CIRCULAR

ON GUIDELINES FOR GOVERNMENT’S DECREE NO. 120/2013/ND-CP DATED OCTOBER 09, 2013 ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON NATIONAL DEFENSE AND CRYPTOGRAPHY

Pursuant to the 2012 Law on Handling Administrative Violations;

Pursuant to the Government's Decree No. 81/2013/ND-CP dated July 19, 2013 on guidelines for Law on Handling Administrative Violations;

Pursuant to the Government’s Decree No. 120/2013/ND-CP dated October 09, 2013 on penalties for administrative violations against regulations on national defense and cryptography;

Pursuant to the Government’s Decree No. 35/2013/ND-CP dated April 22, 2013 on functions, duties, powers and organizational structure of the Ministry of National Defense;

Pursuant to the Government’s Decree No. 09/2014/ND-CP dated January 27, 2014 on functions, duties, powers and organizational structure of Government Cipher Commission;

At the request of Chief Inspector of the Ministry of National Defense,

The Minister of National Defense provides guidelines for the Government’s Decree No. 120/2013/ND-CP dated October 09, 2013 on penalties for administrative violations against regulations on national defense and cryptography.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Circular provides the guidelines for the Government’s Decree No. 120/2013/ND-CP dated October 09, 2013 on penalties for administrative violations against regulations on national defense and cryptography (hereinafter referred to as "Decree No. 120/2013/ND-CP”).

2. Other regulations on penalties for administrative violations against regulations on national defense and cryptography not included in this Circular shall be implemented in accordance with regulations of the Law on Handling Administrative Violations and relevant guidelines.

Article 2. Regulated entities

This Circular is applicable to:

1. Competent state agencies and persons assigned to impose penalties on administrative violations against regulations on national defense and cryptography by competent state agencies.

2. Organizations and individuals committing violations against regulations of law on penalties for administrative violations against regulations on national defense and cryptography.

3. Other entities involved in imposition of penalties on administrative violations against regulations on national defense and cryptography according to regulations of this Circular.

Article 3. Determination of fine rates for specific cases

1. The specific fine imposed upon an administrative violation without aggravating or mitigating circumstance shall be the average fine in the fine bracket for that violation. This average fine shall be the average of the maximum fine and minimum fine in the fine bracket.

2. The fine imposed upon an administrative violation may be less than the average fine in the fine bracket but shall not be less than the minimum fine of the fine bracket if the violation has a mitigating circumstance according to regulations in Article 9 of the Law on Handling Administrative Violations; and may be higher than the average fine of the fine bracket but shall not exceed the maximum fine of the fine bracket if the violation has an aggravating circumstance according to regulations in Article 10 of the Law on Handling Administrative Violations.

3. An administrative violation having both mitigating and aggravating circumstances shall be considered using the reduction rule, with one mitigating circumstance cancelling out one aggravating circumstance. After such reduction, if there is no aggravating or mitigating circumstance, the fine shall be determined according to regulations in Clause 1 of this Article; otherwise, the fine shall be determined according to regulations in Clause 2 of this Article.

Article 4. Forms used in handling of administrative violations

Forms used in handling of administrative violations against regulations on national defense and cryptography shall adhere to regulations of law on promulgation, management and use of forms for handling of administrative violations against regulations on state management of the Ministry of National Defense.

Chapter II

ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON NATIONAL DEFENSE AND CRYPTOGRAPHY AND PENALTY TYPES AND REMEDIAL MEASURES THEREOF

Article 5. “legitimate reason” mentioned in Clause 1 Article 5, Clause 1 Article 6, Clause 1 Article 7, Clause 1 Article 11 and Clause 1 Article 12 of Decree No. 120/2013/ND-CP

