Official Dispatch No. 6255/TCHQ-PC dated December 31, 2021 on Implementation of Decree No. 118/2021/ND-CP

To:

- Departments of Customs of provinces;
- Anti-smuggling and Investigation Department;
- Post Clearance Audit Department.

On December 23, 2021, the Government promulgates Decree No. 118/2021/ND-CP elaborating certain articles and enforcement of the Law on handling of administrative violations; This Decree comes into force from January 01, 2021 and supersedes Decree No. 81/2013/ND-CP dated July 19, 2013, Decree No. 97/2017/ND-CP dated August 18, 2017 of the Government The Decree No. 118/2021/ND-CP has many new points compared to Decree No. 81/2013/ND-CP and Decree No. 97/2017/ND-CP. The details are stated in the Appendix attached to this Official Dispatch).

To implement Decree No. 118/2021/ND-CP in a prompt, complete and correct manner, the General Department of Customs requests for the following contents:

1. The heads of units shall organize research and implementation of the regulations of Decree No. 118/2021/ND-CP for officials in their units

2. Publicize, propagate and disseminate the contents of Decree No. 118/2021/ND-CP for customs declarants and taxpayers to know and implement.

3. With regard to use of Records, Decisions and Notification used for handling of administrative violations in the Customs sector:

- The forms of records and decisions issued together with Decree No. 118/2021/ND-CP replace the forms of records and decisions issued together with Circular No. 90/2020/TT-BTC dated November 11, 2020 of the Ministry of Finance.

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For your information and compliance./.

PP. DIRECTOR GENERAL
DEPUTY DIRECTOR GENERAL




Mai Xuan Thanh

APPENDIX

SOME NEW POINTS OF DECREE NO. 118/2021/ND-CP DECEMBER 23, 2021
(Issued together with Official Dispatch No. 6255/TCHQ-PC dated December 31, 2021 of the General Department of Customs)

1. Entities against whom administrative penalties are imposed (Article 3 Decree No. 118/2021/ND-CP):

- Administrative penalties will be imposed upon an organization if the conditions specified in Clause 2 Article 3 of Decree No. 118/2021/ND-CP are fully satisfied.

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- Household businesses and households that commit administrative violations shall be subject to fines (Clause 5 Article 3 of Decree No. 118/2021/ND-CP)

2. Application of regulations on administrative penalties:

- In case an administrative violation is committed in a period in which there are plenty of valid decrees on administrative penalties in various state management fields but no decree can be determined to apply according to regulations of Article 156 of the Law on promulgation of legislative documents, the application of legislative documents to impose penalties on the administrative violation shall be implemented (Clause 2 Article 7 of Decree No. 118/2021/ND-CP):

- Principles for determination of administrative violations which has ended, or is being committed; imposition of administrative penalties, remedial measures and force majeure events (Article 8 of Decree No. 118/2021/ND-CP)

- Imposition of fines; fixed-term suspension of practicing licenses or certificates; fixed-term suspension of operation; confiscation of exhibits and means of administrative violations and remedial measures (Article 9 of Decree No. 118/2021/ND-CP) include some new points: principles for determination of a fine on a particular administrative violation in case there are numerous aggravating and extenuating circumstances (Clause 1 Article 9); power to confiscate, destroy exhibits and means of administration violations, apply remedial measures prescribed in Clause 2, Article 65 and Clause 4, Article 126 of the Law on Handling of Administrative Violations (Clause 8, 9, 10, Article 9)…

3. Authorization of imposition of administrative penalties (Article 10 of Decree No. 118/2021/ND-CP) include the contents: authorization of application of measures for prevention and assurance about handling of administrative violations; authorization of enforcement of  execution of decisions on penalties; power to impose penalties of superiors during the time for authorization for their inferiors (Clause 3, Article 10); cases of termination of the authorization of imposition of administrative penalties (Clause 4, Article 10).

4. Issuance of offence notices (Article 12 Decree No. 118/2021/ND-CP) with some contents:

- Issuance and transfer of offence notices in cases: (i) an act showing signs of an administrative violation that is not under power to issue an offence notice of administrative violation or not in management fields and areas (point a Clause 1 Article 12); (ii) a case that its exhibits or means must be expertised, verified, inspected or another necessary case (point b Clause 1 of Article 12), (iii) working record that is one of the bases for issuing the offence notice (Clause 1 Article 12);

- Time limit for issuing an offence notice (Clause 2 Article 12) with timelines for each specific case as follows: 02 working days, 05 working days (case that consists of multiple complex circumstances or has a large scale and causes effects to legal rights and interests of organizations or individuals); 03 working days from the date of receiving the result of valuation, assessment, inspection and verification of exhibits, means of the violation or relevant details;

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- Contents of record of administrative violation (Clause 4 Article 12); signing offence notices (Clause 5 Article 12); transfer of the offence notice (Clause 6 Article 12).

- If persons with power to issue offence notices or relative entities having failures in late transferring offence notices or dossiers of violation cases leading to the time limit for making decisions on penalties is over, they are subject to handling (Clause 8 Article 12).

5. Cancellation and promulgation of new decisions on administrative penalties (Article 13 Decree No. 118/2021/ND-CP):

- Cases of cancellation of all the contents of the decision on administrative penalties

- Power to cancel all erroneous decisions

- Issuance of new decisions in case there are bases

6. Correction, amendment and partial cancellation of decisions on administrative penalties (Article 14 Decree No. 118/2021/ND-CP).

7. Time limit for implementation and contents of correction, amendment and partial or complete cancellation of decisions on administrative penalties; cases that fail to apply time limit for complete cancellation of decisions, correction, amendment and partial cancellation of the decision; time limit for promulgation of the new decision (Article 15 of Decree No. 118/2021/ND-CP). Some contents of this Article comes into force as of January 01, 2021 (Clause 2 Article 42 Decree No. 118/2021/ND-CP).

8. Effect, time limit and prescriptive period for enforcement of decisions on correction, amendment, partial or complete cancellation or new decisions on administrative penalties (Article 17 of Decree No. 118/2021/ND-CP).

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10. Release of administrative penalties for violators on mass media (Article 18 Decree No. 118/2021/ND-CP):

11. Management of exhibits and means illegally owned or used for administrative violations in cases of confiscation that are registered as collateral according to regulations of civil laws (Clause 2 Article 23 of Decree No. 118/2021/ND-CP).

12. Identification of power to impose penalties for exhibits or means of administrative violations which are products prohibited from possession or circulation (Article 24 Decree No. 118/2021/ND-CP).

13. Schedule used in handling administrative violations (Article 41 Decree No. 118/2021/ND-CP): according to Appendix issued together with Decree No. 118/2021/ND-CP. Forms used in handling administrative violations are stored in paper and in electronic form. Competent authorities and persons may use pre-printed forms or self-print forms, manage and take responsibility in accordance with laws./.