Decree No. 169/2004/ND-CP dated September 22, 2004 of the Government prescribing the sanctioning of administrative violations in the price domain

DECREE

PRESCRIBING THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE PRICE DOMAIN

THE GOVERNMENT

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

Pursuant to the April 26, 2002 Ordinance on Price;

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

At the proposal of the Finance Minister,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Regulation scope

1. This Decree prescribes the sanctioning of administrative violations in the price domain.

2. Administrative violations in the price domain, prescribed by this Decree, include:

a) Violations of regulations on valorization;

b) Violations of regulations on price consultation;

c) Violations of regulations on price brackets, price levels set by competent agencies;

d) Violations of regulations on price scheme formulation;

e) Violations of regulations on price appraisal;

f) Violations of regulations on price posting;

g) Violations of regulations on prohibited acts prescribed in Article 28 of the Ordinance on Price;

h) Violations of regulations on use of goods price subsidy, freight subsidy money, support money amounts for implementation of price policies;

i) Violations of regulations on price management of preventive and curative medicines for human use shall be handled according to the provisions of Article 14 of the Government’s Decree No. 120/2004/ND-CP of May 12, 2004 on price management of preventive and curative medicines for human use.

Article 2.- Subjects of application

Domestic and foreign individuals, agencies and organizations (hereinafter referred collectively to as individuals and organizations), that commit acts of intentionally or unintentionally violating law provisions on prices, which do not constitute crimes, shall all be sanctioned for administrative violations under the provisions of this Decree and other relevant law provisions on sanctioning of administrative violations, except otherwise provided for by international treaties which the Socialist Republic of Vietnam has signed or acceded to.

Article 3.- Principles for sanctioning administrative violations in the price domain

1. The sanctioning of administrative violations in the price domain must be conducted by competent persons strictly according to the provisions of this Decree.

2. All administrative violations must be detected in time and immediately stopped. The sanctioning must be carried out swiftly, fairly and lawfully; all consequences caused by administrative violations must be remedied strictly according to law provisions.

3. An act of administrative violation in the price domain shall be sanctioned only once. An individual or organization that commits many acts of administrative violation shall be sanctioned for every violation act. If many individuals or organizations jointly commit one act of administrative violation, each violating individual or organization shall be sanctioned.

4. The sanctioning of administrative violations in the price domain must be based on the nature and seriousness of the violations, the extenuating circumstances and aggravating circumstances for decision on appropriate sanctioning forms and levels.

Article 4.- Extenuating circumstances, aggravating circumstances for acts of administrative violation in the price domain

1. Extenuating circumstances:

a) The administrative violators have warded off, reduced the harms of the violations or voluntarily overcome the consequences, compensated for the damage caused by their violations;

b) The administrative violators have voluntarily reported thereon;

c) They are forced to commit violations.

2. Aggravating circumstances:

a) Committing the violations in an organized manner;

b) Committing violations time and again or relapsing into violations in the price domain;

c) Abusing positions and powers to commit violations;

d) Taking advantage of the situation of war, natural calamities or other special difficulties of the society to commit violations;

e) Committing violations while serving penalties of criminal judgments or serving decisions on sanctioning of administrative violations in the price domain;

f) Continuing to commit acts of administrative violation though competent persons have requested them to stop such acts;

g) Committing acts of shirking, covering up administrative violations after committing the violations.

Article 5.- Statute of limitations for sanctioning acts of administrative violation in the price domain

1. The statute of limitations for sanctioning an administrative violation in the price domain is 2 years as from the date the administrative violation is committed.

2. For individuals against whom criminal cases are instituted, who are prosecuted or brought to trial according to criminal procedures under decisions but later decisions  to stop the investigation or stop the cases are issued while their violation acts show signs of administrative violation in the price domain, they shall be sanctioned for administrative violations; within three days after the decisions to stop the investigation or stop the cases are issued, the persons who have made such decisions must send them to the persons competent to sanction the administrative violations; in this case, the statute of limitations for sanctioning the administrative violations is three months as from the date the persons with sanctioning competence receive the stoppage decisions and the violation dossiers.

3. Within the time limits prescribed in Clauses 1 and 2 of this Article, if individuals or organizations commit new administrative violations also in the price domain or deliberately shirk or obstruct the sanctioning, the statute of limitations prescribed in Clauses 1 and 2 of this Article shall not apply but be recalculated from the time of committing the new administrative violations or the time of terminating the acts of shirking or obstructing the sanctioning.

Article 6.- The statute of limitations for executing decisions on sanctioning of administrative violations in the price domain

The statute of limitations for executing a decision on sanctioning administrative violation(s) is one year, counting from the date the sanctioning decision is issued; if past this time limit such decision is not executed, the sanctioning decision shall not be executed but the remedial measures inscribed in the decision still apply.

Where sanctioned individuals or organizations deliberately evade or delay the execution of sanctioning decisions, the above-mentioned statute of limitations shall be recalculated from the time the evading or delaying acts terminate.

Article 7.- The time limit for being considered having not yet been sanctioned for administrative violations in the price domain

Individuals and organizations sanctioned for administrative violations, if past one year counting from the date of completely serving the sanctioning decisions or the date of expiry of the statute of limitations for executing the sanctioning decisions they do not relapse into violations, shall be considered having not yet been sanctioned for administrative violations.

Article 8.- Sanctioning forms and remedial measures applicable to administrative violations in the price domain

1. For each act of administrative violation in the price domain, the violating individuals and organizations shall be subject to one of the following principal sanctioning forms:

a) Caution;

b) Fine.

2. Depending on the nature and seriousness of their violations, the individuals and organizations committing administrative violations in the price domain shall also be subject to the application of one or more of the following additional sanctioning forms:

a) Deprivation of the right to use the price evaluator’s card;

b) Confiscation of the money amounts earned from administrative violations.

3. Apart from the above-mentioned principal and additional sanctioning forms, the violating individuals and organizations can also be compelled to apply one or more of the following remedial measures:

a) Confiscation of all price difference money amounts earned from administrative violations;

b) Forced compensation for the entire money amounts lost due to administrative violations in the price domain;

c) Withdrawal of goods price and/or freight subsidy money obtained due to false declaration or over-declaration in the payment dossiers; the goods price and/or freight subsidy money, the support money for implementation of price policies, which were used for wrong purposes;

d) The compulsory payment of all expenses for the return of difference money earned from wrong price application to individuals and/or organizations that the wrong prices were applied to.

4. The principal sanctioning forms, additional sanctioning forms and measures applicable to administrative violations in the price domain are prescribed in Chapter II of this Decree. Other additional sanctioning forms and measures shall only be applied together with principal sanctioning forms. In cases where the statute of limitations for sanctioning  administrative violations have expired, the principal sanctioning forms shall not apply but the measures prescribed at Points a, b, c, d, Clause 3 of this Article can be applied.

5. When the form of fine is applied, the specific fine level for an act of administrative violation in the price domain shall be the average level of the fine bracket corresponding to such act, prescribed in this Decree; if the violation involves extenuating circumstance(s), the fine level can be reduced but must not be lower than the minimum level of the fine bracket; if it involves aggravating circumstance(s), the fine level can be raised but must not exceed the maximum level of the fine bracket.

Chapter II

ACTS OF ADMINISTRATIVE VIOLATION IN THE PRICE DOMAIN, SANCTIONING FORMS AND LEVELS

Article 9.- Acts of violating regulations on valorization

A fine of between VND 5,000,000 and 10,000,000 shall be imposed for one of the following violation acts:

1. Failing to report or reporting in contravention of the State’s regulations on the implementation of valorization measures.

2. Failing to strictly observe the valorization measures of competent bodies.

Article 10.- Acts of wrongly applying the committed prices

1. A fine of between VND 3,000,000 and 5,000,000 shall be imposed for acts of buying or selling goods or providing services at prices different from the temporary prices in price consultation or the committed prices already promulgated by competent bodies.

2. Individuals or organizations that commit administrative violation acts prescribed in Clause 1 of this Article may, apart from fines, be subject to the following measures:

a) Confiscation of the entire price difference money earned from the administrative violations;

b) Forcible compensation for the entire money amounts lost due to wrong price application;

c) Payment of all expenses for the return of price difference money to individuals or organizations that the wrong prices were applied to.

Article 11.- Acts of wrongly applying the prices decided by competent bodies

1. A fine of between VND 5,000,000 and 10,000,000 for acts of buying or selling goods, providing services at prices different from the specific prices, price brackets, limited prices decided by provincial/municipal People’s Committees or competent bodies (other than the agencies defined in Clauses 2 and 3 of this Article).

2. A fine of between VND 10,000,000 and 20,000,000 for acts of buying, selling goods or providing services at prices different from the specific prices, price brackets or limited prices decided by ministers or heads of ministerial-level agencies.

3. A fine of between VND 20,000,000 and 30,000,000 for acts of buying, selling goods or providing services at prices different from the specific prices, price bracket or limited prices decided by the Government or the Prime Minister.

4. Individuals or organizations that commit administrative violation acts prescribed in Clauses 1, 2, 3 of this Article can, apart from fines, be subject to the following measures:

a) Confiscation of the entire price difference money amounts earned from the administrative violations;

b) Forcible compensation for the whole money amounts lost due to wrong price application;

c) Payment of all expenses for the reimbursement of the price difference money to individuals and organizations the wrong prices were applied to.

Article 12.- Acts of violating regulations on price scheme formulation

A fine of between VND 5,000,000 and 10,000,000 shall be imposed for acts of formulating scheme on asset, goods and/or service prices set by the State at variance with the price calculation regulations of competent bodies.

Article 13.- Acts of violating regulations on price evaluation

1. A fine of between VND 3,000,000 and 5,000,000 for acts of wrongly evaluating prices for self-seeking purposes, which causes damage to individuals, organizations and/or the State.

2. A fine of between VND 5,000,000 and 10,000,000 for acts of evaluating prices when failing to fully meet the conditions for price- evaluating activities as provided for by law.

3. A fine of between VND 5,000,000 and 10,000,000 for acts of failing to evaluates the prices of assets which must be price-evaluated as provided for by the State.

4. Individuals or organizations committing administrative violation acts specified in Clauses 1, 2 of this Article may, apart from fines, be subject to one or more of the following additional sanctioning forms:

a) Confiscation of the money amounts earned from administrative violations;

b) Definite or indefinite deprivation of the right to use the price evaluator’s card.

5. Individuals or organizations committing administrative violation acts specified in Clauses 1, 2, 3 of this Article may, apart from fines and/or additional sanctions, be compelled to compensate for the money amounts lost due to their administrative violations.

Article 14.- Acts of failing to strictly comply with the regulations on price posting

1. Caution or a fine of between VND 100,000 and 200,000 for acts of failing to post up prices or posting up prices in contravention of regulations at transaction, goods-trading and service-providing places, for goods and services with prices set by enterprises themselves.

2. A fine of between VND 200,000 and 500,000 for acts of failing to post up or posting up prices in contravention of regulations at transaction, goods-trading and service-providing places, for goods and services on the list of those with prices set by the State.

Article 15.- Acts of alignment for price monopoly

1. A fine of between VND 5,000,000 and 10,000,000 for acts of failing to report or reporting incompletely, inaccurately, untimely on data and/or documents related to production and circulation costs, monopolized goods and/or service prices at requests of competent price- State management agencies.

2. A fine of between VND 10,000,000 and 15,000,000 for the following acts committed within one province or centrally-run city:

a) Reaching agreement among organizations, individuals to set prices, control prices, change sale prices of goods and/or services with a view to restricting competition, infringing upon the legitimate interests of other production and/or business organizations, individuals or consumers.

b) Reaching agreement among organiza-tions, individuals in order to create goods scarcity by way of restricting production, distribution, transportation and/or sale of goods and/or the provision of services; destroying, damaging goods, infringing upon the legitimate interests of other production and/or business organizations, individuals or consumers.

c) Reaching agreement among organiza-tions, individuals to realize conditions on goods sale, purchase, post-sale service provision, thus affecting goods prices, service prices, infringing upon the legitimate interests of other production and/or business organizations, individuals or consumers.

d) Reaching agreement among organiza-tions, individuals to change sale and/or purchase prices of goods, services in order to abolish or force other enterprises to align with them or become their branches, infringing upon the legitimate interests of other production and/or business organizations, individuals or consumers.

3. A fine of between VND 15,000,000 and 20,000,000 for acts mentioned at Points a, b, c, d of Clause 1, which are committed in areas larger than a province or a centrally-run city.

4. Individuals and organizations committing administrative violation acts specified in Clauses 2 and 3 of this Article shall, apart from fines, be subject to confiscation of the entire money amounts earned from their administrative violations.

5. Individuals and organizations committing administrative violation acts specified in Clauses 2 and 3 of this Article can, apart from fines and/or additional sanctions, be compelled to compensate for the money amounts lost due to their administrative violations.

Article 16.- Acts of speculation to raise prices, to press prices

1. A fine of between VND 3,000,000 and 5,000,000 for acts of taking advantage of natural disasters, enemy sabotage and/or other unexpected developments for speculation to raise prices, press prices within a rural district, an urban district, a provincial town.

2. A fine of between VND 5,000,000 and 10,000,000 for acts of taking advantage of natural disasters, enemy sabotage and/or other unexpected developments for speculation to raise prices, to press prices within an area larger than a rural district, an urban district, a provincial town.

3. Individuals or organizations that commit acts of administrative violation specified in Clauses 1 and 2 of this Article may, apart from fines, have the money amounts earned from their administrative violations confiscated.

4. Individuals or organizations that commit acts of administrative violation specified in Clauses 1 and 2 of this Article may, apart from fines and/or additional sanctions, be compelled to compensate for the money amounts lost due to their administrative violations.

Article 17.- Acts of fabricating, spreading groundless news about price increases or price decreases

1. A fine of between VND 3,000,000 and 5,000,000 for acts of fabricating and/or spreading groundless news about goods or service price increase or decreases decided by provincial People’s Committees, thus causing damage to legitimate interests of other production and/or individuals, organizations, consumers and the interests of the State.

2. A fine of between VND 5,000,000 and 10,000,000 for acts of fabricating and/or spreading groundless news about goods or service price increases or decreases decided by the Government, the Prime Minister, ministers, heads of ministerial-level agencies, thus causing damage to legitimate interests of other production and/or business individuals or organizations, consumers and the interests of the State.

Article 18.- Acts of violating regulations on price and/or freight subsidies, support measures for the implementation of price policies

1. A fine of between VND 5,000,000 and 10,000,000 for acts of using for wrong purposes goods price and/or freight subsidy money and other support money amounts for the implementation of price policies.

2. A fine of between VND 10,000,000 and 20,000,000 for acts of making false declarations or over-declarations in payment dossiers to receive goods price and/or freight subsidies and other support money amounts for the implementation of price policies.

3. Individuals or organizations that commit acts of administrative violation specified in Clauses 1 and 2 of this Article can, apart from fines, be subject to the application of the following remedial measures:

a) Recovering goods price and/or freight subsidy money and/or other support money amounts for implementation of price policies, which have been used for wrong purposes, for the administrative violations prescribed in Clause 1 of this Article;

b) Recovering goods price and/or freight subsidy money and/or other support money amounts for implementation of price policies, which have been acquired due to false declarations, over-declarations in the payment dossiers, for the administrative violations specified in Clause 2 of this Article.

Chapter III

COMPETENCE, PROCEDURES FOR SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE PRICE DOMAIN

Article 19.- Competence of the People’s Committees at all levels to sanction administrative violations in the price domain

1. The presidents of the People’s Committees of communes, wards, district townships have the power to impose:

a) Caution;

b) Fines of up to VND 500,000.

2. The presidents of the People’s Committees of rural districts, urban districts, provincial capitals, provincial towns have the power:

a) To impose caution;

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

c) To confiscate the entire price difference money amounts earned from administrative violations;

d) To compel the compensation for the entire money amounts lost due to administrative violations.

3. The presidents of the People’s Committees of provinces or centrally-run cities shave the power:

a) To impose caution;

b) To impose fines of up to the maximum level prescribed by this Decree;

c) To confiscate the money amounts earned from administrative violations;

d) To confiscate the entire price difference money amounts earned from administrative violations;

e) To compel the compensation for the entire money amounts lost due to administrative violations;

f) To recover the goods price and/or freight subsidy money acquired due to false declarations or over-declarations in payment dossiers; the goods price and/or freight subsidy money and support money for the implementation of price policies, which have been used for wrong purposes.

Article 20.- The specialized inspectorates’ competence to sanction administrative violations in the price domain

1. The specialized finance inspectors being on official duty have the power:

a) To impose caution;

b) To impose fines of up to VND 200,000.

2. The specialized chief inspectors of the provincial/municipal Finance Services have the power:

a) To impose sanction;

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

c) To confiscate the profit amounts earned from administrative violations;

d) To confiscate the entire price difference money amounts acquired from administrative violations;

e) To compel the compensation for the entire money amounts lost due to administrative violations;

f) To recover the goods price and/or freight subsidy money and/or support money amounts for implementation of price policies, which have been acquired due to false declarations, over-declarations in the payment dossiers; the goods price and/or freight subsidy money and/or other support money amounts for implementation of price policies. which have been used for wrong purposes.

3. The chief inspector of the Finance Ministry has the power:

a) To impose caution;

b) To impose fines of up to VND 30,000,000;

c) To confiscate the money amounts earned from administrative violations;

d) To deprive of the right to use the price evaluator’s card;

e) To confiscate the entire price difference money amounts earned from administrative violations;

f) To compel the compensation for the entire money amounts lost due to administrative violations;

g) To recover the goods price and/or freight subsidy money and/or support money amounts for implementation of price policies, which have been acquired due to false declarations, over-declarations in the payment dossiers; the goods price and/or freight subsidy money and/or support money amounts for implementation of price policies, which have been used for wrong purposes.

4. The specialized inspectorates of the ministries, branches have the competence to sanction administrative violations in the price domain like the specialized finance inspectorates under the provisions of this Decree within the price managing competence of the ministries, branches, as prescribed by the Government.

Article 21.- The determination of sanctioning competence shall comply with the provisions of Article 42 of the Ordinance on Handling of Administrative Violations of July 2, 2002.

Article 22.- Sanctioning procedures

1. The procedures and order for sanctioning acts of administrative violation in the price domain shall comply with the provisions of Articles 53, 54, 55, 56, 57, 58, 59 and 65 of the Ordinance on Handling of Administrative Violations of July 2, 2003 and Chapter IV of Decree No.134/2003/ND-CP of November 14, 2003 detailing the implementation of the 2002 Ordinance on Handling of Administrative Violations.

2. The collected fine money must be remitted into the State budget through accounts opened at the State Treasury. The regime of managing fine collection receipts and fine money shall comply with the current regulations.

3. Individuals and organizations subject to the recovery of goods price and/or freight subsidy money and/or support money amounts for implementation of price policies; the confiscation of price difference money; to compensation for money amounts lost due to their administrative violations; to the payment of all expenses for refunding of price difference money must submit the money at places inscribed in the sanctioning decisions so that the principal sanctioning bodies consider the refund thereof to the victims or remit them into the State budget.

Article 23.- The execution of decisions to sanction administrative violations and the coercive execution of decisions to sanction administrative violations shall comply with law provisions.

Article 24.- Transfer of dossiers of administrative violations in the price domain for penal liability examination

When deeming that acts of administrative violation in the price domain show criminal signs, the competent persons must immediately transfer the dossiers to competent criminal procedure- conducting agencies.

It is strictly prohibited to retain violation cases with criminal signs for administrative sanction.

Chapter IV

COMPLAINTS, DENUNCIATIONS, VIOLATION HANDLING

Article 25.- Complaints and denunciations, the settlement thereof

Complaints, denunciations and settlement of complaints or denunciations against decisions to sanction administrative violations in the price domain shall comply with the law provisions on complaints, denunciations.

Pending the settlement of complaints, individuals and organizations sanctioned for administrative violations in the price domain must strictly abide by the sanctioning decisions of competent bodies. The complaints about administrative violation-sanctioning decisions shall not suspend the execution of sanctioning decisions.

Article 26.- Handling of violations

Persons who are competent to sanction administrative violations in the price domain but seek personal interests or lack responsibility, covering up, failing to sanction or sanctioning not in time, improperly, sanctioning ultra vires shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability; if causing damage to the State, organizations or individuals, they must pay compensation therefor according to law provisions.

Persons who are sanctioned for administrative violations in the price domain, if committing acts of obstructing, resisting on-duty officials who have the responsibility to inspect or deliberately delaying or shirking the execution of administrative violation- sanctioning decisions shall, depending on the nature and seriousness of their violations, be administratively handled or examined for penal liability according to the current law provisions.

Chapter V

IMPLEMENTATION PROVISIONS

Article 27.- Implementation effect

This Decree takes implementation effect 15 days after its publication in the Official Gazette; to annul Decree No. 44/2000/ND-CP of September 1, 2000 of the Government stipulating the sanctioning of administrative violations in the price domain.

Article 28.- Responsibility for implementation of the Decree

1. The Finance Minister has the responsibility to guide the implementation of this Decree.

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