Chương II: Trình tự, thủ tục xem xét, quyết định áp dụng biện pháp xử lý hành chính

ORDINANCE

PROCEDURES FOR CONSIDERATION AND DECISION ON IMPOSITION OF ADMINISTRATIVE PENALTIES AT THE PEOPLE’S COURTS

Pursuant to the Constitution of the Socialist Republic of Vietnam;

Pursuant to the Law No. 15/2012/QH13 on handling of administrative violations amended in Law No. 54/2014/QH13, Law No. 18/2017/QH14 and Law No. 67/2020/QH14:

The Standing Committee of the National Assembly promulgates an Ordinance on procedures for consideration and decision on imposition of administrative penalties at the People’s Courts

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Ordinance elaborates the procedures for consideration and decision on imposition of administrative penalties of sending violators to reform schools, compulsory educational establishments or compulsory rehabilitation centers of the People’s Courts (hereinafter referred to as “administrative penalties”); the procedures for consideration and decision on postponement or exemption from serving, reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties; complaints, petitions, protests; settlement of complaints, petitions and protests against imposition of administrative penalties.

Article 2. Principles of consideration and decision on imposition of administrative penalties

1. The consideration and decision on imposition of administrative penalties shall comply with Clause 2, Article 3 of the Law on handling of administrative violations. With regard to minors, the procedures for consideration and decision shall be carried out in a quick and prompt manner, ensure friendliness and conform to their psychology, gender, age, maturity, cognitive ability and principles of handling specified in Clauses 1, 2, 4 and 5, Article 134 of the Law on handling of administrative violations.

2. The persons against whom administrative penalties are proposed (hereinafter referred to as “offenders”) shall be entitled to participate, present opinions before the Court and argue at the meeting in accordance with regulations of this Ordinance.

3. The offenders shall be entitle to have their lawful rights and interests protected.

The offenders who are minors or their parents or guardians may protect themselves or invite lawyers or other persons to protect their lawful rights and interests. The offenders who are legally-aided persons may request legal aid-providing organizations to protect their lawful rights and interests in accordance with regulations of the Law on Legal Aid.

In case the offenders who are minors have no defenders of their lawful rights and interests, the Courts shall request legal aid-providing organizations to assign legal aid assistants, lawyers according to regulations of Law on Legal Aid, or Bar associations to assign lawyers ’ offices to appoint lawyers to protect their lawful rights and interests.

4. The consideration and decision on imposition of administrative penalties shall be made by one judge. In case of consideration and decision on imposition of administrative penalties, the judge shall be independent and abide by the law. Ensure the impartiality of persons who conduct meetings about consideration and decision on imposition of administrative penalties.

5. The spoken and written language used in the consideration and decision on imposition of administrative penalties at Courts is Vietnamese. The offenders or their lawful representatives may use the spoken and written language of their own ethnicities. In this case, it is required to have interpreters.

6. The consideration and decision on imposition of administrative penalties shall ensure the right to two-tier review.

Article 3. Competence in consideration and decision on imposition of administrative penalties

1. Competence in consideration and decision on imposition of administrative penalties of the People's Courts at district level (hereinafter referred to as “the People's Courts of districts”):

a) Be the People's Court of district where the headquarter of the agency of the person who proposes imposition of administrative penalties is located (hereinafter referred to as “proposer”), except for case specified at Point b of this Clause;

b) Be the People's Court of district where the offender commits violations in case the proposer is the head of district-level Police or the Director of the provincial Police according to regulations of Clause 2 Article 99, Clause 1 Article 100, Clause 2 Article 101, Clause 1 Article 102 of Law on Handling of Administrative Violations.

2. The People’s Courts of provinces shall have competence in review of the complained, petitioned or protested decisions of the People’s Courts of districts.

Article 4. Supervision of consideration and decision on imposition of administrative penalties

1. The People's Procuracy shall supervise the legality of acts and decisions of the People's Courts, agencies, organizations and individuals on consideration and decision on imposition of administrative penalties according to regulations of this Ordinance; exercise the right to request, propose and protest in order to ensure prompt and lawful settlement.

2. The People’s Procuracy shall participate in meetings; participate in the consideration of postponement, exemption from, reduction or suspension of execution of decision on imposition of administrative penalties in accordance with this Ordinance.

3. After receipt of notification of acceptance of case files of the Court at the same level, the People’s Procuracy may study the case files at the Court that have accepted such case files, make photocopies of such case files.

Article 5. Responsibilities of individuals, agencies and organizations for consideration and decision on imposition of administrative penalties

1. Individuals, agencies and organizations shall not illegally intervene in consideration and decision on imposition of administrative penalties of the Courts.

2. Within the scope of their tasks and powers, individuals, agencies and organizations shall cooperate with the Courts in consideration and decision on imposition of administrative penalties upon requests of the Courts.

3. Legally effective decisions of the Courts must be executed and respected by individuals, agencies and organizations. The relevant individuals, agencies and organizations shall comply with decisions of the Courts and take responsibility to the law for their compliance.

Article 6. Responsibility for management of consideration and decision on imposition of administrative penalties

Within the scope of its functions, tasks and powers, the Supreme People’s Court of Vietnam shall manage consideration and decision on imposition of administrative penalties of the Courts, and have the following tasks and powers:

1. Take charge and cooperate in promulgation, proposal for promulgation and submission to competent agencies for promulgation of legal documents on procedures for consideration and decision on imposition of administrative penalties;

2. Organize making of statistics, establish and manage the database on consideration and decision on imposition of administrative penalties;

3. Take charge and cooperate in provision of guidance, training and refresher training in the implementation of the law on consideration and decision on imposition of administrative penalties;

4. Inspect the observance of the law on handling of administrative violations in consideration and decision on imposition of administrative penalties of the Courts;

5. Send annual reports on consideration and decision on imposition of administrative penalties of the Courts to the Ministry of Justice; direct the People's Courts at all levels to report and provide information on consideration and decision on imposition of administrative penalties as prescribed in Clause 4, Article 17 of the Law on handling of administrative violations.

Article 7. Expenses and charges for consideration and decision on imposition of administrative penalties

1. Expenses:

a) Expenses for interpreters and translators;

b) Expenses for lawyers and legal aid assistants who protect the lawful rights and interests of the offenders;

c) Expense for assessment and other expenses as prescribed in law.

