Decree No. 115/2013/ND-CP of October 3, 2013, providing the management and preservation of administrative violation material evidences and vehicles which are temporarily seized or confiscated according to administrative procedures

THE GOVERNMENT

Decree No. 115/2013/ND-CP of October 3, 2013, providing the management and preservation of administrative violation material evidences and vehicles which are temporarily seized or confiscated according to administrative procedures

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

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

At the proposal of the Minister of Public Security;

The Government promulgates the Decree providing the management and preservation of administrative violation material evidences and vehicles which are temporarily seized or confiscated according to administrative procedures.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

1. This Decree provides the management and preservation of material evidences and vehicles which are temporarily seized or confiscated according to administrative procedures (below referred to as temporarily seized or confiscated material evidences and vehicles); the responsibilities and powers of agencies and persons managing and preserving temporarily seized or confiscated material evidences and vehicles; and the rights and obligations of agencies, organizations and individuals with temporarily seized or confiscated material evidences and vehicles.

2. This Decree does not apply to administrative violation material evidences and vehicles which are Vietnam dong, foreign currencies, papers and documents related to assets, valuable certificates, gold, silver, gems, precious metal, drug, weapons, explosive materials, supporting tools, objects of historical or cultural value, national treasures, antiques, rare and precious forest products, flora and fauna of various kinds, perishable goods and articles, articles banned from circulation, and other special assets, which are governed by the Law on Handling of Administrative Violations.

Article 2.Subjects of application

1. Vietnamese and foreign organizations and individuals with temporarily seized or confiscated material evidences and vehicles.

2. Agencies, organizations and individuals involved in the management and preservation of temporarily seized or confiscated material evidences and vehicles.

Article 3.Principles of management and preservation of temporarily seized or confiscated material evidences and vehicles

1. Temporarily seized or confiscated material evidences and vehicles must be strictly and safely managed and preserved and properly arranged to facilitate examination and prevent confusion, environmental pollution or epidemic spread.

2. The value, quality and standards of temporarily seized or confiscated material evidences and vehicles must be preserved.

3. Temporarily seized material evidences and vehicles may be received, returned or transferred and confiscated material evidences and vehicles may be received or transferred to agencies, organizations or individuals only upon decisions of competent persons.

Article 4.Prohibited acts

1. Appropriating, selling, exchanging, pledging, mortgaging, fraudulently exchanging or replacing temporarily seized or confiscated material evidences and vehicles, and other self-seeking acts.

2. Illegally breaking seals or bringing temporarily seized or confiscated material evidences and vehicles out of their places of temporary storage or preservation.

3. Losing, destroying or intentionally damaging temporarily seized or confiscated material evidences and vehicles.

Article 5.Funds for the management and preservation of temporarily seized or confiscated material evidences and vehicles

1. Funds for the management and preservation of temporarily seized or confiscated material evidences and vehicles cover expenses for construction, repair, expansion or upgrading of physical foundations or hiring of places for temporarily storage; expenses for procurement of equipment and facilities necessary for the management, preservation, transportation, handover, receipt and inspection of temporarily seized or confiscated material evidences and vehicles; expenses for making announcementsin the mass media; expenses for the disposal of temporarily seized or confiscated material evidences and vehicles which are no longer usable, and other expenses as prescribed by law.

2. Funds for the management and preservation of temporarily seized or confiscated material evidences and vehicles are allocated according to the Law on the State Budget and current state budget management decentralization.

3. The Minister of Finance shall specify funds for the management and preservation of temporarily seized or confiscated material evidences and vehicles; and the levels of charges for storage and preservation of temporarily seized material evidences and vehicles.

Chapter II

MANAGEMENT AND PRESERVATION OF TEMPORARILY SEIZED OR CONFISCATED MATERIAL EVIDENCES AND VEHICLES

Article 6.Temporary storage places for temporarily seized or confiscated material evidences and vehicles

1. Temporary storage places for temporarily seized or confiscated material evidences and vehicles include houses, warehouses, wharves, storing yards, docks, working offices or other places as decided by persons competent to temporarily seize and confiscate material evidences and vehicles.

2. Temporary storage places for temporarily seized or confiscated material evidences and vehicles must ensure fire and explosion prevention and fighting and satisfy environmental protection conditions.

3. Based on local characteristics and proposals of agencies competent to seize material evidences and vehicles, provincial-level People’s Committee chairpersons shall decide to build shared storage places for material evidences and vehicles in their localities. For agencies that have to regularly store material evidences and vehicles in large quantities, provincial-level People’s Committees shall allocate land and funds for building their own storage places.

