Chương III Nghị định 71/2014/NĐ-CP: Thẩm quyền, thủ tục xử lý vi phạm pháp luật về cạnh tranh

Chapter III

ENTITLEMENT TO AND PROCEDURES FOR HANDLING OF VIOLATIONS AGAINST LAW ON COMPETITION

Section 1: ENTITLEMENT TO HANDLING OF VIOLATION AGAINST LAW ON COMPETITION

Article 40. Entitlement of regulatory authorities of competition

1. Regarding the violations against the regulations on unhealthy competition and other violation against the law on competition, the heads of the regulatory authorities of competition shall:

a) give warnings;

b) impose fines of up to VND 100 million in case of individuals committing the violations prescribed in Section 4 and Section 5 Chapter II of this Decree and of up to VND 200 million in case of organizations.

c) confiscate the exhibits and means to commit the violations against the law on competition and the profits from the violations;

dd) force the wrongdoers to file public rectifications, 

2. The Heads of the regulatory authorities of competition can apply, change or cancel the administrative preventive measures when the dossiers on the competitions cases have not handed over to the Competition Council.

Article 41. Entitlement of Competition Council and Council in charge of competitions cases

Regarding violations against the regulations on the control of the anti-competitive practices, the Competition Council and Council of competitions cases shall:

1. Give warnings.

2. Impose fines.

3. Confiscate exhibits and means to commit the violations.

4. Impose the penalties prescribed in Points c, d, dd, e, g, h, i and k Clause 3 Article 3 of this Decree.

5. Request the competent authorities to revoke the Certificates of Enterprise registration or suspend the practice certificates and licenses.

6. Request the competent authorities to impose the penalties prescribed in Point a and Point b Clause 3 of this Decree.

Section 2: PROCEDURES FOR HANDLING OF VIOLATIONS AGAINST LAW ON COMPETITION

Article 42. Procedures for handling of violations against law on competition

The procedures for handling of violations against the law on competition include:

1. Procedures for handling of violations against the regulations on the control of the anti-competitive practices and unhealthy competition;

2. Procedures for handling of other violations against the regulations of the law on competition.

Article 43. Procedures for handling of violations against regulations on control of anti-competitive practices and unhealthy competition

The handling of the violations against the regulations on the control of anti-competitive practices and unhealthy competition must follow the procedures for competition proceedings prescribed in Chapter V of the law on Competition and regulations in Chapter III of the Decree No. 116/2005/ND-CP detailing the implementation of some articles of the Law on Competition.

Article 44. Filing records of other violations against regulations of law on competition

1. The competent persons must immediately suspend the violation and file a record of such violation on detecting any violation against law on competition prescribed un Section 3 Chapter II of this Decree.

2. The record must present:

a) Date and location of the record;

b) Full name and title of the person making the report;

c) Full name, address and occupation of the entity committing violation;

d) Date and location of the violation;

dd) Description of the violation;

e) Administrative preventive measures (if any);

g) Conditions of impounded exhibits and means (if any);

h) Statement of the individual committing the violation or the representative of the organization committing the violation;

i) Names, addresses and statements of the witnesses, individuals or representatives of the organizations suffering the damage (if any).

3. There are at least 2 records of the violation which must be signed by the person making the record and the individual or the representative of the organization committing the violation; and the witnesses and individuals or representatives of the organizations suffering the damage (if any). If a record includes several pages, the abovementioned persons must sign on each page of the record. If the individual or the representative of the organization committing the violation, the witnesses and individuals or representatives of the organizations suffering the damage refuse to sign the record, the person making the record must write the reasons in the record.

4. The wrongdoer shall be given one record. In case of the violation outside the competence of the person making the report must send the report to the competent persons for consideration

Article 45. Deadline for issuance of Decisions on imposition of penalties for other violations against law on competition

1. Any Decision on imposition of penalties for other violations against the law on competition shall be issued within 10 days from the day on which the Record on the violations against the law on competition is filed; or 30 days in case of complex facts.

2. The competent persons must send a written request for extension to their head if it is necessary to verify or collect the evidences, such extension must not exceed 30 days.

3. After the deadline prescribed in Clause 1 and Clause 2 this Article, if the competent persons in charge of imposing penalties have not issued the Decision on imposition of penalties, the remedial measures prescribed in Clause 3 Article 37 and Clause 3 Article 38 of this Decree shall apply.

If the Decision on imposition of penalties has not issued before such deadline, the competent persons in charge shall be penalized under the regulations of the law.

Article 46. Decisions on imposition of penalties for other violations against law on competition

1. A Decision on imposition of penalties for other violations against the law on competition includes:

a) Date of the Decision;

b) Full name and title of the person making the Decision;

c) Full name, address and occupation of the wrongdoer;

d) The violations; facts related to the handling of the violations; provisions of the legislative documents that are applied;

dd) Administrative penalties, additional penalties (if any), remedial measures (if any);

e) Deadline, place of implementation of the Decision and the sign of the person making the Decision;

g) Rights to complain about the Decision on imposition of penalties for other violations against the law on competition under the regulations of the law.

2. The wrongdoer must be written in the Decision on imposition of penalties for other violations against the law on competition. The wrongdoer shall be compelled to implement such Decision in case of non-compliance.

3. The Decision on imposition of penalties for other violations against the law on competition shall take effect as of the signing date unless the Decision prescribes another effective date.

4. The competent persons in charge of issuing the Decision must send the Decision to the penalized entity, the authority in charge of collecting the fines and other relevant authorities (if any) within 03 working days from the issuance of the Decision on imposition of penalties for other violations against the law on competition.

The Decision on imposition of penalties for violations against the law on competition shall be sent directly or via registered mail and announced to the penalized entity.

If the Decision is sent directly but the wrongdoer intentionally refuses to receive it, the competent persons shall make a record on such refusal which is confirmed by the local authority. In this case, it is supposed that the Decision is sent.

If the Decision is sent via registered mail and after 10 days from the third return of the mail due to the intentional refusal of the wrongdoer, it shall be supposed that the Decision is sent when the Decision is announced at the penalized individual’s place of residence or penalized organization’s premises or there are grounds for presuming that the wrongdoer refuse to receive the Decision.

Section 3: PROCEDURES FOR IMPLEMENTATION OF DECISIONS ON HANDLING OF COMPETITIONS CASES AND VIOLATIONS AGAINST LAW ON COMPETITION

Article 47. Implementation of Decision on imposition of penalties for competitions cases and other violations against law on competition

1. Any enterprise liable to the penalties must implement the Decision on imposition of penalties for competitions cases issued by the Council of competitions cases and regulatory authorities of competition within 30 days from the effective date of the Decision on imposition of penalties for competitions cases.

2. Any organization or individual liable to the penalties for other violations against the law on competition prescribed in Section 5 Chapter II of this Decree must implement the Decision on imposition of penalties for other violation against the law on competition within 10 days from the receipt of such Decision.

3. In case of non-compliance within the period prescribed in Clause 1 and Clause 2 this Article, the organization or individual shall be compelled to implement such Decision under the regulations in Article 49 and Article 50 of this Decree.

Article 48. Place to pay fines

Any entity liable to the fine due to the Decision on imposition of penalties for competitions cases and Decision on imposition of penalties for other violations against the law on competition must pay the fine at the State Treasury written in the on handling of competitions cases and Decision on imposition of penalties for other violations against the law on competition.

Article 49. Enforcement of implementation of Decision on imposition of penalties for competitions cases

1. If any entity liable to the penalties does not implement the Decision or bring the case to Court in accordance with the regulations in Section 7 Chapter V of the Law on Competition after the period prescribed in Clause 1 Article 47 of this Decree, the enforcer in charge of the Decision on imposition of penalties for competitions cases can make a written request that the competent authorities (prescribed in Clause 2 and Clause 3 this Article) implement such Decision within their scope of functions, tasks, powers.

2. The competent authorities shall revoke the Certificate of Enterprise registration or suspend the practice certificate and license that such competent authority issue to any enterprise committing violations against the law on competition at the request of the Council of competitions cases written in the Decision on imposition of penalties for competitions cases.

3. Other competent authorities shall restructure the enterprises abusing firms' dominant market positions, separate the merged or acquired enterprises or resell the contributed capital at the request of the Council of competitions cases written in the Decision on imposition of penalties for competitions cases.

4. Civil execution authorities of provinces where the wrongdoers establish their premises, live or place their property shall implement the provisions of the Decision related to the property of the Decision on imposition of penalties for competitions cases at the request of the authorities in charge of implementation of such Decision. 

Article 50. Enforcement of Decision on imposition of penalties for other violations against law on competition

In case of non-compliance with the Decision on other violations against the law on competition within the period prescribed in Clause 2 Article 47 of this Decree, the entities liable to the penalties shall be compelled to implement such Decision under the regulations of the law