Chương V Nghị định 43/2023/NĐ-CP hướng dẫn Luật Thanh tra: Giám định, phong tỏa tài khoản, thu hồi tài sản bị chiếm đoạt, chiếm giữ, sử dụng trái phép hoặc bị thất thoát trong hoạt động thanh tra

Chapter V

ASSESSMENT, FREEZE ON ACCOUNT, RECALL OF ASSETS WHICH ARE APPROPRIATED, ILLEGALLY USED OR LOST DURING INSPECTION

Section 1. ASSESSMENT IN INSPECTION

Article 34. Request for external assessment

1. If it is necessary to assess specialized and technical contents to serve as a basis for conclusion, the person issuing inspection decision shall request a specialized agency or organization at the same level to assess such contents.

2. The inspection-conducting authority shall send a written request to a specialized agency or organization in order to request the agency or organization to carry out the assessment. The written request shall clearly state contents to be assessed and the assessment duration.

Article 35. Agencies/organizations carrying out assessment

Ministries, ministerial agencies, governmental agencies, specialized agencies under the People's Committees of provinces or equivalent agencies, public service providers or non-public assessment organizations shall carry out the assessment at the request of inspection-conducting authorities.

Article 36. Rights and obligations of agencies/organizations having authority to carry out assessment

1. An agency/organization having authority to carry out assessment has the right to:

a) Establish an assessment council consisting of people with professional qualifications in conformity with contents to be assessed;

b) Select necessary and appropriate methods to carry out the assessment according to contents to be assessed;

c) Use assessment results to make assessment conclusions;

d) Refuse to carry out assessment in cases where the contents to be assessed are irrelevant to the professional scope or the agency/organization does not fully meet qualification requirements or conditions necessary for assessment; the duration needed to carry out assessment is not adequate; the independence and objectivity of assessment are not assured. In case of refusal to carry out assessment, within 05 working days of receipt of the request for assessment, it is obligatory to notify the inspection-conducting authority that requests assessment in writing with clear reasons to be stated;

dd) Receive assessment remuneration.

2. An agency/organization carrying out assessment has the obligation to:

a) Carry out the assessment according to contents and the duration under the assessment request;

b) Take responsibility to the law for the accuracy, objectivity and timeliness of assessment results;

c) Ensure that no result is leaked to any third party.

Article 37. Assessment duration

1. The assessment duration shall be decided by the person issuing inspection decision.

2. If there is any problem or ground to believe that the assessment cannot be completed by the deadline, the agency or organization carrying out the assessment shall promptly notify in writing, provide clear reasons for the inspection-conducting authority and state expected duration for completion and making of assessment conclusion.

Article 38. Assessment conclusions

1. An assessment conclusion includes:

a) Agency/organization carrying out assessment;

b) Name of agency that requests assessment;

c) Information on identification of assessment subjects;

d) Duration for receipt of the document on request for external assessment;

dd) Contents to be assessed;

e) Methods of carrying out assessment;

g) Clear and specific conclusions on professional contents of subjects to be assessed according to the assessment request;

h) Time and location for carrying out and completing external assessment.

2. The assessment conclusion is one of the grounds for the inspection-conducting authority to conclude inspection contents.

Article 39. Conditions for assurance about assessment in inspection

1. Every year, inspection-conducting authorities shall make estimates of costs of request for assessment

2. The Ministry of Finance shall provide guidance on grounds for determination of assessment remuneration and payment of such remuneration.

3. Funding for request for external assessment shall be paid by the inspection-conducting authority and covered by the state budget. In case the inspected entity commit violations, the funding shall be paid by the inspected entity, unless otherwise provided for by law.

Section 2. FREEZE ON ACCOUNT OF THE INSPECTED ENTITY

Article 40. Grounds for freeze on account

1. The inspected entity’s acts are suspected as hiding assets. To be specific:

a) Transferring or preparing to transfer their money to other accounts with unclear purposes, contents and recipients;

b) Transferring right to ownership and/or right to enjoyment of assets such as donation, mortgage, pledge, destruction or changes in status of assets;

c) Falsifying accounting records, thereby causing change in assets.

2. The inspected entity fails to hand in cash and property on due date under the Decision on confiscation of cash and property issued by the inspection agency or the competent state management agency.

Article 41. Right to request for and responsibility for freeze on account

1. The person issuing inspection decision or the chief of the inspectorate shall decide to freeze the account of the inspected entity when there are grounds for freeze on accounts specified in Article 40 of this Decree to serve inspection. The decision on freeze on the account shall be sent to the credit institution, the branch of foreign bank in Vietnam (hereinafter referred to as "credit institution”) where the inspected entity has an account.

2. The credit institution, the inspected entity, relevant agencies, organizations and individuals shall fully and promptly comply with the inspection agency’s request for freeze on accounts.

Article 42. Responsibilities of information providers for freeze on accounts

1. Agencies, organizations and individuals shall be responsible for providing information on accounts of the inspected entities at credit institutions in accordance with the Law on Inspection.

2. The credit institution shall provide information related to customer’s deposits and assets held by the credit institution in accordance with regulations of laws.

Article 43. Procedures for requesting credit institutions to freeze accounts

1. The competent person who requests freeze on an account shall send the Decision on freeze on the account to the credit institution where the inspected entity and the accounts exist.

2. Decision on freeze on an account shall specify the number of account, purposes of freeze, the scope of freeze; the amount of frozen cash, the starting time of freeze, the duration of freeze and responsibility of implementation of the credit institution and other information (if any).

Article 44. Responsibilities of credit institutions where inspected entity’s accounts are opened

1. After the receipt of decision on freeze on the account issued by the competent person, the credit institution, where the inspected entity opens the account, shall freeze the account under the decision on freeze on account.

2. The credit institution shall inform the account holder of freeze on his/her account.

Article 45. Cancellation of decisions on freeze on accounts

1. Within 03 working days from the day on which the inspected entity completely abides by the decision on collection of cash and asset or the ground for issuance of the decision on freeze on the account no longer exists, the competent person who makes decision on freeze on the account shall withdraw this decision. The decision on freeze on the account shall be sent to the credit institution where the inspected entity and his/her accounts exist.

2. After the receipt of the decision on cancellation of freeze on the account issued by the competent person, the credit institution, where the inspected entity opens his/account, shall re-open the account under the Decision on cancellation of freeze on the account and inform the account holder of this decision.

Section 3. RECALL OF ASSETS WHICH ARE APPROPRIATED, ILLEGALLY USED OR LOST DUE TO VIOLATIONS

Article 46. Recall of assets which are appropriated, illegally used or lost due to violations

1. During the process of the inspection, the person issuing inspection decision shall decide or request the competent authority to decide to immediately recall assets which are appropriated, illegally used or lost due to violations committed by the inspected entity when there are clear evidences about violations or the inspected entity admits his/her/its violations or proactively returns assets which are appropriated or illegally used.

2. Assets which are appropriated, illegally used or lost due to violations shall be handled as follows:

a) With regard to money, it is required to transfer the money to the impound account of the inspection agency;

b) With regard to real estate, the competent agency is required to expropriate the real estate according to regulations of the law;

c) With regard to movable estate and valuable papers, according to the actual situation, the person issuing inspection decision shall assign an agency or organization that meets conditions for physical facilities and professional qualifications to manage such movable estate and valuable papers;

d) With regard to goods with special requirements for preservation, the agency or organization that meets conditions for physical facilities and has capacity for preservation is assigned to manage such goods.

3. The recall decision shall be sent to the agency, organization or individual that is responsible for managing such money and assets in accordance with law.

4. Funding for management of assets specified at Points b, c and d, Clause 2 of this Article shall be paid by the inspection agency and covered by the state budget.

5. The legal rights and interests over the handled assets of the inspected entity whose assets are recalled shall be protected and the inspected entity has the right to complain about the recall decision in accordance with law.

Article 47. Responsibilities of agencies, organizations and individuals managing money and assets which are appropriated, illegally used or lost due to violations

Agencies, organizations and individuals that manage money and assets which are appropriated or illegally used shall be responsible for abiding by decisions made by persons issuing inspection decisions on recall of money and assets which are appropriated, illegally used or lost due to violations.