2. Expenses for consideration and decision on imposition of administrative penalties specified in Clause 1 of this Article shall comply with the law on procedural expenses.

3. Responsibility for payment for expenses for consideration and decision on imposition of administrative penalties:

a) Expenses specified at Points a and b, Clause 1 of this Article: if the offenders who are minors, their parents or guardians make self-requests, they shall make self-payment, except for cases under other regulations of the law.

b) Expenses specified in Clause 1 of this Article: if the Courts make requests, the Courts shall make payment, except for cases specified in Point c of this Clause;

c) Expenses specified at Point b, Clause 1 of this Article for legal aid assistants and lawyers assigned by legal aid-providing organizations shall comply with regulations of the law on legal aid.

4. The charges for issuance of copies of papers and photocopies of documents at the Courts shall comply with the law on court fees and charges.

Chapter II

PROCEDURES FOR CONSIDERATION AND DECISION ON IMPOSITION OF ADMINISTRATIVE PENALTIES

Article 8. Duration of consideration and decision on imposition of administrative penalties

Within 15 days from the date of acceptance of application for imposition of administrative penalties of the Court (hereinafter referred to as “application”), the Court shall issue one of the decisions prescribed at Point k, Clause 3, Article 21 of this Ordinance. With regard to cases that requires inspection, assessment, consultation with specialized agencies or other complicated cases, this duration may be prolonged, but must not exceed 30 days.

Article 9. Receipt and acceptance of application for imposition of administrative penalties

1. In case of receipt of an application, the court shall record in the delivery-receipt book In case the application lacks documents specified in Clause 2 of Article 100, Clause 2 of Article 102 or Clause 2 of Article 104 of the Law on handling of administrative violations, within 02 working days, the Court shall return the application and clearly state the reason.

2. Within one working day after the receipt of application, the Court shall accept and assign a judge to consider and settle it.

Article 10. Assigning judges to considerate and decide imposition of administrative penalties

1. Within the duration specified in Clause 2, Article 9 of this Ordinance, the chief justice of the Court shall assign a judge to consider and decide the imposition of administrative penalties. With regard to consideration and decision on imposition of the sanction of sending the violator to a reform school, the assigned judge shall have skill, experience in handling of cases related to minors; or have necessary knowledge about psychology and educational science for minors.

2. The assigned judge shall refuse consideration and decision on imposition of administrative penalties in one of cases specified in Article 11 of this Ordinance.

3. If the assigned judge cannot continue to perform his/her tasks or refuses consideration and decision, the chief justice of the Court shall assign another judge to consider and decide imposition of administrative penalties.

Article 11. Cases of refusal or change of judges or clerks of meetings

1. They are relatives of the offenders.

2. They have already considered and decided the imposition of administrative penalties in the same case.

3. They have already settled complaints, petitions or protests against the decision on imposition of administrative penalties in that same case.

4. There are clear grounds to believe that they may not be impartial in the performance of their tasks.

Article 12. Notification of acceptance of application

1. Within 02 working days from the date of acceptance of an application, the Court shall notify in writing the acceptance to the proposer, the offender, the lawful representative of the offender (if any), the parents or guardian of the offender who is a minor and the Procuracy at the same level.

2. A written notification must contain the following main contents:

a) Date of issuance of written notification;

b) Name of the Court that has accepted the application;

c) Number and date of acceptance of the application;

d) Full name, position and the name of agency of the proposer; full name of the authorized person (if any);

dd) Full name, date of birth, gender, place of residence, personal identification number, identity card or citizen identity card (if any) of the offender;

e) Administrative penalties proposed to be imposed.

Article 13. Inspection of application for imposition of administrative penalties

1. The assigned judge shall inspect the application in terms of the following contents:

a) Documents in the application, as prescribed in Clause 2 of Article 100, Clause 2 of Article 102 or Clause 2 of Article 104 of the Law on Handling of Administrative Violations;

b) Limitation period for imposition of administrative penalties as prescribed in Points b,c,d and dd, Clause 2, Article 6 of the Law on Handling of Administrative Violations;

c) Offender, competence and procedures for compilation of the application.

2. In case, it is necessary to clarify the status of health and psychology; living, learning and working conditions of the offender, the judge may consult medical, psychological, educational and social experts, representative of the agency or organization where the offender is working, representative of the school where the offender is studying, representative of the commune-level People's Committee, representative of the commune-level Vietnam Fatherland Front Committee and member organizations of the Front where the offender is residing and other agencies, organizations and individuals.

3. The judge shall request in writing the legal aid-providing organization to assign legal aid assistants, lawyers, or Bar associations to assign lawyers’ offices to appoint lawyers in case the offender is a minor specified in Clause 3, Article 2 of this Ordinance.

4. Within 03 working days from the date of assignment, according to the result of inspection of the application, the judge shall make one of the following decisions:

a) Request supplementation of documents;

b) Terminate or suspend consideration and decision on imposition of administrative penalties;

c) Open a meeting to consider and decide the imposition of administrative penalties.

Article 14. Right to provide documents of the offenders

1. From the date of receipt of the notification of acceptance of the application to the time the Court opens a meeting, at the meeting, the offender who is minor or his/her parents or guardian, the lawful representative of the offender (if any), the defender of the lawful rights and interests of the offender shall have the right to provide documents for the Court that has accepted the cases.

2. The documents may be provided by post, in person to the Court, or via the Web Portal of the Court (if any).

Article 15. Request for supplementation of documents

1. The judge shall request the proposer to supplement documents in the following cases:

a) The application contains unclear or contradictory documents that must be supplemented or clarified;

b) There are violations against regulations on procedures for compilation of application.

2. The written request shall clearly state the documents that must be supplemented and the reason for the supplementation.

3. The duration of supplementation of documents is 02 working days from the date of receipt of the request. With regard to a case that requires examination, assessment and consultation with specialized agencies or other complicated cases, the judge may decide the duration of supplementation of documents which is no more than 05 working days. The requested person shall submit additional documents to the Court. In case it is impossible to supplement documents, he/she shall reply or explain in writing and clearly state the reason.