1. “legitimate reason” mentioned in Clause 1 Article 5, Clause 1 Article 6, Clause 1 Article 7, Clause 1 Article 11 and Clause 1 Article 12 of Decree No. 120/2013/ND-CP refers to any of the following reasons:

a) The person required to participate in preliminary selection for conscription, health examination for conscription or health examination for reserve serviceman selection; or comply with the enlistment order, call to reserve serviceman training or call to training, drilling and mobilization and fighting readiness assessment (hereinafter referred to as “conscripted person") falls ill or falls ill or has an accident on the way.

b) A family member of the conscripted person, namely biological mother or father, father-in-law or mother-in-law, legal guardian, spouse, biological child or legally adopted child, is critically ill.

c) A family member of the conscripted person, namely biological mother or father, father-in-law or mother-in-law, legal guardian, spouse, biological child or legally adopted child, is deceased but the funeral has not taken place.

d) The house of the conscripted person or a family member of the conscripted person is located in an area struck by a natural disaster, epidemic or fire and their daily life is affected.

dd) The conscripted person has not received the written call to preliminary selection for conscription, health examination for conscription or health examination for reserve serviceman selection; enlistment order, call to reserve serviceman training or call to training, drilling and mobilization and fighting readiness assessment due to a mistake by the competent person or authority or obstruction caused by another person according to regulations in Article 8 Chapter II herein.

2. The cases provided for in Point a and Point b Clause 1 herein must be confirmed by the commune-level People's Committee or commune-level hospital or health station; the cases provided for in Point c and Point d Clause 1 herein must be confirmed by the commune-level People's Committee; the case provided for in Point dd Clause 1 herein must be confirmed by the competent authority.

Article 6. “alteration of health classification results” mentioned in Point a Clause 2 Article 6 and Point a Clause 3 Article 11 of Decree No. 120/2013/ND-CP

“alteration of health classification results” mentioned in Point a Clause 2 Article 6 and Point a Clause 3 Article 11 of Decree No. 120/2013/ND-CP refers to any of the following acts:

1. Use of methods or measures to change health condition of person undergoing health examination.

2. Changing health examination results of person undergoing health examination during the examination.

3. Asking another person to undergo the health examination.

Article 7. “sheltering and concealment of deserting soldiers” mentioned in Point b Clause 1 Article 8 of Decree No. 120/2013/ND-CP

“sheltering and concealment of deserting soldiers” mentioned in Point b Clause 1 Article 8 of Decree No. 120/2013/ND-CP refers to any of the following acts:

1. Allowing the deserting soldier to stay in one's house or on the premises of a regulatory body or organization without reporting to the competent person or authority.

2. Helping the deserting soldier go into hiding or providing the deserting soldier with equipment and materials needed to go into hiding.

3. Preparing documents to legalize the desertion.

Article 8. “obstruction” mentioned in Clause 2 Article 9, Clause 2 Article 21 and Clause 3 Article 23 of Decree No. 120/2013/ND-CP

1. “obstruction” mentioned in Clause 2 Article 9 of Decree No. 120/2013/ND-CP refers to any of the following acts committed by an individual or organization:

a) Failure to notify or failure to promptly notify documents related to duty fulfillment.

b) Using words or actions or making physical or mental threat to prevent persons tasked with conscription registration, preliminary selection for conscription, health examination for conscription and execution of enlistment orders from fulfilling their duties.

2. “obstruction” mentioned in Clause 2 Article 21 of Decree No. 120/2013/ND-CP refers to the use of words or actions such as dissuading or making physical or mental threat to prevent other people from participating in militia and self-defense forces or persons tasked with organization or management of militia and self-defense forces from organizing or training militia and self-defense forces.

3. “obstruction” mentioned in Clause 3 Article 23 of Decree No. 120/2013/ND-CP refers to the use of words or actions such as dissuading or making physical or mental threat towards on-duty members of militia and self-defense forces.

Article 9. Violations against regulations on management, use and production of military uniforms

The military uniforms mentioned in Clause 2 Article 8, Article 32, Article 33 and Article 34 of Decree No. 120/2013/ND-CP refer to uniforms used in the military according to regulations of the Government.

Article 10. Determination of value of land use rights of encroached land in money according to regulations in Article 29 of Decree No. 120/2013/ND-CP

Value of land use rights of encroached land in money according to regulations in Clause 1 and Clause 2 Article 29 of Decree No. 120/2013/ND-CP shall be calculated by multiplying the area of the encroached land and land price stipulated by the People's Committee of the province or central-affiliated city where the land is located at the time of formulation of the administrative violation notice.

Encroached land area shall be the area stated in the administrative violation notice. If the person committing the administrative violation files a complaint against the area stated, they have the right to request an assessment from the person having power to impose the penalty, and shall incur the cost of such assessment if the assessment result is consistent with the land area stated in the administrative violation notice (with permissible variance of 0,25%).

Article 11. Imposition of additional penalty of confiscation of exhibits and vehicles used to commit administrative violations in Decree No. 120/2013/ND-CP

1. When imposing the additional penalty of confiscation of exhibits and vehicles used to commit administrative violations in Decree No. 120/2013/ND-CP, the person having the power to impose the penalty shall draw up a record according to regulations of the Government's Decree No. 81/2013/ND-CP dated July 19, 2013 on guidelines for Law on Handling Administrative Violations (hereinafter referred to as “Decree No. 81/2013/ND-CP”). The record shall include the name, quantity, type, registration number (if any), condition and quality of objects, money, goods and means of the administrative violation confiscated and signatures of the person carrying out the confiscation, person incurring the penalty or representative of the organization incurring the penalty and witness; if the person incurring the penalty or representative of the organization incurring the penalty is absent, there must be two witnesses. Exhibits and means of administrative violations needing to be sealed must be sealed in front of the person incurring the penalty or representative of the organization incurring the penalty and witness; and the sealing must be noted into the record.

2. For exhibits and means of administrative violations temporarily seized, if the person having power to impose the penalty finds that these exhibits and means have changed compared to when the temporary seizure decision was issued, they shall draw up a record of such change; the record must have signatures of the record maker, person in charge of temporary seizure and witness.

3. Exhibits and means of administrative violations shall be handled in compliance with regulations in Article 82 of the Law on Handling Administrative Violations.

Article 12. Imposition of additional penalty of revocation of certificates of eligibility to participate in national defense industry according to Clause 3 Article 19 and Clause 6 Article 20 of Decree No. 120/2013/ND-CP and penalty mentioned in Clause 5 Article 20 of Decree No. 120/2013/ND-CP

1. In case an individual or organization commits multiple administrative violations and incurs the penalty/ies at the same time with at least two of such violations result in revocation of the certificate of eligibility to participate in national defense industry, the penalty with the longest revocation period shall be imposed.

2. In case a penalty is imposed upon participation in national defense industry without a certificate of eligibility to participate in national defense industry according to regulations in Clause 5 Article 20 of Decree No. 120/2013/ND-CP, the person having power to impose the penalty must notify the supervisory body affiliated to the Ministry of National Defense of the contracting body in writing.

Article 13. Remedial measure of enforced performance of conscription according to regulations of the Law on Military Conscription

Persons imposed the remedial measure of enforced performance of conscription according to regulations of the Law on Military Conscription for the violation mentioned in Point a Clause 1 Article 8 of Decree No. 120/2013/ND-CP shall continue to comply with regulations on conscription registration, preliminary selection and health examination for conscription and enlistment according to the Law on Military Conscription.

Chapter III

POWER TO IMPOSE PENALTIES AND PROCEDURES FOR PENALTY IMPOSITION AND EXECUTION OF ADMINISTRATIVE PENALTY DECISIONS FOR ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON NATIONAL DEFENSE AND CRYPTOGRAPHY

Article 14. Determination of power to impose penalties upon administrative violations against regulations on national defense and cryptography

1. If multiple persons have the power to impose a penalty on an administrative violation against regulations on national defense or cryptography, the first person to receive the case shall take charge of such imposition.

2. Power to impose penalties on an individual committing multiple administrative violations against regulations on national defense or cryptography shall be determined as follows:

a) If the penalty type, fine rate, value of confiscated exhibits and means of administrative violation and remedial measures applicable to each violation are within the competence of the person imposing the penalties, this person may impose the penalties;

b) If the penalty type, fine rate, value of confiscated exhibits and means of administrative violation and remedial measures applicable to any violation are beyond the competence of the person imposing the penalties, this person shall refer the case to the competent authority;

c) If multiple persons from different sectors have the power to impose a penalty on an administrative violation, Chairperson of the competent People’s Committee of the locality where the violation was committed shall impose the penalty.

Article 15. Handling of administrative violations against regulations on national defense and cryptography without violation notices

Handling of administrative violations against regulations on national defense and cryptography without violation notices is applicable to the case where a warning is issued to or a fine of up to VND 250.000 (if it is imposed upon an individual) is imposed on the violations mentioned in Clause 2 Article 4 of Decree No. 120/2013/ND-CP  and the person having power to impose the penalty must issue an on-site penalty imposition decision.

Article 16. Handling of administrative violations against regulations on national defense and cryptography with violation notices

1. Handling of administrative violations against regulations on national defense and cryptography with violation notices is applicable to administrative violations committed by individuals and organizations besides the case provided for in Article 15 of this Circular.

2. Issuance of and power to issue notices of administrative violations against regulations on national defense and cryptography shall adhere to regulations in Article 58 of the Law on Handling Administrative Violations, Article 6 of Decree No. 81/2013/ND-CP and Articles 43 and 49 of Decree No. 120/2013/ND-CP.

3. For administrative violations against regulations on national defense and cryptography detected and recorded into inspection records or concluding documents by inspecting authorities, it is not required to issue a violation notice before the administrative penalty decision is promulgated. The person having power to impose the penalty shall issue the penalty decision based on the inspection record or concluding document.

Article 17. Explanations from organizations and individuals committing administrative violations against regulations on national defense and cryptography

1. An organization or individual incurring revocation of the certificate of eligibility to participate in national defense industry according to regulations in Clause 3 Article 19 and Clause 6 Article 20 of Decree No. 120/2013/ND-CP or the maximum fine applicable to the violation committed (VND 15.000.000 or more for individuals and VND 30.000.000 or more for organizations) has the right provide an explanation for the person having power to impose the penalty directly or in writing.

2. The person having power to impose the penalty shall consider the explanation provided by the organization or individual committing the violation before issuing the penalty decision, unless the organization or individual does not wish to provide an explanation within the time limit mentioned in Clauses 2 and 3 Article 61 of the Law on Handling Administrative Violations.

3. Time limit and procedures for provision of explanations for administrative violations against regulations on national defense and cryptography shall abide by regulations in Clauses 2 and 3 Article 61 of the Law on Handling Administrative Violations.

Article 18. Transfer of dossiers on administrative violations against regulations on national defense and cryptography suspected of crime for criminal prosecution

1. During handling of an administrative violation against regulations on national defense and cryptography, if detecting criminal signs from the organization or individual committing the violation, the person having power to impose the penalty must immediately transfer the dossier on the violation to the procedural authority.

2. In case the person having power to impose the penalty has issued an administrative penalty decision before criminal signs from the violation are detected and the prescriptive period has not expired, this person shall issue a decision to suspend execution of the administrative penalty decision and transfer the dossier on the violation to the competent procedural authority within 03 days after the date of issuance of the suspension decision for handling; if the administrative penalty decision has been executed, the person having power to issue this decision must transfer the dossier on the violation to the procedural authority for handling.

3. The procedural authority receiving the dossier mentioned in Clauses 1 and 2 herein shall consider and conclude the case and notify the handling result to the person transferring the dossier in writing within the time limit stipulated by criminal procedure law; in case of not pressing charges, within 03 days after the date of issuance of the decision not to press charges, the procedural authority shall return the dossier to the person transferring the dossier.

In case the procedural authority issues the decision to press charges, the person having power to impose the penalty must annul the administrative penalty decision and transfer documents on execution of the penalty decision to the procedural authority.

4. Transfer of the dossier on the violation suspected of crime for criminal prosecution must be notified to the individual committing the violation.

Article 19. Issuance and execution of penalty decisions

1. Penalty decisions shall be issued in compliance with regulations in Articles 67 and 68 of the Law on Handling Administrative Violations and Article 6 of Decision No. 81/2013/ND-CP.

2. Penalty decisions shall be executed in compliance with regulations in Section 2 Chapter III in the second part of the Law on Handling Administrative Violations.

3. Persons having power to impose penalties shall monitor, inspect and expedite execution of penalty decisions that they issued by the organizations and individuals incurring the penalties and promulgate enforced execution decisions in case the penalty decisions are not executed within the given time limit.

4. Enforced execution of penalty decisions shall be carried out in accordance with regulations in Section 3 Chapter III in the second part of the Law on Handling Administrative Violations and Decree No. 166/2013/ND-CP.

Article 20. Handling of late fine payment

1. Organizations and individuals failing to pay fines incurred by the deadline stated in the administrative penalty decision shall be handled according to regulations in Clause 1 Article 78 of the Law on Handling Administrative Violations.

2. The period during which exemption from or reduction of the remaining fine or fine payment by installments is being considered or decided or execution of an administrative penalty decision imposed upon an individual is being suspended as prescribed by law does not constitute late fine payment.

3. Duration of late fine payment shall start from the day immediately following the payment deadline or the last day of the penalty decision suspension period to the day immediately preceding the date where the individual or organization pays the fine incurred to state budget, including holidays and days off according to regulations.

Chapter IV

IMPLEMENTATION CLAUSE

Article 21. Transitional clauses

1. Administrative violations against national defense regulations committed before November 22, 2013 shall be handled according to regulations of the Government’s Decree No. 151/2003/ND-CP dated December 09, 2003 on penalties for administrative violations against regulations on national defense.

2. Administrative violations against national defense regulations committed before November 22, 2013 and discovered afterwards or under consideration shall be handled according to regulations of Decree No. 120/2013/ND-CP and this Circular if the application of such Decree and this Circular is favorable to the individuals and organizations committing these violations.

3. For complaints against administrative penalty decisions issued or executed prior to the entry into force of this Circular filed by individuals or organizations incurring such administrative penalties, these complaints shall be handled according to regulations of law applicable at the time where the violations were committed.

Article 22. Effect

This Circular takes effect from August 25, 2014 and supersedes Circular No. 29/2004/TT-BQP dated March 08, 2004 by the Minister of National Defense on guidelines for the Government’s Decree No. 151/2003/ND-CP dated December 09, 2003 on penalties for administrative violations against regulations on national defense.

Article 23. Implementing responsibilities

1. Immediate superiors of persons having power to impose penalties on administrative violations against regulations on national defense and cryptography shall inspect such imposition.

2. Workplaces of persons having power to impose penalties on administrative violations against regulations on national defense and cryptography shall exercise their rights and fulfill their duties concerning detection and handling of administrative violations against regulations on national defense and cryptography according to regulations of Decree No. 120/2013/ND-CP and this Circular.

3. State agencies, organizations and individuals detecting administrative violations against regulations on national defense and cryptography shall transfer documents or report to the bodies having power to impose penalties on such violations mentioned in Decree No. 120/2013/ND-CP for consideration and handling per regulations.

4. Any difficulty arising during the implementation of this Circular should be promptly reported to the Ministry of National Defense for consideration and cooperation in resolution./.

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