Chapter V
MEASURES TO PREVENT VIOLATIONS OF ADMINISTRATIVE REGULATIONS AND ENSURE THEIR HANDLING
Article 38.- The measures to prevent violations of administrative measures and ensure their handling
When the need arises to prevent in a timely manner violations of administrative regulations, or to ensure the handling of the violations, the authorized person may apply the following measures in accordance with administrative procedure:
a) To make temporary detention of the offender;
b) To make temporary seizure of tools and instruments employed in the violation;
c) To warrant a body search;
d) To search transport means and belongings;
e) To search hiding places of tools and instruments employed in the violation.
In applying these measures, the authorized person must strictly comply with the provisions described in Articles from 39 to 44 of this Ordinance; all violations must be handled as presribed in Article 91 of this Ordinance.
Article 39.- Temporary detention of offenders according to administrative procedure
1. The temporary detention of offenders according to administrative procedure shall apply only to cases when it is necessary to gather and investigate into important details which will serve as ground for a decision on administrative sanction, or to prevent or immediately stop acts of disturbance of public disorder.
2. The temporary detention of offenders shall not exceed 12 hours; in case of necessity, it may be prolonged but shall not exceed 24 hours from the beginning of the detention.
For offenders who violate provisions on border security or who commit acts of violation of administrative regulations in remote mountainous or island areas, the temporary detention may be further prolonged but shall not exceed 48 hours.
3. At the request of the temporarily detained offenders, the authority who makes the warrant for temporary detention must notify their families and places of work or study. If the temporary detention is applied to a juvenile offender for over six hours, his/her parents or tutor must be notified of the detention.
4. In all cases of temporary detention of offenders, there must be a written warrant, a copy of which shall be handed to the detained offenders.
5. It is prohibited to put temporarily detained offenders of administrative regulations in detention rooms reserved for criminal offenders or at places which do not have the proper hygiene and safety conditions for the temporarily detained persons.
Article 40.- The competence for temporary detention of alleged offenders according to administrative procedure
The following authorities have the authority to order temporary detention of alleged offenders according to administrative procedure:
a) Presidents of the People's Committees of communes and townships; the Commanders of Public Security Stations at ward level;
b) Commanders of Public Security Service at district level;
c) Commanders of Divisions of Public Traffic Police, Criminal Police, Economic Police, Social Order Police and Immigration at provincial level.
d) Chiefs of Special Police at central level; Commanders of Mobile and Unattached Police Units of company level or higher; Chiefs of Frontier Police Stations;
e) Chiefs of Ranger Stations;
f) Chiefs of Frontier Customs Stations;
g) Chiefs of Market-Management Teams;
h) Commanders of Sub-Regional Frontier Stations or Naval Frontier Patrol Teams or Border Posts, and Chiefs of Frontier Army Units in border and island garrisons;
i) Captains of airplanes and sea-going ships after departure of these means from ports.
In case the personnel specified in Points (a), (b), (c), (d), (e), (f), (g) and (h) of this Article are absent or not capable of performing their duty, their deputies may issue the warrant to place the presumed offenders in temporary detention in compliance with the administrative procedure.
Article 41.- Temporary seizure of tools and instruments employed in violations of administrative regulations
1. The temporary seizure of tools and instruments employed in violation of administrative regulations shall apply only to cases where it is necessary to check immediately the acts of violation or to verify details which will serve as ground for handling the violations.
The personnel stipulated in Article 40 of this Ordinance have the right to order the temporary seizure of material evidences of the violation of administrative regulations.
2. In case of necessity, the immediate chief of the combatant of the unit of the People's Police, Frontier Army, Rangers, Customs and Market Management Inspection has the right to issue the warrant for temporary seizure of material evidences of the violation of administrative regulations and, within 24 hours from the issue of the warrant, he/she shall report the cases to his/her superior chief, who is one of the personnel stipulated in Points (a), (b), (c), (d), (e), (f), (g) and (h) of Article 40 of this Ordinance, to get his/her written approval.
3. The authority who issues the warrant for temporary seizure of material evidences of the violation of administrative regulations is responsible for their keep; if they are lost, sold away, exchanged or damaged due to the fault of this authority, he/she is responsible for their compensation.
In case the material evidences of the violation of administrative regulations must be sealed, the sealing shall be done in the presence of the presumed offender or the representatives of his/her family, his/her organization, the administration and the witnesses.
4. With regard to Vietnamese currency, foreign exchange, gold, silver, the precious metals, gemstones, drugs and other materials which are to be stored according to special procedures, the storage shall be done in accordance with the provisions of law.
For material evidences of the violation of administrative regulations which are non-durable commodities or products, the authority who warrants their seizure must handle them in accordance with the provision of Item 3, Article 52, of this Ordinance.
5. Within not more than 15 days from the date of the temporary seizure, the authority who warrants the seizure must proceed with the handling of them in accordance with the measures prescribed in the concerned decision, or return them to the concerned individuals and organizations if no confiscation is applied to the temporarily seized material evidences. In case only a fine shall be applied to the offending individual or organization, the fining authority has the right to temporarily seize the vehicle permit, driving license, other travel document or the tools or instruments employed in the violation until the individual or organization has carried out the fining decision.
6. The temporary seizure of material evidences of the violation of administrative regulation must be made with a written decision, a copy of which shall be handed to the offender or a representative of the offending organization.
Article 42.- Body search according to administrative procedure
1. The body search according to administrative procedure may be conducted only when there is evidence to determine that the subject is hiding in his/her body objects, documents or instruments employed in his/her violation of administrative regulations.
2. Only those persons specified in Article 40 of this Ordinance shall have the authority to warrant a body search according to administrative procedure.
Commissioned and non-commissioned officers of the People's Public Security, Frontier Guard Corps, employees of the Ranger Corps, Customs Office and Market Inspection <%-2>Teams who are on duty, are authorized to conduct body searches according to administrative procedure when they have ground to believe that if the search is not conducted on the spot, the objects, documents or instruments employed in the violation of administrative regulations may be disposed of, or destroyed. They shall be responsible before law for their decision, and shall report immediately to the chief of their unit.
3. Before conducting a body search, the searcher shall notify the subject of his/her decision. The searcher and the searched must be of the same sex, and the search shall be done in the presence of a witness of the same sex.
4. All body searches shall be recorded in written minutes, a copy of which shall be handed to the searched.
Article 43.- Search of transport means and properties according to administrative procedure
1. The search of transport means and properties according to administrative procedure may be conducted only when there is evidence to determine that there are hidden in them objects, documents or instruments employed in the violation of administrative regulations.
2. Market Inspectors, commissioned and non-commissioned officers of the People's Public Security, Frontier Guard Corps, employees of the Ranger Corps, Customs Office, Tax Office and Inspectors who are on duty are authorized to conduct searches of the subject transport means and properties.
3. The search of transport means and properties must be done in the presence of the owner or operator and a witness; in the event of an absence of the owner or operator, two witnesses must be present.
4. All searches of transport means and properties shall be recorded in written minutes, a copy of which shall be handed to the owner or operator.
Article 44.- Search of hiding place of material evidence of the violation of administrative regulations
1. A search of the place for material evidences of the violation of administrative regulations may be conducted only when there is ground to determine that certain material evidences of the violation are being hidden in that place.
2. The Chief of a district-level Public Security Office has the right to warrant a search of a place for material evidences of the violation of administrative regulations; if the suspected place is a dwelling house, the warrant must be approved by the Head of the People's Procuracy of the same level before it may be carried out.
The Director of the Department of Economic Police, the Heads of the provincial-level Bureaus of Economic Police and Criminal Police, the Chief of a district-level Public Security Office and the Chief of a Market-Management Team have the right to warrant a search of a place for material evidences of the violation of administrative regulations when he/she has ground to believe if such a search is not conducted immediately, the material evidences may be disposed of, or destroyed, and shall be responsible before law for his/her decision; at the same time, he/she has to report the decision in writing to the office of the People's Procuracy of the same level within 12 hours from the time of the warrant.
3. The search of a place for hidden material evidences of the violation must be conducted in the presence of the owner or members of his/her family, and in the presence of two witnesses.
4. No search of a place for hidden material evidences shall be conducted at night, except for cases of emergency and for which the reasons must be described clearly in the minute.
5. All searches of places for hidden material evidences shall be recorded in minutes, a copy of which shall be handed to the owner.
Tìm kiếm
Pháp lệnh xử lý vi phạm hành chính năm 1995 (Bản Word)