Nghị định 31/2020/NĐ-CP sửa đổi Nghị định 115/2013/NĐ-CP quy định về quản lý, bảo quản tang vật, phương tiện vi phạm hành chính bị tạm giữ, tịch thu theo thủ tục hành chính

DECREE

ON AMENDMENTS TO DECREE NO. 115/2013/ND-CP DATED OCTOBER 3, 2013 OF GOVERNMENT ON MANAGEMENT AND PRESERVATION OF EXHIBITS AND VEHICLES OF ADMINISTRATIVE VIOLATION SEIZED OR CONFISCATED ACCORDING TO ADMINISTRATIVE PROCEDURES

Pursuant to Law on Government Organization dated June 19, 2015;

Pursuant to Law on Administrative penalties dated June 20, 2012;

At request of Minister of Public Security;

The Government promulgates Decree on amendments to Decree No. 115/2013/ND-CP dated October 3, 2013 of Government on management and preservation of exhibits and vehicles of administrative violations seized or confiscated according to administrative procedures.

Article 1. Amendments to Decree No. 115/2013/ND-CP dated October 3, 2013 of Government on management and preservation of exhibits and vehicles of administrative violations seized or confiscated according to administrative procedures

1. Amendments to Clause 3 Article 5 are as follows:

“3. Minister of Finance shall specify expenditure on management and preservation of seized and confiscated exhibits and vehicles; expenditure on stay at storage, storage and preservation of exhibits and vehicles during suspension period.”

2. Amendments to Article 6 are as follows:

“Article 6. Locations for storage of seized and confiscated exhibits and vehicles

1. Locations for storage of seized and confiscated exhibits and vehicles are buildings, warehouses, ports, locks, docks, offices or other locations decided by competent individuals capable of seizing or confiscating which must satisfy requirements specified in Clauses 2, 3 and 4 of this Article.

2. Requirements for buildings and warehouses serving as temporary storage

a) Ensure safety, security and order; install fences, issue regulations on entry, exit, environmental protection and fire safety;

b) Ensure dry and airy conditions. In case of outdoor storage locations, install roofs or adopt measures to shelter from rain and direct sunlight;

c) Install lighting systems, fire safety equipment and devices, and technical equipment suitable for managing and preserving each kind of seized and confiscated exhibit and vehicles.

3. Requirements for ports, locks and harbors serving as temporary storage

a) Ensure safety, security, order and compliance with regulations on entry, exit, environmental protection, fire safety and conditions specified in Points b and c Clause 2 of this Article within the storage area;

b) With respect to inland water way ports serving as temporary storage, in addition to requirements specified in Point a of this Clause, install anchoring devices and issue regulations on entry, exit, arrangement and anchoring of vehicles.

4. With respect to offices or cases specified in Clause 2 Article 13 of this Article serving as temporary storage, adopt measures to ensure security, order, fire and explosion safety and dry and airy conditions; install lighting systems, equipment and devices suitable for managing and preserving seized and confiscated exhibits and vehicles.

5. Preparation for locations for temporary storage of seized and confiscated exhibits and vehicles

a) Locations for temporary storage of exhibits and vehicles can be a separate storage of an agency or a mutual storage shared by multiple competent agencies capable of suspending exhibits and vehicles.

Based on practical conditions of each province and request of competent agencies capable of suspending exhibits and vehicles, Chairpersons of People’s Committees of provinces and central-affiliated cities shall decide to construct mutual storage for exhibits and vehicles of multiple competent agencies capable of seizing and confiscating exhibits and vehicles. The storage must be designed with models and scale satisfactory to requirements for managing and preserving exhibits and vehicles. People’s Committees of provinces and central-affiliated cities shall organize construction of the storage on behalf of agencies regularly suspending exhibits and vehicles;

b) In case agencies suspending exhibits and vehicles are ineligible for constructing temporary storage or satisfying construction scale and safety conditions at storage units and thus incapable of adequately managing and preserving seized and confiscated exhibits and vehicles, the agencies shall hire places to use as storage units. Rental prices shall comply with agreements and rental agreements must be signed upon renting according to the Civil Code;

c) In case of suspending exhibits and vehicles in small quantity or in small sizes which are unnecessarily transferred to storage units such as buildings, warehouses or ports, competent individuals capable of suspending exhibits and vehicles may temporarily store said exhibits and vehicles at their base offices. In this case, competent individuals capable of suspending exhibits and vehicles must allocate and assign the seized and confiscated exhibits and vehicles to direct managing officials for management and preservation.

6. People’s Committees of provinces and central-affiliated cities are responsible for managing the mutual storage or assign agencies to manage.  Agencies having storage for exhibits and vehicles or assigned to manage the storage must assign officials to manage and preserve seized and confiscated exhibits and vehicles as follows:

a) In case temporary storage of exhibits and vehicles are separate storage of an agency, head of that agency shall assign officials to manage and preserve exhibits and vehicles;

b) In case storage for exhibits and vehicles are mutual storage shared by multiple local agencies, assignment of officials to manage and preserve exhibits and vehicles shall comply with decisions of Chairpersons of People’s Committees of the same level or agreements between local authorities.”

3. Amendment to Clause 3 Article 11 is as follows:

“3. Comply with Point a Clause 5 Article 16 of this Decree.”

4. Amendments to Clause 1 and Clause 2 Article 13 are as follows:

“1. Individuals assigned to manage and preserve seized and confiscated exhibits and vehicles shall classify and report to heads of agencies to arrange and adopt appropriate measures to manage and preserve, to be specific:

a) Seized or confiscated exhibits and vehicles are machines and vehicles that use gasoline, oil or flammable, explosive fuel upon being transported to storage location must be separated from fire sources, heat sources, devices that generate fire or high heat in order to ensure fire safety and be ready for firefighting;

b) Seized or confiscated exhibits and vehicles that are goods and commodities that can cause environmental pollution must be stored in buildings, warehouses or places with proper safety measures to prevent environmental pollution during storage period;

c) Seized or confiscated exhibits or vehicles that are dangerous substances or commodities regarding fire, explosives, toxic substances or radioactive substances must be stored in buildings, warehouses or places with proper safety measures to prevent fire, explosion, toxic, radioactive and environmental incidents.

2. In case agencies of competent individuals capable of suspending are technically ineligible for transporting seized or confiscated exhibits and vehicles to storage location or storage locations are inadequate for preserving seized or confiscated exhibits and vehicles, competent individuals capable of issuing decisions on suspension shall depend on practical requirements to assign People’s Committees of communes, wards or townlets where the violations occur or where the exhibits and vehicles are suspended capable of managing, preserving or assign individuals or organizations possessing suspended exhibits or vehicles to preserve and manage said exhibits or vehicles if doing so will not affect administrative penalties. 

People’s Committees of communes, wards or townlets or individuals, organizations possessing suspended exhibits and vehicles upon being assigned to manage and preserve exhibits and vehicles are responsible for arranging locations for suspension, adopting measures as specified in Clause 4 Article 6 of this Decree to manage and preserve assigned assets and complying with decisions of competent individuals capable of issuing decisions on suspending exhibits and vehicles. Be responsible to the law for any loss or damage to the commodities.”

5. Amendments to Article 14 are as follows:

“Article. Assigning traffic vehicles committing administrative violations to organizations and individuals that commit the violations

1. With respect to traffic vehicles committing the administrative violations suspended to enforce administrative penalties, if organizations and individuals committing violations meet any of the following conditions, competent individuals capable of suspension may assign organizations and individuals committing violations to store and preserve the vehicles under management of competent individuals capable of suspension, except for cases specified in Clause 7 of this Article, to be specific:

a) Individuals committing violations that have permanent or temporary residential registration or written confirmation regarding agencies and organizations where the individuals work; organizations that commit violations must have specific and proper operation address. Organizations and individuals that commit violations must have places to store and preserve vehicles;

b) Organizations and individuals committing violations that are financially enabled to pay deposit may be considered to be assigned for vehicle assignment and preservation.

2. Procedures for dealing with traffic vehicles that commit administrative violations stored and preserved by organizations and individuals that commit the administrative violations

a) Organizations and individuals must apply to agencies of competent individuals capable of suspending for the ability to store and preserve the vehicles; the application must specify name, address and occupation of the individuals that commit the violations or name and address of the organizations that commit the administrative violations and name, quantity, property, types, brand, symbol, origin, year of manufacture, engine number, chassis number, volume (if any), conditions, places for storage and preservation at request of organizations and individuals after being assigned by competent individuals to store and preserve the vehicles.

Upon submitting the application, the individuals that commit the violations must attach original copies or copies together with the original copies or verified true copies of permanent or temporary residence registration, ID cards, Citizen Identification Cards or documents confirming agencies or organizations where the individuals are working at; organizations that commit the violations must have documents proving base offices of said organizations.

In case permanent or temporary residence registrations are replaced by management in form of personal identification number, individuals committing violations shall provide agencies of competent individuals capable of suspending with their personal identification number when submitting the applications:

b) Within 2 days from the date on which the applications are received, agencies of competent individuals capable of suspending must consider and assign vehicles to organizations and individuals that commit the violations to store and preserve. With respect to complicated cases which require more time for verification, within 3 days from the date on which applications are received, agencies of competent individuals capable of suspending must consider and decide to assign vehicles to organizations and individuals that commit the violations to store and preserve. In case organizations and individuals are rejected from storing or preserving the vehicles, produce written explanation.

Agencies of competent individuals capable of suspending vehicles are responsible for managing and preserving the vehicles involved in the violations from the point in which decisions on suspension are made until the vehicles are transferred to organizations and individuals that commit the violations;

c) Upon assigning organizations and individuals that commit the violations to store and preserve the vehicles, competent individuals capable of temporary suspension must specify name, quantity, mass, property, type, brand, origin, places for storage and preservation and conditions of the vehicles (if any) and signatures of organizations and individuals that commit the violations and competent individuals capable of temporary suspension (compulsory); period in which organizations and individuals that commit violations store and preserve the vehicles.  The records shall be made into 2 copies, each party shall keep 1 copy.

Together with producing records upon assigning the vehicles, competent individuals capable of suspension shall temporarily detain vehicle registration to enforce decisions on penalties, except for cases in which organizations and individuals that commit violations pay deposits. Temporary detention of vehicle registration must be made into records which specify date of the detention, name and title of competent individuals capable of suspending, name of organizations and individuals whose registrations are temporarily detained.

 The records must bear signatures of organizations and individuals that commit violations whose registrations are temporarily detained and signatures of competent individuals capable of suspending; the records shall be made into 2 copies, each party shall keep 1 copy.

Competent individuals capable of suspending shall assign the vehicles to organizations and individuals that commit the violations for storage and preservation after the records have been produced and designated organizations and individuals have arrived to receive the vehicles. Organizations and individuals assigned to store and preserve the vehicles are responsible for bringing the vehicles to their places for preservation.

3. Within 2 days from the date on which vehicles are assigned to organizations and individuals that commit the violations for storage and preservation, agencies of competent individuals capable of suspending must inform People’s Committees of communes, wards and townlets where the vehicles stored and preserved by organizations and individuals that commit the violations are at for joint supervision and management.

4. During the storage and preservation period, organizations and individuals committing the violations shall not use the suspended vehicles for traffic use; do not deliberately change places for storage or preservation without written consent of competent individuals.

In case natural disasters, fire or other risks that directly create scenarios in which the vehicles will be damaged if not relocated or preserved promptly, the vehicles may be relocated or preserved as long as competent individuals are informed immediately after the relocation.

5. During the storage and preservation period, if organizations and individuals that commit the violations fail to comply with Clause 4 of this Article, competent individuals capable of suspending the vehicles shall consider and decide to relocate the vehicles to the storage location at agencies of competent individuals capable of suspending the vehicles.

Organizations and individuals that commit the violations are responsible for bringing the vehicles to storage location as per the law. In case of inability to bring the vehicles to storage location or failure to comply, competent individuals capable of suspending shall deliver the vehicles to temporary storage location; organizations and individuals that commit the violations shall pay for delivery of the vehicles.

6. During storage period, if organizations and individuals cause losses, swap, sell, trade, mortgage, replace, destroy or damage the vehicles, they shall be responsible for damage and consequences done to the vehicles by themselves as per the law.

7. Cases in which organizations and individuals that commit the violations are not assigned to store and preserve the violations:

a) Traffic vehicles involved in the violations are evidence of a criminal case;

b) Traffic vehicles are used for illegal street racing, resisting law enforcement officers, causing public disorder or traffic accidents;

c) Vehicle registrations are fabricated or falsified;

d) Fabricated license plates, illegally changed chassis number, engine number or erased chassis number, engine number.”

6. Amendments to Article 15 are as follows:

“Article 15. Deposit payment for vehicles under suspension due to administrative violations

1. Organizations and individuals financial enabled to pay deposit may be considered to be assigned with the vehicles for storage and preservation.

2. Competent individuals capable of suspending the vehicles for committing administrative violations are entitled to allow organizations and individuals to pay deposit for the vehicles.

3. Procedures for handling deposit payment

a) Organizations and individuals that commit the violations shall apply to agencies of competent individuals capable of suspending for permission to pay deposit in order to store and preserve the vehicles; the application must specify name, address, occupation of the individuals that commit the violations or name and address of organizations that commit the violations, the administrative violations, name, quantity, property, type, labels, symbols, origin, year of origin, engine number, chassis number, volume (if any), conditions of the vehicles, places where the vehicles are requested to be stored and preserved after being assigned by competent agencies;

b) Period for considering and deciding to allow organizations and individuals to pay deposit, assigning organizations and individuals to store, preserve and be responsible for storing and preserving the vehicles during period for considering and deciding to assign organizations and individuals that commit the violations to store and preserve the vehicles shall comply with Point b Clause 2 Article 14 of this Decree;

c) After competent individuals decide to allow deposit payment, organizations and individuals may pay deposit directly or via account of agencies of competent individuals. The minimum deposit amount shall equal the maximum penalties imposed on a violation; in case of multiple violations in the same case, the minimum deposit shall equal the total of maximum penalties of all the violations.

Deposit payment must be made into records. The records must specify date of deposit payment, name, titles of persons allowing deposit payment, name of organizations and individuals paying deposit, reasons for the deposit, deposit amount, deposit period and responsibilities of organizations and individuals paying pail. The records must bear signatures of competent individuals allowing deposit payment and organizations and individuals making deposit payment. The record shall be made into 2 copies; each party shall keep 1 copy.

4. Within 2 days from the date on which deposit payment is received, competent individuals suspending the vehicles shall transfer the payment to accounting departments of their agencies for management; in case competent individuals cause loss of deposit payment or use the deposit payment, depending on nature and seriousness, they shall be sanctioned and must compensate as per the law. Money transferred to the accounting departments must be made into records which specify date of transfer, name, titles of the transferors and receivers, deposit payment amount. The records must bear signatures of both the transferors and the receivers. The records shall be made into 2 copies, each party shall keep 1 copy.

The deposit shall be returned to organizations and individuals paying deposit after they have successfully complied with penalty decisions. Return of deposit payment must be made into records. The records must specify date of return, name, titles of individuals deciding to return the deposit, receivers of the deposit; reasons for receiving the deposit return, amount of deposit return. The record must bear signatures of competent individuals allowing deposit payment and organizations and individuals receiving the deposits. The records shall be made into 2 copies, each party shall keep 1 copy.

5. Upon assigning organizations and individuals that commit violations to store and preserve the vehicles, records must be made according to Point c Clause 2 Article 14 of this Decree.

Competent individuals shall assign the vehicles to organizations and individuals to store and preserve after successfully producing reports and assigned organizations and individuals have arrived to receive the vehicles. Organizations and individuals assigned to store and preserve the vehicles are responsible for delivering the vehicles to storage and preservation locations.

6. During the deposit period, organizations and individuals assigned to store and preserve the vehicles shall not use the vehicles for traffic use; do not change storage or preservation location without written consent of competent individuals. Competent individuals and shall consider and decide to relocate the vehicles to storage location specified in Clause 5 Article 14 of this Decree in case organizations and individuals violate this regulation.

7. Within 10 days from the date on which penalty decisions expire and organizations and individuals have not complied with said decisions, competent individuals capable of imposing administrative penalties shall issue decisions on offsetting deposit payment using form under Annex attached to this Decision.

Within 2 days from the date on which decisions above are issued, competent individuals shall send the decisions to organizations and individuals subject to said decisions according to address specified in the decisions.

In case the deposit amount exceeds the penalty amount, the remaining shall be returned to organizations and individuals who placed the deposits. The return of remaining amount must be made into records. The records must specify date of return, name, titles of persons returning the remaining amount, name of organizations and individuals receiving the money, reason and amount of money received. The records shall be made into 2 copies, each party shall keep 1 copy. The remaining amount shall be returned to organizations and individuals according to address specified in penalty decisions.

8. Decisions on offsetting deposits shall be considered as the basis to determine that organizations and individuals that commit the violations have complied with decisions on administrative penalties and may use the vehicles of administrative violations that are being stored and preserved.

9. Within 5 days from the date on which decisions on offsetting the deposits are issued, competent individuals shall transfer the penalties from offset to state budget account in State Treasury or commercial institutions assigned by the State Treasury to collect penalty payment specified in decisions on penalty.”

7. Amendments to Article 16 as follows:

“Article 16. Return of suspended exhibits and vehicles or transfer of seized or confiscated exhibits and vehicles; collection, submission, management and use of warehousing fees, port fees, fees for preserving suspended exhibits and vehicles

1. Returning of suspended exhibits and vehicles or transfer of seized or confiscated exhibits and vehicles requires written decisions of competent individuals.

2. Persons assigned to manage and preserve seized and confiscated exhibits and vehicles shall return or transfer exhibits or vehicles after decisions on return or transfer of exhibits and vehicles following procedures below:

a) Examine decisions on returning exhibits or vehicles or decisions on transferring exhibits and vehicles; examine Citizen Identification Cards or identification cards of receivers.

Persons receiving exhibits and vehicles must be the persons committing the violations or owners of the suspended exhibits and vehicles or representatives of organizations that commit administrative violations specified in decisions on suspending exhibits or vehicles. If individuals and organizations above authorize other persons to receive the exhibits and vehicles, prepare written authorization as per the law;

b) Request the receivers to refer to records of suspension to examine type, quantity, mass, quality, property and current conditions of exhibits and vehicles suspended under supervision of managing officials. Handing and receiving exhibits and vehicles must be made into records;

c) In case of transferring exhibits and vehicles to inspection agencies, specialized regulatory agencies or accreditation institutions, persons managing and preserving seized and confiscated exhibits and vehicles shall produce records regarding quantity, mass, weight, property, type, labels, origin and current conditions of exhibits and vehicles. The records shall be made into 2 copies both bearing signatures of both parties; each party shall keep 1 copy;

d) In case of confiscated exhibits and vehicles which is established as public property or approved by competent agencies or individuals for methods of disposing the commodities, agencies of individuals issuing decisions on confiscation shall cooperate with agencies assigned to dispose commodities in transferring commodities and relevant documents to receiving agencies.

3. Exhibits and vehicles upon being delivered out of storage and returned to the receivers, the receivers shall be responsible for any losses and changes to the exhibits and vehicles.

4. Persons assigned to manage and preserve the exhibits and vehicles after returning suspended exhibits and vehicles or transferring seized or confiscated exhibits and vehicles are responsible for reporting to competent individuals capable of issuing decisions on seizing or confiscating on implementation results.

5. Collect, submit, manage and use warehousing fees, port fees, fees for preserving suspended exhibits and vehicles

a) Organizations and individuals that commit the violations upon receiving exhibits and vehicles that do not fall under cases of susceptible to warehousing fees, port fees and fees for preserving suspended exhibits and vehicles.

Do not pay warehousing fees, port fees and fees for preserving suspended exhibits and vehicles if owners of the exhibits and vehicles have no faults in the administrative violations or confiscate exhibits or organizations and individuals committing violations assigned to store and preserve the vehicles according to Article 14 and Article 15 of this Decree;

b) Agencies of individuals issuing decisions on suspending exhibits and vehicles in case of storing and preserving suspended exhibits and vehicles or organizations hired by agencies of individuals issuing decisions on suspending exhibits and vehicles to store and preserve the vehicles shall be paid with warehousing fees, port fees and fees for preserving exhibits and vehicles during the suspension period;

c) Warehousing fees, port fees and fees for preserving exhibits and vehicles; collection, submission, management and use of warehousing fees, port fees and fees for preserving exhibits and vehicles shall comply with regulations of Ministry of Finance.”

8. Amendments to Article 17 are as follows:

“Article 17. Disposal of exhibits and vehicles of administrative violations whose suspension period expires

1. Within 3 days from the date on which suspension period of exhibits and vehicles of administrative violations specified in suspension decisions expires, if individuals committing the violations fail to arrive to receive without proper reasons or cases in which the offenders cannot be identified, persons issuing decisions on suspension must issue notice on central or local mass media where the exhibits and vehicles are suspended and publicly post at base offices of competent individuals capable of suspending the exhibits and vehicles; after 30 days from the date of public post and final notice on mass media, if the offenders fail to arrive to receive or cannot be identified, competent individuals shall decide to confiscate the exhibits and vehicles for disposal as specified in Article 82 of Law on administrative penalties and relevant law provisions.

Agencies of individuals issuing decisions on suspending exhibits and vehicles are responsible for managing and preserving the exhibits and vehicles from the point in which suspension period expires without recipients, during public post and notice on mass media until the exhibits and vehicles are confiscated and disposed as per the law.

2. After the exhibits and vehicles of administrative violations are confiscated by decisions on confiscation of competent individuals according to regulations and law on administrative penalties and deemed as public property, the exhibits and vehicles shall be disposed following procedures specified in Law on management and use of public assets and documents on elaboration thereto.”

Article 2. Annuls Clause 4 Article 7, Clause 1 Article 19, Decree No. 115/2013/ND-CP dated October 3, 2013 of Government on management and preservation of exhibits and vehicles of administrative violations seized and confiscated according to administrative procedures

Article 3. Implementation

1. This Decree comes into force from May 1, 2020.

2. Attach to this Decree are Form of decisions on deposit offsetting.

3. If legislative documents and clauses thereof referred to in this Decree are amended or replaced, the new documents and clauses shall prevail.

Article 4. Implementation responsibilities

Ministers, heads of ministerial agencies, heads of governmental agencies, Chairpersons of People’s Committees of all levels and relevant agencies and organizations are responsible for implementation of this Decree./.