How to handle violations when the legal representative of the organization is not present?
Regulations on making records of administrative violations without the presence of the legal representative of the organization
- When detecting acts of administrative violations under their respective management, competent persons on duty must promptly make written records of administrative violations, except for cases in which violations arising from failure to make such records are sanctioned as prescribed in clause 1 of Article 56 herein.
If an administrative violation occurs aboard aircraft, a seagoing vessel or train, the pilot in command, vessel captain or trainmaster shall make a record of that administrative violation and immediately issue it over to the person authorized to sanction administrative violations whenever that aircraft, seagoing vessel or train arrives at the airport, terminal or train station.
- An administrative violation record must be made at the scene of that violation. If an administrative violation record is made at the office of the person authorized to make administrative violation records or at other places, the reasons for this must be clearly stated in the record.
- An administrative violation record must contain the following main information:
+ Recording time and venue;
+ Information about the record maker, violating person or entity, individuals or entities involved;
+ Time and location when and where the violation occurs; case or violation description;
+ Testimony of the violator or representative of the violating entity, the witness, the victim or representative of the organization suffering loss or damage;
+ Injunction and guarantee measures;
+ Rights and duration of explanation.
- An administrative violation record must be made into at least 2 copies and signed by the record maker and the violator or the representative of the violating organization, unless the record is made under the provisions of Clause 7 of this Article.
In case the violator or the representative of the violating organization does not sign the record, the record must bear the signature of the representative of the local authority of the commune where the violation occurs, or of at least 01 witness certifying the violating person or organization has not signed the record; In case there is no signature of the representative of the commune-level local authority or the witness, the reasons for this must be clearly stated in the record.
According to this regulation, in case the representative of the violating organization is not present at the place of violation or deliberately evades without signing the record, the competent person may still make a record of administrative violation and must have the signature of the representative of the local authority where the violation occurred or of at least 1 witness certifying that the violating individual or organization did not sign the record. Therefore, in this case, the competent person shall carry out the order and procedures for penalizing administrative violations for organizations as usual.
Xử lý vi phạm khi không có mặt người đại điện pháp luật của tổ chức được quy định như thế nào?
Regulations on sending decisions sanctioning administrative violation for execution
Pursuant to Article 70 of the law on handling administrative violations 2012 of Vietnam on sending decisions sanctioning administrative violation for execution:
- Within 02 working days, as from the day of issuing decisions sanctioning administrative violation with making records, competent persons having issued such sanctioning decisions must send to sanctioned individuals or organizations, agencies collecting fines and other relevant agencies (if any) for execution.
The decisions sanctioning administrative violation may be handed directly or through post in an assurance form and notifying to sanctioned individuals thereof.
- In case a decision is handed directly but violated organization or individual deliberately does not receive such decision, competent person shall make record thereof with certification of local authority and it is considered that the decision has been handed.
- For cases when sending through post in an assurance form, if within 10 days, since the sanctioning decision has been sent through post for the third time and be returned because violating individual or organization deliberately does not receive it; the sanctioning decision has been posted at the residence place of sanctioned individual, head office of sanctioned organization or there are grounds for presuming that the violator evades receiver of sanctioning decision, in such cases, it is considered that the decision has been handed.
According to this provision, decisions on sanctioning administrative violations are sent to sanctioned organizations. This provision is not intended to specifically guide how submissions to the organization should be made. However, according to the principle, the legal representative of the organization is responsible for performing the obligations of the organization on behalf of the organization. Therefore, the person competent to issue the sanctioning decision only needs to send the decision to the organization, the legal representative of the organization is responsible for receiving and executing the decision to perform the administrative obligations and acts of the organization.
Therefore, for the case when sending by post, you only need to write the recipient as an administrative violation organization without identifying the representative or the organization's legal department. The time when it is considered that the decision on sanctioning administrative violations has been delivered is determined as follows: If within 10 days, since the sanctioning decision has been sent through post for the third time and be returned because violating individual or organization deliberately does not receive it; the sanctioning decision has been posted at the residence place of sanctioned individual, head office of sanctioned organization or there are grounds for presuming that the violator evades receiver of sanctioning decision, in such cases, it is considered that the decision has been handed.
Regulations on execution of decisions sanctioning administrative violation
(1) Pursuant to Article 73 of the law on handling administrative violations 2012 of Vietnam:
- Individual or organization being sanctioned administrative violations must serve sanctioning decision within 10 days, since receiving decision sanctioning administrative violation; if decision sanctioning administrative violation indicate time limit of execution more than 10 days, may execute under that time limit.
When individual or organization being sanctioned administrative violation complain, sue with respect to decision sanctioning administrative violation, the sanctioning decision must be executed, except for case specified in clause 3 Article 15 of this Law. Complaints, lawsuits shall be settled as prescribed by law.
- The persons competent to sanction and have issued sanctioning decisions shall monitor, examinate sanctioning decisions’ execution of sanctioned individuals or organizations and notify result of finish decisions’ execution to agencies managing the database on handling administrative violations of the Ministry of Justice and local Justice agencies.
(2) Pursuant to Article 86 of the law on handling administrative violations 2012 of Vietnam (amended by Article 43 of amendments and supplements to certain articles of law on handling of administrative violations 2020 of Vietnam):
- Enforcement of execution of sanction decisions shall be needed in the following cases:
+ The individual or organization subject to the sanction decision fails to voluntarily execute that decision as provided in Article 73 herein;
+ The individual or organization subject to the sanction decision fails to voluntarily repaying expenses incurred from implementation of relief or mitigation measures prescribed in clause 5 of Article 85 herein to authorities carrying out such measures.
- The enforcement measures include:
+ Deducting part of wages or income, deducting money from bank accounts of violating individuals, organizations;
+ Distraining assets with value corresponding to the fine amount for auction;
+ Collecting money, assets of subjects forced for execution of decision on sanctioning administrative violation which are kept by other individuals, organizations if after violating, individuals, organizations deliberately disperse their assets.
+ Forcible application of remedial measures specified in clause 1 Article 28 of this Law.
Thus, in case the organization deliberately evades and fails to execute the sanctioning decision, the competent person may apply enforcement measures in accordance with the law, consists of:
- Deducting part of wages or income, deducting money from bank accounts of violating individuals, organizations;
- Distraining assets with value corresponding to the fine amount for auction;
- Collecting money, assets of subjects forced for execution of decision on sanctioning administrative violation which are kept by other individuals, organizations if after violating, individuals, organizations deliberately disperse their assets.
- Forcible application of remedial measures specified in clause 1 Article 28 of the law on handling administrative violations 2012 of Vietnam.
LawNet
