08 cases in which the decision on sanctioning administrative violations must be annulled

According to Decree 118/2021/ND-CP , there are 08 cases where the decision on sanctioning administrative violations must be annulled.

08 cases in which the decision on sanctioning administrative violations must be annulled

08 cases in which the decision on sanctioning administrative violations must be annulled (Illustration image)

Pursuant to Clause 1, Article 13 of Decree 118/2021/ND-CP , the person who has issued the decision himself or at the request of the persons specified in Clause 3, Article 18 of the Law on Handling of Administrative Violations must issue the decision. cancel the entire content of the decision if it falls into one of the following cases:

(1) Not the right violator;

(2) Violation of regulations on authority to issue decisions;

(3) Violation of regulations on procedures for issuing decisions;

(4) In case the case of violation showing signs of crime is retained for administrative handling (specified in Clause 1, Article 12 of the Law on Handling of Administrative Violations );

(5) In case of incorrect determination of administrative violations; applying an incorrect or inadequate form of sanction, level of punishment, and remedial measures to administrative violations (Clause 6, Article 12 of the Law on Handling of Administrative Violations );

(6) In case of forging or falsifying the administrative violation sanctioning dossier, the dossier of application of administrative handling measures (Clause 10, Article 12 of the Law on Handling of Administrative Violations );

(7) In case there is a decision to prosecute the case from the criminal procedure-conducting agency for the case of violation showing signs of crime specified in Clause 3, Article 62 of the Law on Handling of Administrative Violations ;

(8) In the case of failure to issue a sanctioning decision specified in Clause 1, Article 65 of the Law on Handling of Administrative Violations.

Compared with Decree 81/2013/ND-CP as amended by Decree 97/2017/ND-CP , adding the case of wrong object of violation; to retain violations with criminal signs to handle administrative violations; identify improper administrative violations; application of incorrect and inadequate sanctioning forms, levels and remedial measures to administrative violations.

In addition, current regulations also allow, depending on the nature and extent of errors, the person who has issued the decision on handling of administrative violations must cancel part or all of the content of the decision when falling into one of the following categories: the following cases:

- There is an error in the content that fundamentally changes the content of the decision;

- A decision on complaint settlement of a person or agency competent to settle complaints is issued, leading to a change in the grounds and contents of the decision on handling of administrative violations.

From 2022 , Decree 118/2021/ND-CP no longer has this provision, but only stipulates in 08 cases where the entire content of the decision on sanctioning administrative violations must be annulled.

Promulgating a new decision in sanctioning administrative violations

Pursuant to Clause 3, Article 13 of Decree 118/2021/ND-CP , in the following cases (1), (2), (3), (5), (6), if there are grounds to issue a new decision , the person who has issued the decision must issue a new decision or transfer the person competent to issue a new decision.

In case the sanctioning decision is not issued, if the material evidences and means of administrative violations are prohibited from storing or circulating, or if the law prescribes the application of a sanctioning form of confiscation, remedial measures for administrative violations, the person competent to issue the decision must issue a new decision or transfer the person competent to issue a new decision to confiscate and apply remedial measures.

Currently, in Clause 9, Article 1 of Decree 97/2017/ND-CP stipulates that if there are grounds to issue a new decision on handling of administrative violations, the person who has issued the decision must issue a new decision or transfer of competent persons to issue new decisions.

Decree 118/2021/ND-CP takes effect from January 1, 2022; replace Decree 81/2013/ND-CP and Decree 97/2017/ND-CP .

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