Decree No. 138/2004/ND-CP dated June 17, 2004 of the Government prescribing the sanctioning of administrative violations in the customs domain

DECREE

PRESCRIBING THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE CUSTOMS DOMAIN

THE GOVERNMENT

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

Pursuant to the Customs Law of June 29, 2001;

Pursuant to the Ordinance on Handling of Administrative Violations of July 2, 2002;

At the proposal of the Finance Minister,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope and subjects of application

This Decree prescribes the sanctioning of administrative violations in the customs domain against individuals, agencies, organizations (hereinafter referred collectively to as individuals and organizations) that commit acts of intentionally or unintentionally violating law provisions on the State management over the customs domain, which are not crimes and, under the provisions of this Decree, must be administratively sanctioned.

The administrative violations in the customs domain include:

1. Violation of regulations on customs procedures;

2. Violation of regulations on customs inspection, supervision and control;

3. Violation of regulations on export, import, transit of goods, luggage, foreign exchanges, gold, Vietnamese currency, precious metals, precious stones, antiques, cultural products, postal parcels, objects on exiting, entering or transiting means of transport and other assets (hereinafter referred collectively to as commodities); violation of regulations on exit, entry, transit of transport means.

Article 2.- Principles for sanctioning of administrative violations in the customs domain

The principles for sanctioning of administrative violations in the customs domain shall comply with the provisions in Article 3 of the Ordinance on Handling of Administrative Violations.

Article 3.- Extenuating and aggravating circumstances

1. The extenuating circumstances include:

a) The extenuating circumstances prescribed in Article 8 of the Ordinance on Handling of Administrative Violations;

b) The first-time violations in the customs domain;

c) The material evidences of violation have the value smaller than the minimum fine level in the fine bracket applicable to violation acts.

2. The aggravating circumstances include the aggravating circumstances prescribed in Article 9 of the Ordinance on Handling of Administrative Violations.

Article 4.- Forms of sanctioning administrative violations in the customs domain and remedial measures

1. For each administrative-violation act, the violating individuals or organizations shall be subject to one of the following principal sanctioning forms:

a) Caution;

b) Fine.

The maximum fine level in the customs domain is VND 70,000,000.

The specific fine level for an act of administrative violation is the average level of the fine bracket prescribed for that violation act. In cases where extenuating circumstances are involved, the fine levels shall be reduced but must not be lower than the minimum level of the fine bracket. In cases where aggravating circumstances are involved, the fine levels can be raised but must not exceed the maximum level of the fine bracket.

2. Depending on the nature and seriousness of violations, individuals and organizations committing administrative violations may also be subject to the application of one or all of  the following additional sanctioning forms:

a) Deprivation of the right to use licenses, practice certificates;

b) Confiscation of material evidences, means used for commission of administrative violations.

3. Apart from the sanctioning forms prescribed in Clauses 1 and 2 of this Article, individuals and organizations committing administrative violations may also be subject to the application of one or all of the following remedial measures:

a) Forcible destruction of violation material evidences being harmful cultural products, goods harmful to human health, domestic animals and crops;

b) Forcible taking out of Vietnam or forcible re-export of violation goods, means;

c) Forcible refunding of the money amounts equal to the value of material evidences and/or violation means already sold, dispersed or destroyed against law provisions.

4. For violation acts not subject to the application of additional sanctioning form of confiscation of goods and remedial measures, the goods and/or means of administrative violations can be cleared from customs procedures according to law provisions if the violators have fully paid fines according to regulations or been guaranteed by credit institutions or other organizations licensed to conduct a number of banking activities with the payable fine amounts for execution of the sanctioning decisions.

Article 5.- Responsibility for coordination in sanctioning of administrative violations in the customs domain

In order to ensure that the sanctioning of administrative violations in the customs domain is carried out in a swift, fair and absolute manner according to law provisions, the concerned individuals and organizations shall have to supply fully and in time information, documents related to export, import or transit commodities, exiting, entering or transiting means of transport involved in administrative violations, when so requested by customs offices.

Article 6.- Statute of limitations for sanctioning

1. The statute of limitations for sanctioning an administrative violation in the customs domain is 2 years counting from the date the administrative violation is committed. Past the above-said time limit, sanction shall not be imposed but remedial measures prescribed in Clause 3, Article 4 of this Decree still apply.

2. For individuals who have been instituted with lawsuits, prosecuted or brought to trial under issued decisions, according to criminal procedures, but later get decisions to suspend the investigation or suspend their cases and their violation acts show signs of administrative violations in the customs domain, they shall be administratively sanctioned according to the provisions of this Decree; in this case, the statute of limitations for sanctioning administrative violations is 3 months as from the date the persons with sanctioning competence receive the decisions to suspend investigation or suspend cases and the dossiers of the violation cases.

3. Within the time limits prescribed in Clauses 1 and 2 of this Article, if the violating individuals or organizations again commit acts of administrative violation in the customs domain or deliberately shirk or obstruct the sanctioning, the statue of limitations for sanctioning of administrative violations prescribed in Clauses 1 and 2 of this Article shall not apply. In this case, the statute of limitations for sanctioning of administrative violations shall be recalculated from the time the new administrative violations are committed or the time the acts of shirking or obstructing the sanctioning stop.

Article 7.- Cases not sanctioned for administrative violations

Administrative sanctions shall not be imposed in the following cases:

1. The cases prescribed in Clause 6, Article 3 of the Ordinance on Handling of Administrative Violations, Article 4 of the Government’s Decree No. 134/2003/ND-CP of November 14, 2003 detailing the implementation of a number of articles of the 2002 Ordinance on Handling of Administrative Violations.

2. Goods, transport means are introduced into the Vietnamese territory due to fires, natural disasters, enemy sabotage, unexpected events, in emergency circumstances, which must be subject to customs declaration according to law provisions; such goods and/or transport means must be taken out of the Vietnamese territory when the above-mentioned factors have been overcome.

3. Mistakes are committed in the course of consigning export goods or import goods, which, however, have been notified in writing by goods consignors or their lawful representatives or goods consignees to the customs offices, and accepted by the heads of the Customs Sub-Departments before the time of actual goods inspection. This regulation shall not apply to cases where export or import goods are narcotics, weapons, reactionary documents.

4. Customs declarations are modified, supplemented or replaced strictly according to regulations in Clause 2, Article 22 of the Customs Law.

5. Goods are exported or imported at variance with the customs declarations, but the declared tax amounts are equal to or larger than the payable tax amounts while there have appeared no intention to evade the implementation of other law provisions on export or import.

6. Goods are exported or imported at variance with the customs declarations in terms of quantity, weight prescribed in Clause 3 of Article 15, Point a of Clause 3, Article 16, Point a of Clause 1, Article 17 of this Decree while such export or import goods are valued at under VND 10,000,000.

7. Goods are exported or imported at variance with the customs declarations in terms of quantity, weight prescribed in Clause 1 of Article 11, Clauses 1 and 2 of Article 12 of this Decree while such export or import goods are valued at under VND 500,000.

8. Violation of regulations on customs declarations for gold, foreign exchange, Vietnamese currency of persons on exit or entry, where the violation material evidences are valued at under VND 10,000,000.

Chapter II

SANCTIONING FORMS AGAINST INDIVIDUALS, ORGANIZATIONS COMMITTING CUSTOMS- RELATED ADMINISTRATIVE VIOLATIONS

Article 8.- Violation of regulations on time limits for carrying out customs procedures

1. Caution or a fine of between VND 50,000 and 300,000 for acts of carrying out customs procedures not within the time limits prescribed in the Customs Law.

2. A fine of between VND 300,000 and 500,000 for one of the following violations:

a) Submitting vouchers in the customs dossiers entitled to delayed submission under law provisions not within the prescribed time limits;

b) Temporarily importing for re-export, temporarily exporting for re-import goods and/or transport means not within the time limits prescribed in permits, customs declarations or other papers according to law provisions.

3. A fine of between VND 500,000 and 2,000,000 for one of the following violations:

a) Failing to submit vouchers which must be submitted in the customs dossiers entitled to delayed submission according to law provisions;

b) Failing to declare within the law-prescribed time limits any changes in the purposes of using the goods.

Article 9.- Violation of regulations on customs supervision

1. A fine of between VND 200,000 and 1,000,000 for acts of failing to keep intact the customs seals on storehouses, goods or transport means, which are being subject to customs inspection and supervision without any plausible reasons.

2. A fine of between VND 500,000 and 2,000,000 for acts of moving transport means and/or goods, which are being subject to customs supervision, in contravention of regulations.

3. A fine of between VND 10,000,000 and 15,000,000 for acts of changing without permission the packings, appearances, industrial designs, origins, labels, trademarks of goods being subject to customs supervision.

4. A fine of between VND 15,000,000 and 20,000,000 and confiscation of violation material evidences for one of the following violations:

a) Changing without permission types, quantity, quality or weight of goods being subject to customs supervision;

b) Consuming without permission goods being subject to customs supervision.

5. Forcible payment of money sums equal to the violation material evidences already consumed, for violations prescribed at Point b, Clause 4 of this Article.

Article 10.- Violation of regulations on purchase, sale or exchange of goods of border residents

Border residents prescribed in this Decree are persons having permanent residence registration or being permitted to temporarily reside for a long time in border communes.

1. Caution or a fine of between VND 50,000 and 200,000 for one of the following violations:

a) Bringing across border goods in excess of law-prescribed limits without making customs declarations;

b) Bringing across border goods not permitted by the State for exchange.

2. A fine of between VND 200,000 and 1,000,000 for one of the following violations:

a) Violation of the provisions at Point a, Clause 1 of this Article where the goods in excess of the prescribed limits are valued at over VND 5,000,000;

b) Bringing goods across border not through the prescribed border-gates;

c) Harboring, trading, transporting within the customs operation areas illegally-imported goods.

3. Persons who are not border residents but abuse the policies on goods trading, exchange for border residents to illegally transport goods across borders, which are, however, not crimes, shall be sanctioned as follows:

a) A fine of between VND 3,000,000 and 5,000,000, for cases where violation material evidences are valued at under VND 20,000,000;

b) A fine of between VND 5,000,000 and 15,000,000, for cases where violation material evidences are valued at VND 20,000,000 or more;

4. Confiscation of material evidences, for violations prescribed at Point b of Clause 1, Point c of Clause 2 and Clause 3 of this Article. If violation material evidences are harmful cultural products, goods harmful to human health, domestic animals and/or crops, they shall be compelled to be taken out of the Vietnamese territory or destroyed.

5. Violations prescribed at Point a of Clause 1, Points a, b of Clause 2 of this Article with acts of evading taxes shall be sanctioned according to law provisions on tax.

Article 11.- Violation of regulations on goods export, import in form of gifts

1. Caution or a fine of between VND 50,000 and 200,000 for acts of exporting or importing gifts at variance with customs declarations.

2. A fine of between VND 200,000 and 1,000,000 for violation acts prescribed in Clause 1 of this Article where the violation material evidences are on the list of those banned from export, import or subject to conditional export or import but failing to satisfy the conditions for export or import.

3. Individuals and organizations committing the violations prescribed in Clause 2 of this Article, apart from being fined, shall be forced to take the imported goods out of the Vietnamese territory or shall not be allowed to export the goods volumes exported in contravention of law provisions; if material evidences are narcotics, weapons, explosives, support tools, reactionary documents, harmful cultural products, they shall be handled according to law provisions.

Article 12.-  Violation of regulations on export, import of goods by persons on exit or entry

1. Caution or a fine of between VND 50,000 and 200,000 for acts of violating the regulations on customs  declaration when exporting, importing luggage.

2. A fine of between VND 200,000 and 500,000 for acts of violating the regulations on customs declaration when exporting, importing goods beyond the prescribed luggage limits.

3. A fine of between VND 500,000 and 2,000,000 for one of the following violations:

a) The violations prescribed in Clause 2 of this Article with material evidences being valued at VND 10,000,000 or more;

b) The violations prescribed in Clause 2 of this Article with material evidences being goods banned from export or import or subject to conditional export or import but failing to meet the conditions for export, import.

4. The persons who commit violations prescribed at Point b of Clause 3, this Article, shall not be allowed to export or import the goods in violation or have such goods confiscated if the goods are banned from export or import, but exported or imported without making customs declarations.

5. Violation of the regulations in Clause 2, Point a of Clause 3 of this Article involving tax evasion shall be sanctioned according to tax laws.

Article 13.- Violation of regulations on export or import of goods being assets on movement

Caution or a fine of between VND 100,000 and 500,000 for acts of violating the regulations on customs declaration upon the export or import of goods being assets on movement.

Article 14.- Violation of regulations on customs supervision

1. Caution or a fine of between VND 200,000 and 500,000 for one of the following violations:

a) Boarding, getting off transport means carrying export or import goods being subject to customs inspection, when not so permitted by customs offices;

b) Failing to stop exit, entry or transit transport means at the prescribed places for carrying out the customs procedures.

2. A fine of between VND 1,000,000 and 3,000,000 for acts of failing to strictly observe the regulations on customs management when operating ships carrying export, import goods into Vietnam not at the prescribed ports.

3. A fine of between VND 3,000,000 and 5,000,000 for one of the following violations:

a) Approaching without permission ships, boats carrying export or import goods, which are carrying customs procedures;

b) Failing to obey the commands of customs officers as prescribed when moving transport means within the customs operation areas;

c) Failing to realize the request to open the goods storages according to regulations for customs officers to check;

d) Bringing into customs operation areas export or import goods without adequate valid papers as prescribed;

e) Harboring, trading, transporting within customs operation areas illegally imported goods with violation material evidences being valued at under VND 20,000,000.

4. A fine of between VND 5,000,000 and 10,000,000 for one of the following violations:

a) Unloading goods not at the right destination ports stated in the bills of lading without plausible reasons;

b) Operating exit, entry or transit means of transport not on the prescribed routes nor through the prescribed border-gates;

c) Loading, unloading, transshipping, disconnecting wagons of, export, import or transit goods on transport means being subject to customs inspection, supervision.

5. A fine of between VND 5,000,000 and 15,000,000 for one of the following violations:

a) Harboring, trading, transporting illegally imported goods in customs operation areas with violation material evidences being valued at VND 20,000,000 or more;

b) Dispersing, destroying or abandoning goods to evade the customs inspection, supervision and control.

6. A fine of between VND 10,000,000 and 20,000,000 for acts of fraudulently exchanging, dispersing violation material evidences and/or means already detected and temporarily seized.

7. Confiscation of violation material evidences, for violations prescribed at Point e of Clause 3, Clauses 5 and 6 of this Article.

Those who commit the violations prescribed at Point b of Clause 5, Clause 6 of this Article with material evidences and/or means having disappeared shall be compelled to pay money sum equal to the value of the violation material evidences and/or means.

Article 15.- Violation of regulations on customs inspection

1. A fine of between VND 1,000,000 and 4,000,000 for one of the following violations:

a) Failing to carry export or import goods to the prescribed places for carrying out the customs procedures;

b) Failing to supply information, vouchers and/or documents related to export or import goods, exit or entry transport means, when so requested by customs offices according to law provisions;

c) Failing to abide by decisions on post-customs clearance inspection without plausible reasons;

d) Failing to adequately archive customs dossiers, accounting books, vouchers related to export or import goods already cleared from customs procedures within the law-prescribed archival duration;

e) Failing to present retained goods being objects liable to post-customs clearance inspection at requests of customs offices;

f) Failing to arrange personnel, means in service of actual inspection of goods and/or transport means when so requested by customs offices without plausible reasons.

2. A fine of between VND 3,000,000 and 5,000,000 for one of the following violations:

a) Assigning, using goods entitled to customs privileges against regulations;

b) Using without permission goods assigned for management pending customs procedure clearance;

c) Exporting, importing goods against the State’s regulations on humanitarian aid.

3. A fine of between VND 5,000,000 and 10,000,000 for acts of exporting or importing goods without customs declarations or at variance with customs declarations in terms of quantity, weight, quality, commodity codes, value, origins.

4. A fine of between VND 10,000,000 and 15,000,000 for one of the following acts:

a) Exporting, importing goods at variance with the contents of permits;

b) Violations prescribed in Clause 3 of this Article with material evidences being valued at VND 50,000,000 or more;

c) Changing the forms, structure or nature of goods so as to legalize their export, import;

d) Fraudulently substituting goods having already gone through customs inspection for goods having not yet gone through customs inspection.

5. Violations prescribed at Point a of Clause 2, Clause 3, Points b and c of Clause 4 of this Article involving tax evasion shall be sanctioned according to the provisions of tax legislation.

