Chương 1 Nghị định 113/2004/NĐ-CP: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope of application

1. This Decree stipulates administrative penalties for Vietnamese organizations and individuals, who violate labour laws but are not criminal and shall be penalized in accordance with laws within the territory, economically privileged zones and the continental shelf of Vietnam.

2. Foreign individuals and organizations committing acts of administrative violations of labour laws within the territory, economically privileged zones and the continental shelf of the Socialist Republic of Vietnam shall be penalized as regulated by this Decree except for cases stipulated by international treaties, in which the Socialist Republic of Vietnam is a signatory or a supporting  member;

3. Labour laws mentioned in this Decree include the regulations in the amended and supplemented Labour Code and documents detailing the compliance with the amended and supplemented Labour Code.

Article 2. Principles for the penalization application to labour legislation violations

1. The penalization for acts of labour law violations shall be conducted by the competent persons as stipulated in Articles 26, 27 and 28 below.

Individuals and organizations committing acts of violation as stipulated in Chapter 2 of this Decree shall be penalized for their labour law violations.

2. The penalization for acts of labour law violations shall be conducted promptly, fairly and thoroughly. A violation detected should be suspended promptly by a decision; every consequence caused by the act of administrative violation shall be surmounted in accordance with laws.

3. One act of administrative violation shall be penalized only once. Each of acts of violation committed by the same person shall be penalized separately. Each of the persons who commit the same act of violation shall be penalized separately.

4. Forms and measures of penalization shall be based on the nature and seriousness of the violation, the personal status of the guilty person, mitigating and aggravating factors as stipulated in Articles 3 and 4 of this Decree.

5. Penalization for administration violation is not applied for cases of emergency, legitimate self-defense, sudden factors or administrative violators losing capacity of consciousness or act control due to mental illness or other diseases.

Article 3.  The mitigating factors are determined as follows:

1. The guilty person who has tried to prevent or diminish the damages caused by the violation, voluntarily to take remedial measures or to pay compensation for damages caused.

2. The guilty person has voluntarily clarified, truthfully repented.

3. The guilty person is a pregnant woman, a young, an elderly person, a sick or handicapped person whose conscience and capability to control himself/herself is limited.

4. A violation driven by extremely difficult circumstances, which were not intentionally created by the violator.

5. A violation is committed by backwardness.

Article 4. The aggravating factors are determined as follows:

1. Violating in an organized manner.

2. Multiple violation or recidivism in the same field.

3. Inciting, enticing young persons or compelling materially or spiritually dependant persons into committing a violation.

4. Committing a violation while being drunk with beer, wine or other stimulants.

5. Taking advantage of one's position or powers to commit a violation.

6. Taking advantage of war situation, natural disasters or other especially difficult circumstances of the society to commit a violation.

7. Committing a violation while serving a criminal sentence or while fulfilling an administrative penalty.

8. Continuing to commit the act of administrative violation despite having been requested to stop that act by the competent person .

9. Trying to evade the sanction or to conceal the violation after committing it.

Article 5. Forms of penalization

1. Organizations, individuals who commit acts of administrative violation of labour laws shall be punished with one of the following major forms of penalization:

a) Serving a warning;

b) Fining

When the form of fining is applied, the specific rate of fine for an act of violation is the medium rate of the corresponding range of fines for that act as stipulated in this Decree; if the violation involves in mitigating factors, the rate of fine might be lower but not below the lowest rate of the stipulated corresponding range of fines; if the violation involves in aggravating factors, the rate of fine might be higher but not above the highest rate of the stipulated corresponding range of fine.

2. Depending on the nature and seriousness of the violation, organizations and individuals who commit administrative violations of labour law might face supplementary forms of penalization for taking away the use right of licences and operation certificates.

3. Apart from major and supplementary forms of penalization as stipulated in Items 1 and 2 of this Article, one or more than one of following remedial measures might be applied to organizations, individuals committing administrative violation of labour laws:

a) Being forced to pay compensation for damages caused, including those in terms of machinery, equipment and properties of the enterprise as regulated by laws;

b) Being forced to comply with legal regulations on setting up the contingency fund for unemployment; plan for employment; labour contract signing; labour bargaining registration; principles of formulation of wage rates, payrolls, labour practice codes and reward regulations; working principles; regulations for typical workers, foreign workers, operational conditions for the trade union, measures for labour management; ensuring occupational safety by the trade union, measures for labour management; ensuring occupational safety and health;

c) Paying back the deposit and interest rate amounts to workers;

d) Sending overseas workers back to their countries;

e) Being forced to pay in arrears of social insurance;

f) Being proposed to the competent agencies to besiege account, collect social insurance or revoke operation licences;

g) Being forced to upgrade and repair factories and equipment that do not meet standards on occupational safety and health;

h) Being forced to verify and register the use of machine, equipment, materials and substances with strict requirements of occupational safety and health;

i) Other measures as regulated by laws.

Article 6. Prescription periods for handling an administrative violation

1. The prescription period for penalization for administrative violations in the labour legislation is one year, beginning from the occurrence date of the administrative violation as stipulated in this Decree; after this period, remedial measures for damages caused as stipulated in Item 3, Article 5 of this Decree shall be applied for the guilty person instead of the penalization.

2. Within the time limit set in Item 1 of this Article, if individuals or organizations concerned commit a new act of administrative violation in the same field of labour or intentionally evade or obstruct the penalization, the above limitation period shall not be applied.

3. With regard to a person, against whom a legal action has been taken or who is being prosecuted, or to whom a decision has been issued for trial according to the criminal proceedings, but later is subject to a decision issued to cancel the investigation or to cancel the trial, shall be imposed an administrative penalization if there is indication of his/her administrative violation, the limitation period for penalizing is 3 months beginning from the date the cancellation decision of investigation or the trial is issued.

Article 7. Time limit regarded as not yet being penalized for an administrative violation The time limit upon which guilty organizations or individuals shall be regarded as not yet being penalized for an administrative violation is one year since the decision of administrative penalization is finally executed or since the expiration of the penal decision provided that they do not commit any another violation.