VietnameseDecree No. 16/CP dated March 20, 1996 of the Government regulating administrative sanctions in state management over customs
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Decree No. 16/CP dated March 20, 1996 of the Government regulating administrative sanctions in state management over customs
| Issuing body: | Government | Effective date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Official number: | 16/CP | Signer: | Phan Van Khai |
| Type: | Decree | Expiry date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Issuing date: | 20/03/1996 | Effect status: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Fields: | Administrative violation , Customs |
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THE GOVERNMENT ------ | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness --------- |
No. 16-CP | Hanoi , March 20, 1996 |
DECREE
REGULATING ADMINISTRATIVE SANCTIONS IN STATE MANAGEMENT OVER CUSTOMS
THE GOVERNMENT
Proceeding from the Law on Organization of the Government of September 30, 1992;
Proceeding from the Ordinance on the Handling of Violations of Administrative Regulations of July 6, 1995;
Proceeding from the Ordinance on Customs of February 20, 1990;
At the proposal of the General Director of the General Department of Customs,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.-
1. The violations of the administrative regulations in the field of State management over customs include:
a) The violations of the regulations on customs procedures;
b) The violations of the regulations on expertise, inspection and customs control;
c) The violations of the regulations on import, export or transit of goods, baggages, mail items post packages, foreign currencies, Vietnamese currency and other articles (hereafter referred to collectively as goods and articles) and transport means for import, export and transit of goods in Vietnam.
d) The acts of smuggling or illegal transport of goods or currencies across the Vietnamese border, which are not so serious as to be subject to examination for penal liability.
2. The individuals and organizations specified in Article 5 of the Ordinance on the Handling of Violations of Administrative Regulations that commit violations of administrative regulations in the field of State management over customs shall be sanctioned in accordance with the provisions of this Decree.
Article 2.- The levying of administrative sanctions and application of measures to prevent and ensure the handling of violations of administrative regulations on customs shall comply with the principles, procedures and jurisdiction stipulated in the Ordinance on the Handling of Violations of Administrative Regulations.
Article 3.- To ensure that the sanctions are levied on a sound and just ground, the State agencies, economic and social organizations and individuals are responsible for providing the documents related to goods and articles in import and export; and the transport means involved in import and export activities which violate administrative regulations on customs if so requested by the Customs authorities.
Article 4.-
1. The time limit for sanctions of violations of administrative regulations in the field of State management over customs is 2 years from the date the violation is committed. If this time limit has expired, no sanction shall be levied, but one of the following measures may be taken:
a) Forcible restoration of the initial state which has been changed as a result of the violation of administrative regulations;
b) Forcible elimination of the contamination of the living environment or the spread of diseases and epidemics caused by the violation of administrative regulations;
c) Forcible destruction of items which are hazardous to human health, and the harmful cultural products.
2. For an individual who has been prosecuted or put on trial or who has been subjected to criminal litigation and whose case is now suspended, if his/her act of violation is liable to sanctions under administrative regulations on customs, he/she shall be sanctioned in accordance with the provisions of this Decree; and the time limit for the sanction is three months from the date of the suspension of the investigation or the trial.
3. Within the time limits stipulated in Items 1 and 2 of this Article, if the individual or organization in question commits new violations of administrative regulations on customs or intentionally evades or hinders the application of sanctions, these time limits as stipulated in Items 1 and 2 of this Article shall not apply.
Article 5.- The cases of force majeure:
1. The goods and transport means which are brought into Vietnam under force majeure conditions shall not be subject to sanctions if they are fully declared to the Customs authorities, but they shall be moved out of Vietnam within 30 days unless otherwise provided for by law. All failures to make the declaration shall be subject to sanctions stipulated in Point (h), Item 6, Article 12 of this Decree.
2. All errors made in the process of delivering the goods and articles through import and export shall not be sanctioned if their sender has made a full declaration before registering their customs declaration and before the transport means of these goods and articles has completed entry formalities. The provisions of this Item shall not apply to goods and articles which are banned from import and export.
Chapter II
SANCTIONS AGAINST INDIVIDUALS AND ORGANIZATIONS VIOLATING ADMINISTRATIVE REGULATIONS ON CUSTOMS
Article 6.- Regarding the violations of the time limit for customs declaration and procedure:
1. To receive a warning or be fined from 50,000 VND to 200,000 VND in one of the following violations:
a) Not to comply with the time limit for customs declaration;
b) Not to report at the Customs Office to complete customs procedure as stipulated by law.
2. To be fined from 200,000 VND to 500,000 VND in one of the following violations:
a) Not to inform or inform incorrectly the time of arrival and departure of the transport means on exit, entry or transit as required by law;
b) To make temporary import for re-export; or to make temporary export for re-import, of goods and articles and transport means outside the time specified in licenses, customs declaration or other substitute papers as required by law.
3. To be fined from 2,000,000 VND to 5,000,000 VND in one of the following violations:
a) Not to report to the Customs Office to complete customs procedure 45 days after the date the transport means of the goods and articles completes entry formalities;
b) To delay by 10 days or more the time limit for re-export of goods and articles which are bound for re-export.
Article 7.- Regarding the violations of regulations on customs sealing and escort:
1. To be fined from 200,000 VND to 1,000,000 VND in one of the following violations:
a) The customs seal is not intact when presented to customs inspection and control;
b) Failure to keep intact the seal on the store and package of goods, articles and transport means which are under customs inspection.
2. To be fined from 2,000,000 VND to 5,000,000 VND for any act of deliberate displacement of transport means, goods and articles which are being escorted by Customs authority.
3. To be fined from 5,000,000 VND to 10,000,000 VND for any act of deliberate breaking of the seal to take away goods or replace them with goods and articles of different categories, quantity or quality, but not so serious as to be subject to examination for penal liability.
4. The individual and organization that repeat violations or commit many violations of Items 2 and 3 of this Article shall, apart from monetary fines, be subject to a suspension of procedure for import, export and transit clearance for 30 days.
Article 8.-Regarding the violations of regulations on exchange of import-export goods among border population:
1. To receive a warning or be fined from 50,000 VND to 200,000 VND when a border inhabitant commits one of the following violations:
a) To transport across the border goods and articles not through prescribed routes and border gates;
b) To transport across the border goods and articles not allowed for trade by the State;
c) To trade goods and articles across the border in excess of the quotas set by the State.
2. A fine of from 1,000,000 VND to 2,000,000 VND if the excess amount of goods and articles traded across the border has a value of over 10,000,000 VND.
3. A fine of from 2,000,000 VND to 5,000,000 VND for one of the acts of transporting across the border goods and articles banned from import or export, but not so serious as to be subject to examination for penal liability.
4. A fine of from 5,000,000 VND to 10,000,000 VND for a person who is not a border inhabitant but who takes advantage of the regulations on exchange of goods for border inhabitants to carry out unauthorized import-export activities.
5. The violations of the provisions stipulated in Point (b), Item 1, and Items 3 and 4, of this Article shall, apart from the monetary fine, be subject to confiscation of the material evidences and involved means.
Article 9.- Regarding the violations of regulations on allowed amounts of baggages and gifts involved in import and export:
1. A fine of from 50,000 VND to 200,000 VND for the acts of importing or exporting baggages and gifts in excess of the quotas prescribed by the State, or the excess amount involves the goods which must be imported in licensed quotas or in line with the State plan.
2. A fine of from 500,000 VND to 2,000,000 VND if the violation against the provision of Item 1 of this Article involves evidence is in the form of goods and articles for import or export and has a value equivalent to 10,000,000 VND or more.
3. A fine of from 2,000,000 VND to 5,000,000 VND for one of the following violations:
a) To import or export goods and articles after the effective date of the decision to temporarily suspend their import or export, or in contravention of other regulations on their import or export.
b) To violate the provision stipulated in Item 1 of this Article in which the involved evidence has a value of more than 20,000,000 VND.
c) To import or export goods and articles which are of the categories banned from import and export but not so serious as to be subject to examination for penal liability.
4. The individual and organization that violate Point (c), Item 3, of this Article shall, apart from paying monetary fine, be forced to re-export out of Vietnam, or be suspended from export, or have the material evidence and instruments involved in the violation confiscated; and the licenses for import and export revoked.
Article 10.- Regarding the violations of regulations on importing and exporting of re-assigned and inherited properties:
1. A fine of from 500,000 VND to 2,000,000 VND for the acts of importing and exporting re-assigned and inherited properties without the required licenses.
2. A fine of from 2,000,000 VND to 5,000,000 VND for the acts of importing and exporting re-assigned and inherited properties which are banned by the State from import and export.
3. The violations of Items 1 and 2 of this Article shall, apart from monetary fine, result in the suspension of export or forcible re-export of the re-assigned or inherited properties.
Article 11.- Regarding the violations of regulations on customs control:
1. A fine of from 200,000 VND to 500,000 VND for one of the following violations:
a) Unauthorized embarkation on or disembarkation from the transport means which is under customs inspection;
b) Failure to stop the transport means on exit from, entry into or transit through Vietnam at the designated checkpoints to fill customs formalities.
2. A fine of from 1,000,000 VND to 3,000,000 VND against ocean-going vessels which are transporting import or export goods on international routes and which call on undesignated ports without informing the Customs Office in advance.
3. A fine of from 3,000,000 VND to 5,000,000 VND for one of the following violations:
a) Unauthorized docking of vessels, boats and other transport means transporting import and export goods which are under customs inspection and control;
b) Failure to obey orders of the Customs Office when driving the transport means in the area under customs control;
c) Delaying or not readily responding to requests by Customs officers to open stores of import and export items, engine rooms, work places and other areas on the transport means on exit or entry or in transit for customs inspection or control in accordance with administrative procedure.
4. A fine of from 15,000,000 VND to 20,000,000 VND for one of the following violations:
a) Lacking the legal papers for transport means of import and export goods to move in the area under customs control;
b) Failure to drive the transport means on exit or entry or in transit on the designated routes and through the designated gateways.
5. A fine of from 20,000,000 VND to 50,000,000 VND for one of the following violations:
a) Attempt to remove or jettison goods and articles to evade customs inspection and control which does not amount to an offense subject to examination for penal liability;
b) Attempt to hinder arrest or to move, replace or remove evidences of violations of administrative regulations on customs, which are detected and seized but which does not amount to an offense to be subject to examination for penal liability.
6. Apart from monetary fines, the violators may be subjected to the following additional sanctions or other administrative measures if they commit one of the following violations:
a) To be forced to move the transport means if they violate the provisions of Point (a), Item 1, or Point (a), Item 3, of this Article;
b) To be forced to halt the transport means for customs inspection; and to comply with inspection requests by the Customs Office if the violation is against Point (b), Item 1, and Points (b) and (c), Item 3, of this Article 3;
c) To have the material evidences and instruments involved in the violation confiscated, or the license for import, export and transit withdrawn for 30 days, if the violation is repeated once or many times against the provisions of Points (a) and (b), Item 5, and Points (a) and (b), Item 4, of this Article.
Article 12.- Regarding the violations against regulations on customs inspection:
1. A fine of from 500,000 VND to 1,000,000 VND for the act of changing the name of the shipment recipient in the bill of lading or in the brief description of goods when the transport means has completed immigration procedures.
2. A fine of from 3,000,000 VND to 5,000,000 VND for one of the following violations:
a) Changing the brief description of the volume, weight or name of the goods and articles when the transport means has completed immigration procedures;
b) Refusing or delaying to produce papers to verify the legality of the import or export goods and articles and the transport means on entry or exit.
3. A fine of from 5,000,000 VND to 10,000,000 VND for one of the following violations:
a) Unauthorized and improper assignment of goods and articles which are imported temporarily for re-export by those who are entitled to preferential tax treatment;
b) Unauthorized use of goods and articles which have been assigned to the owners for keeping pending customs clearance;
c) Failure to bring the goods in transit to the designated places for customs clearance.
d) Storage or purchase of goods and articles which are imported illegally;
e) Storage or purchase of goods and articles for import and export within the area controlled by the customs in contravention of law;
f) Unauthorized change of wrappings of goods and articles which have been inspected by customs;
g) Replacement of goods and articles which have not been inspected by customs by goods and articles already inspected by customs.
4. A fine of from 10,000,000 VND to 15,000,000 VND for the acts of importing and exporting of goods which are not of the quality prescribed in the commercial contracts and which cause economic losses as determined by the authorized expertizing agency.
5. A fine of from 15,000,000 VND to 20,000,000 VND for one of the following violations:
a) Making declarations which vary with the commercial contracts in terms of quantity, weight, quality, goods names, categories, codes, value, country of origin of the goods, or importing or exporting goods and articles not in line with the license;
b) Changing the appearance and engine specifications of transport means and other goods to legalize their import and export.
6. A fine of from 20,000,000 VND to 50,000,000 VND for one of the following violations:
a) Importing and exporting goods and articles in violation of preferential treatment on customs;
b) Importing and exporting goods and articles in violation of the State provisions on humanitarian aid;
c) Importing and exporting goods and articles outside the contract or the brief description or the bill of lading;
d) Importing and exporting goods and articles the import and export of which are restricted or banned, but the violation does not amount to an offense to be subject to examination for penal liability;
e) Importing and exporting goods and articles which are not licensed or vary with the content of the license as provided by law;
f) Exchanging in an unauthorized manner goods and articles in the exclusive economic zone and the continental shelf of the Socialist Republic of Vietnam;
g) Unloading, transferring, leaving behind and consuming goods and articles for import and export which are under customs control and inspection;
h) Failing to file a customs declaration;
i) Assigning licenses or substitute papers for import and export;
j) Unauthorized removal or change and falsification of customs papers for import and export of goods and articles, but which do not amount to an offense to be subject to penal liability.
With regard to the violations specified in Points (d), (e) and (I), Item 6, of this Article which fall under the jurisdiction of various specialized management agencies, the agency which is the first to discover and handle it shall impose the fine.
7. A fine of from 50,000,000 VND to 100,000,000 VND for one of the following violations which do not amount to an offense to be subject to examination for penal liability:
a) Importing and exporting goods and articles which are hazardous to human health;
b) Importing and exporting goods and articles which spread environmental pollution, epidemics and diseases.
8. Apart from monetary fines, confiscation of material evidences and instruments involved in the violation; withdrawal of the right to use the license or temporary suspension of proceeding of export license; and destruction of material evidences and instruments involved in the violation, or forcible re-export of goods and product items, shall be applied to one of the following violations:
a) Confiscation of goods and articles if the violation is against provisions specified in Points (b), (d), (e) and (g), Item 3; and Items 6 and 7, of this Article;
b) Withdrawal of the right to use the license from 30 days to 90 days in one of the following cases:
- Violation against provisions specified in Point (c), Item 3, of this Article, which is repeated once or many times;
- Violation against provisions specified in Point (a) and (b), Item 5, of this Article, which is repeated once or many times;
- Violation against provisions specified in Point (i) and (j), Item 6, of this Article;
c) Temporary suspension of proceeding of import and export license or transit permit in one of the following:
- Violation against provisions specified in Point (b), Item 2, and Item 6, of this Article, which is repeated once or many times;
- Violation against provisions specified in Points (i) and (j), Item 6, of this Article;
d) Forcible re-export of goods and articles from Vietnam within 60 days if the violation is against Point (e), Item 6, of this Article and involves imports which are used or technologically outdated equipment and production chain intended as capital contribution;
e) Forcible re-export of goods and articles from Vietnam within 7 days or destruction of material evidences and instruments involved in the violation, if the violation is against Item 7 of this Article;
9. The violation against provisions specified in Points (a) and (b), Item 5, of this Article may be fined in accordance with the Law on Import and Export Taxes.
10. The goods and articles which are brought into Vietnam behind the date of delivery specified in the commercial contract for which they are refused by the recipient shall be fined in accordance with the provisions specified in Item 5 of this Article and forced to remove from Vietnam within 30 days from the reception of the fining decision.
11. The goods and articles which are to be stored in bonded warehouses but which are brought into Vietnam before the bonded-warehouse contract is signed shall be fined in accordance with the provisions specified in Point e, Item 6, of this Article.
Article 13.- Regarding the violations of regulations on import and export of foreign exchanges which do not amount to an offense to be subject to examination for penal liability:
1. A fine of from 500,000 VND to 2,000,000 VND against the individuals and organizations that import foreign exchanges without filing customs declarations as provided for by law.
2. A fine of from 3,000,000 VND to 5,000,000 VND if the violation of the provisions of Item 1 of this Article is repeated once or many times.
3. A fine of from 500,000 VND to 1,000,000 VND for the act of advance declaration of imported foreign exchange.
4. A fine of from 10,000,000 to 20,000,000 VND against the act of advance declaration of imported foreign exchange which have a value equivalent to 100,000,000 VND or higher.
5. A fine of from 1,000,000 VND to 4,000,000 VND against the individuals and organizations that export foreign exchanges without filing customs declarations as provided for by law.
6. A fine of from 5,000,000 VND to 15,000,000 VND and confiscation of from 10% to 20% of the undeclared amount of foreign exchange as provided for by law, if the violation of item 5 of this Article is repeated once or many times.
7. If the import and export of foreign exchange are done without authorization and with deliberate concealment, in addition to monetary fine as provided for in Items 1, 2, 5 and 6 of this Article, the involved material evidences shall be confiscated to put into public fund.
Article 14.- Regarding the violations of regulations on import and export of the Vietnamese currency:
1. Warn or a fine of from 50,000 VND to 200,000 VND for the act of importing and exporting Vietnamese currency without filing customs declaration.
2. A fine of from 500,000 VND to 2,000,000 VND for the act of importing and exporting Vietnamese currency without a permit of the State Bank of Vietnam if the involved amount is from 10,000,000 VND to 50,000,000 VND.
3. A fine of from 10,000,000 VND to 15,000,000 VND for one of the following violations:
a) Importing Vietnamese currency without a specified origin and with an amount of 50,000,000 VND or more;
b) Importing and exporting Vietnamese currency for payment not in line with the provisions of the State Bank of Vietnam;
4. With regard to the violations of Items 1, 2 and 3 of this Article, apart from monetary fine, additional fines or the following measures shall apply:
a) Suspension of the export;
b) Confiscation of the money which is the evidence of the violation if a deliberate act is committed to evade customs inspection.
Article 15.- Regarding the acts of insulting or threatening customs officers on duty:
A fine of from 200,000 VND to 500,000 VND for the acts of offending the honor of or threatening customs officers on duty, which do not amount to an offense to be subject to examination for penal liability.
Chapter III
SANCTIONING JURISDICTION
Article 16.-
1. The chief of the work team has the powers:
a) To issue a warning;
b) To fine up to 200,000 VND.
2. The Chief of the border gate customs, the Chief of the inspection team of the provincial or municipal Customs Department; and the Chief of the inspection team of the Department for Investigation against Illicit Trade of the General Department of Customs, have the powers:
a) To issue a warning;
b) To fine up to 2,000,000 VND.
c) To confiscate the material evidences and instruments employed in the violation of administrative regulations which are valued up to 20,000,000 VND.
3. The Chief of the Department of Customs of the province or city directly under the Central Government has the powers:
a) To issue a warning;
b) To fine up to 20,000,000 VND;
c) To confiscate the material evidences and instruments employed in the violation of administrative regulations and destroy the articles which are hazardous to human health or culturally noxious;
d) To revoke the right to use, or withdraw, import and export licenses as provided for in this Decree.
Article 17.-
1. With regard to acts which carry a fine of more than 20,000,000 VND, the Chief of the Department of Customs of the province or city shall transfer the dossiers along with the material evidences to the People’s Committee of the province or city directly under the Central Government and the President shall decide the sanction, and at the same time shall notify the General Director of the General Department of Customs.
2. All acts of violation of the laws on customs on the land, in the territorial waters, on the continental shelf and in the exclusive economic zone of the Socialist Republic of Vietnam shall be handled by the customs authority in charge of the area where the violations take place, in line with the jurisdiction provided for in this Decree.
3. In places along the national border where there is not yet a customs authority, the Chief of the local Frontier Unit has the powers to impose administrative customs sanction in accordance with the provisions of Article 8 of this Decree.
4. The Economic Police and Market Management Agencies which detect goods and articles which are imported illegally or in transit or temporarily imported for re-export and are illegally consumed on the Vietnamese market shall administer sanctions in accordance with the provisions specified in Points (a), (b), (d) and (e), Article 12, of this Decree.
Chapter IV
MEASURES TO PREVENT VIOLATIONS OF ADMINISTRATIVE REGULATIONS AND ENSURE ADMINISTRATIVE SANCTIONS
Article 18.- Temporary detention of violators in accordance with administrative procedures:
1. Temporary detention of violators in accordance with administrative procedures shall be applied in case it is necessary to help gather and verify important details as basis for the decision to sanction or to prevent or immediately check the acts of preventing the work of customs inspection, supervision and control.
2. The time limit for temporary detention of the violator of administrative regulations shall not exceed 12 hours. In case of emergency, it can be extended but not to more than 24 hours. In remote mountainous areas and islands which are far from border gates, it can be further extended but not to more than 48 hours.
3. All cases of temporary detention shall be decided in writing, a copy of which shall be handed to the temporarily detained person.
4. The person under temporary detention on charge of violation of administrative regulations shall not be put in the same houses for temporary detainees or for criminal offenders or in any places where sanitary and safety conditions are not satisfactory.
5. At the request of the temporarily detained person, a notice shall be conveyed to his/her family, office and the place where they work or study. The detention of an under-age which lasts more than 6 hours must be notified to his/her parents or guardian.
Article 19.- The jurisdiction to order temporary detention of the violator in accordance with administrative procedures:
The following authorities shall have the powers to order the temporary detention of the violator in accordance with administrative procedures:
1. The Chief of the Border Customs Station and the Chief of the Inspection Team of the provincial or municipal Department of Customs; the Chief of the Inspection Team of the Department for Investigation against Illicit Trade of the General Department of Customs;
2. The Chiefs of the Departments of Customs of the provinces and cities directly under the Central Government;
3. The Chief of the Department for Investigation against Illicit Trade of the General Department of Customs.
In cases the authorities specified in Items 1, 2 and 3 of this Article are absent, their deputies shall have the powers to order temporary detention of the violator in accordance with administrative procedures.
Article 20.- Temporary seizure of material evidences and instruments involved in the violation of administrative regulations:
1. The temporary seizure of material evidences and instruments involved in the violation shall only be applied in case it is necessary to immediately check the violation of administrative regulations or to verify the details which serve as basis for handling the decision.
The authorities specified in Article 19 of this Decree have the powers to order temporary seizure of the material evidences and instruments involved in the violation of administrative regulations.
2. In case of necessity, the authorities who are vested with the powers to administer administrative sanctions specified in Item 1, Article 16, of this Decree shall have the powers to order temporary seizure of material evidences and instruments involved in the violation of administrative regulations. Within 24 hours from the issuing of the order, the issuer shall report to, and obtain the written consent from, the immediate higher authority as provided for in Article 19 of this Decree.
3. The authority who orders the temporary seizure of material evidences and instruments involved in the violation of administrative regulations has the responsibility to organize the keeping of the evidences and instruments; if they are lost, replaced or damaged due to the fault of this authority, he/she shall have to make compensation and be subject to liability as specified by law.
In case the evidences and instruments must be sealed off, the sealing must be done in the presence of the involved person or his/her representative or of the local administration representative, and witnesses.
4. If the seizure involves the Vietnamese currency, foreign exchange, drugs and materials which are required to be kept according to a special procedure, the storing shall be made in accordance with the provisions of law.
With regard to material evidences involved in the violation of administrative regulations which are vulnerable goods and articles, the authority who orders the seizure must file a separate record and may set up a council to sell them in accordance with the existing provisions, the proceedings from which shall be remitted to the State Treasury.
5. Within 15 days from the date of the temporary seizure, the authority who has the powers to order the temporary seizure and sanction must handle the material evidences and instruments which are temporarily seized in accordance with the measures specified in the sanction order. If no confiscation is to be applied, the evidences or the proceedings from their sale during the temporary seizing shall be returned to the concerned persons.
The time limit for the temporary seizure may be extended, but not to more than 30 days in case the violation has many complicated details or is related to many persons and organizations at home and abroad.
6. The ordering of the temporary seizure of the material evidences and instruments involved in the violations of administrative regulations must be done in writing, a copy of which shall be handed to the concerned person and the representative of the concerned organization.
Article 21.- Body search in accordance with administrative procedure:
1. The body search in accordance with administrative procedure shall be undertaken only when there is a basis to determine that the concerned person is hidingin his/her body objects, papers and instruments which are used in the violation of administrative regulations.
2. Only the personnel vested with the authority specified in the provision of Article 19 of this Decree shall have the right to order a body search in accordance with administrative procedures.
The customs personnel on duty are allowed to conduct body search in accordance with administrative procedures when there is adequate ground to assume that if it is not conducted right away, the objects, papers and instruments employed in the violation of administrative regulations can be removed or destroyed. This customs personnel must be responsible before law for his/her decision and must report it immediately to the Chief of his/her unit.
3. Before conducting a body search, the searching personnel must show to the object of the search his/her customs identity card and inform the latter of his/her decision. The body search shall be made by a person of the same sex and the witnesses must also be of the same sex.
4. All body searches must be recorded in a minute, a copy of which shall be handed to the searched person.
Article 22.- Searching transport means and objects in accordance with administrative procedures:
1. All searches of transport means and objects in accordance with administrative procedures shall be conducted when there is adequate ground to determine that there is evidence of a violation of administrative regulations hidden in the transport means and objects in question.
2. The customs personnel on duty has the right to conduct the search on transport means and of objects in accordance with administrative procedures.
3. The search on a transport means and of an object must be conducted in the presence of the owner of that transport means and object, or the captain or operator of that transport means and a witness.
4. All searches of transport means and objects must be recorded in a minute, a copy of which shall be handed to the owner of the transport means and objects, or the captain or operator of the transport means.
5. All searches of transport means which are ocean-going vessels, airplanes and trains of Vietnam and foreign countries and which are operating on international routes must be ordered by the Chief of Border Customs Stations or personnel of equivalent or higher ranks.
The search of transport means and objects of the persons who enjoy diplomatic immunity must be conducted in accordance with the International Conventions that Vietnam has signed or acceded to. In case where there is adequate evidence to determine that the transport means and objects of these person are containing goods which are included in the list of banned imports and exports of the Vietnamese Government, the search must be ordered by the General Director of the General Department of Customs.
Chapter V
PROCEDURES FOR ADMINISTRATIVE SANCTIONS
Article 23.- Simple procedure:
In administrative sanctions which require a warningor a fine up to 20,000 VND, the authorized personnel shall give the sanctioning order on the spot.
Copies of the sanctioning order shall be handed to the sanctioned person and organization and the place where the fine is delivered.
Article 24.- Filing the minute recording the violation of administrative regulations:
- When a violation of administrative regulations does not fall under the categories to be subject to the provisions of Article 23 of this Decree, it must be promptly recorded into a minute a copy of which shall be handed to the concerned person and organization; if the minute writer has no authority to order the sanction, the minute and other related papers must be promptly transferred to the authorized personnel.
- The form, content and filing procedure of a minute shall conform to the provisions specified in Items 2 and 3, Article 47, of the Ordinance on the Handling of Violations of Administrative Regulations.
Article 25.- Sanctioning order:
1. When a person or organization violates many provisions of this Decree, the sanctioning authority shall order sanctions on each of the violations and add them up to form the total sanction. If one of the violations carries a fine which is beyond the powers of the sanctioning authority, the whole dossiers of the violation shall be transferred to the competent authority to decide.
2. The sanctioning order is effective as from the date of the signing, except for cases in which the sanctioning orders specify a different effective date.
3. A copy of the sanctioning order shall be handed to the sanctioned person and organization and the placewhere the fine is delivered within three days from the date of signing.
4. All fines from 2,000,000 VND upward and orders to confiscate material evidences and instruments involved in the violations which are valued at 5,000,000 VND or more must be sent to the People’s Procurator of the same level.
The form and content of the sanctioning order shall conform to the provisions specified in Item 2, Article 48, of the Ordinance on the Handling of Violations of Administrative Regulations.
Article 26.- Handling material evidences and instruments involved in violations of administrative regulations:
1. The material evidences and instruments involved in a violation of administrative regulations which are confiscated shall be transferred by the Customs Department to the Finance Service of the locality where the violation is committed. With regard to the material evidences and instruments which are confiscated in remote border gate to which access is difficult, or which are vulnerable and difficult to preserve, the sanctioning authority shall hand them over to the district-level financial agency of that locality.
The proceeds from the sale of the material evidences and instruments involved in the violation shall be remitted to the State Treasury after deducting the expenses on storage, unloading, preservation, transport, expertise, verification and handling in each case.
2. The handling of material evidences and instruments involved in the violation of administrative regulations, which are noxious cultural products, faked goods of no use value, and products harmful to human health and life and living environment, and which are vulnerable goods and articles, shall be conducted according to the provisions of Items 2 and 3, Article 52, of the Ordinance on the Handling of Violations of Administrative Regulations.
Article 27.- Handling cases in which imported goods and articles exceed the time limit for customs clearance or are forced to be removed from Vietnam or re-exported:
1. The goods and articles which exceed their time limit for customs clearance as required by law by 60 days or by 30 days from the date of the announcement of the Customs Office on the mass media without having anyone to clear customs procedures for them, shall be remitted to the public fund.
2. All goods which must by regulations be taken out of Vietnam or re-exported but which exceed the time limit for such a handling as specified in the sanctioning order shall be remitted to the public fund.
Article 28.- Handling unclaimed goods and articles and material evidences which are subject to taxation:
1. Regarding the goods which are material evidences of violations of administrative regulations and which are discovered through inspection without anyone claiming them, and the import and export goods which are floating or discarded and whose owners are indefinable, the sanctioning authority shall order an announcement on the mass media and post it in public places; and if still no one is forthcoming to claim them, the sanctioning authority shall transfer them to the Financial agency as specified in Article 26 of this Decree.
2. The goods which are imported not in line with the specifications of the license, contract, bill of lading or brief description and which are refused by the recipient, the handling shall be conducted as specified in Item 1 of this Article.
3. Regarding the goods which are material evidences of the violation and which are subject to taxation, the concerned persons and organizations shall, apart from paying the fines, pay in full all import and export taxes and also the fine on overdue tax as specified by the provisions of law.
Article 29.- Executing the sanctioning order on violations of administrative regulations:
1. The person/organization that is fined for violating administrative regulations shall execute the sanctioning order within 5 days from its reception.
2. The person/organization that has received the sanctioning order but deliberately refuses to execute it shall be forced to do it.
Article 30.- Measures to force execution of the sanctioning order:
1. The forcing of the execution of the sanctioning order on violations of administrative regulations shall be conducted through the following measures:
a) Deduction of wages and income; deduction on bank accounts;
b) Inventorization and seizure of properties to the extent equivalent to the fine;
c) Temporary suspension of customs proceeding for import and export goods and of transport means on exit and entry and in transit until the execution of the sanctioning order is completed.
2. The authority who is competent in sanctioning shall at the same time be the authority who orders and organizes the forcible measures.
3. The managing and business units which have the persons/organizations that are forced to execute the sanctioning order shall upon request by the Customs Office have the responsibility to implement the provisions specified in Point (a), Item 1, of this Article.
The Financial and Banking agencies, People’s Police units, Frontier units and local administrations at all levels have the responsibility to coordinate the execution of the order on forcible measures of the Customs Office.
4. The persons/organizations that are forced to execute the sanctioning order shall bear all expenses on the implementation of the forcible measures.
Chapter VI
HANDLING COMPLAINTS
Article 31.- Complaints against the application of measures to prevent violations of administrative regulations:
1. The individual/organization that is subject to preventive measures to check violations of administrative regulations specified in Articles 18, 19, 20, 21 and 22 of this Decree, has the right to complain on their own or through a legitimate representative to the authority immediately higher than the sanctioning authority who orders the sanction.
2. The competent authority who receives the complaint has the responsibility to reply in writing to the complainant within 5 days from the reception of the complaint.
Article 32.- Complaining against orders for administrative sanctions:
1. The individual/organization that is sanctioned for violation of administrative regulations or their legitimate representative has the right to lodge complaints to the sanctioning authority within 10 days from the reception of the sanctioning order.
2. Within 15 days from the reception of the complaint, the sanctioning authority has the responsibility to settle them and reply in writing to the complainant.
In case the complainant is not satisfied with the handling of his/her complaint, he/she has the right to lodge the complaint to the authority immediately higher than the one who orders the sanction, within three days from the reception of the decision on the settlement of the complaint.
Within 20 days from the reception of the complaint, the Chief of the immediately higher level of the sanctioning authority shall have to settle and reply in writing to the complainant. This settlement is final.
3. The complaint against the sanctioning order of the President of the People’s Committee of the province/city directly under the Central Government (hereafter referred to as the provincial level) shall be addressed to the authority who orders the sanction. If the complainant is not satisfied with the settlement of his/her complaint by the President of the provincial-level People’s Committee, he/she may lodge the complaint to the General Director of the General Department of Customs for consideration.
Within 30 days from the reception of the complaint, the General Director of the General Department of Customs shall have to consider, draw conclusion on and reply in writing to the complainant and, at the same time, report his/her conclusion to the President of the provincial-level People’s Committee. In case this conclusion differs from the decision of the President of the provincial-level People’s Committee, within 7 days from the reception of this written conclusion, the President of the provincial-level People’s Committee must consider and if he/she agrees with the conclusion of the General Director of the General Department of Customs, he/she shall change his/her sanctioning order. This decision is final.
In case the President of the provincial-level People’s Committee does not agree with the conclusion of the General Director of the General Department of Customs, he/she may lodge a complaint to the General State Inspector. Within 45 days from the reception of this complaint, the General State Inspector shall consider and take a decision on the settlement of the complaint. The decision of the General State Inspector is final.
4. The complaint against a sanctioning order on a violation of administrative regulations shall not suspend its execution.
5. The authority who settles a complaint and decides to change its form and severity, the sanctioning measures or revokes the sanctioning order may decide the direct compensation for the losses (if any) in accordance with the provisions of law.
In case the complainant does not agree with the decision on compensation, he/she may request the Court to handle the case according to civil litigation.
6. All complaints against the sanctions of violations of administrative regulations on State management in the field of customs shall be handled in accordance with the Ordinance on the Handling of Violations of Administrative Regulations.
Article 33.- The organizations and individuals that have meritorious deeds in providing information which helps discover, prevent and handle violations of administrative regulations on customs, shall be rewarded in accordance with the common regime of the State.
Article 34.- The Customs officers and personnel who have the powers to order sanctions on violations of administrative regulations in accordance with the provisions of this Decree but who commit acts of hasslement, connivance at, cover-up and profit-seeking, fail to order sanction or do it belatedly and improperly, or abuse their powers, or who are irresponsible and violating provisions on the principles, order and procedures of work in handling violations of administrative regulations, shall be disciplined or subjected to examination for penal liability, depending on the nature and seriousness of their violations; if they cause material damage to individuals and organizations, they have to compensate according to the provisions of law.
Chapter VII
IMPLEMENTATION PROVISIONS
Article 35.-
1. This Decree shall take effect as from April 1st, 1996, and replace Decree No.232-HDBT issued on June 25, 1992, by the Council of Ministers on the handling of the violations of administrative regulations on State management in the field of customs.
2. The General Director of the General Department of Customs is responsible for guiding the implementation of this Decree.
3. The Ministers, the Heads of the agencies at ministerial level, the Heads of the agencies attached to the Government, the Heads of the people’s and social organizations at the central level, and the Presidents of the People’s Committees of the provinces and cities directly under the Central Government, are responsible for the implementation of this Decree.
ON BEHALF OF THE GOVERNMENT FOR THE PRIME MINISTER DEPUTY PRIME MINISTER Phan Van Khai |
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