Chương II: Nghị định 19/2020/NĐ-CP Kiểm tra việc thi hành pháp luật về xử lý vi phạm hành chính

Chapter II

INSPECTION OF ENFORCEMENT OF LAWS ON HANDLING OF ADMINISTRATIVE VIOLATIONS

Article 5. Inspection bases and approaches

1. Periodical, area-specific or sector-based inspection approaches shall be implemented according to annual inspection plans if one of the followings comes into existence:

a) Prime Minister issues the directive for inspection;

b) The inspection is carried out upon the request of a jurisdictional ministry, ministry-level agency, People’s Committee of a province or city;

c) The inspection is carried out according to the request of legal institutions under the control of ministries or ministry-level agencies made based on the results of the monitoring of situations of implementation of laws on handling of administrative violations;

d) The inspection is carried out upon the request of the Department of Justice or the Division of Justice made based on the results achieved from the monitoring of situations of implementation of laws on handling of administrative violations;

dd) The inspection is carried out in conformance to requirements for state management of handling of administrative violations;

e) There are a variety of difficulties, problems or issues arising from implementation of laws on handling of administrative violations under the remit of joint sectors, or there are some complicated cases related to such implementation.

2. Unscheduled inspection approach shall be conducted in compliance with managerial requirements and actual situations if one of the followings comes into existence:

a) Prime Minister issues the directive for inspection;

b) The inspection must be carried out upon receipt of requests or recommendations from individuals or entities, or complaints from mass media agencies about the fact that laws on handling of administrative violations are enforced incorrectly, about any sign of infringement on legitimate rights and benefits of individuals and entities;

c) The inspection must be carried out when detecting problems or signs of violations after considering results achieved from studying dossiers and documents sent by agencies or persons competent to handle administrative violations or being deposited or kept in safe custody according to existing regulations;

d) The inspection must be carried out if any sign of infringement on legitimate rights and benefits of individuals and entities arising from implementation of laws on handling of administrative violations is discovered.

Article 6. Inspection authority

1. Ministers and heads of ministerial-level agencies shall inspect the implementation of law on handling of administrative violations in the cases prescribed at Points a, b, c, dd and e, Clause 1 and Clause 2, Article 5 of this Decree within their remit.

For cases specified at Point f, Clause 1, Article 5 of this Decree, which are of complicated nature and on an interdisciplinary and nationwide scale, the Minister of Justice shall report to the Prime Minister for consideration of issuance of decisions on designation of the agency responsible for presiding over the inspection.

Legal institutions affiliated to ministries and ministerial-level agencies shall be responsible for assisting ministers and heads of ministerial-level agencies in conducting inspections.

2. The Minister of Justice shall inspect the implementation of laws on handling of administrative violations according to the provisions of Clause 1 of this Article.

The Director of Department of Management of Administrative Violations and Law Enforcement under the control of the Ministry of Justice shall be responsible for assisting the Minister of Justice in carrying out inspections.

3. Presidents of provincial or district-level People's Committees shall inspect the implementation of laws on handling of administrative violations in the cases prescribed at Points a, b, c, dd and e, Clause 1 and Clause 2, Article 5 of this Decree within their remit.

Directors of Departments of Justice and Heads of Subdepartments of Justice shall be responsible for assisting Presidents of People's Committees of provinces and districts in conducting inspections.

4. Heads of agencies and units managing persons competent to sanction administrative violations shall inspect the cases specified at Points dd and e, Clause 1 and Clause 2, Article 5 of this Decree.

Legal institutions or organizations with equivalent functions and tasks under the control of agencies and units managing persons competent to sanction administrative violations shall help the heads of agencies and units managing persons competent to sanction violations administrative offenders carry out inspections.

5. The Minister of Justice shall provide specific provisions of this Article.

Article 7. Rights and responsibilities of persons competent to issue inspection decisions

1. Inspection decision makers shall have the following rights:

a) Sanction according to their competence or propose competent agencies to promptly sanction agencies, organizations and individuals that fail to comply with or correctly implement the law provisions on handling administrative violations.

b) In case of detecting that the law provisions on handling administrative violations are incomplete, inconsistent, synchronous, impractical or wrong, they shall take action according to their competence or promptly propose competent state agencies to review and handle these issues;

c) Commend and reward, according to its competence, or propose competent agencies to promptly commend and reward agencies, organizations and individuals in effectively implementing and complying with law provisions on handling administrative violations.

2. Inspection decision makers shall assume the following responsibilities:

a) Inform inspection plan, contents and time; send test conclusions to the inspectee;

b) Promptly direct and handle, according to its competence, situations arising during the inspection process and after finishing the inspection according to reports and proposals of the head of an inspection team;

c) Take responsibility to the immediate superior and before the law for promulgating the inspection decision, and for all inspection activities under the inspection decision;

d) Issue inspection conclusions.