4. Within 01 working day from the date of receipt of additional documents or from the date of expiration of the duration specified in Clause 3 of this Article, if the requested person fails to supplement documents, the judge shall issue a decision on organization of the meeting about consideration and decision on imposition of administrative penalties.

Article 16. Termination or suspension of consideration and decision on imposition of administrative penalties

1. The judge shall decide consideration and decision on imposition of administrative penalties when there is one of the following grounds:

a) The limitation period for imposition of administrative penalties specified in Points b, c, d and dd Clause 2 Article 6 of the Law on Handling of Administrative Violations expires

b) The offender dies;

c) The offender is not liable to the imposition of administrative penalties specified in Clauses 1, 2, 3 and 4 of Article 92, Clause 1 of Article 94 or Clause 1 of Article 96 of the Law on Handling of Administrative Violations;

d) The offender falls within the cases prescribed in Clause 5 of Article 92, Clause 2 of Article 94 or Clause 2 of Article 96 of the Law on Handling of Administrative Violations;

dd) The proposer withdraws his/her proposal;

e) The offender has been handed down a criminal judgment or decision by the Court, which has taken legal effect for the acts proposed for imposition of administrative penalties;

g) The offender is serving his/her prison sentence, is expected to serve his/her prison sentence or death penalty under a legally effective judgment or decision of the Court;

h) The offender suffers a dangerous disease with certification of the medical facility of the district or higher level

2. The judge shall issue a decision on suspension of consideration and decision on imposition of administrative penalties when there is one of the following grounds:

a) The offender’ violation shows criminal signs and the Court shall transfer the application to the authority given authority to institute criminal proceedings for consideration or the offender is being prosecuted for penal liability for such violation;

b) There are new facts and details on the health or mental conditions of the offender, which request the proposer to solicit judicial expertise;

3. Within 02 working days from the date on which the reasons for suspension specified in Clause 2 of this Article no longer exist, the Court shall issue a decision on consideration and decision on imposition of administrative penalties or suspension of consideration and decision on imposition of administrative penalties in accordance with this Ordinance.

Article 17. Decision on organization of meeting about consideration and decision on imposition of administrative penalties

1. Within 07 working days from the date of issuance the decision on organization of meeting, the Court shall organize a meeting about consideration and decision on imposition of administrative penalties.

2. A decision on organization of the meeting must contain the following main contents:

a) Full name, date of birth, gender, place of residence, personal identification number, identity card or citizen identity card (if any) of the offender; full name, place of residence of the lawful representative of the offender (if any);

b) Full name and place of residence of the parents or guardian of the offender who is a minor;

c) Full name, position and the name of agency of the proposer; full name of the authorized person (if any);

d) Administrative penalties proposed to be imposed.

dd) Date and location of online or offline meeting;

e) Full names of the judge and clerk at the meeting;

g) Full name of the defender of the lawful rights and interests of the offender;

h) Full name of the interpreter (if any);

i) Full names of other persons requested to participate in the meeting (if any).

3. At least 03 working days before organization of the meeting, the decision on organization of the meeting shall be sent to the persons specified in Points a, b, c, g, h and i, Clause 2 of this Article and the Procuracy at the same level.

Article 18. Participants in a meeting

1. Persons who conduct a meeting include the judge and clerk.

2. Participants in the meeting include the proposer or the authorized person; the procurator, the offender, his/her lawful representative (if any), or the parents or guardian of the offender who is a minor; the defender of the lawful rights and interests of the offender.

3. If necessary, the Court shall request the judicial expert, the interpreter, the translator, medical, educational, psychological and social specialists, a representative of the agency or organization where the offender is working, a representative of the school where the offender is studying, a representative of the commune-level People’s Committee, a representative of the commune-level Vietnam Fatherland Front Committee and its member organizations where the offender resides or other persons to participate in the meeting and present their opinions to clarify related matters.

The commune-level child protection workers shall participate in the meeting in the case specified in Clause 3, Article 72 of the Law on Children.

Article 19. Rights and obligations of participants

1. Request change of meeting-conducting persons.

2. Know, read, take notes, photocopy and see documents in the application.

3. Provide documents, explain and present their opinions, argue at the meeting in accordance with this Ordinance.

4. Receive decisions of the Court.

5. Make complaints, petitions, protests according to regulations of this Ordinance.

6. Be present at the meeting upon the request of the Court.

7. Respect the Court, abide by the regulations of the meeting.

8. Abide by decisions of the Court which have taken legal effect.

9. Other rights and obligations as prescribed by law.

Article 20. Participation in meeting about consideration and decision on imposition of administrative penalties

1. The participants specified in Clause 2, Article 18 of this Ordinance shall be present at the meeting; if the proposer, the authorized person or the procurator is absent, the Court shall adjourn the meeting.

2. If the offender or his/her lawful representative (if any), the parents or guardian of the offender who is a minor, or the defender of the lawful rights and interests of the offender are absent for the first time with plausible reasons, the Court may adjourn the meeting; if they are absent without plausible reasons; request permission for their absence or are absent for the second time, the Court shall still conduct the meeting.

3. If the interpreter is absent who cannot be replaced immediately by the Court, the meeting must be adjourned.

4. The duration of adjournment must not exceed 5 working days after the date of notification of adjournment The Court shall notify the adjournment to the participants prescribed in Clause 1 of this Article and clearly state the reasons and the time for re-organization of the meeting. With regard to persons absent at the meeting, right after adjournment of the meeting, the Court shall notify them in writing.

Article 21. Meeting about consideration and decision on imposition of administrative penalties

1. A meeting about consideration and decision on imposition of administrative penalties may be organized offline or online.

2. Before opening of a meeting, the clerk shall perform the following tasks:

a) Inspect the presence of persons requested by the Court to attend the meeting. In case anyone is absent, clarify the reason and report it to the judge to consider whether to continue, or adjourn the meeting;

b) Announce the internal regulations of the meeting;

3. The procedures for meeting shall be conducted as follows:

a) The judge announces to open the meeting;

b) The judge explains the rights and obligations of the participants. In case of request for change of the judge or the clerk, the judge shall consider it. He/she shall adjourn the meeting and report it to the Chief Justice of the Court for consideration and decision in cases specified in Article 11 of this Ordinance. If the judge must be changed, the meeting shall be adjourned. If the clerk must be changed while another clerk is not available for replacement, the meeting shall be adjourned. c) The adjournment of meeting shall comply with regulations of Clause 4, Article 20 of this Ordinance.

c) The proposer or the authorized person presents the contents of the proposal;

d) The offender or his/her lawful representative (if any), the parents or guardian of the offender who is a minor presents their opinions on the contents of the proposal;

dd) The proposer or the authorized person; the offender, the legal representative of the offender (if any); the parents or guardian of the offender who is a minor; the defender of the lawful rights and interests of the offender present their opinions about the grounds for imposition of administrative penalties or community-based educational measures to replace sanction of sending the violator to a reform school; the personal status of the offender; aggravating and extenuating circumstances; educational forms and measures that have been already applied; propose or do not propose imposition of administrative penalties; the duration of imposition of administrative penalties or implementation of community-based educational measures;

e) The judicial expert, medical, educational, psychological and social specialists, a representative of the agency or organization where the offender is working, a representative of the school where the offender is studying, a representative of the commune-level People’s Committee, a representative of the commune-level Vietnam Fatherland Front Committee and its member organizations where the offender resides or other participants present their opinions to clarify related matters. The commune-level child protection workers who participate in the meeting present their opinions about protection of children;

g) The judge asks the proposer or the authorized person; the offender, his/her lawful representative (if any), or the parents or guardian of the offender who is a minor and other participants to clarify related matters;

h) The offender, his/her lawful representative (if any), or the parents or guardian of the offender who is a minor; the defender of the lawful rights and interests of the offender argues related matters with the proposer or the authorized person. The argument shall be conducted under the direction of the judge. The participants in argument have the right to respond to opinions of others. The judge who conducts the meeting shall not limit the time for discussion, create conditions for them to argue and present all their opinions; have the right to request the cessation of opinions irrelevant to case or repeated opinions;

i) The procurator presents his/her opinions about the legality of acts and decisions of the People's Courts, agencies, organizations and individuals on consideration and decision on imposition of administrative penalties according to regulations of this Ordinance;

k) The judge decides imposition of administrative penalties or failure to impose administrative penalties; termination or suspension of consideration and decision on imposition of administrative penalties in cases prescribed in Article 16 of this Ordinance and declares contents of the decision at the meeting.

If the Judge does not impose administrative penalties but adopts community-based education measures to replace sanction of sending the violator to a reform school as prescribed in Article 140a of the Law on Handling of Administrative Violations, the decision on community-based education sentence shall be announced.

4. The meeting about consideration and decision on imposition of the sanction of sending the violator to a reform school, apart from compliance with regulations of Clauses 1, 2 and 3 of this Article, shall be held in a friendly manner, ensure the lawful rights and interests of the offender and the best interests of the offender. The meeting rooms shall be arranged in a friendly and safe manner. The judge assigned to conduct the meeting shall wear the uniform according to regulation of the Court. The parents or guardian, lawful representative of the offender (if any) shall support the offender at the meeting. The questioning of the offender shall be appropriate to his/her psychology, age, cognitive development, educational level and understanding. The questions shall be short, simple and easy to understand. The judge shall not ask many questions at once.

Article 22. Minutes of meeting

The minutes of meeting about consideration and decision on imposition of administrative penalties shall clearly specify the date and location of the meeting; participants in the meeting; contents and developments of the meeting and decision of the judge.

After the conclusion of the meeting, the judge shall examine the minutes and sign it together with the clerk

The procurator, the offender or his/her lawful representative (if any), the parents or guardian of the offender who is a minor, the defender of the lawful rights and interests of the offender, the proposer or the authorized person may read the minutes, request recording of modifications and supplements in the minutes and sign for certification.

Article 23. Contents of decision on imposition or failure to impose administrative penalties and other decisions

The decisions specified at Point k, Clause 3, Article 21 of this Ordinance shall contain the following contents:

1. Number and date of issuance;

2. Name of the decision-issuing court;

3. Full names of the judge and clerk at the meeting;

4. Full name of the procurator who participates in the meeting;

5. Full name, position and the name of agency of the proposer; full name of the authorized person (if any);

6. Full name, date of birth, gender, place of residence, personal identification number, identity card or citizen identity card (if any), place of residence, occupation, education level of the offender; full name, place of residence of the lawful representative of the offender (if any); the defender of the lawful rights and interests of the offender;

7. Administrative penalties proposed to be imposed;

8. Reasons and grounds for the decision;

9. Decision of the Judge on imposition or failure to impose administrative penalties; implementation of community-based education measures; termination or suspension of consideration and decision on imposition of administrative penalties.

In case of decision on imposition of administrative penalties, the imposed penalties and the duration of imposition after deduction of the duration of management of the offender at the center or establishment receiving social evils or compulsory rehabilitation center of province (if any) shall be clearly stated; in case of decision on implementation of community-based education measures, the duration of implementation shall be clearly stated and the failure to impose the sanction of sending the violator to reform school shall be clearly stated;

10. Responsibilities of individuals, agencies and organizations that execute the decision;

11. Right to make complaints, petitions, protests against the decision;

12. Effect of the decision;

13. Decision recipients.

Article 24. Effect of decisions of the Court.

1. Decisions on imposition or failure to impose administrative penalties, implementation of community-based education measures, termination or suspension of consideration and decision on imposition of administrative penalties take effect from the date on which the time limit for complaints, petitions or protests specified in Article 32 of this Ordinance expires without complaints, petitions or protests.

2. The decisions of Court specified in this Chapter, except for the decisions prescribed in Clause 1 of this Article, take effect on the date of their issuance.

Article 25. Submission of decisions of the Court.

1. Within 02 working days from the date of declaration or issuance of the decisions on imposition or failure to impose administrative penalties, implementation of community-based education measures, termination or suspension of consideration and decision on imposition of administrative penalties, the Court shall send the decisions to the persons prescribed Clauses 1, 2 and 4 of Article 31 of this Ordinance.

2. The submission of the decision on imposition of administrative penalties which is legally effective shall comply with regulations of Article 107 of the Law on Handling of Administrative Violations.