4. Provincial-level People’s Committees shall manage shared storage places for material evidences and vehicles or assign other agencies to do so. Agencies having storage places for material evidences and vehicles or assigned to manage shared storage places for material evidences and vehicles shall appoint full-time officers to manage temporarily seized material evidences and vehicles.

5. Based on practical conditions, provincial-level People’s Committee chairpersons shall decide on the designs and areas of storage places for administrative violation material evidences and vehicles in their localities.

6. The Ministry of Public Security shall specify conditions on storage places for administrative violation material evidences and vehicles.

Article 7.Tasks and powers of heads of agencies managing and preserving temporarily seized or confiscated material evidences and vehicles

1. To direct, monitor, examine and supervise the implementation of measures to manage and preserve temporarily seized or confiscated material evidences and vehicles.

2. To assign officers to manage and preserve temporarily seized or confiscated material evidences and vehicles suitable to the conditions of storage places.

3. To promptly notify agencies issuing temporary seizure decisions when the temporary seizure duration of material evidences and vehicles expires; or when violators do not come to receive material evidences and vehicles after obtaining decisions on return of material evidences and vehicles and such material evidences and vehicles are lost or damaged; and to immediately report criminal signs, if any, to competent investigation agencies.

4. To notify decisions on confiscation of material evidences and vehicles to professional auction organizations or auction councils for auction.

5. To assume the prime responsibility for, and coordinate with local People’s Committees, people’s armed forces and related agencies and units in, transporting temporarily seized or confiscated material evidences and vehicles to safe places in case of natural disaster or other cases which threaten the safety of material evidences and vehicles.

6. To propose and report the conditions of temporarily seized or confiscated material evidences and vehicles and plans for protecting, upgrading or repairing their storage places to the heads of their superior agencies or competent agencies.

Article 8.Tasks and powers of persons managing and preserving temporarily seized or confiscated material evidences and vehicles

1. To receive temporarily seized or confiscated material evidences and vehicles according to decisions of competent persons; to return temporarily seized material evidences and vehicles, or transfer them to investigation agencies or other agencies after obtaining decisions of competent persons.

2. To manage and preserve temporarily seized or confiscated material evidences and vehicles strictly according to regulations.

3. To regularly inspect storage places; to promptly detect lost or damaged material evidences or vehicles or detect unsafe storage places in order to take timely remedies.

4. To fully record the hours and dates of receipt, return and transfer of administrative violation material evidences and vehicles; the conditions of these material evidences and vehicles; the serial numbers of decisions on, time of and reasons for temporary seizure or confiscation of material evidences and vehicles, and full names and positions of persons signing the decisions and persons handing and receiving such material evidences and vehicles.

5. To make daily statistics of temporarily seized or confiscated material evidences and vehicles and regularly report to the heads of their agencies on:

a/ Quantities of temporarily seized or confiscated material evidences and vehicles;

b/ Material evidences and vehicles already returned to their owners, managers or lawful users;

c/ Quantities of material evidences and vehicles whose owners, managers or lawful users do not come to receive them back at the expiration of their temporary seizure duration;

d/ Quantities of material evidences and vehicles already transferred to competent agencies;

dd/ Total quantities of material evidences and vehicles still temporarily seized.

Article 9.Responsibility for managing and preserving temporarily seized or confiscated material evidences and vehicles

1. Persons issuing decisions on temporary seizure or confiscation of material evidences and vehicles shall manage and preserve temporarily seized or confiscated material evidences and vehicles.

2. In case material evidences and vehicles are lost, sold, fraudulently exchanged, damaged or have their parts lost or replaced, persons issuing decisions on temporary seizure or confiscation of material evidences and vehicles shall pay compensations and be handled in accordance with law. Persons directly managing and preserving material evidences and vehicles shall take responsibility before law and persons issuing seizure or confiscation decisions for the management and preservation of material evidences and vehicles.

Article 10.Rights of agencies, organizations and individuals with temporarily seized or confiscated material evidences and vehicles

1. To lodge complaints and denunciations against illegal acts or decisions of competent persons to seize or confiscate administrative violation material evidences or vehicles in accordance with the law on complaints and denunciations.

2. To inspect material evidences and vehicles upon receiving them back at the expiration of the temporary seizure duration.

3. To request officers managing material evidences and vehicles to make written records of the loss, fraudulent exchange, damage or deficit of such material evidences and vehicles during temporary seizure and request agencies managing material evidences and vehicles to pay compensations in accordance with law.