Article 8. Inspection team

1. An inspection team shall be set up to perform inspection tasks according to inspection decisions of competent persons. An inspection team shall be established in the interdisciplinary form, except in the following cases:

a) Ministers and Heads of ministerial-level agencies set up inspection teams to inspect the implementation of the law on handling of administrative violations falling within their respective ambit.

b) Heads of agencies and units managing persons competent to sanction administrative violations set up inspection teams to inspect the enforcement of law on handling of administrative violations within their respective scope of responsibility and duty.

2. An inspection team must be composed of at least 5 members, including:

a) Team leader;

b) 1 vice team leader;

c) Other members.

3. Members of an inspection team must not be subject to any disciplinary action or temporary suspension from work in accordance with law at the presence.

4. Members of an inspection team may not join the examination team in case their spouse, natural child, parent, sibling or their spouses are subject to examination or hold leadership or managerial positions of the directly inspected entity.

Article 9. Authority and responsibilities of an inspection team

1. Authority of an inspection team:

a) Request the inspectee to work directly or send their representative to work with the inspection team;

b) Request the inspectee to provide full information, records, documents and give explanation about matters related to the inspection tasks; where necessary, request the inspectee to provide exhibits and means of violations to support verification;

c) Where necessary, an inspection team can carry out verification to clarify issues related to the inspection.

2. Responsibilities of the inspection team:

a) Conduct inspection according to the inspection decision;

b) Request the competent person to issue the inspection decision, provide inspection results and make recommendations about possible solutions;

c) Use information; use and safekeep records, documents, exhibits and means related to the inspection contents in strict compliance with law provisions; avoid damaging or losing the inspectee’s lawful property;

d) Return all documents, records, exhibits or means that the inspectee has provided.

Article 10. Responsibilities of team leader and members

1. Inspection team leader shall assume the following responsibilities:

a) Announcing inspection decisions to inspectees;

b) Informing inspectees of members of an inspection team;

c) Administering inspection activities to ensure conformity with what is mentioned in an inspection decision;

d) Assigning specific duties to an inspection team’s members;

dd) Bearing responsibility to the inspection decision issuer and before law for an inspection team’s activities;

e) Implementing the reporting regime, petitioning the person who has issued the inspection decision to give his/her direction regarding matters and issues that arise beyond the leader’s decision-making authority when performing inspection tasks;

g) Making and signing a report on inspection results immediately after completion of each inspection;

h) Reporting and making recommendations about handling of inspection results to the person who has issued the inspection decision after completion of each inspection; requesting the person accorded authority to carry out inspections to issue inspection conclusions;

i) Carrying out provisions laid down in Clause 2 Article 9 hereof.

2. The inspection team leader may authorize his/her vice leader to act on his/her behalf to perform the leader's tasks.

When being authorized by the inspection team leader to act on his/her behalf, the vice leader of inspection team shall be accountable to the team leader, the person who has issued the inspection decision, and before law for the inspection team’s performance; shall be responsible for complying with Clause 1 of this Article.

3. Inspection team members shall assume the following responsibilities:

a) Carrying out inspection tasks assigned and administered by the inspection team leader according to the inspection decision;

b) Sending a review report on results of performance of assigned inspection tasks to the inspection team leader and taking responsibility for the accuracy and truthfulness of the contents of the report or any recommendation;

c) Recommending the inspection team leader to take necessary measures to ensure effective and lawful inspection activities;

d) Implementing provisions laid down in Clause 2 of Article 9 hereof.

Article 11. Subject matters of an inspection over enforcement of laws on handling of administrative violations

1. Subject matters of the inspection over application of laws on administrative penalties:

a) Total number of violation cases; total number of violation cases subject to administrative penalties; total number of violations subject to administrative penalties in each management sector; total number of violation cases transferred to legal proceedings authorities for criminal prosecution; total number of violation cases transferred by legal proceedings authorities for imposition of administrative penalties;

b) Implementation of legal provisions on competence, procedures for issuing notices of administrative violations, decisions to impose administrative penalties, decisions on confiscation of material evidences and means of commission of administrative violations, decisions on application of remedial measures in case of failure to issue decisions to impose administrative penalties, decisions to enforce compliance with decisions to impose administrative penalties;

c) Reality and results of implementation of decisions to impose administrative penalties, decisions on confiscation of material evidences and means of commission of administrative violations, decisions on application of remedial measures in case of failure to issue decisions to impose administrative penalties, decisions to enforce compliance with decisions to impose administrative penalties;

d) Implementation of laws on explanatory statements;

dd) Implementation of laws on authority, procedures for application of preventive measures and guarantee for sanctioning of administrative violations;

e) Management of money collected from sanctioning administrative violations, documents evidencing payment and collection of fines;

g) Retention of documents on sanctioning of administrative violations.