6. A fine of between VND 10,000,000 and 20,000,000 for one of the following violations:

a) Exporting or importing goods against regulations on customs privileges and immunity;

b) Exporting or importing goods banned from export or import;

c) Importing goods of fake origins into Vietnam; exporting goods of fake origins;

d) Importing goods and/or transport means into the Vietnamese territory without permission of competent State bodies as prescribed;

e) Exporting, importing goods without the prescribed permits;

f) Forging customs seals, papers in customs dossiers in order to export, import goods, which do not constitute crimes;

g) Failing to produce permits when goods arrive at border-gates, for import goods which, according to regulations, require permits before signing contracts.

7. A fine of between VND 40,000,000 and 70,000,000 for one of the following violations:

a) Exporting, importing goods harmful to human health;

b) Exporting, importing goods which pollute environment or spread epidemics.

8. In addition to fines, individuals and organizations committing administrative violations shall also be subject to the following additional sanctions or remedial measures:

a) Confiscation of goods if committing the violations prescribed at Point c of Clause 2, Point d of Clause 4, Clause 6 of this Article, except for cases where material evidences are forced to be taken out of the Vietnamese territory as prescribed;

b) Deprivation of the right to use permits or substitute papers for a period of between 30 and 90 days, for cases of relapse into, or repetition of one of the violations prescribed at Points a and c of Clause 4, Point g of Clause 6 of this Article;

c) Forcible export of violation material evidences from the Vietnamese territory, for the violations prescribed in Clause 3, Points a and b of Clause 4 of this Article, where the import goods violate law provisions on technical standards;

d) Forcible taking out of the Vietnamese territory within 30 days after being handed the sanctioning decisions, or forcible destruction, of violation material evidences and/or means, for violations prescribed in Clause 7 of this Article.

Article 16.- Violation of regulations on bonded warehouses, tax suspension warehouses

1. A fine of between VND 200,000 and 500,000 for one of the following violations:

a) Failing to notify customs offices of the expiry of the warehouse-renting contracts;

b) Failing to take goods out of bonded warehouses upon the expiry of warehouse-renting contracts;

c) Registering the percentages of imported raw materials entitled to tax suspension, submitting dossiers on goods liquidation not within the law-prescribed time limits.

2. A fine of between VND 500,000 and 2,000,000 for one of the following violations:

a) Moving goods from one bonded warehouse to another without the consents of customs offices;

b) Providing services of reinforcing packings, classifying goods, sampling goods retained in bonded warehouses without supervision by customs officers;

c) Expanding, narrowing or relocating bonded warehouses without permission;

d) Failing to open books for monitoring the export, import, warehousing, ex-warehousing of goods according to law provisions;

e) Failing to strictly observe the regime of reporting on the actual conditions of goods in warehouses and the situation of warehouse operations;

f) Violation of regulations on liquidation of goods in tax-suspension warehouses.

3. A fine of between VND 1,000,000 and 5,000,000 for one of the following violations:

a) Putting goods into bonded warehouses at variance with the customs declarations or bonded warehouse-renting contracts according to law provisions;

b) Putting goods into tax-suspension warehouses in contravention of law provisions.

4. A fine of between VND 5,000,000 and 10,000,000 for one of the following violations:

a) Introducing from overseas into bonded warehouses goods not entitled to be retained in bonded warehouses as provided for;

b) Continuing to deal in bonded warehouses when the bonded warehouse-establishing permits have already been withdrawn;

c) Erasing, modifying bonded warehouse-establishing permits;

d) Failing to carry out customs procedures when taking goods out of, or putting goods into, bonded warehouses;

e) Arbitrarily dispersing goods retained in bonded warehouses, tax-suspension warehouses;

f) Destroying goods retained in bonded warehouses or tax-suspension warehouses in contravention of law provisions.

5. Apart from the application of forms of fine, the violating individuals and organizations shall also be subject to the following additional sanctioning forms or remedial measures:

a) Confiscation of goods, for violations prescribed at Points d and e of Clause 4 of this Article.

If the material evidences of the violation prescribed at Point e, Clause 4 of this Article have no longer existed, sums of money equal to the value of violation evidences must be paid.

b) Forcible taking of goods out of the Vietnamese territory within 30 days after being handed the sanctioning decisions or forcible destruction of violation goods, for the violations prescribed at Point a of Clause 3, Point a of Clause 4 of this Article. For goods with fake labels or Vietnamese appellations or origins, the violation signs must be eliminated before the goods are taken out of the Vietnamese territory.

Article 17.- Violation of regulations on customs management over goods processed for foreign countries, goods imported for production of exports

1. A fine of between VND 1,000,000 and 5,000,000 for one of the following violations:

a) Exporting or importing goods without making customs declarations or in contravention of customs declarations in terms of quantity, weight, quality, commodity codes, categories, value, origins;

b) Arbitrarily using goods not for the right purposes already registered with customs offices;

c) Violation of regulations on liquidation of goods processed for foreign countries, goods imported for production of exports;

d) Violation of regulations on retention of samples, dossiers, vouchers;

e) Violation of other regulations on customs management over goods processed for foreign countries and goods imported for production of exports.

2. A fine of between VND 5,000,000 and 10,000,000 and confiscation of violation material evidences for acts of exporting or importing goods subject to export or import ban or to permits as provided for by law without the permits.

3. Violation of regulations on customs management over goods processed for foreign countries and goods imported for production of exports, involving acts of tax evasion, shall be sanctioned according to tax legislation.

Article 18.- Violation of regulations on customs management over export processing zones, enterprises in export processing zones, free trade zones, border-gate economic zones and other customs preference areas

1. A fine of between VND 1,000,000 and 5,000,000, for violation of the regulations on customs management over export processing zones, enterprises in export processing zones, free trade zones, border-gate economic zones and other customs preference areas.

2. The violations prescribed in Clause 1 of this Article involving tax evasion acts shall be sanctioned according to tax legislation.

Article 19.- Violation of regulations on customs declaration of foreign exchange, gold by persons on exit or entry

1. Upon exit:

a) A fine of between VND 500,000 and 3,000,000 for acts of carrying foreign exchange, gold in violation of the regulations on customs declaration with violation material evidences being valued at between VND 10,000,000 and under 30,000,000;

b) A fine of between VND 3,000,000 and 10,000,000 for acts of carrying foreign exchange, gold in violation of the regulations on customs declaration with violation material evidences being valued at between VND 30,000,000 and 70,000,000;

c) A fine of between VND 10,000,000 and 15,000,000 for acts of carrying foreign exchange, gold in violation of the regulations on customs declaration with violation material evidences being valued at between VND 70,000,000 and under 100,000,000;

d) A fine of between VND 30,000,000 and 70,000,000 for acts of violating the regulations on customs declaration with material evidences being valued at VND 100,000,000 or more, which are not crimes.

2. Upon entry:

a) A fine of between VND 500,000 and 2,000,000 for acts of carrying foreign exchange, gold in violation of the regulations on customs declaration with material evidences being valued at between VND 10,000,000 and 50,000,000;

b) A fine of between VND 2,000,000 and 5,000,000 for acts of carrying foreign exchange, gold in violation of the regulations on customs declaration with violation material evidences being valued at between VND 50,000,000 and under 100,000,000;

c) A fine of between VND 5,000,000 and 10,000,000 for one of the following violations:

- Over-declaring foreign exchange or gold with value being equal to between VND 10,000,000 and under 100,000,000.

- Violation of the regulations on customs declaration with material evidences being valued at VND 100,000,000 or more, which do not constitute crimes.

d) A fine of between VND 10,000,000 and 20,000,000 for acts of over-declaring foreign exchange, gold with value of VND 100,000,000 or more.

3. Violation material evidences shall be returned once the sanctioning decisions were executed. The export, import of foreign exchange, gold shall comply with law provisions.

Article 20.- Violation of the regulations on customs declaration of Vietnamese currency by persons on exit, entry

1. Caution or a fine of between VND 200,000 and 1,000,000 for acts of carrying Vietnamese currency upon exit, entry in violation of the regulations on customs declaration with violation material evidences being valued at between VND 10,000,000 and 20,000,000.

2. A fine of between VND 1,000,000 and 5,000,000 for acts of carrying Vietnamese currency upon exit, entry in violation of the regulations on customs declaration with violation material evidences being valued at between VND 20,000,000 and under 100,000,000.

3. A fine of between VND 5,000,000 and 20,000,000 for acts of violating the regulations on customs declaration with violation material evidences being valued at VND 100,000,000 or more, which, however, do not constitute crimes.

4. The violation material evidences shall be returned once the sanctioning decisions were executed. The export or import of Vietnamese currency shall comply with the current law provisions.

Article 21.- Insulting, threatening, obstructing customs officers on official duty

1. A fine of between VND 500,000 and 1,000,000 for acts of hurting the honor of, or obstructing customs officers being on official duty.

2. A fine of between VND 1,000,000 and 3,000,000 for acts of threatening or using force to resist customs officers on official duty, which are, however, not crimes.

Chapter III

SANCTIONING COMPETENCE

Article 22.- Competence to sanction customs-related administrative violations

1. Leaders of the operation teams of Customs Sub-Departments are competent:

a) To impose caution;

b) To impose fines of up to VND 500,000.

2. Directors of Customs Sub-Departments, leaders of the Control Teams of the Customs Departments of provinces, inter-provinces or centrally-run cities (hereinafter referred collectively to as Customs Department); leaders of the Anti-Smuggling Control Teams and heads of Marine Control Flotillas under the Anti-Smuggling Investigation Department of the General Department of Customs have the right:

a) To impose caution;

b) To impose fines of up to VND 10,000,000;

c) To confiscate material evidences, means used for commission of administrative violations, with value of up to VND 20,000,000.

3. The directors of the Customs Departments have the right:

a) To impose caution;

b) To impose fines of up to VND 20,000,000;

c) To deprive of the right to use permits falling under their jurisdiction;

d) To confiscate material evidences, means used for commission of administrative violations;

e) To force the taking out of the Vietnamese territory or to force the re-export of violation material evidences and/or means;

f) To force the destruction of violation material evidences being harmful cultural products, goods harmful to human health, domestic animals and crops;

g) To force the payment of sums of money equal to the value of violation material evidences and/or means sold, dispersed or destroyed illegally.

4. The head of the Anti-Smuggling Investigation Department under the General Department of Customs has the right:

a) To impose caution;

b) To impose fines of up to VND 70,000,000 for acts of violation in the field of customs and fines of up to VND 100,000,000 in the field of tax (except otherwise provided for by tax laws);

c) To deprive of the right to use permits falling under his/her jurisdiction;

d) To confiscate material evidences, means of administrative violations;

e) To force the taking out of the Vietnamese territory or to force the re-export of material evidences, means of administrative violations.

f) To force the destruction of material evidences being harmful cultural products or goods harmful to human health, domestic animals and crops;

g) To force the payment of sums of money equal to the value of material evidences and/or means already sold, dispersed or destroyed illegally.

5. For violation acts prescribed in tax laws related to export/import goods, the persons with sanctioning competence defined in Clauses 2, 3 and 4 of this Article are competent to sanction them under the provisions of tax legislation.

6. The provincial/municipal People’s Committee presidents are competent to sanction administrative violations under the provisions in Article 30 of the Ordinance on Handling of Administrative Violations regarding acts of violating the provisions of this Decree.

7. Border guards, coast guards are competent to sanction, under the provisions in Articles 32 and 33 of the Ordinance on Handling of Administrative Violations, customs-related administrative violations prescribed in Articles 10 and 14 of this Decree.

Article 23.- Determining the sanctioning competence

1. The sanctioning competence of the persons defined in Article 22 of this Decree is the competence applicable to an act of administrative violation. In case of fine, the sanctioning competence is determined on the basis of the maximum level of the fine bracket prescribed for each violation act.

2. In cases of sanctioning a person who commits many violation acts, the sanctioning competence is determined according to the following principle:

If the sanctioning level, additional sanctioning form and remedial measures prescribed for each act fall under the sanctioner’s competence, the sanctioning competence still belongs to such person. If the sanctioning level, additional sanctioning form or remedial measures prescribed for one of those acts fall beyond the sanctioner’s competence, such person must transfer all dossiers on the violation case to the person with sanctioning competence.

3. For acts subject to the maximum level of VND 20,000,000 in the fine bracket, the directors of Customs Departments shall transfer the dossiers to the People’s Committees of the provinces or centrally-run cities where the administrative violations are committed or where the Customs Departments are headquartered in cases the administrative violations are committed in the sea areas under Vietnam’s sovereignty so that the provincial/municipal People’s Committee presidents decide on the sanctioning.

4. For all acts of violating the customs legislation which are committed on land, the territorial sea, areas adjacent to the territorial sea, continental shelf or exclusive economic zone of the Socialist Republic of Vietnam in the geographical areas under the management of any customs offices, such customs offices shall have the responsibility to sanction them according to the competence prescribed in this Decree; in cases where they are detected by the Anti-Smuggling Investigation Department, the sanctioning shall be effected according to its competence.

5. For localities along national borders and  areas where customs organizations are not available, the border guards or the coast guards stationing in those areas shall have the right to sanction, according to the provisions in Articles 32 and 33 of the Ordinance on Handling of Administrative Violations, acts of administrative violation in the customs domain prescribed in Articles 10 and 14 of this Decree.

Chapter IV

MEASURES TO PREVENT ADMINISTRATIVE VIOLATIONS AND ENSURE THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS

Article 24.- Holding people in custody according to administrative procedures

1. The holding of people in custody according to administrative procedures shall apply only in cases where it is necessary to prevent, stop immediately acts of causing public disturbances in customs operation areas, inflicting injuries on customs officers on official duty or it is necessary to gather, verify important details to be used as basis for issuing decisions on administrative sanctions.

2. The custody duration applicable to persons committing administrative violations shall not exceed 12 hours counting from the time of holding the violators. In case of necessity, the custody duration may prolong but must not exceed 24 hours. In far-flung mountainous regions, islands, the custody duration can be longer but must not exceed 48 hours.

3. All cases of human custody must be decided in writing and each person held in custody must be given such a written decision.

4. It is strictly forbidden to hold persons committing administrative violations in remand homes, criminal detention rooms or places failing to ensure hygiene and safety for persons held in custody.

5. At the requests of persons held in custody, the persons issuing custody decisions must notify their relatives, offices, work or study places thereof. When minors are held in custody in the night time for more than 6 hours, their parents or guardians must necessarily be notified thereof.

Article 25.- Competence to hold people in custody according to administrative procedures

The following persons are competent to issue decisions to hold people in custody according to administrative procedures:

Directors of Customs Sub-Departments, leaders of Control Teams of Customs Departments, heads of Anti-Smuggling Control Teams and heads of Marine Control Flotillas under the Anti-Smuggling Investigation Department of the General Department of Customs.

In cases where the above-defined persons are absent, their authorized deputies are competent to issue decisions on holding people in custody according to administrative procedures.

The human custody must strictly comply with the principles, procedures and order prescribed in Article 44 of the Ordinance on Handling of Administrative Violations.

Article 26.- Temporary seizure of material evidences and means of administrative violations

1. The temporary seizure of violation material evidences and means shall only apply in case of necessity to immediately stop the administrative violations or to verify details for use as basis to decide on the sanctioning.

The persons defined in Article 25 of this Decree are competent to decide on temporary seizure of material evidences and means of administrative violations.

2. In case of necessity, the persons competent to sanction administrative violations, defined in Clause 1, Article 22 of this Decree, are also competent to issue decisions on temporary seizure of material evidences and means of administrative violations. Within 24 hours as from the time of issuing decisions, the decision issuers must report thereon to their immediate bosses defined in Article 25 of this Decree and get the written consents of such persons.

3. The persons issuing decisions on temporary seizure of material evidences and/or means of administrative violations shall have to organize the preservation of such material evidences and/or means; if the material evidences and/or means are lost, fraudulently substituted or damaged due to their faults, they must pay compensations therefor and shall also be handled according to law provisions.

Where the violation material evidences and/or means need to be sealed, the sealing thereof must be conducted in the presence of the violators or their representatives, the representatives of local administrations and witnesses.

4. For Vietnamese currency, foreign exchange, narcotics and other objects subject to special management regime, the preservation thereof shall comply with law provisions.

5. For material evidences of administrative violations, which are types of goods easily to decay, the temporary seizure decision issuers must make separate records and organize the immediate sale thereof. The proceeds therefrom must be deposited into custody accounts opened at State Treasuries. If later the material evidences are confiscated under decisions of competent persons, such proceeds must be remitted into the State budget; where the material evidences are not confiscated, the proceeds must be returned to their lawful owners, managers or users.

6. Within 10 days as from the date of temporary seizure, the persons competent to decide on the temporary seizure and the sanctioning must handle the temporarily-seized material evidences and/or means by measures stated in the sanctioning decisions. If the sanctioning form of confiscation is not applied, the material evidences or the proceeds from the sale thereof shall be returned to their lawful owners, managers or users.

The duration for temporary seizure of material evidences and/or means can be prolonged but shall not exceed 60 days for violation cases involving many complicated circumstances which need to be verified or relating to many domestic and foreign individuals and/or organizations.

7. The temporary seizure of material evidences and/or means of administrative violations must be decided and recorded in writing and violators and/or representatives of the violating organizations must each be given a copy of such decision.

Article 27.- Body search according to administrative procedures

1. The body search according to administrative procedures shall be conducted only when there are grounds to believe that such persons hide in their bodies goods, documents or means of administrative violations. The body search must be decided in writing and the searched persons must each be handed a copy of such decision.

2. Only competent persons defined in Article 25 of this Decree can decide on body search according to administrative procedures.

3. Before conducting body search, the searchers must show their customs identify cards and notify the body search decisions to the searched persons. When conducting body search, the female shall search the female and the male shall search male to the witness of persons of the same sex.

4. All cases of body search must be recorded and the searched persons must each be handed a copy of such records.

Article 28.- Search of transport means, objects according to administrative procedures

1. The search of transport means and objects according to administrative procedures shall be conducted only when there are grounds to believe that material evidences and/or means of administrative violations are hidden in such transport means or objects. The search of transport means and objects according to administrative procedures must be decided in writing.

2. Only persons defined in Article 25 of this Decree shall have the competence to decide on search of transport means and objects according to administrative procedures.

3. When the search of transport means and objects is conducted, the transport means or object owners or the transport means commanders or operators and a witness must be present. Where the means or object owners or means operators are absent, there must be two witnesses.

4. All cases of search of transport means, objects must be recorded and transport means or object owners or transport means commanders or operators must each be given a copy of such record.

5. The search of transport means and/or objects of subjects enjoying diplomatic privileges and immunity must comply with the provisions of international agreements which Vietnam has signed or acceded to. When there are grounds to confirm that diplomatic bags or consular bags have been abused for purposes contrary to the provisions of international agreements on diplomatic ties, consular relations, which Vietnam has signed or acceded to, or that the luggage or transport means contain goods banned from export, import or goods not entitled to law-prescribed privileges and immunity, the General Director of Customs shall decide to handle them according to such international agreements.

Article 29.- Search of places where material evidences and/or means of administrative violations are hidden

1. The search of places where material evidences and/or means of administrative violations are hidden shall be conducted only when there are grounds to believe that the material evidences and/or means of administrative violations are hidden in such places.

2. Only the competent persons defined in Article 25 of this Decree can issue decisions to search places where material evidences and/or means of administrative violations are hidden.

Where places of hiding material evidences and/or means of administrative violations are residential places, the search decisions must be agreed upon in writing by district-level People’s Committee presidents before they are implemented.

3. The search of places of hiding material evidences and/or means of administrative violations must be conducted in strict compliance with the provisions in Clauses 3, 4 and 5 of Article 49 of the Ordinance on Handling of Administrative Violations.

Chapter V

ADMINISTRATIVE VIOLATION-SANCTIONING PROCEDURES

Article 30.- Stopping administrative violations

Upon detecting administrative violations, the persons with sanctioning competence must issue decisions to immediately stop such violation acts. The stoppage decisions can be made in writing or expressed in words, whistle, signals or other forms, depending on each specific violation case.

Article 31.- Simple procedures

Where the sanctioning form of caution or fine of up to VND 100,000, the sanctioning procedures shall comply with the provisions in Article 54 of the Ordinance on Handling of Administrative Violations.

Article 32.- Making records on administrative violations

For administrative violations in the customs domain which do not fall into the cases prescribed in Article 31 of this Decree, the persons with sanctioning competence must promptly make records thereon according to regulations. If the record makers have no sanctioning competence, the persons having the sanctioning competence must sign their names in the records; in case of necessity, verification shall be made before signing the records.

Forms and contents of, and order of making, the records shall comply with the provisions in Article 55 of the Ordinance on Handling of Administrative Violations.

Article 33.- Sanctioning decisions

The forms and contents of, the order and procedures for promulgating, decisions to sanction administrative violations in the customs domain shall comply with the provisions in Article 56 of the Ordinance on Handling of Administrative Violations.

Article 34.- Handling of cases where import goods are not cleared from customs procedures within the prescribed time limits or are compelled to be taken out of the Vietnamese territory or re-exported

1. If past 90 days counting from the date the goods arrive at the unloading border-gates nobody comes to carry out the customs procedures, the competent persons defined in Clause 2, 3 and 4 of Article 22 of this Decree must announce such on the mass media or publicize it at customs offices. Within 180 days counting from the date of such announcement, if nobody comes to carry out the customs procedures, the competent persons defined in Clauses 2, 3 and 4 of Article 22 of this Decree must issue decisions to confiscate or destroy the violation material evidences according to regulations.

2. Where the owners of violation material evidences or means cannot be identified, the competent persons defined in Clauses 2, 3 and 4 of Article 22 of this Decree must announce such on the mass media and publicize it at customs offices. If after 30 days counting from the date of such announcement nobody comes to claim them, the competent persons defined in Clauses 2, 3 and 4 of Article 22 of this Decree must issue decisions to confiscate or destroy the violation material evidences or means according to regulations.

3. Goods imported at variance with permits, contracts, bills of lading or brief declarations, which are disclaimed by good consignees, shall be handled according to the provisions in Clause 2 of this Article.

4. The competent persons defined in Clause 3 and 4 of Article 22 of this Decree must notify responsible individuals or organizations of the cases where, according to regulations, goods must be re-exported or taken out of the Vietnamese territory. If past 30 days counting from the date of receiving the notification of the customs offices, the goods are not yet re-exported nor taken out of the Vietnamese territory, the competent persons defined in Clauses 3 and 4 of Article 22 of this Decree must issue decisions to confiscate or destroy the violation material evidences according to regulations, except for cases of having plausible reasons.

Article 35.- Procedures for confiscating and handling material evidences and means of administrative violations

1. When applying the form of confiscation of material evidences and/or means of administrative violations in the customs domain, the persons with sanctioning competence, defined in Clauses 2, 3 and 4 of Article 22 of this Decree must strictly comply with the confiscation procedures prescribed in Article 60 of the Ordinance on Handling of Administrative Violations.

2. Persons issuing confiscation decisions shall have to preserve and classify the violation material evidences and means for transferring them to the district-level finance agencies or the provincial/municipal auction service centers according to the provisions in Clause 1, Article 61 of the Ordinance on Handling of Administrative Violations and Articles 32, 33 and 34 of the Government’s Decree No. 134/2003/ND-CP of November 14, 2003 detailing the implementation of a number of articles of the 2002 Ordinance on Handling of Administrative Violations.

3. The confiscated material evidences and/or means of administrative violations, which are harmful cultural products, fake goods with no use value or goods harmful to human health, domestic animals and/or crops, shall be destroyed according to the provisions in Article 21 of the Ordinance on Handling of Administrative Violations.

4. Violation material evidences, which are easy-to-decay goods, shall be handled according to the provisions in Clause 3, Article 61 of the Ordinance on Handling of Administrative Violations.

Article 36.- Execution of sanctioning decisions and postponing the execution of fining decisions

1. Individuals and organizations sanctioned for administrative violations must execute the decisions on sanctioning such administrative violations within 10 days counting from the date of receiving the sanctioning decisions. The payment of fines shall comply with the provisions in Article 58 of the Ordinance on Handling of Administrative Violations.

2. Individuals and organizations that have received the administrative violation- sanctioning decisions but failed to voluntarily execute them shall be coerced to execute them according to regulations.

3. The postponement of execution of fining decisions shall comply with the provisions in Article 65 of the Ordinance on Handling of Administrative Violations.

Article 37.- Measures to coerce the execution of sanctioning decisions

1. The coercive execution of administrative violation-sanctioning decisions shall comply with the following measures:

a) Deducting part of wages or incomes, deducting money from bank accounts;

b) Distraining assets with value equivalent to the fine amounts for auction;

c) Suspending the customs procedures for export/import goods, exit, entry or transit means of transport till the sanctioning decisions are completely served.

d) Other coercive measures prescribed at Point c, Clause 1, Article 66 of the Ordinance on Handling of Administrative Violations, except for measures of forcible dismantlement of illegally-constructed works.

2. Before applying the coercive measures prescribed at Points b and d of Clause 1 of this Article, the customs offices must notify such in writing to the presidents of the People’s Committees of the wards, communes or district townships where the coercion shall be applied for implementation coordination.

3. Only the persons defined in Article 67 of the Ordinance on Handling of Administrative Violations can issue coercion decisions and have the task to organize the coercive execution of sanctioning decisions.

4. When requested by customs offices, the management or business units having individuals or organizations that are forced to execute sanctioning decisions shall have to comply with the provisions at Point a of Clause 1 of this Article.

5. The finance bodies, banks, police, border guards and the local administrations at all levels shall have to coordinate with one another for the execution of coercion decisions of customs offices.

6. The coerced individuals and organizations must bear all expenses for the organization of execution of coercive measures.

Chapter VI

COMPLAINTS, DENUNCIATIONS, COMMENDATION AND HANDLING OF VIOLATIONS

Article 38.- Complaints, denunciations

1. Individuals and organizations sanctioned for administrative violations or their lawful representatives may complain about decisions on sanctioning of administrative violations, decisions on application of preventive measures and ensure the handling of administrative violations in the customs domain.

2. All citizens are entitled to denounce illegal acts in sanctioning of administrative violations in the customs domain.

3. The competence, procedures and time limits for settlement of complaints and denunciations shall comply with law provisions on complaints and denunciations.

Article 39.- Institution of administrative lawsuits

The institution of lawsuits against administrative violation-sanctioning decisions, decisions to apply preventive measures and the assurance of sanctioning of administrative violations in the customs domain shall comply with law provisions on procedures for settlement of administrative lawsuits.

Article 40.- Commendation

Individuals and organizations that record achievements in preventing and combating administrative violations in the customs domain shall be commended/rewarded according to the general regime of the State.

Article 41.- Handling of violations

Those persons who have competence to sanction administrative violations in the customs domain but harass for bribe, tolerate, cover up, fail to sanction or sanction not in time, improperly or ultra vires the administrative violations shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability; if causing damage, they must pay compensations therefor according to law provisions.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 42.- Implementation effect

1. This Decree takes implementation effect 15 days after its publication in the Official Gazette.

2. To annul Decrees No. 16/CP of March 20, 1996; No. 54/1998/ND-CP of July 21, 1998 and No. 58/2000/ND-CP of October 24, 2000 of the Government prescribing the sanctioning of administrative violations in the customs domain.

3. Where international agreements which Vietnam has signed or acceded to contain provisions on sanctioning of administrative violations in the customs domain different from the provisions of this Decree, the provisions of such international agreements shall apply.

4. The Finance Ministry shall assume the prime responsibility for, and coordinate with the concerned ministries and branches in, guiding the implementation of this Decree.

5. The ministers, the heads of ministerial-level agencies, the heads of Government-attached agencies and the presidents of provincial/municipal People’s Committees shall have to implement this Decree.