Article 11.Obligations of agencies, organizations and individuals with temporarily seized or confiscated material evidences and vehicles

1. To strictly observe decisions on temporary seizure or confiscation of administrative violation material evidences or vehicles.

2. To receive back temporarily seized material evidences and vehicles within the time limit written in temporary seizure decisions.

3. To pay charges for storage and preservation of material evidences and vehicles and other expenses during the temporary seizure thereof according to regulations.

Owners of material evidences and vehicles do not have to pay the above charges if they are not at fault for administrative violations, or when material evidences and vehicles are confiscated, or when violators themselves store and preserve vehicles according to Articles 14 and 15 of this Decree.

Article 12.Receipt of temporarily seized or confiscated material evidences and vehicles

When receiving temporarily seized or confiscated material evidences and vehicles, persons assigned to manage and preserve material evidences and vehicles shall:

1. Examine temporary seizure or confiscation decisions, temporary seizure or confiscation written records and other relevant papers.

2. Compare material evidences and vehicles with temporary seizure or confiscation written records and lists of their names, quantities, quality, volumes, types, trademarks and origin; the state of sealing (if any); record them in the monitoring book and request the persons handing over material evidences and vehicles to sign in the book.

Article 13.Management, preservation, handover and receipt of temporarily seized or confiscated material evidences and vehicles

1. Persons assigned to manage and preserve temporarily seized or confiscated material evidences and vehicles shall classify such material evidences and vehicles for proper arrangement to facilitate management and preservation work.

2. In case of seizing material evidences and vehicles while agencies competent to temporarily seize material evidences and vehicles have insufficient technical conditions for transporting such material evidences and vehicles to storage places, or when storage places lack necessary conditions for their preservation, persons competent to issue temporary seizure decisions may assign People’s Committees of communes, wards or townships where the temporarily seized material evidences and vehicles are located or assign individuals or organizations owning the temporarily seized material evidences and vehicles to manage and preserve them if seeing that this assignment will not affect the handling of administrative violations.

People’s Committees of communes, wards or townships or individuals or organizations assigned to manage material evidences and vehicles should arrange storage places meeting the conditions specified in Clause 2, Article 6 of this Decree and shall take all necessary measures to preserve such material evidences and vehicles and strictly observe decisions of temporary seizure decision issuers; and shall take responsibility before law for any loss of or damage to material evidences and vehicles caused at their fault.

3. Written records must be made upon handover and receipt of temporarily seized or confiscated material evidences and vehicles, clearly stating their quantities, quality, volumes, types, trademarks, origin and state (if any). Such written record must be made in two copies signed by the two  parties, each keeping one copy.

Article 14.Handover of vehicles involved in administrative violations to violators for storage and preservation

1. Persons competent to seize vehicles involved in administrative violations which are subject to temporary seizure to ensure execution of administrative sanctioning decisions may hand such vehicles to violators for storage and preservation under the management of agencies competent to seize vehicles if violators satisfy either of the following conditions:

a/ Violating individuals produce their household books or temporary residence books or written certifications of the agencies or units where they work; violating organizations have specific and clear operation addresses certified by commune-level People’s Committees; andviolators have places for vehicle storage and preservation which satisfy the conditions specified in Clause 2, Article 6 of this Decree;

b/ Violators that have financial capability to deposit a bail for vehicle storage and preservation.

2. Written records must be made upon handover of vehicles to violators for storage and preservation, clearly indicating the names, quantities, volumes, characteristics, types, trademarks, origin, places for storage and preservation, and state of vehicles (if any). Such a written record must be made in two copies signed by the violator and person competent to seize vehicles, each party keeping one copy.

3. Agencies competent to seize vehicles shall notify such storage and preservation to People’s Committees of communes, wards or townships where vehicles are stored and preserved forcoordinated supervision and management.

4. During the storage and preservation of vehicles, organizations and individuals assigned to store and preserve vehicles may change storage and preservation places if obtaining written approval of persons competent to seize vehicles.

5. Vehicles handed to violators for storage and preservation are not allowed for operation and their registration certificates are temporarily seized to ensure execution of sanctioning decisions (unless violators have deposited a bail).

6. During the storage and preservation of vehicles involved in administrative violations, if violators fail to strictly comply with regulations on storage and preservation places, arbitrarily change storage and preservation places, or illegally use vehicles, such vehicles must be transported to designated storage places. Violators shall take responsibility for the loss, sale, exchange, fraudulent exchange or pledge or other acts of disposing of vehicles, and be handled in accordance with law.

Article 15.Deposition of a bail for vehicles temporarily seized according to administrative procedures

1. Violators may deposit a bail for vehicles temporarily seized according to administrative procedures as prescribed at Point b, Clause 1, Article 14 of this Decree.