The submission of the decision on implementation of community-based education measures which is legally effective shall comply with regulations of Clause 4 Article 140a of the Law on Handling of Administrative Violations.

Article 26. Management of dossiers on consideration and decision on imposition of administrative penalties

Materials and documents in the process of consideration and decision on imposition of administrative penalties must be compiled in a dossier, which is numbered and archived in accordance with law.

Chapter III

PROCEDURES FOR CONSIDERATION AND DECISION ON POSTPONEMENT OR EXEMPTION FROM SERVING; REDUCTION IN DURATION, SUSPENSION OR EXEMPTION FROM SERVING THE REMAINING DURATION OF IMPOSITION OF ADMINISTRATIVE PENALTIES

Article 27. Receipt and acceptance of application for postponement or exemption from imposition of administrative penalties

1. In case of one of the grounds specified in Clauses 1 and 2, Article 111 of the Law on Handling of Administrative Violations, the person against whom administrative penalties are imposed or his/her lawful representative shall be entitled to submit application for postponement or exemption from execution of such decision.

The application form and enclosed documents may be submitted in person (at the Court where the decision on imposition of administrative penalties is issued), by post or online via the Web Portal of the Court (if any).

2. Within 02 working days from the date of receipt of the application form and enclosed documents, the Court must accept and assign a judge to consider and settle it and at the same time notify in writing the person who submitted the petition for or the person who has requested imposition of administrative penalties and the Procuracy at the same level.

3. Within 03 working days from the date of assignment, the judge shall consider and issue a decision. If necessary, the Court shall request the Procuracy at the same level, the person who has requested imposition of administrative penalties to give written opinions before issuance of the decision.

4. After consideration of the application form, opinions of agencies, organizations and individuals and enclosed documents, the judge shall issue one of the following decisions:

a) Decision on postponement or exemption from execution of the decision on imposition of administrative penalties;

b) Decision on failure to postponement or exemption from execution of the decision on imposition of administrative penalties;

5. Decision on postponement or exemption from execution of the decision on imposition of administrative penalties contains the following main contents:

a) Number and date of issuance;

b) Name of the decision-issuing court;

c) Full name of the judge;

d) Full name of the petitioner;

dd) Full name, position and the name of agency of the proposer;

e) Full name, date of birth, gender, place of residence, personal identification number, identity card or citizen identity card (if any), place of residence, occupation, education level of the person against whom administrative penalties are imposed; full name, place of residence of his/her lawful representative (if any);

g) Reasons and grounds for the decision;

h) Decision of the judge on permission for postponement or exemption from execution of the decision on imposition of administrative penalties;

i) Responsibilities of individuals, agencies and organizations that execute the decision;

h) Right to make complaints, petitions, protests against the decision;

l) Effect of the decision;

m) Decision recipients.

6. Decision on postponement or exemption from execution of the decision on imposition of administrative penalties takes effect from the date on which the time limit for complaints, petitions or protests specified in Article 32 of this Ordinance expires without complaints, petitions or protests. The decision shall be sent to the person specified in Clause 3, Article 111 of the Law on Handling of Administrative Violations, the person who proposes imposition of administrative penalties, the Procuracy at the same level and the People's Committee of commune where the person against whom administrative penalties are imposed is residing within 02 working days from the date of issuance of the decision.

Article 28. Reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties

1. If a person who is currently incurring an administrative penalty falls into a case specified in Clause 1 or 2, Article 112 of the Law on Handling of Administrative Violations, he/she is entitled to reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties under consideration of the Court according to the proposal of the principal of the reform school or the director of compulsory educational establishment or compulsory rehabilitation center.

2. The principal of the reform school, the director of compulsory education establishment or compulsory rehabilitation establishment shall send written proposal to the Court at the area where the headquarter of the reform school, the compulsory education establishment or the compulsory rehabilitation center is located, together with a copy of the decision on imposition of administrative penalties, documents proving that the person who is incurring administrative penalty falls into one of the cases prescribed in Clauses 1 and 2 of Article 112 of the Law on Handling of Administrative Violations and other relevant documents (if any).

3. Within 02 working days from the date of receipt of application for reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties, the Court must accept and assign a judge to consider and settle it and at the same time notify in writing the petitioner and the Procuracy at the same level.

Within 03 working days from the date of assignment, the judge shall consider and issue a decision. If necessary, the Procuracy at the same level and the petitioner may give written opinions before the Court issues the decision.

4. After consideration of the application, the judge shall issue one of the following decisions:

a) Approval for all or a part of proposal for reduction in duration; approval for proposal for suspension or exemption from serving the remaining duration of imposition of administrative penalties;

b) Disapproval for proposal for reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties.

5. Decision on reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties contains the following main contents:

a) Number and date of issuance;

b) Name of the decision-issuing court;

c) Full name of the judge;

d) Full name and title of the petitioner specified in Clause 2 of this Article:

dd) Full name, date of birth, gender, place of residence, personal identification number, identity card or citizen identity card (if any), place of residence, occupation, education level of the person who is executing the decision on imposition of administrative penalties;

e) Reasons and grounds for the decision;

g) Decision of the judge on reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties:

h) Responsibilities of individuals, agencies and organizations that execute the decision;

i) Right to make complaints, petitions, protests against the decision;

k) Effect of the decision;

l) Decision recipients.

6. Decision on reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties takes effect from the date on which the time limit for complaints, petitions or protests specified in Article 32 of this Ordinance expires without complaints, petitions or protests. The decision shall be sent to the person specified in Clause 3, Article 112 of the Law on Handling of Administrative Violations and the Procuracy at the same level within 02 working days from the date of issuance of the decision.

Article 29. Cancellation of decision on postponement or suspension of execution of the decision on imposition of administrative penalties

1. In case the conditions for postponement of execution of the decision on imposition of administrative penalties no longer exist or the person who is entitled to postponement or suspension falls into one of the cases prescribed in Clause 2, Article 113 of the Law on Handling of Administrative Violations, the People’s Committee of commune where the person who is entitled to postponement or suspension of execution of the decision on imposition of administrative penalties shall send a written notification to the Court that has issued the decision.

2. Within 03 working days from the date of receipt of a written notification of the People’s Committee of commune, the chief justice of the Court that has issued the decision on postponement or suspension shall assign the judge to consider and settle it. Within 02 working days from the date of assignment, the judge shall consider and decide cancellation of decision on postponement or suspension and compel the person who is entitled to postponement or suspension of execution of the decision on imposition of administrative penalties

3. Decision on compulsion to execute the decision on imposition of administrative penalties contains the following main contents:

a) Number and date of issuance;

b) Name of the decision-issuing Court;

c) Full name of the judge;

d) Full name, date of birth, gender, place of residence, personal identification number, identity card or citizen identity card (if any), place of residence, occupation, education level of the person who is entitled to postponement or suspension of execution of the decision on imposition of administrative penalties;

dd) Reasons and grounds for the decision;

e) Decision of the judge on cancellation of decision on postponement or suspension of execution and compulsion on the person who is entitled to postponement or suspension to execute the decision on imposition of administrative penalties;

g) Responsibilities of individuals, agencies and organizations that execute the decision;

h) Right to make complaints, petitions, protests against the decision;

i) Effect of the decision;

k) Decision recipients.

4. Decision on compulsion to execute the decision on imposition of administrative penalties takes legal effect and it must be immediately executed. The decision shall be sent to the police agency, the person against whom administrative penalties are imposed, the Procuracy at the same level, the People's Committee of commune where the person against whom administrative penalties are imposed is residing and other relevant authorities within 02 working days from the date of issuance of the decision.

Chapter IV

COMPLAINTS, PETITIONS OR PROTESTS AGAINST IMPOSITION OF ADMINISTRATIVE PENALTIES, AND SETTLEMENT THEROF

Section 1. COMPLAINTS, PETITIONS OR PROTESTS AGAINST DECISIONS OF THE COURTS ON IMPOSITION OF ADMINISTRATIVE PENALTIES AND SETTLEMENT THEROF

Article 30. Decisions of the Court which can be complained about, petitioned or protested against

1. Decision on imposition of administrative penalties; decision on failure to imposition of administrative penalties; decision on community-based education sentence;

2. Decision on termination or suspension of consideration and decision on imposition of administrative penalties.

3. Decision on postponement or exemption from execution of the decision on imposition of administrative penalties.

4. Decision on reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties.

5. Decision on compulsion to execute the decision on imposition of administrative penalties.

Article 31. Persons who have the right to complaint about, petition or protest against decisions of the Court

1. The offender or his/her lawful representative, the parents or guardian of the offender who is a minor has the right to complain about the decisions of the Court specified in Article 30 of this Ordinance

2. The proposer has the right to petition the decisions of the Court specified in Clauses 1, 2 and 3, Article 30 of this Ordinance when he/she has grounds to believe that such decisions are illegal.

3. The petitioner who has a written proposal for reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties has the right to petition the decision of the Court specified in Clause 4, Article 30 of this Ordinance when he/she has grounds to believe that such decision is illegal.

4. The Procuracy at the same level has the right to protest against the decisions of the Court specified in Article 30 of this Ordinance when this agency has grounds to believe that such decisions are illegal.

Article 32. Time limit for complaint about, petition or protest against decisions of the Court

1. The time limit for complaint is 05 working days from the date on which the Court issues the decisions; If the complainant is absent from the meeting or the Court fails to organize the meeting and issue a decision which this Ordinance elaborates that he/she is entitled to complain about, the time limit for complaint is 05 working days from the date on which the complainant receives the decision of the Court.

If the complainants cannot exercise their right to complaint within the above time limit due to force majeure events or objective obstacles, the duration of occurrence of such force majeure events or objective obstacles shall not be included in the time limit for complaint.

2. The time limit for complaint, petition is 05 working days from the date on which the Court issues the decisions; If the Court issues a decision without opening a meeting while this Ordinance allows petition or protest against such decision, the time limit for petition or protest is 05 working days from the date on which the person who has the right to petition or protest receive the decisions of the Court.

Article 33. Procedure for complaint about, petition or protest against decisions of the Court

1. A complainant shall send a written complaint which clearly states reasons, grounds for complaint and additional documents (if any) to prove his/her complaint to the Court that has issued the decision.

2. The petitioner and the Procuracy at the same level shall send a written petition or protest which clearly states reasons, grounds for petition or protest to the Court that has issued the decision.

Article 34. Procedure for settlement of complaint about, petition or protest against decisions of the Court

1. Within 02 working days from the date of receipt of written complaint, petition or protest, the Court of district that has issued the decisions subject to complaint, petition or protest shall send the written form, petition or protest enclosed with documents to the competent Court of province to consider and settle; at the same time, notify in writing of complaint, petition and protest to relevant individuals, agencies and the Procuracy at the same level.

2. Within 02 working days from the date of receipt of written complaint, petition or protest enclosed with documents, the competent Court of province shall accept and assign a judge to consider and settle it, at the same time notify in writing the complainant, the petitioner and the Procuracy at the same level.

3. Within 05 working days from the date of assignment, the judge shall organize a meeting to consider and settle. At least 03 working days before organization of the meeting, the Court shall notify in writing organization of the meeting to the persons specified in Clause 4 of this Article.

4. The participants of the meeting include:

a) A offender or his/her lawful representative (if any), a complainant; a defender of the lawful rights and interests of the offender;

b) A proposer or an authorized person;

c) Procurators of the Procuracy at the same level;

dd) If necessary, the Court shall request the judicial expert, the interpreter, the translator, medical, educational, psychological and social specialists, a representative of the agency or organization where the offender is working, a representative of the school where the offender is studying, a representative of the commune-level People’s Committee, a representative of the commune-level Vietnam Fatherland Front Committee and its member organizations where the offender resides and other persons to participate in the meeting and present their opinions to clarify related matters. The commune-level child protection workers shall participate in the meeting in the case specified in Clause 3, Article 72 of the Law on Children.

5. If the complainant is absent for the first time with plausible reasons, the Court shall adjourn the meeting; if he/she is absent without plausible reasons; requests permission for his/her absence or is absent for the second time, the Court shall still conduct the meeting. In case one of the persons specified at Points b and c, Clause 4 of this Article is absent, the Court shall adjourn the meeting. The adjournment of meeting shall comply with regulations of Clause 4, Article 20 of this Ordinance.

6. If the complainant withdraws his/her complaint, the petitioner withdraws his/her petition or the Procuracy withdraws its protest, the Court shall issue a decision on termination of consideration of the complaint, petition or protest. In this case, the complained, petitioned or protested decision takes effect from the date on which the Court issues the decision on termination.

Article 35. Meeting about consideration and settlement of complaint about, petition or protest against decisions of the Court

1. The regulations of Clauses 1 and 4, Article 21 of this Ordinance shall be adopted at meeting about consideration and settlement of complaint about, petition or protest against decisions of the Court

2. Before organization of the meeting, the clerk shall perform the following tasks:

a) Inspect the presence of persons requested by the Court to attend the meeting. In case anyone is absent, clarify the reason and report it to the judge to consider whether to continue, or adjourn the meeting;

b) Announce the internal regulations of the meeting;

3. The procedures for meeting are conducted as follows:

a) The judge announces to open the meeting;

b) The judge shall explain the rights and obligations of the participants. In case of request for change of the judge or the clerk, the judge shall consider it. He/she shall adjourn the meeting and report it to the Chief Justice of the Court for consideration and decision in cases specified in Article 11 of this Ordinance. If the judge must be changed, the meeting shall be adjourned. If the clerk must be changed while another clerk is not available for replacement, the meeting shall be adjourned. The adjournment of meeting shall comply with regulations of Clause 4, Article 20 of this Ordinance.

c) The complainant presents the complaint; the petitioner or the authorized person presents the petition; the procurator presents the protest;

d) The offender or his/her lawful representative (if any) presents his/her opinions on petition or protest; the proposer or the authorized person presents his/her opinions on complaint or protest;

dd) The judicial expert, medical, educational, psychological and social specialists, a representative of the agency or organization where the offender is working, a representative of the school where the offender is studying, a representative of the commune-level People’s Committee, a representative of the commune-level Vietnam Fatherland Front Committee and its member organizations where the offender resides or other participants present their opinions to clarify related matters. The commune-level child protection workers who participate in the meeting present their opinions about protection of children;

e) In case the Procuracy make a protest, the judge asks the complainant, petitioner, procurator and other participants to clarify issues related to complaint, petition or protest;

g) The offender or his/her lawful representative (if any) argues relevant issues with the petitioner, the procurator in case the Procuracy makes a protest. The defender of the lawful rights and interests of the offender argues in order to protect the lawful rights and interests of the offender. The argument shall be conducted under the direction of the judge. The participants in argument have the right to respond to opinions of others. The judge who conducts the meeting shall not limit the time for argument, create conditions for them to argue and present all their opinions; have the right to request the cessation of opinions irrelevant to case or repeated opinions;

h) The procurator presents his/her opinions about the legality of acts and decisions of the Court, agencies, organizations and individuals on consideration of complaint, petition or protest according to regulations of this Ordinance;

4. The judge shall declare one of the decisions under his/her competence specified in Article 36 of this Ordinance.

Article 36. Competence of the judge in settling complaint about, petition or protest against decision of the People's Court of district

1. Reject complaint about, petition or protest; uphold decisions of the People's Court of district

2. Accept a part of complaint about, petition or protest; amend the decisions of the People's Court of district on the duration of imposition of administrative penalties or community-based education sentence

3. Accept complaint about, petition or protest; amend the decisions of the People's Court of district on imposition of the sanction of sending the violators to reform schools; community-based education sentence.

4. Accept complaint about, petition or protest; cancel the decision of the People's Court of district on community-based education sentence; return the application to the People's Court of district for consideration and settlement in accordance with this Ordinance.

5. Cancel the decision on failure to impose administrative penalties; return the application to the People's Court of district for consideration and settlement in accordance with this Ordinance.

6. Cancel the decision of the People's Court of district and terminate the consideration and imposition of administrative penalties when there is one of grounds specified in Clause 1, Article 16 of this Ordinance.

7. Cancel the decision on termination or suspension of consideration and imposition of administrative penalties when there are no grounds specified in Article 16 of this Ordinance; return the application to the People's Court of district for consideration and settlement in accordance with this Ordinance.

8. Cancel the decision on postponement or exemption from execution of the decision on imposition of administrative penalties of the People’s Court of district and compel to incur administrative penalties when there are no grounds specified in Article 111 of the Law on Handling of Administrative Violations.

9. Cancel the decision on non-acceptance of postponement or exemption from execution of the decision on imposition of administrative penalties of the People’s Court of district and accept the proposal for postponement or exemption from execution of the decision on imposition of administrative penalties when there are grounds specified in Article 111 of the Law on Handling of Administrative Violations.

10. Cancel the decision on reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties of the People’s Court of district when there are no grounds for such decision specified in Article 112 of the Law on Handling of Administrative Violations and Article 28 of this Ordinance.

11. Cancel the decision on non-acceptance of proposal for reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties of the People’s Court of district and the decision on reduction in duration, suspension or exemption from serving the remaining duration of imposition of administrative penalties when there are grounds specified in Article 112 of the Law on Handling of Administrative Violations and Article 28 of this Ordinance.

12. Cancel the decision on compulsion to execute the decision on imposition of administrative penalties of the People’s Court of district when there are no grounds specified in Clause 2, Article 113 of the Law on Handling of Administrative Violations and Article 29 of this Ordinance.

13. Terminate settlement of complaints, petitions or protests when the complainants, petitioning agencies or the protesting procuracies withdraw the whole of their complaints, petitions or protests. In this case, the decisions of the People’s Court of district shall take effect.

Article 37. Contents and effect of decision on settlement of complaint about, petition or protest

1. A decision on settlement of complaint about, petition or protest includes the following contents:

a) Number and date of issuance;

b) Name of the decision-issuing court;

c) Full names of the judge and clerk at the meeting;

d) Full name of the procurator who participates in the meeting;

dd) Full name of the offender, the complainant; full name, title, name of the agency of the proposer, full name of the authorized person (if any); name of the protesting Procuracy;

e) Contents of complaint about, petition or protest;

g) Reasons and grounds for, and contents of, the settlement of the complaint, petition or protest;

h) Responsibilities of individuals, agencies and organizations that execute the decision;

i) Effect of the decision;

k) Decision recipients.

2. Decision on settlement of complaint about, petition or protest take effect immediately.

Within 02 working days from the date of declaration of the decision, the Court shall send the decision to the persons specified in Clause 2, Article 25 of this Ordinance, the Procuracy at the same level, the Procuracy that has protested, the petitioner and the Court that has issued the decision subject to complaint, petition or protest.

3. Decision on settlement of complaints, petitions or protests and the materials and documents collected or issued by the Court in the process of consideration and settlement of the complaints, petitions or protests shall be numbered and archived in accordance with law.

Section 2. COMPLAINTS, SETTLEMENT OF COMPLAINTS ABOUT ACTS OF COMPETENT PERSONS OF THE COURT IN IMPOSITION OF ADMINISTRATIVE PENALTIES

Article 38. Acts that can be complained about in consideration and decision on imposition of administrative penalties

Individuals, agencies and organizations have the right to complain about acts of the Chief Justice, judge or clerk of the Court in the delivery and receipt of dossiers, acceptance of cases for settlement, assignment of judge, request for supplementation of documents and evidence, submission of notification, decisions of the Court, organization of meeting, participants in meeting, duration of settlement and other acts in consideration and decision on imposition of administrative penalties when they have grounds to believe that such acts are illegal or infringe upon their lawful rights and interests.

Article 39. Rights and obligations of complainants

1. A complainant has the following rights:

a) Lodge complaints on his/her/its own or through a lawful representative;

b) Lodge complaints at any stage of the process of consideration and decision on imposition of administrative penalties;

c) Withdraw his/her/its complaints at any stage of the process of settlement of complaints;

d) Receive written replies on acceptance of complaints for settlement, receive decisions on settlement of complaints;

dd) Be restored his/her/its lawful rights and interests which have been infringed upon. Be compensated for damage in accordance with law.

2. A complainant has the following obligations:

a) Lodge his/her/its complaints with proper persons with settlement competence;

b) Honestly present the matters, provide information and documents to the complaint-settling person; take responsibility to the law for the contents and provision of such information and documents;

c) Abide by decisions on settlement of complaints which are legally effective.

Article 40. Rights and obligations of complained persons

1. A complained person has the following rights:

a) Provide evidence of the legality of the complained acts;

b) Receive the decision on settlement of complaint about the complained acts.

2. A complained person has the following obligations:

a) Explain the complained act; provide relevant information and documents when competent persons make requests;

b) Abide by decisions on settlement of complaints which are legally effective;

c) Compensate for damage, remedy consequences of his/her illegal acts in accordance with the law.

Article 41. Time limit for complaint

The time limit for complaint is 03 working days from the date on which the complainant knows and believes that an act of a competent person is illegal.

If the complainants cannot exercise their right to complaint within the time limit specified in this Article due to force majeure events or objective obstacles, the duration of occurrence of such force majeure events or objective obstacles shall not be included in the time limit for complaint.

Article 42. Competence and time limit for settlement of complaints

1. Complaints about acts of the judge or clerk of the People’s Court of district shall be settled by the chief justice of the People’s Court of district within 03 working days from the date of the receipt of complaints; in case of disagreement with the result of settlement, within 03 working days from the date of receipt of the decision on settlement of complaints of the chief justice of the People’s Court of district, the complainant may lodge a complaint with the People’s Court of province. Within 05 working days from the date of receipt of the complaint, the chief justice of the People’s Court of province shall consider and settle it. The decision of the chief justice of the People’s Court is final decision.

Complaints about acts of the chief justice of the People's Court of district shall be settled by the chief justice of the People's Court of province within 05 working days from the date of receipt of complaints. The decision of the chief justice of the People’s Court of province is final decision.

2. Complaints about acts of the judge or clerk of the People's Court of province shall be settled by the chief justice of the People's Court of province Within 03 working days from the date of receipt of the complaint, the chief justice of the Court of province shall consider and settle it. The decision of the chief justice of the People’s Court of province is final decision.

3. Complaints about acts of the chief justice of the People's Court of district shall be considered and settled by the chief justice of the Supreme People's Court under the territorial jurisdiction within 05 working days from the date of receipt of complaints. The decision of the chief justice of the Supreme People's Court is final decision.

4. Within 02 working days from the date of issuance of the decision on settlement of complaints, the Court shall send it to the complainant and the Procuracy at the same level.

Chapter V

IMPLEMENTATION PROVISIONS

Article 43: Entry into force

1. This Ordinance comes into force as of February, 01 2023.

2. The Ordinance on procedures for consideration and decision on imposition of administrative penalties at the People's Court No. 09/2014/UBTVQH13 of the Standing Committee of National Assembly expires from the effective date of this Ordinance, except for cases specified in Article 44 of this Ordinance.

Article 44. Transitional clauses

1. With regard to cases that have been accepted and settled by the People's Court of district according to the regulations of Ordinance No. 09/2014/UBTVQH13 but have not been completed by February 01, 2023, the regulations of Ordinance No. 09/2014/UBTVQH13 shall be applied for consideration and settlement until the end of cases. However, with regard to the following contents, the regulations of this Ordinance shall be applied:

a) Regulations on assurance about friendly procedures for minors in Clauses 1 and 3 of Article 2, Clause 1 of Article 10, Clauses 2 and 3 of Article 13, Clause 3 of Article 18, Point e of Clause 3 and Clause 4 of Article 21, Point d Clause 4 Article 34, Clause 1 and Point dd Clause 3 Article 35 of this Ordinance;

b) Termination of consideration and decision on imposition of administrative penalties specified in point h, Clause 1, Article 16 of this Ordinance;

c) Implementation of community-based education measures;

d) Other regulations of this Ordinance which are beneficial to the offender.

2. With regard to cases that have been settled by the People's Court of district according to the regulations of Ordinance No. 09/2014/UBTVQH13 with complaints, petitions and protests from February 01, 2023, the People's Court of province shall settle according to Ordinance No. 09/2014/UBTVQH13. In case of contents specified at Points a, b, c and d, Clause 1 of this Article, the regulations of this Ordinance shall be applied.

This Ordinance was approved at the 18^th session of the 15^th Standing Committee of the National Assembly of the Socialist Republic of Vietnam on December 13, 2022.

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