Chapter IV
MEASURES TO PREVENT ADMINISTRATIVE VIOLATIONS AND ENSURE THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS
Article 24.- Holding people in custody according to administrative procedures
1. The holding of people in custody according to administrative procedures shall apply only in cases where it is necessary to prevent, stop immediately acts of causing public disturbances in customs operation areas, inflicting injuries on customs officers on official duty or it is necessary to gather, verify important details to be used as basis for issuing decisions on administrative sanctions.
2. The custody duration applicable to persons committing administrative violations shall not exceed 12 hours counting from the time of holding the violators. In case of necessity, the custody duration may prolong but must not exceed 24 hours. In far-flung mountainous regions, islands, the custody duration can be longer but must not exceed 48 hours.
3. All cases of human custody must be decided in writing and each person held in custody must be given such a written decision.
4. It is strictly forbidden to hold persons committing administrative violations in remand homes, criminal detention rooms or places failing to ensure hygiene and safety for persons held in custody.
5. At the requests of persons held in custody, the persons issuing custody decisions must notify their relatives, offices, work or study places thereof. When minors are held in custody in the night time for more than 6 hours, their parents or guardians must necessarily be notified thereof.
Article 25.- Competence to hold people in custody according to administrative procedures
The following persons are competent to issue decisions to hold people in custody according to administrative procedures:
Directors of Customs Sub-Departments, leaders of Control Teams of Customs Departments, heads of Anti-Smuggling Control Teams and heads of Marine Control Flotillas under the Anti-Smuggling Investigation Department of the General Department of Customs.
In cases where the above-defined persons are absent, their authorized deputies are competent to issue decisions on holding people in custody according to administrative procedures.
The human custody must strictly comply with the principles, procedures and order prescribed in Article 44 of the Ordinance on Handling of Administrative Violations.
Article 26.- Temporary seizure of material evidences and means of administrative violations
1. The temporary seizure of violation material evidences and means shall only apply in case of necessity to immediately stop the administrative violations or to verify details for use as basis to decide on the sanctioning.
The persons defined in Article 25 of this Decree are competent to decide on temporary seizure of material evidences and means of administrative violations.
2. In case of necessity, the persons competent to sanction administrative violations, defined in Clause 1, Article 22 of this Decree, are also competent to issue decisions on temporary seizure of material evidences and means of administrative violations. Within 24 hours as from the time of issuing decisions, the decision issuers must report thereon to their immediate bosses defined in Article 25 of this Decree and get the written consents of such persons.
3. The persons issuing decisions on temporary seizure of material evidences and/or means of administrative violations shall have to organize the preservation of such material evidences and/or means; if the material evidences and/or means are lost, fraudulently substituted or damaged due to their faults, they must pay compensations therefor and shall also be handled according to law provisions.
Where the violation material evidences and/or means need to be sealed, the sealing thereof must be conducted in the presence of the violators or their representatives, the representatives of local administrations and witnesses.
4. For Vietnamese currency, foreign exchange, narcotics and other objects subject to special management regime, the preservation thereof shall comply with law provisions.
5. For material evidences of administrative violations, which are types of goods easily to decay, the temporary seizure decision issuers must make separate records and organize the immediate sale thereof. The proceeds therefrom must be deposited into custody accounts opened at State Treasuries. If later the material evidences are confiscated under decisions of competent persons, such proceeds must be remitted into the State budget; where the material evidences are not confiscated, the proceeds must be returned to their lawful owners, managers or users.
6. Within 10 days as from the date of temporary seizure, the persons competent to decide on the temporary seizure and the sanctioning must handle the temporarily-seized material evidences and/or means by measures stated in the sanctioning decisions. If the sanctioning form of confiscation is not applied, the material evidences or the proceeds from the sale thereof shall be returned to their lawful owners, managers or users.
The duration for temporary seizure of material evidences and/or means can be prolonged but shall not exceed 60 days for violation cases involving many complicated circumstances which need to be verified or relating to many domestic and foreign individuals and/or organizations.
7. The temporary seizure of material evidences and/or means of administrative violations must be decided and recorded in writing and violators and/or representatives of the violating organizations must each be given a copy of such decision.
Article 27.- Body search according to administrative procedures
1. The body search according to administrative procedures shall be conducted only when there are grounds to believe that such persons hide in their bodies goods, documents or means of administrative violations. The body search must be decided in writing and the searched persons must each be handed a copy of such decision.
2. Only competent persons defined in Article 25 of this Decree can decide on body search according to administrative procedures.
3. Before conducting body search, the searchers must show their customs identify cards and notify the body search decisions to the searched persons. When conducting body search, the female shall search the female and the male shall search male to the witness of persons of the same sex.
4. All cases of body search must be recorded and the searched persons must each be handed a copy of such records.
Article 28.- Search of transport means, objects according to administrative procedures
1. The search of transport means and objects according to administrative procedures shall be conducted only when there are grounds to believe that material evidences and/or means of administrative violations are hidden in such transport means or objects. The search of transport means and objects according to administrative procedures must be decided in writing.
2. Only persons defined in Article 25 of this Decree shall have the competence to decide on search of transport means and objects according to administrative procedures.
3. When the search of transport means and objects is conducted, the transport means or object owners or the transport means commanders or operators and a witness must be present. Where the means or object owners or means operators are absent, there must be two witnesses.
4. All cases of search of transport means, objects must be recorded and transport means or object owners or transport means commanders or operators must each be given a copy of such record.
5. The search of transport means and/or objects of subjects enjoying diplomatic privileges and immunity must comply with the provisions of international agreements which Vietnam has signed or acceded to. When there are grounds to confirm that diplomatic bags or consular bags have been abused for purposes contrary to the provisions of international agreements on diplomatic ties, consular relations, which Vietnam has signed or acceded to, or that the luggage or transport means contain goods banned from export, import or goods not entitled to law-prescribed privileges and immunity, the General Director of Customs shall decide to handle them according to such international agreements.
Article 29.- Search of places where material evidences and/or means of administrative violations are hidden
1. The search of places where material evidences and/or means of administrative violations are hidden shall be conducted only when there are grounds to believe that the material evidences and/or means of administrative violations are hidden in such places.
2. Only the competent persons defined in Article 25 of this Decree can issue decisions to search places where material evidences and/or means of administrative violations are hidden.
Where places of hiding material evidences and/or means of administrative violations are residential places, the search decisions must be agreed upon in writing by district-level People’s Committee presidents before they are implemented.
3. The search of places of hiding material evidences and/or means of administrative violations must be conducted in strict compliance with the provisions in Clauses 3, 4 and 5 of Article 49 of the Ordinance on Handling of Administrative Violat
Tìm kiếm
Nghị định 138/2004/NĐ-CP xử phạt vi phạm hành chính trong hải quan (Bản Word)