2. Persons competent to seize vehicles involved in administrative violations may allow violators to deposit a bail for such vehicles.

3. Procedures for depositing a bail and bail levels:

a/ Violators shall deposit a bail with persons competent to seize vehicles. The bail must at least equal the maximum fine of the fine bracket prescribed for the act of violation. The deposited bail will be returned to violators after they have completely executed sanctioning decisions.

Written records must be made upon deposition and return of bails. Such a written record must be made in two copies with one copy to be handed to the violator;

b/ Within 10 days after the expiration of the time limit for execution of a sanctioning decision, if the violator fails to execute this decision, the deposited bail will be regarded as the paid fine; if the deposited bail is larger than the fine, the difference will be returned to the violator.

4. The management and preservation of vehicles in case of deposition of bail comply with Clauses 2 thru 6, Article 14 of this Decree.

5. Cases in which deposition of a bail is not allowed:

a/ Vehicles involved in violations are material evidences of criminal cases;

b/ Vehicles have been registered as a security for transactions;

c/ Vehicles have been used for illegal racing, resisting persons on duty, or causing  public disorder or traffic accidents;

d/ Vehicles’ registration certificates are forged or tampered with;

dd/ Vehicles’ number plates are fake, or their frame and engine numbers are illegally changed or removed.

Article 16.Order and procedures for returning temporarily seized material evidencesand vehicles or transferring temporarily seized or confiscated material evidences and vehicles

1. When returning temporarily seized material evidences and vehicles or transferring temporarily seized or confiscated material evidences and vehicles, persons assigned to manage and preserve such material evidences and vehicles shall:

a/ Examine return or transfer decisions and identity cards and other relevant papers of recipients of such material evidences and vehicles;

b/ Request the recipients of temporarily seized material evidences and vehicles to check the types, quantities, volumes, quality, characteristics and conditions of material evidences and vehicles against the temporary seizure written records in the witness of managing officers. Written records must be made upon the handover and receipt of temporarily seized material evidences and vehicles;

c/ If transferring temporarily seized or confiscated material evidences and vehicles to investigation agencies, professional auction organizations, specialized state management agencies, auction councils or assessment agencies, persons managing and preserving such material evidences and vehicles shall make written records of their quantities, volumes, weight, types, trademarks, origin and conditions in two copies to be signed and kept by the transferring and receiving parties;

d/ For confiscated material evidences and vehicles which are subject to transfer to state management agencies for management and use under decisions of competent authorities, these authorities shall assume the prime responsibility for, and coordinate with same-level finance agencies in, transferring such material evidences and vehicles to the state management agencies for management and use in accordance with the law on management and use of state property.

2. Persons managing and preserving temporarily seized or confiscated material evidences and vehicles may return or transfer such material evidences and vehicles only after carrying out the procedures specified at Point a, Clause 1 of this Article.

3. When taking material evidences and vehicles out of their storage places, recipients shall take responsibility for their loss or change.

Article 17.Handling of material evidences and vehicles at the expiration of their temporary seizure duration

At the expiration of the temporary seizure duration if violators fail to receive back administrative violation material evidences and vehicles without a plausible reason or when violators cannot be identified, persons issuing temporary seizure decisions shall make announcements at least twice in central mass media or local mass media in the localities where material evidences and vehicles are temporarily seized and at the head offices of agencies of persons competent to seize material evidences and vehicles. Within 30 days after the last date of announcement, if violators do not come to receive back material evidences and vehicles, competent persons shall issue decisions to confiscate such material evidences and vehicles for handling under Article 82 of the Law on Handling of Administrative Violations and other relevant laws.

Chapter III

IMPLEMENTATION PROVISIONS

Article 18.Effect

1. This Decree takes effect on November 18, 2013.

2. To annul the Government’s Decree No. 70/2006/ND-CP of July 24, 2006, on the management of material evidences and vehicles temporarily seized according to administrative procedures, and Decree No. 22/2009/ND-CP of February 24, 2009, amending and supplementing a number of articles of Decree No. 70/2006/ND-CP of July 24, 2006, on the management of material evidences and vehicles temporarily seized according to administrative procedures.

Article 19.Implementation responsibility

1. The Minister of Public Security shall detail the implementation of this Decree.

2. Chairpersons of provincial-level People’s Committees shall build places or allocate land and funds for building places for the management of temporarily seized and confiscated material evidences and vehicles in their localities, and direct related local agencies to coordinate with one another in assuring security, order and safety in these places.

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

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG