Decree No. 87/2001/ND-CP dated November 21, 2001 of the Government on sanctions against administrative violations in the field of marriage and family

DECREE

ON SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS IN THE FIELD OF MARRIAGE AND FAMILY

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

Pursuant to the Law on Marriage and Family of June 9, 2000;

Pursuant to the Ordinance on Handling of Administrative Violations of July 6, 1995;

At the proposal of the Justice Minister,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.-Scope of regulation

1. This Decree prescribes in detail violation acts, sanctioning forms and levels, procedures and competence to sanction administrative violations in the field of marriage and family.

2. Individuals and organizations that intentionally or unintentionally violate the regulations on marriage and family, but not seriously enough for penal liability examination, shall be sanctioned according to the provisions of this Decree.

Foreign individuals and organizations that commit acts of administrative violation in the field of marriage and family on the territory of the Socialist Republic of Vietnam, which are related to the marriage and family relationships involving foreign elements as prescribed in the Vietnamese legislation on marriage and family, shall be sanctioned according to the provisions of this Decree, except otherwise provided for by the international treaties which Vietnam has signed or acceded to.

3. For acts of violating the public-mission regime by officials and public employees while performing their assigned tasks in the field of marriage and family, which, however, are not serious enough for penal liability examination, such officials and public employees shall be disciplined according to the provisions of the legislation on officials and public employees.

Article 2.-Principles for sanctioning administrative violations

The principles for sanctioning administrative violations in the field of marriage and family shall comply with the provisions of Article 3 of the Ordinance on Handling of Administrative Violations.

The sanctioning of administrative violations in the field of marriage and family chiefly aims to educate violating individuals and organizations, so that they realize and voluntarily redress their wrong-doings or perform the law-prescribed obligations or stop their law-breaking acts, and to make general deterrence and prevention.

The sanctioning of administrative violations in the field of marriage and family against violators who are ethic minority people currently living in deep-lying or remote regions shall be properly applied with the influence and impact of their traditions and customs taken into consideration.

Article 3.-Statute of limitations for sanctioning

1. The statute of limitations for sanctioning administrative violations in the field of marriage and family shall be one year after administrative violations are committed.

2. Persons, who have been sued, prosecuted or had, by decisions, their cases brought to trial according to the criminal proceedings, but later the decisions are issued to suspend the investigation of their cases, shall be sanctioned for administrative violations if their acts show signs of administrative violations. The statute of limitations for sanctioning administrative violations applicable to such acts shall be three months after the suspension decisions are issued.

Within the time limits prescribed in Clauses 1 and 2 of this Article, if violators commit new administrative violations in the field of marriage and family or intentionally shirk or obstruct the sanctioning, the statute of limitations for sanctioning shall not apply. The statute of limitations for sanctioning shall be recounted from the time when the new administrative violations are committed or the time when the violators stop their acts of shirking or obstructing the sanctioning.

Article 4.-Administrative violation sanctioning forms

1. For each administrative violation in the field of marriage and family, the violating individual and/or organization shall be subject to one of the following principal sanctioning forms:

a/ Warning;

b/ Fine.

2. Depending on the nature and seriousness of their violations, the violating individuals and organizations may also have material evidences and violation means confiscated or be stripped of the right to use licenses and/or permits.

Apart from the above-said sanctioning forms, violators shall, on a case-by-case basis, be compelled to carry out one of the following measures: forcible financial support, forcible payment of damages on offspring’s behalf, forcible performance of guardian’s obligations as prescribed by law.

3. In cases where fines are applied, the specific fine level for an administrative violation involving neither aggravating nor extenuating circumstances specified in Articles 7 and 8 of the Ordinance on Handling of Administrative Violations, shall be the average level of the fine bracket. For case of violations involving extenuating circumstances, the lower fine levels may be imposed, but such levels must not be lower than the minimum level of the fine bracket. Violations involving aggravating circumstances may be subject to higher fine levels, but such levels must not exceed the maximum level of the fine bracket. For cases where a violation involves both aggravating and extenuating circumstances, a fine level higher or lower than the average level or the average level may be applied, depending on the nature and degree of such aggravating and extenuating circumstances.

Article 5.-Duration past which sanctioned violators shall be considered having never been sanctioned for administrative violations

If past one year after the date of completely executing sanctioning decisions or the date the effect of sanctioning decisions expires, individuals or organizations that have been sanctioned for administrative violations do not relapse into violation, they shall be considered having never been sanctioned for administrative violations in the field of marriage and family.

Chapter II

ACTS OF ADMINISTRATIVE VIOLATION IN THE FIELD OF MARRIAGE AND FAMILY, SANCTIONING FORMS AND LEVELS

Article 6.-Acts of entering into underage marriage or organizing underage marriage

A warning or a fine of between VND 50,000 and 200,000 shall be imposed for one of the following acts:

a/ Deliberately maintaining illegal conjugal relationship with another person, who has not yet reached the marriage age, though there has been a court ruling compelling the termination of such relationship;

b/ Organizing the marriage for persons who have not yet attained the marriage age.

Article 7.-Acts of forcing marriage or divorce or hindering voluntary and progressive marriage

A warning or a fine of between VND 50,000 and 200,000 shall be imposed for one of the following acts:

a/ Forcing others into marriage or divorce by persecuting, ill-treating, mentally intimidating them or by other means;

b/ Hindering others from entering into marriage or hindering their voluntary and progressive marriage by persecuting, ill-treating, mentally intimidating them, making property claims or by other means.

Article 8.-Acts of violating regulations on marriage ban or monogamy regime

1. A fine of between VND 100,000 and 500,000 shall be imposed for one of the following acts:

a/ Married person entering into marriage or living with another person like husband or wife but such act has not yet caused serious consequences;

b/ Unmarried person entering into marriage or living with another person, who he/she knows is a married person, but such act has not yet caused serious consequences;

c/ Marriage between relatives within three generations;

d/ Marriage between foster parents and adopted children;

e/ Marriage between persons who were once foster parents and their adopted children, between fathers-in-law and daughters-in-law, between mothers-in-law and their sons-in-law, between step-fathers and daughters of their wives previous marriages, between step mothers and sons of their husbands previous marriages;

f/ Marriage between persons of the same sex.

2. Additional sanctioning forms and other measures:

Forcible termination of illegal conjugal relationship, for violations prescribed in Clause 1 of this Article.

Article 9.-Acts of violating regulations on marriage registration

1. A fine of between VND 200,000 and 500,000 shall be imposed for acts of modifying or falsifying contents of or forging papers for marriage registration, which, how-ever, are not serious enough for penal liability examination; deliberately making false declarations or taking other deceitful acts when making marriage registration.

2. Additional sanctioning forms and other measures:

Confiscating and destroying papers, which have been modified or falsified, or forged papers, for violations prescribed in Clause 1 of this Article.

Article 10.-Acts of violating regulations on parent-children relationship

A fine of between VND 100,000 and 500,000 shall be imposed for acts of shirking the obligation to care for and foster children, abusing labor of minor children, or inciting or forcing children to do things in contravention of laws, which, however, are not serious enough for penal liability examination.

Article 11.-Acts of ill-treating or persecuting one’s family members or fosterers

A fine of between VND 200,000 and 500,000 shall be imposed for acts of ill-treating or persecuting grand parents, parents, fosterers or other family members, provided that such acts have not yet caused serious consequences.

Article 12.-Acts of violating regulations on financial support provision

1. A warning or a fine of between VND 20,000 and 100,000 shall be imposed for acts of refusing or shirking the obligation to provide the financial support between wives and husbands after their divorce, or financial support between siblings, between paternal or maternal grand parents and grand children as prescribed by law.

2. A warning or a fine of between VND 50,000 and 200,000 shall be imposed for acts of refusing or shirking the obligation to provide financial support to one’s parents, or post-divorce financial support for children as prescribed by law.

Article 13.-Acts of violating regulations on guardianship

A warning or a fine of between VND 20,000 and 100,000 shall be imposed for acts of shirking or failing to perform the guardians obligation after the procedures for recognizing the guardianship are carried out at the People’s Committees of communes, wards or district townships according to the provisions of law.

Article 14.-Acts of violating regulations on child adoption

1. A fine of between VND 200,000 and 500,000 shall be imposed for acts of modifying or falsifying contents of or forging papers for purposes of registering child adoption, which, however, are not serious enough for penal liability examination; deliberately making false declarations or committing other deceitful acts when registering child adoption.

2. A fine of between VND 1,000,000 and 2,000,000 shall be imposed on organizations engaged in child adoption activities, which commit one of the following acts:

a/ Violating regulations on registration of operations at the local competent State agencies;

b/ Failing to notify the competent State agencies at localities where they are established of changes in the names and/or heads of their organizations, or relocation of their headquarters.

3. A fine of between VND 3,000,000 and 5,000,000 shall be imposed on organizations engaged in child adoption activities, which commit one of the following acts:

a/ Being engaged in child adoption activities without permits of the competent State agencies;

b/ Modifying, falsifying or forging dossiers and/or documents for purpose of being granted operation permits, which, however, are not serious enough for penal liability examination;

c/ Changing heads of Vietnam-based foreign child adoption offices without permission of the competent State agencies, or changing the operation scope, contents and/or locations in Vietnam;

d/ Continuing operations after their permits expire;

e/ Earning illicit profits or taking profit-seeking acts related to the recommendation of children to be adopted.

4. Additional sanctioning forms and other measures:

a/ Confiscating and destroying forged papers, modified or falsified papers, for violations prescribed in Clause 1 and Point b, Clause 3 of this Article;

b/ Stripping of the right to use permits for 6 months or stripping of the right to use permits for indefinite time, for violations prescribed at Point e, Clause 3 of this Article.

Article 15.-Acts of violating regulations on the right to visit and give care to children after divorce

A warning or a fine of between VND 20,000 and 100,000 shall be imposed for acts of frequently hindering persons who do not directly foster children from visiting and giving care to them after divorce, except for cases where the parents’ right to visit and give care to their children is restricted according to a court ruling.

Article 16.-Proposing the court to apply a number of measures according to its competence and the handling of cases where violators, who have been administratively sanctioned, relapse into violations

1. Persons who violate the provisions of Clause 1, Article 9, Article 12 and Clause 1 of Article 14 of this Decree shall, apart from being administratively sanctioned according to the provisions of the said Articles, be subject to necessary measures proposed by the agencies with sanctioning competence to the competent court for decision on application thereof according to the provisions of law.

2. Persons, who violate the provisions of Articles 6 and 7, Points a and b, Clause 1, Article 8, Articles 11 and 12 of this Decree, thus causing serious consequences, or who have been administratively sanctioned but relapse into violations, shall be examined for penal liability according to the provisions of the 1999 Penal Code.

Chapter III

SANCTIONING COMPETENCE AND PROCEDURES

Section I - SANCTIONING COMPETENCE

Article 17.-Competence to sanction administrative violations of the presidents of the People’s Committees of all levels

1. Presidents of the People’s Committees of communes, wards or district townships have the right to:

a/ Serve warnings;

b/ Impose fines of up to VND 200,000 each;

c/ Confiscate material evidences and/or means involved in administrative violations, which are valued at up to VND 500,000.

2. Presidents of the People’s Committees of rural districts, urban districts, provincial capitals or towns have the right to:

a/ Serve warnings;

b/ Impose fines of up to VND 2,000,000 each;

c/ Confiscate material evidences and/or means involved in administrative violations.

3. Presidents of the People’s Committees of the provinces or centrally-run cities have the right to:

a/ Serve warnings;

b/ Impose fines of up to the highest level prescribed in Chapter II of this Decree;

c/ Confiscate material evidences and/or means involved in administrative violations;

d/ Strip of the right to use permits.

Section II. SANCTIONING PROCEDURES

Article 18.-Stopping violation acts and making written records on administrative violations

Upon detecting administrative violations in the field of marriage and family, the persons with sanctioning competence, defined in Article 17 of this Decree shall have to request the violating individuals and/or organizations to immediately stop their administrative violation acts or to perform the law-prescribed obligations, and promptly make written records thereon, except for cases where the sanctioning is effected according to simple procedures. The form and mode of making written records shall comply with the provisions of Article 47 of the Ordinance on Handling of Administrative Violations. For each case, one copy of written record thereon, after being made, must be handed to the violating individual or organization. In cases where an administrative violation falls beyond the sanctioning competence of the written record maker, such written record must be immediately sent to the competent person for handling.

Article 19.-Administrative violation-sanctioning decisions

1. Within 15 days after making written records, the competent persons shall have to issue sanctioning decisions. For violations involving complicated factors, the above-said time limit may be extended but must not exceed 30 days. The form and content of sanctioning decisions must comply with the provisions in Clause 2, Article 48 of the Ordinance on Handling of Administrative Violations.

2. A sanctioning decision shall take effect after its signing, except for cases where the effective date is prescribed in such decision.

3. The fine collection and payment, the fine management regime shall comply with the State’s current regulations.

Article 20.-Sanctioning administrative violations according to simple procedures

In cases where an administrative violation is sanctioned in form of warning or fine of VND 20,000, the person with sanctioning competence shall not make a written record thereon but issue an on-the-spot sanctioning decision.

Article 21.-Execution of administrative violation-sanctioning decisions

1. In the course of accepting and handling an administrative violation, the person with sanctioning competence shall have to guide and explain to the sanctioned individual or the lawful representative of the sanctioned organization the specific law provisions related to violation acts, so that the latter can voluntarily execute the sanctioning decision.

2. The sanctioned individuals and organizations shall have to execute the sanctioning decisions within 5 days after being handed such sanctioning decisions, except for cases where the execution time limits are inscribed in the decisions.

3. Individuals and organizations sanctioned for their administrative violations, that deliberately fail to abide by the sanctioning decisions, shall be coerced to do so and have to pay all expenses for organizing the application of coercive measures. The persons with sanctioning competence may issue coercive decisions and are tasked to organize the coercion. The people’s police forces shall have to execute coercive decisions of the presidents of the People’s Committees of the same level.

The procedures for coercing the execution of administrative violation-sanctioning decisions shall comply with the provisions of law.

Chapter IV

COMPLAINTS, DENUNCIATIONS AND HANDLING OF VIOLATIONS

Article 22.-Complaints, denunciations and settlement thereof

1. Individuals and organizations sanctioned for administrative violations or their lawful representatives may lodge complaints about sanctioning decisions of the competent persons when having grounds to believe that such sanctioning decisions are unlawful or infringe upon their legitimate rights and interests.

2. Citizens may denounce administrative violations committed by individuals and organizations as well as law-breaking acts of the persons with administrative violation-sanctioning competence to the competent State agencies.

The competence, procedures and time limit for settling complaints and denunciations shall comply with the provisions of the December 2, 1998 Law on Complaints and Denunciations.

Article 23.-Commendation, reward and handling of violations

1. Individuals and organizations that record merits in the detection, prevention and/or sanctioning of administrative violations in the field of marriage and family shall be commended and/or rewarded according to the common regime of the State.

2. Persons with the administrative violation- sanctioning competence, who cause troubles, tolerate or cover up violators, fail to sanction or fail to promptly or properly sanction violations, sanction violations ultra vires, shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability. If material damage is caused, compensations therefor must be made according to provisions of law.

Chapter V

IMPLEMENTATION PROVISIONS

Article 24.-

1. This Decree takes effect 15 days after its signing.

2. To annul Point a, Clause 2, Article 26 of the Government’s Decree No. 49/CP of August 15, 1996 on sanctioning administrative violations in the field of security and order.

Article 25.-The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.