Chương II Nghị định 118/2021/NĐ-CP: Quy định về vi phạm hành chính và xử phạt vi phạm hành chính

Chapter II

REGULATIONS ON ADMINISTRATIVE VIOLATIONS AND ADMINISTRATIVE PENALTIES

Article 4. Regulations on administrative violations, penalties, fines and remedial measures in decrees on administrative penalties in various state management fields

1. Regulations on administrative violations must satisfy the following requirements:

a) Violations must be relative to obligations, liabilities, prohibitions of laws on administrative management order in various state management fields;

b) Violations must meet requirements for ensuring the state administrative management order;

c) Administrative violations must be presented clearly, adequately and specifically to be able to determine violations and impose penalties on them in the reality.

2. Administrative violations prescribed in decrees on administrative penalties in various state management fields must be corresponding and suitable to infringing natures of these violations.

In case an administrative violation belongs to a state management field but relates to another state management field, in order to ensure the completeness, comprehensiveness and uniformity of regulations on administrative penalties, it may refer to the violations prescribed in the decrees on administrative penalties on another field while delimiting power to impose penalties on some titles with powers to impose penalties of this field.

In case the administrative violation has its own factors and characteristics related to the field, place of violation, consequences of the violation and objective factors and conditions that change the nature and seriousness of the violation, in order to meet requirements for the state management, the decree on administrative penalties that do not directly regulate the state management field may provide higher or lower penalties on such violations.

3. Penalties and fines shall be prescribed for each administrative violation and must be based on the following elements:

a) Nature and seriousness of violations of the state administrative management order of the violations; for violations that are not serious and simple, warnings must be imposed;

b) Average income and standard of living of the people in each stage of socio-economic development of Vietnam;

c) Level of education and deterrence, reasonableness and feasibility of applying the penalties and fines.

4. Regulations on the penalty frame for each administrative violation must be specific and the gap between the minimum and maximum amount of the penalty frame must be not too large. The penalty frame specified in an article must be arranged in ascending order starting from the smallest amount to the largest amount.

5. Remedial measures shall be prescribed for each administrative violation and must be based on the following requirements:

a) Administrative violations must cause consequences or have the actual possibility of causing consequences;

b) Remedial measures must satisfy requirements for re-recovery in the state administrative management order caused by administrative violations;

c) Remedial measures must be performed clearly, adequately and specifically to be able to apply to the reality and must ensure the practicability.

6. For practising licenses or certificates, operation registration forms erased or repaired for falsifying contents, remedial measures including forcible resubmission of such practising licenses or certificates, operation registration forms to authorities, competent persons who have issued such practising licenses or certificates or registration forms.

Article 5. Regulations on fixed-term suspension of practising licenses or certificates, fixed-term suspension of operations or confiscation of exhibits and means of administrative violations for administrative violations specified in decrees on administrative penalties in various state management fields

1. Basis for suspension of practising licenses or certificates for administrative violations:

a) Direct violations against activities stated in practising licenses or certificates;

b) Violations with serious nature and seriousness against the state administrative management order.

2. Do not suspend practising licenses or certificates for the fixed term in case there are law regulations on revocation of practising licenses or certificates.

3. Regulations on fixed-term partial suspension of operation for administrative violations committed by manufacturers, businesses and service establishments must include licenses according to regulations of laws on the basis of the following:

a) Direct violation against activities specified in licenses;

b) Violations with serious nature and seriousness against the state administrative management order.

c) Administrative violations must cause consequences or have the actual possibility of causing serious consequences for human life, health, environment and social security and order.

4. Regulations on fixed-term suspension of operation for manufacture, business and service establishments must include licenses according to regulations of laws in case there are law regulations on revocation of licenses.

5. Regulations on fixed-term partial or full suspension of operation for administrative violations of manufacture, business and service establishments or other operations do not require licenses according to regulations of laws on the basis of nature and serious seriousness of violations against the state administrative management order or serious consequences for human life, health, environment and social security and order that such violations have actual possibility of causing that.

6. In case exhibits and means of administrative violations are drugs, weapons, explosives, combat gears, objects of historical and cultural worth, national treasures, antiques, precious forest products and objects banned from storage or circulation, they must be confiscated. For other cases, regulations on the confiscation of exhibits and means of administrative violations must be based on one of the following:

a) Violations are constituted by deliberate faults or serious violations;

b) Objects, money, goods, and means are direct exhibits of the administrative violations or are directly used to commit administrative violations.

7. Fixed-term suspension of licenses and practicing certificates or fixed-term suspension of operation or confiscation of exhibits and means of administrative violations which are primary or additional penalties for specific administrative violations specified in decrees on administrative penalties must be based on Articles 21, 25 and 26 of the Law on Handling of Administrative Violations, clauses 1, 2, 3, 4, 5 and 6 of this Article and particular nature of each state management field.

8. Duration of fixed-term suspension of practising licenses or certificates or fixed-term suspension of operation for administrative violations must be prescribed in specific time frame and the minimum and maximum gaps between deprivation duration and suspension duration must be not too large.

Article 6. Regulations on power to impose penalties and issue offence notices

1. Power to impose fines of each title must be prescribed specifically in decrees on administrative penalties. For decrees having numerous state management fields, this power must be specifically prescribed for each field.

In case fines for titles prescribed in Articles 38, 39, 40, 41 and 46 of the Law on Handling of Administrative Violations are accounted as percentages of the maximum fines of corresponding fields prescribed in clause 1 Article 24 of the Law on Handling of Administrative Violations, the power to impose fines must be prescribed under specific fines to be specified in decrees on administrative penalties in various state management fields.

2. For state management fields prescribed in clause 3 Article 24 of the Law on Handling of Administrative Violations, in case fines for administrative violations are determined according to the number of times, values of violation exhibits and violation goods, penalties for titles prescribed in Articles 38, 39, 40, 41 and 46 of the Law on Handling of Administrative Violations shall be accounted according to percentages of maximum fines in such fields and must be prescribed in specific fines to be specified in decrees on administrative penalties in various state management fields.

3. In case decrees on administrative penalties prescribe numerous titles of forces with power to impose penalties in many different state management fields that participate in penalties, they must clearly prescribe power to impose penalties of such forces on each particular clause.

4. Persons with power to issue offence notices include persons with power to impose penalties, officials, public employees and persons of the People's Army, People's Public Security and cipher workers on their official duties, missions; aircraft commanders, captains, ship captains and persons assigned to issue offence notices by the aircraft commanders, captains and ship captains.

Titles with power to issue offence notices are specifically prescribed in the decrees on administrative penalties in each state management field.

5. For administrative violations subject to both penalties including primary penalties which are fine and additional penalties which are expulsion, the decrees on administrative penalties in various state management fields must stipulate power to impose penalties on such violations for titles with power to impose penalties of expulsion as prescribed in point dd clause 5 and clause 7 Article 39 of the Law on Handling of Administrative Violations.