Chương 3 Nghị định 86/2012/NĐ-CP: Cách xác định thu lợi bất chính do vi phạm pháp luật về đo lường

Chapter 3.

METHODS OF IDENTIFYING ILLEGAL GAINS BY VIOLATING MEASUREMENT LAWS

Article 8. Illegal gain

Illegal gain is the money collected by violating measurement laws in one of the following cases:

1. Illegal gain from the production, import, and sale of pre-packed goods of which the average value of quantity is lower than the permissible average value according to the technical requirements of measurement that they announced or provided by the Minister of Science and Technology;

2. Illegal gain from carrying measurement during the provision of goods and services that the variance of quantity exceeds the tolerance according to the technical requirements of measurement that they announced or provided by the Minister of Science and Technology;

Article 9. Determining the time of violating measurement laws

1. The period of violating measurement laws is the period from the time of starting to commit the violation until the time such violation is discovered by competent State agencies.

2. The time of starting to commit the violation of measurement laws to make illegal gain as prescribed in Clause 1 Article 8 of this Decree is the closest time with the time when competent State agencies discover the violation, and determined according to one of the following times:

a) The time of starting to sell the pre-packed goods written on the contract, financial invoice, or the customs declaration sheet with customs clearance certification;

b) The time of the latest metrological inspection carried out by competent agencies, regarding the quantity of the pre-packed goods.

3. The time of starting to commit the violation of measurement laws to make illegal gain prescribed in Clause 2 Article 8 of this Decree is the closest time with the time when competent State agencies discover the violation, and determined according to one of the following times:

a) The time of the latest metrological inspection carried out by competent agencies;.

b) The time of the latest inspection of the measurement instruments;

c) The time of the occurrence of the measurement variance recorded by a measurement instrument or by other technical, professional measures as prescribed by competent State agencies.

Article 10. Determination of the quantity of goods and services measured incorrectly

1. The quantitative variation of pre-packed goods equals the number of pre-packed units sold during the period of violating measurement laws, multiplied by the missing amount.

The missing amount is calculated by subtracting the average value from the permissible value.

2. The quantitative variation of goods and services equals the total amount of goods and services provided sold during the period of violating measurement laws, multiplied by the missing or excessive amount compared to the technical requirements of measurement.

The missing or abundant amount compared to the technical requirements of measurement is the variation detected during the inspection minus the tolerance of the corresponding measurement results.

Article 11. Prices of goods and services for calculating the illegal gain

1. Prices of pre-packed goods and other goods and services that have been sold and provided after measurement shall be determined in accordance with the following priority:

a) The actual prices, the posted prices, or the prices written on the contract, the sale invoice, or the import declaration;

b) The market prices of the goods and services where the violation is discovered according to the price list of the local financial agency;

c) The valuation done by the Valuation Council established by the agency or person competent to impose administrative penalties as prescribed by law provisions on handling administrative violations.

2. The price of pre-packed goods and other goods and services that have been sold and provided after measurement is the arithmetic mean of the price at the time of starting to commit the violation, and the price at the time of discovering the violation.

Article 12. Illegal gain

The illegal gain made by committing violations of measurement laws equal the quantitative variation of goods and services prescribed in Article 10 multiplied by the price determined as prescribed in Article 11 of this Decree.

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