To:

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

The Law No. 67/2020/QH14 providing amendments to the Law on handling of administrative violations has been promulgated in the 10^th plenary session of the 14^th National Assembly; The Government has also promulgated the Decree No. 118/2021/ND-CP dated December 23, 2021 on elaboration of the Law on handling of administrative violations. The General Department of Vietnam Customs has issued a document providing guidelines for implementation of the Law No. 67/2020/QH14 and the Decree No. 118/2021/ND-CP (the Official Dispatch No. 5820/TCHQ-PC dated December 10, 2021, the Official Dispatch No. 6255/TCHQ-PC dated December 31, 2021). After obtaining opinions from the Ministry of Justice of Vietnam, the General Department of Vietnam Customs determines that, during the implementation of such documents, special attention should be paid to the following:

1.  Procedures for confiscation of goods in case of unidentified violating entities:

Clause 2 Article 65 of the Law on handling of administrative violations, as amended in the Law No. 67/2020/QH14, (hereinafter referred to as “Law on handling of administrative violations”) stipulates: In case of unidentified violating entities, though competent persons do not issue penalty imposition decisions, they have to issue decisions to confiscate exhibits and/or instrumentalities used for commission of administrative violations in the event that such exhibits and/or instrumentalities are classified as those banned from storage or circulation, or those subject to a penalty imposed in a form of confiscation, and impose remedial measures prescribed by laws.  

Regarding handling of temporarily impounded exhibits and/or instrumentalities according to administrative procedures, Point b Clause 4 Article 126 of the Law on handling of administrative violations stipulates: In case the violating entity, or legitimate owner, custodian or user of exhibits and/or instrumentalities used for commission of an  administrative violation is unidentifiable, the person issuing the decision to temporarily impound exhibits and/or instrumentalities must notify this decision on central or local mass media at the locality where they are temporarily impounded twice.   The first notification must be issued within 03 working days from the expiration of the time limit for the temporary impoundment thereof.  The second notification must be issued within 07 working days from the date of issue of the first notification.  After the period of 01 year from the second notification date, if the violating entity, or legitimate owner, custodian or user does not come to claim them, within 05 working days, the competent person must issue a decision to confiscate such exhibits and/or instrumentalities.

Accordingly, in case of a violation prescribed in Clause 2 Article 65 of the Law on handling of administrative violations where the violating entity is unidentifiable, and the exhibits and/or instrumentalities used for commission of that violation must be temporarily impounded as prescribed in Point a or b Clause 1 Article 125 of the Law on handling of administrative violations, and have been actually impounded, the competent authority or person shall follow procedures for confiscation of such exhibits and/or instrumentalities in accordance with the provisions of Point b Clause 4 Article 126 of the Law on handling of administrative violations.

(Clause 1 Article 125 of the Law on handling of administrative violations stipulates:  The temporary impoundment of exhibits and/or instrumentalities of administrative violations, licenses, and practicing certificates according to administrative procedures shall only be applied for the purposes of:

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b) Immediately prevention of the violation which may lead to serious social consequences:”)  

In reality, if a competent person may identify the violation and its facts immediately upon detection of that violation, and there are grounds for presuming that the violating entity is unidentifiable without temporarily impounding the exhibits and/or instrumentalities, he/she may issue a decision to confiscate the exhibits and/or instrumentalities of that violation in accordance with Clause 2 Article 65 of the Law on handling of administrative violations.

2. Actions in case where time limit for recording administrative violations has passed

The time limit for recording administrative violations shall comply with Article 58 of the Law on handling of administrative violations, Clause 2 Article 12 of the Decree No. 118/2021/ND-CP dated December 23, 2021.

Clause 8 Article 58 of the Law on handling of administrative violations stipulates:  “an administrative violation record must be made in accordance with this Law in terms of its contents, representation format and procedures, and serves as the basis for issuance of the penalty imposition decision, .....". Accordingly, if an administrative violation record is made beyond the time limit prescribed in Clause 2 Article 12 of the Decree No. 118/2021/ND-CP, it cannot be used as the basis for issuance of an penalty imposition decision.

Issuance of an penalty imposition decision on the basis of the administrative violation record which is made beyond the prescribed time limit shall be considered to have violated regulations on procedures for issuance of penalty imposition decisions as prescribed in Point c Clause 1 Article 13 of the Decree No. 118/2021/ND-CP, the issuing person shall be required to issue a decision to validate that penalty imposition decision, and may face disciplinary actions as prescribed in the Government's Decree No. 19/2020/ND-CP dated February 12, 2020 and relevant law provisions. In this case, if there are grounds for issuing a new penalty imposition decision, the issuing person shall himself/herself or request a competent person to issue a new penalty imposition decision.

Relevant agencies/units are requested to proactively review and determine whether any administrative violation records made after January 01, 2022 have been made beyond the prescribed time limit or not, and specific reasons thereof (including objective and subjective reasons), and submit reports to the General Department of Vietnam Customs (in which proposed actions to be taken must be specified) by November 15, 2022.  

3. Determination of time limit for issuing penalty imposition decisions in case of explanations

The time limit for issuing penalty imposition decisions in case of explanations shall comply with the provisions of Points b, c Clause 1 Article 66 of the Law on handling of administrative violations, Article 17 of the Decree No. 118/2021/ND-CP. To be specific:

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- In case the violating entity requests explanations as prescribed in Clauses 2, 3 and 4 Article 61 of the Law on handling of administrative violations, the person competent to impose administrative penalties shall issue a penalty imposition decision within the time limit prescribed in Points b and c Clause 1 Article 66 of the Law on handling of administrative violations.

(Point b Clause 1 Article 66 stipulates: In case the violating entity requests explanations or relevant facts must be verified as prescribed in Article 59 of this Law, the time limit for issuance of a penalty imposition decision shall be 01 month from the issue date of the administrative violation record. (Point c Clause 1 Article 66 stipulates: In case mentioned in Point b of this Clause, if the violation is extremely serious, involves complicated facts, and needs more time to carry out further verification and collection of evidence, the time limit for issuance of a penalty imposition decision shall be 02 months from the issue date of the administrative violation record).

Additionally, in case of explanations, if the person competent to impose administrative penalties does not receive any written explanations from the violating entity within the last day of the prescribed time limit for providing explanations, he/she shall issue a penalty imposition decision within the time limit prescribed in Point a Clause 1 Article 66 of the Law on handling of administrative violations. If written explanations are received after issuance of the penalty imposition decision, he/she may consider modifying or validating the issued penalty imposition decision in accordance with regulations (if provided explanations are plausible).

4. Period of temporary impoundment of exhibits of administrative violations

The period of temporary impoundment of exhibits of administrative violations shall comply with Clause 8 Article 125 of the Law on handling of administrative violations. Upon expiration of this period, if such exhibits are not subject to confiscation, they shall be returned to violating entities, or legitimate owners, custodians or users of such exhibits.

5. Transfer of violations to persons competent to impose administrative penalties

Clause 5 Article 58 of the Law on handling of administrative violations stipulates: “......in case of an administrative violation which falls beyond the sanctioning competence of the record maker, the record and other related documents shall be transferred to the person competent to impose administrative penalties within 24 hours from the issue date of the record, except cases where administrative violation records are made aboard airplanes, ships or trains.”.

Clause 8 Article 12 of the Decree No.118/2021/ND-CP stipulates: If the person competent to record the administrative violation, involved organizations and individuals delays the transfer of the record or related documents within the prescribed time limit resulting in a penalty imposition decision issued after expiry of the prescribed time limit, they shall be sanctioned in accordance with regulations of law.

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- If a violation falls within the jurisdiction of the Director General of the General Department of Vietnam Customs or or Chairperson of a provincial People’s Committee:

Director of the relevant provincial or inter-provincial Customs Department, Director of the Anti-smuggling and Investigation Department, or Director of the Post Clearance Audit Department shall, based on their actual conditions, determine authority to sign the document transferring the case to the Director General of the General Department of Vietnam Customs or Chairperson of a provincial People’s Committee to impose administrative penalties within their competence provided that such a document must be signed and transferred (together with the case-related documents, if any) within 24 hours from the issue date of the administrative violation record.

6. Authority to issue decisions to enforce penalty imposition decisions

If a penalty imposition decision is not yet implemented within the prescribed time limit, Director of the relevant provincial or inter-provincial Customs Department shall request the Chairperson of provincial People’s Committee to issue a decision to enforce the penalty imposition decision.”

Customs agencies have recently issued decisions to enforce penalty imposition decisions issued by Chairpersons of provincial People’s Committees.  Pursuant to Clause 2 Article 73, Article 87 of the Law on handling of administrative violations, customs agencies are requested to comply with the authority to issue decisions to enforce penalty imposition decisions and the provisions of Clause 3 Article 23 of the Decision No. 166/QD-TCHQ dated January 18, 2021 of the General Department of Vietnam Customs.

7. Recording of information on authority to issue penalty imposition decisions

If a penalty imposition decision is issued by an official, the phrase “Công chức thuộc Chi cục Hải quan…” (“official of the customs sub-department of...") shall be specified at the “Thẩm quyền ban hành” (“Issuing authority”) part of the decision; regarding the “chức vụ của người ký” (“position of signatory”) part (Note 21 of the template of the penalty imposition decision): if the official's position is not available, the word “CÔNG CHỨC” (“OFFICIAL”), signature and full name of the signatory shall be specified.  

For your information and compliance./.

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PP. DIRECTOR GENERAL
DEPUTY DIRECTOR GENERAL




Mai Xuan Thanh