2. Subject matters of application of laws on administrative actions:

a) Total number of violators on whom request documents for application of administrative actions are made; total number of violators subject to administrative actions;

b) Implementation of laws on preparation of request documents for application of administrative actions:

c) Reality and results of enforcement of decisions on application of administrative actions;

d) Application of preventive measures and guarantee for enforcement of decisions to take administrative actions;

dd) Signs of violations against laws committed by persons having authority over enforcement of laws regarding administrative actions and handling of complaints or accusations arising from application of administrative actions;

e) Retention of documents on application of administrative actions.

3. Subject matters of the inspection of implementation of duties to manage the tasks of enforcement of laws on handling of administrative violations:

a) Direction and administration tasks; the formulation, schedule and results of implementation of plans on management of enforcement of laws on handling of administrative violations;

b) Reality of promulgation of legislative documents related to handling of administrative violations; results of general monitoring of enforcement of laws on handling of administrative violations;

c) Conduct of propagation, training, education of and provision of instructions about services;

d) Allocation of resources and other necessities with the aim of ensuring the enforcement of the laws on handling of administrative violations; the total number of persons competent to sanction administrative violations according to the titles that they hold at host authorities and units;

dd) Implementation of statistical and reporting regimes regarding handling of administrative violations;

e) Establishment and management of databases regarding handling of administrative violations and provision of information to be integrated into the national database;

g) Implementation of responsibilities of Heads of units or authorities for leading implementation and application of laws on handling of administrative violations, and other laws related to handling of administrative violations.

Article 12. Introduction of inspection plans

1. Pursuant to clause 1 of Article 5 herein, annual inspection plans must be introduced by competent persons by March 15 each year. Where necessary, persons accorded authority to introduce inspection plans may modify inspection plans.

The Minister of Justice shall elaborate on this clause.

2. Authority to introduce inspection plans:

a) The Minister of Justice and other Ministers shall be accorded authority to draw up inspection plans under their jurisdiction and those under the Prime Minister’s command as provided in clause 1 and 2 of Article 6 herein.

The Director of the Administration for Handling of Administrative Violations and Inspection of Law Enforcement under the control of the Ministry of Justice, and legal institutions affiliated to Ministries or Ministry-level agencies, shall be responsible for assisting Ministers and Heads of Ministry-level agencies in developing inspection plans;

b) Presidents of provincial-level and district-level People’s Committees shall be responsible for drawing up inspection plans within their remit.

Directors of Departments of Justice and Heads of Subdepartments of Justice shall be responsible for assisting Presidents of provincial-level and district-level People's Committees in formulating inspection plans;

c) Heads of agencies and units supervising persons having competence in sanctioning administrative violations shall be accorded authority to formulate inspection plans within their remit and management.

Legal institutions or organizations having equivalent functions and tasks under the control of agencies and units supervising persons having competence in sanctioning administrative violations shall be authorized to assist the heads of agencies and units supervising persons having competence in sanctioning administrative violations in formulation of inspection plans.

3. An inspection plan shall be constituted by the following basic components:

a) Bases for launching the inspection plan;

b) Inspectee;

c) Inspection venue;

d) Inspection subject matters;

dd) Proposed inspection time;

e) Inspection budget;

g) Implementation.

4. Inspection plans must be sent to the inspectees immediately after being launched.

Article 13. Issuance of inspection decisions

1. Based on inspection plans and on the grounds for carrying out the inspection as prescribed in Article 5 herein, the Administration for Handling of Administrative Violations and Inspection of Law Enforcement, legal institutions under the control of ministries and ministerial-level agencies, Departments of Justice, Sub-Departments of Justice, legal institutions, or other organizations with equivalent functions and tasks under the control of agencies or units supervising persons having competence in sanctioning administrative violations, shall draft inspection decisions and submit them to persons having competence as defined in Article 6 herein to seek their approval of these inspection decisions.

2. An inspection decision shall be constituted by the following basic components:

a) Date of issuance of the inspection decision;

b) Bases for issuance of the inspection decision;

c) Inspectee;

d) Inspection venue;

dd) Subject matters of the inspection;

e) Inspection duration;

g) Full name and title of the inspection team leader, deputy team leader and members; powers and responsibilities of the inspection team;

h) Rights and responsibilities of the inspectee;

i) Inspection budget;

k) Full name and title of the inspection decision maker.

3. The maximum time limit for inspection specified at point e of clause 2 of this Article is 7 working days; where necessary, the person having competence in carrying out the inspection may grant an extension of the time limit to not more than 7 working days.

The Minister of Justice shall set out detailed regulations on this clause.

4. The inspection decision must be sent to the inspectee at least 30 days before conducting the inspection.

In case of an unexpected inspection required, the inspection decision must be sent to the inspectee right after the decision is issued, or must be delivered directly to the inspectee right after carrying out inspection activities.

Article 14. Conduct of the inspection

1. The inspection team shall examine documentation and, where necessary, may carry out the physical inspection, and the verification of information and documents, or results of enforcement of law on handling of administrative violations, before drawing conclusions about inspection subject matters.

2. During the inspection process, the leader of the inspection team or the team’s authorized representative shall make a written inspection record to certify the collection and provision of information and documents related to the inspection subject matters, and shall give their confirmatory signature through that inspection record immediately after the inspection is completed.

The inspection record must contain the following basic information:

a) Record-making date;

b) Full name and title of the inspection team leader;

c) Full name of the individual inspectee; full name and title of the representative for the institutional inspectee;

d) Inspection subject matters;

dd) Information and documents already collected and provided;

e) Opinions from the inspectee and other related entities or units;

g) Comments and remarks of the inspection team;

h) Signatures of the inspection team leader or the person authorized to make the inspection record and the individual inspectee or the representative of the institutional inspectee. In case the inspection record has multiple pages, including appendices and lists attached thereto, all of these signatures must be affixed to each page of that inspection record, enclosed annexes and lists, or all pages must bear an overlapping stamp.

Article 15. Post-inspection conclusion

1. Within 15 days after ending inspection activities, the inspection team shall draft their inspection conclusions and send them to the inspectee to get their comments on the contents of the draft inspection conclusions.

2. Within 05 working days after receipt of the draft inspection conclusions, the inspectee shall send their written opinions on the contents of the draft inspection conclusions to the inspection team.

3. Within 05 working days of receipt of the inspectee’s written opinions regarding the contents of the draft inspection conclusions, or 03 working days from the expiry of the deadline specified in clause 2 of this Article, unless the inspectee’s written opinions on the contents of the draft inspection conclusions are received, the inspection team leader shall seek the competent person’s approval of release of these inspection conclusions.

The inspection team leader can certify the release of the inspection conclusions if he/she is authorized by the competent person.

4. The inspection conclusions shall be sent to the inspectee and relevant agencies, organizations and individuals right after being released so that the comments stated in these inspection conclusions can be actualized and publicized according to the provisions of law in force.

The Minister of Justice shall provide detailed regulations on this clause.

5. The inspection conclusion must contain the following basic information:  Achieved results; issues, restrictions and causes thereof; clear identification of violations, defects, nature, severity and causes thereof and responsibilities of agencies, organizations and individuals at fault; recommended actions against violations, consideration and handling of liabilities of agencies, organizations and individuals at fault; time limits for notification of results of implementation of the inspection conclusions.

6. In case of detecting legal documents on handling of administrative violations or other relevant legal documents containing illegal information or information that are not consistent with higher legal documents; information that shows conflict, overlapping, or is not feasible, or is no longer suitable to the socio-economic situation, then in their inspection conclusions, the body having competence in carrying out the inspection shall request the authorities issuing these documents to check, revise and deal with them in accordance with the Government's Decree No. 34/2016/ND-CP dated May 14, 2016, elaborating on a number of articles and measures regarding enforcement of the Law on Promulgation of Legal Instruments.

Article 16. Rights and responsibilities of the inspectee

1. Inspectee’s rights:

a) Receive written notifications of inspection plans or decisions;

b) Submit any recommendation or explanation about inspection conclusions;

c) File any complaint against inspection conclusions and any administrative violations of persons having competence in inspection and imposition of disciplinary actions against violations arising from enforcement of laws on handling of administrative violations in accordance with laws on complaint;

d) File any accusation of violations against law arising from inspection and imposition of disciplinary actions against violations arising from enforcement of laws on handling of administrative violations in accordance with laws on denunciation or accusations;

dd) Refuse any request for provision of information and documents not related to the inspection.

2. Inspectee’s responsibilities:

a) Cooperate with and support the inspection team in performing their inspection tasks;

b) Strictly implement the communication and reporting regime at the request of the inspection team; report on and provide information and documents in a truthful and timely manner; take responsibility before the law for the contents of provided reports, information and documents; give explanations about issues arising from the inspection;

c) Comply with inspection conclusions; handle inspection results upon the inspection team’s recommendations given in inspection conclusions;

d) Bear liability for failure to comply with, or incorrect implementation of, inspection conclusions.