturers, classifiers, bottlers, chargers, packers or importers of fake goods;

b/ Fake goods are food, curative or preventive medicines, animal feeds, fertilizers, veterinary drugs, plant protection drugs, plant varieties or animal breeds, if violators are not subject to penal liability examination.

9. Trading in fake goods specified at Point c, Clause 8, Article 3 of this Decree shall be sanctioned under regulations on sanctioning of administrative violations in relevant state management domains.

10. Additional sanctions and remedies:

a/ Forced destruction of fake goods which are unusable, unsafe and harmful to production, human or livestock health, plants or the environment, for the violations specified in this Article. When forced destruction is inapplicable or violators fail to destroy the goods, such goods shall be confiscated for destruction under regulations.

b/ Forced removal of untruthful elements on goods labels or packings, for the violations specified in this Article but not specified at Point a, Clause 10 of this Article. When it is impossible to remove the untruthful elements or violators fail to remove them, such goods shall be confiscated and handled under regulations;

c/ Confiscation of material evidence and means used for making fake goods, for the violations specified at Point a, Clause 8 of this Article.”

16. To amend and supplement Point d, Clause 1, Article 30 as follows:

“d/ Failing to organize registered trade fairs or exhibitions in Vietnam or modifying registered contents without notifying in writing such to competent state agencies within the specified time limit or without obtaining competent state agencies’ certification of such modification.”

17. To amend and supplement Point g, Clause 2, Article 30 as follows:

“g/ Displaying at fairs or exhibitions goods without labels or with labels incompliant with the law on goods labeling, except goods temporarily imported for display at fairs or exhibitions then re-exported;”

18. To amend and supplement Article 61 as follows:

“Article 61. Principles of determining the sanctioning competence and authorization of sanctioning powers

1. The principles of determining the sanctioning competence comply with Article 42 of the Ordinance and Article 15 of Decree No. 128.

2. Authorization of sanctioning powers complies with Article 41 of the Ordinance and Article 16 of Decree No. 128.”

19. To amend and supplement Clause 1, Article 62 as follows:

“1. Administrative sanctioning procedures comply with the Ordinance and Decree No. 128.”

20. To amend and supplement Article 63 as follows:

“Article 63. Determination of the value of material evidence and means used in violations as a basis for determining fine levels and sanctioning competence

The value of material evidence and means used in violations as a basis for determining fine levels and sanctioning competence shall be determined under Article 34 of Decree No. 128.”

21. To amend and supplement Article 64 as follows:

“Article 64. Application of measures to stop administrative violations and assure their handling

1. In order to promptly stop, and assure the handling of, administrative violations in commercial activities, competent persons may take measures to stop administrative violations and assure their sanctioning under Article 43 of the Ordinance.

2. The competence and procedures to apply measures to stop, and assure the handling of, administrative violations in commercial activities comply with Articles 44 thru 49 of the Ordinance and Article 17 of Decree No. 128.”

22. To amend and supplement Article 65 as follows:

“Article 65. Complaints and denunciations and settlement thereof

Lodging and settlement of complaints and denunciations about sanctioning of administrative violations in commercial activities comply with the law on complaints and denunciations.”

23. To amend and supplement Article 68 as follows:

“Article 68. Implementation responsibility

1. The Minister of Industry and Trade shall detail and organize the implementation of this Decree.

2. The Minister of Industry and Trade shall issue forms of sanctioning records and decisions for uniform use in the inspection and sanctioning of administrative violations by market management agencies at all levels within their sanctioning competence.

3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees and concerned organizations and individuals shall implement this Decree.”

Article 2. Effect

1. This Decree takes effect on February 1, 2011.

2. To annul Article 12 of the Government’s Decree No. 107/2008/ND-CP of September 22, 2008, on administrative sanctioning of acts of goods speculation and hoarding, price hiking, rumor spreading, smuggling and trade frauds; and Articles 23, 24 and 25 of the Government’s Decree No. 54/2009/ND-CP of June 5, 2009, on sanctioning of administrative violations in the domain of standards, metrology and product and goods quality.

Article 3. Transitional provisions

1. Administrative violations which are committed and for which records are made before the effective date of this Decree shall be sanctioned under relevant provisions of the Government’s Decrees No. 06/2008/ND-CP of January 16, 2008, on sanctioning of administrative violations in commercial activities; No. 107/2008/ND-CP of September 22, 2008, on administrative sanctioning of acts of goods speculation and hoarding, price hiking, rumor spreading, smuggling and trade frauds; and No. 54/2009/ND-CP of June 5, 2009, on sanctioning of administrative violations in the domain of standards, metrology and product and goods quality.

2. Administrative violations for which records are made before the effective date of this Decree but which are sanctioned after the effective date of this Decree shall be sanctioned under this Decree if they are subject to no administrative sanctioning or to lighter sanctioning forms and levels under this Decree.

Article 4. Implementation responsibilities

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees and concerned organizations and individuals shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG