Chương II Nghị định 120/2021/NĐ-CP: Thủ tục lập hồ sơ, xem xét, quyết định áp dụng biện pháp giáo dục tại xã, phường, thị trấn và biện pháp quản lý tại gia đình

Chapter II

PROCEDURES FOR COMPILATION OF DOSSIERS, CONSIDERATION, DECISION ON APPLICATION OF COMPULSORY EDUCATIONAL MEASURES IN THE COMMUNITY AND MANAGEMENT AT HOME

Article 13. Request for compilation of dossiers proposing to apply compulsory educational measures in the community

1. The dossiers proposing to apply compulsory educational measures in the community to persons specified in points c, d, dd and e Clause 2 Article 5 of this Decree shall be compiled by the commune-level police chiefs or at the request of the following persons:

a) Commune-level Fatherland Front Committee presidents; heads of socio-political organizations at grassroots level;

b) Representatives of the leaders of the agencies, organizations or units where the violators are working or studying;

c) Representatives of residential units at grassroots level including: neighborhood heads, heads of villages, hamlets, mountainous villages, hamlets and equivalent units.

2. The request for compilation of dossiers proposing to apply compulsory educational measures in the community shall be made in writing and sent to the commune-level police chiefs. The requester shall be responsible for the information of the written request specified in Clause 3 of this Article.

3. The contents of the written request shall clearly state the location, date, month and year; full name and name of the agency or organization of the requester; full name, date, month, year of birth, residence and personal identification of the violator; violations, place of commission of violations, reasons for request, relevant documents (if any); signature of the requester.

4. Consideration, compilation of dossiers proposing to apply compulsory educational measures in the community :

a) Within a maximum of 03 working days from the date of receipt of the written request, the commune-level police chief shall be responsible for inspection of information about violations and the personal identification of the violator.

If the proposed person is a minor, it is required to consult the social-cultural official who is in charge of monitoring labor, war-invalids and social affairs, commune-level child protection official, social collaborator or child protection collaborator (if any) and representative of residential unit at grassroots level about the characteristics and family circumstances of the minor;

b) The commune-level police chief shall refuse the request for compilation of the dossier if the proposed persons in the written request are not the persons specified at Points c, d, dd and e, Clause 2, Article 5 of this Decree or the matter is in the process of conciliation or successfully conciliated in accordance with the law on grassroots conciliation.

In case of refusal of request for compilation of the dossier, the commune-level police chief shall immediately notify in writing the requester after expiration of the time limit for inspection of information about violations and the personal identification of the violator specified in Point a of this Clause;

c) In case of agreement on request for compilation of the dossier, the commune-level police chief shall compile the dossier proposing to apply compulsory educational measures in the community and notify in writing the requester of agreement on compilation of the dossier.

5. With regard to the violator who is a minor, if the conditions for application of management at home are satisfied, the commune-level police chief shall compile the dossier proposing the President of the People's Committee at the same level to consider and decide application of management at home.

Article 14. Power to compile dossiers proposing to apply compulsory educational measures in the community

1. The police chiefs of communes where the persons specified in Points c, d, dd and e Clause 2 Article 5 of this Decree reside shall compile dossiers proposing to apply compulsory educational measures in the community .

2. The police chiefs of communes where the persons specified in Points c, d, dd and e Clause 2 Article 5 of this Decree commit violations shall compile dossiers proposing to apply compulsory educational measures in the community .

3. The police agencies of districts or provinces that are handling the cases according to regulations of Clause 2, Article 97 of the Law on Handling of administrative violations shall compile dossiers proposing to apply compulsory educational measures in the community for the persons specified in Clause 2, Article 5 of this Decree.

Article 15. Collection of information, documents for the purpose of compilation of dossiers proposing to apply compulsory educational measures in the community

1. The information, documents for the purpose of compilation of dossiers proposing to apply compulsory educational measures in the community shall contain:

a) Violations;

b) Identification of age;

c) Verification of residence;

d) Result of drug test or identification of addiction for case specified in Point dd Clause 2 Article 5 of this Decree;

dd) Other relevant information or documents (if any).

2. With respect to a minor, in addition to information, documents specified in Clause 1 of this Article, the commune-level police chief shall:

a) Collect more information about family, friendship and circumstances that result in violations;

b) Collect feedback from the school, agency or organization where the minor is studying or working (if any);

c) Collect feedback from the minor's father, mother or guardian, except for the case that the minor is transferred to the social relief establishment.

3. The person having the power to compile the dossier shall be responsible for collection of information and documents specified in Clauses 1 and 2 of this Article. The collected information shall be in writing.

4. The justicial - civil status officials, cultural and social officials who are in charge of monitoring labor - invalids and social affairs, commune-level child protection workers, social collaborators, child protection collaborators (if any), the minor’s parents or guardians, schools, relevant agencies and organizations shall be responsible for providing information, documents or giving written opinions at the request of the police agencies within 02 working days from the date of receipt of the request.

Article 16. Identification of age of person subject to application of compulsory educational measures in the community

The person having the power to compile the proposing dossier shall identify the age of person subject to application of compulsory educational measures in the community according to regulations of the law on civil status. The identification of age of person subject to application of compulsory educational measures in the community shall be made in writing.

Article 17. Verification of residence and transfer of dossiers proposing to apply compulsory educational measures in the community

1. Within 03 working days from the date of processing the dossiers, the persons having the power to compile the proposing dossiers shall verify the residence of the persons subject to application of compulsory educational measures in the community .

With regard to mountainous areas, islands, remote and isolated areas which are difficult for going, the time limit for verification of the residence may be prolonged but must not exceed 10 days from the date of processing the dossiers.

2. Persons with stable residence:

a) Persons who are living in their permanent residence or temporary residence;

b) In case of failure to identify the permanent or temporary residence, the stable residence is the current residence of the persons defined in accordance with regulations of Clause 1, Article 19 of the Law on Residence and regularly living from 30 days or more with certification of the commune-level police chiefs.

3. Persons without stable residence:

a) Persons who have registered their place of residence as their permanent or temporary residence but fail to reside in such place with certification of the police chiefs of communes where they register their place of residence as their permanent or temporary residence without knowing where the persons reside;

b) The family members, according to regulations of the law on marriage and family, provide information about them to the authorities and claim that they do not know where the persons are currently residing, and the police agencies that search the stored information in accordance with the law but fail to know where the persons are residing;

c) Persons who fail to register their place of residence as their permanent or temporary residence with the time for residence at each stable residence that is less than 30 days.

4. k) The identification of the residence shall comply with regulations of the law on residence.

5. Within 03 working days from the date of verification of the residence and completion of the proposing dossiers, in case of the persons with stable residence in the area where they commit violations, the persons who have the power to compile the proposing dossiers shall transfer the dossiers to the Presidents of the commune-level People's Committees where the violators stably reside to consider and decide application of compulsory educational measures in the community.

6. Within 3 working days from the date of verification of the residence and completion of the proposing dossiers, in case of persons who fail to reside in the local area where they commit violations, the persons who have the power to compile the dossiers shall process as follows:

a) The police chiefs of communes who have compiled the dossiers for the persons specified in Points c, d, dd and e Clause 2 Article 5 of this Decree shall transfer the dossiers to the Presidents of the commune-level People's Committees where the violators reside to consider and decide application of compulsory educational measures in the community;

b) The police agencies of districts or provinces that have compiled the dossiers for the persons specified in Clause 2 Article 5 of this Decree shall transfer the dossiers to the Presidents of the commune-level People's Committees where the violators reside to consider and decide application of compulsory educational measures in the community;

7. Within 03 working days from the date of verification of the residence and completion of the proposing dossiers, if the persons who fail to have stable residence are the minors or the persons aged 18 or older specified in Point dd Clause 2 Article 5 of this Decree without verification of the residence, the persons who have the power to compile the dossiers shall process as follows:

a) In case of minor, the police chief of commune where the minor commits violations, the police agency of district or province handling the cases shall transfer the minor and a copy of the dossier to social relief establishment according to the list prescribed by the People's Committee of province; at the same time, transfer the dossier to the President of the People's Committee of commune where the headquarter of social protection establishment is located for consideration and decision on application of compulsory educational measures in the community;

b) In case of person who is aged 18 or older, the police chief of commune where the minor commits violations, the police agency of district or province handling the cases shall transfer the minor and a copy of the dossier to the President of the People's Committee of commune where the illegal use of narcotic substances in the last time of the person is detected for consideration and decision on application of compulsory educational measures in the community;

Article 18. Drug test and identification of addiction;

1. The following persons shall be subject to drug test or identification of addiction according to regulations of the Law on prevention and control of narcotic substances:

a) Persons specified in Point dd Clause 2 Article 5 of this Decree;

b) Persons who are executing compulsory educational measures in the community and illegally using narcotic substances.

2. In case of person specified at Point a, Clause 1 of this Article whose body tests positive for the narcotic substance, the competent person or the person who requests the drug test for the violator shall send immediately the result to the commune-level police chief where the violator resides or the commune-level police chief where the violator commits violations in order to consider and compile the dossier proposing to apply compulsory educational measures in the community .

3. If a person specified at Point a, Clause 1 of this Article is a drug addict, the detoxification according to regulations of the Law on prevention and control of narcotic substances shall be applied.

4. If the person specified at Point b, Clause 1 of this Article is determined to be a drug addict, the competent person shall handle according to regulations of Clause 2 Article 41 of this Decree.

Article 19. Dossiers proposing to apply compulsory educational measures in the community

1. Written request for compilation of the proposing dossiers.

2. Curriculum vitae of the violator.

3. Documents specified in Clauses 1 and 2 Article 15 of this Decree.

4. Medical record (if any)

5. Statement of violator

If the violator is illiterate or unable to write the statement, he/she can ask someone else to write the statement. The violator press his/her finger-print in each page of the statement;

6. Other relevant documents (if any).

Article 20. Processing of dossiers proposing to apply compulsory educational measures in the community transferred from other places

Within 07 working days from the date of receipt of the dossiers proposing to apply compulsory educational measures in the community according to regulations of Clauses 5,6 and 7 Article 17 of this Decree, the Presidents of the People's Committee of communes shall send the dossiers to the commune-level police chiefs in order to inspect and add information and documents according to regulations of Article 15 of this Decree.

The time limit for inspection and addition of information and documents shall be 03 working days from the date of receipt of the dossiers.

Article 21. Sending dossiers and notifying compilation of dossiers proposing to apply compulsory educational measures in the community

1. After completion the dossiers, the persons having the power to compile the dossiers proposing to apply compulsory educational measures in the community shall immediately notify in writing the compilation of the dossiers to the persons subject to application of compulsory educational measures in the community or the minors' parents or guardians.

The persons having the power to compile the proposing dossiers shall be responsible for the legality of dossiers proposing to apply compulsory educational measures in the community .

2. A written notification of compilation of the dossier proposing to apply compulsory educational measures in the community shall contain the following basic contents:

a) Full name of violator;

b) Reasons for compilation of the poposing dossier;

c) Right to read and record necessary contents in the dossier of the notified recipient; location, time limit for reading and record;

d) Right to express opinions on the proposing dossier at the consulting meeting.

3. The reading, record of necessary contents of the dossiers proposing to apply compulsory educational measures in the community shall comply with regulations of Clause 4 Article 97 of Law on handling administrative violations:

4. Within 01 working day after the expiration of the time limit for reading and record of necessary contents specified in Clause 3 of this Article, according to each case, the person having the power to compile the dossier proposing to apply compulsory educational measures in the community shall send the dossier to one of the following entities:

a) President of the People's Committee of commune where the person resides;

b) President of the People's Committee of commune where the headquarter of the social relief establishment for those who do not have stable residences is located;

c) President of the People's Committee of commune where the illegal use of narcotic substances in the last time of the violator aged 18 or older without stable residence is detected.

Article 22. Consulting meeting about consideration, decision on application of compulsory educational measures in the community

1. Within 07 working days from the date of receipt of the dossiers proposing to apply compulsory educational measures in the community, the President of the People's Committee of commune shall organize and take charge of the consulting meeting to consider and decide application of compulsory educational measures in the community.

2. Participants:

a) President of the People's Committee of commune:

b) Commune-level police chief;

c) Justicial - civil status official;

d) Representatives of Fatherland Front Committee, some relevant socio-political organizations, social organizations at the same level, residents at grassroots level;

dd) If the person subject to application of compulsory educational measures in the community is a minor, in addition to persons specified in Points a, b, c and d of this Clause, the social-cultural official, social collaborator or child protection collaborator (if any), school representative (if any) shall attend the meeting. With respect to the minor without a stable residence who is residing at a social relief establishment, in addition to such persons, the representative of such establishment shall be present at the meeting;

e) If necessary, the representative of the conciliation team or the police agency which has transferred the dossier proposing to apply compulsory educational measures in the community shall be present at the meeting.

3. People who are invited to the consultating meeting:

a) Person subject to application of compulsory educational measures in the community ;

b) Minor’s parents or guardians;

c) Victim (if any);

d) Legal representative who is responsible for protection of the rights and interests of the person (if any).

4. The invitation of the persons specified in Clause 3 of this Article to participate in the meeting shall be made in writing. Such written invitation shall be sent at least 03 working days before the meeting.

5. The participants of the meeting specified in Clause 3 of this Article shall be entitled to express their opinions at the meeting.

If the person subject to application of compulsory educational measures in the community fails to attend the meeting, he/she may give his/her opinions in writing.

6. If the minor’s parents or guardians cannot attend the meeting with reasonable reasons, the consulting meeting about consideration and decision on application of compulsory educational measures in the community shall be postponed.

The consulting meeting shall be postponed at most twice. Each postponement shall not exceed 02 working days. The postponement time shall not be counted in the time for consideration and decision on application of compulsory educational measures in the community

If the minor’s parents or guardians cannot attend the meeting after the above postponement time due to failure to be present at the local area, health condition or other reasonable reasons, they must appoint a representative to attend the meeting.

7. The consulting meeting about consideration, decision on application of compulsory educational measures in the community shall be held in one of the following cases:

a) The person subject to application of compulsory educational measures in the community ; the parents or guardians of minor subject to application of compulsory educational measures in the community deliberately evade attending the meeting

b) The person subject to application of compulsory educational measures in the community fail to attend the meeting and give his/her opinions in writing.

c) The parents or guardians of the minor subject to application of compulsory educational measures in the community cannot attend the meeting with reasonable reasons which has been postponed according to regulations of Clause 6 of this Article.

8. The consulting meeting about consideration, decision on application of compulsory educational measures in the community shall only be held if at least 2/3 of the members specified in Clause 2 of this Article attend the meeting.

9. Order and contents of the consulting meeting:

a) The representative of the commune-level police chief shall state violation(s) of the person subject to application of compulsory educational measures in the community , verification results, collected evidence, extenuating as well as aggravating circumstances, measures for conciliation, help and education that have been applied to the person (if any);

b) The person subject to application of compulsory educational measures in the community shall state the reasons for committing violations, his/her perception of the violations and the plan for correction to defects; show relevant evidence.

If the person is absent and gives his/her opinions in writing, his/her opinions must be read at the meeting;

c) The minor’s parents, guardian(s) or their legal representative shall present personal identification, family circumstance, reasons for committing violations, responsibilities for education and management of the minor at home;

d) The victim shall express his/her opinions about the damage;

dd) The social-cultural official, social collaborator or child protection collaborator (if any), school representative (if any) shall express their opinions about personal identification of the person subject to education, family circumstance, implement appropriate measures for education and support;

e) The members shall discuss the necessity of application of compulsory educational measures in the community ; personal identifications, extenuating as well as aggravating circumstances, forms and measures for education, time of application of compulsory educational measures in the community ; select appropriate agencies and organizations to assign responsibilities for education and management; capacity for application of management at home, forms of education and support for the minor.

10. The contents of the meeting shall be recorded in minutes and kept in the file.

Article 23. Completion and submission of dossiers to the President of the People's Committee of commune

1. According to the minutes of the meeting, the commune-level police chief shall complete the dossier and submit it to the President of the People's Committee at the same level right after the consulting meeting for consideration and decision on application of compulsory educational measures in the community.

2. A dossier submitted to the President of the commune-level People's Committee for decision on application or non-application of compulsory educational measures in the community shall contain:

a) Summary report on the contents of the meeting. In which, the contents shall include proposal for application or non-application of compulsory educational measures in the community; reasons for proposal; different opinions of members of the meeting (if any).

In case of request for application of compulsory educational measures in the community, in addition to the above contents, the summary report shall propose the time limit for application, the agencies or organizations assigned to educate and manage the person;

b) Dossier proposing to apply compulsory educational measures in the community specified in Article 19 of this Decree;

c) Minutes of the consulting meeting;

d) Other relevant documents (if any).

Article 24. Request for application of management at home

1. The management at home shall be applied in the following stages:

a) Consideration for request for compilation of dossiers proposing to apply compulsory educational measures in the community :

b) Collection of information, documents for the purpose of compilation of dossiers proposing to apply compulsory educational measures in the community ;

c) Processing of dossiers proposing to apply compulsory educational measures in the community transferred from other places;

d) After the consulting meeting about consideration, decision on application of compulsory educational measures in the community .

2. The minor’s parents or guardian(s) shall make a commitment with the following contents:

a) Ensure the conditions specified in Points b and c Clause 1 Article 6 of this Decree;

b) Closely cooperate with organizations and individuals assigned to supervise in education and management of the minor;

c) Report at the request of the President of the commune-level People's Committee on management of the minor;

d) Successfully implement education and management of the minor in order that he/she does not violate the law.

3. A dossier proposing to apply management at home shall contain:

a) A written request of the person having the power to compile the proposing dossier. In which, the information about personal identification of the minor; proposal for application of management at home; reasons for application; the proposed time limit for application and the name of the organization or individual that cooperates with the family in supervising the minor shall be stated clearly;

b) Dossier of the minor committing violations according to regulations of Article 19 of this Decree;

c) Written commitment of the minors' parents or guardians

d) Other relevant documents (if any).

Article 25. Issuance of decision of application of compulsory educational measures in the community and management at home.

1. Within 03 working days from the date of receipt of dossiers proposing to apply management at home, the commune-level police chief or the President of the People's Committee of commune shall consider and decide:

a) Application of management at home;

b) Retransfer to compile dossiers proposing to apply compulsory educational measures in the community in case of disagreement with the request of the police chief at the same level within the period specified at Points a, b and c, Clause 1 of Article 24 of this Decree.

2. Within 02 working days from the date of the end of consulting meeting about consideration and decision on application of compulsory educational measures in the community , the President of the commune-level People's Committee shall consider and issue one of the following decisions:

a) Application of compulsory educational measures in the community ;

b) Non-application of compulsory educational measures in the community ;

c) Application of management at home to the minor.

Article 26. Decision and statute of limitations for execution of decision on application of compulsory educational measures in the community

1. A decision on application of compulsory educational measures in the community shall contain the following contents:

a) Date of decision;

b) Full name, position of person who makes decision;

c) Full name, date of birth, address of the educated person;

d) Violations, clauses, articles of applicable legal documents;

dd) Name and responsibility of the agency, organization assigned to education, manage.

In case of minor subject to education, his/her parents or guardian (s) shall cooperate in education and management.

In case of minor subject to education without stable residence, the social relief establishment shall educate and manage.

If the educated person is a person aged 18 or older who illegally uses narcotic substances without stable residence, the commune-level police or another appropriate agency or organization in local area shall educate and manage;

e) Time limit for application; date of execution;

g) Right to complain about, initiate lawsuit as prescribed per the law;

2. Decision on application of compulsory educational measures in the community takes effect from the date of signing

Within 02 working days from the date of signing, the decision shall be sent to the educated person, his/her family, the agency or organization assigned to educate, manage, the Standing Committee of the commune-level People's Council and relevant agencies and organizations.

3. The statute of limitations for execution of decision on application of compulsory educational measures in the community shall comply with regulations of Article 108 of Law on handling administrative violations.

Article 27. Decision on non-application of compulsory educational measures in the community

1. A decision on non-application of compulsory educational measures in the community shall contain the following contents:

a) Date of decision;

b) Full name, position of person who makes decision;

c) Full name, date of birth, address of person subject to application of compulsory educational measures in the community ;

d) Violations, clauses, articles of applicable legal documents;

dd) Reasons for non-application of compulsory educational measures in the community ;

2. Decision on non-application of compulsory educational measures in the community takes effect from the date of signing

3. Within 03 working days from the effective date, the decision shall be sent to person who is not subject to compulsory educational measures in the community and relevant organizations or individuals

With respect to the minor who is residing at a social relief establishment, the decision shall be sent to such establishment and the agency that has sent the dossier.

Article 28. Decision on application of management at home

1. A decision on application of management at home shall contain the following contents:

a) Date of decisions;

b) Full name, position of person who makes decision;

c) Full name, date of birth, address of minor;

d) Reasons for application;

dd) Full name, address of the minor's parents or guardian(s)

e) Time limit for application; date of execution;

g) Name of agency or individual that cooperates in supervision;

h) Responsibility of the minor in case he/she continues to violate the law;

i) Right to complain about, initiate lawsuit as prescribed per the law;

2. Decision on application of management at home takes effect from the date of signing

3. Within 03 working days from the effective date, the decision shall be sent to the minor’s parents or guardian(s) and the agency or individual that cooperates in supervision of the minor.