The Law on Amendments and Supplements to certain Articles of the Law on Handling of Administrative Violations in 2020 of Vietnam will officially take effect from January 01, 2022 with the following notable points:
Article table of contents
1. Redefine “recidivism”
According to the Law on Amendments and Supplements to certain Articles of the Law on Handling of Administrative Violations in 2020 of Vietnam, recidivism means the act of repeating a violation by an individual or organization against which an administrative sanction decision has been imposed before the period of being considered that such decision is not enforced yet expires; the act of repeating a violation by an individual against which an administrative action has been imposed before the period of being considered that such action is not enforced yet expires. (Clause 1 Article 1 of the Law on Amendments and Supplements to certain Articles of the Law on Handling of Administrative Violations in 2020 of Vietnam amending Clause 5 Article 2 of the Law on Handling of Administrative Violations 2012)
2. Commiting administrative violation(s) in multiple times shall be considered aggravating circumstance
Principles for handling administrative violations specified in Point d Clause 1 Article 3 of the Law on Handling of Administrative Violations 2012 of Vietnam are amended as follows:
“d) Imposing administrative penalties only when there is any administrative violation prescribed by laws.
An administrative violation shall be sanctioned only once.
If multiple persons commit an administrative violation, each of them shall be sanctioned for such violation.
If a person commits multiple administrative violations or commits administrative violation(s) in multiple times, he/she shall be sanctioned for each violation, except when the act of committing administrative violation(s) is regulated as an aggravating circumstance by the Government;”
Thus, from January 01, 2022, if a person commits multiple administrative violations or commits administrative violation(s) in multiple times, he/she shall be sanctioned for each violation, except when the act of committing administrative violation(s) is regulated as an aggravating circumstance by the Government. (Clause 2 Article 1 of the Law on Amendments and Supplements to certain Articles of the Law on Handling of Administrative Violations in 2020 of Vietnam amending Point d Clause 1 Article 3 of the Law on Handling of Administrative Violations 2012)
3. Increasing maximum penalties in 10 areas
The Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam has increased the maximum penalties in 10 areas of state management, including: road traffic; prevention and control of social evils; ciphering; national border management and protection; education; electricity; protection of consumer’s rights; irrigation; press; real property business. To be specific:
- Road traffic; prevention and control of social evils: from VND 40 million to VND 75 million;
- Ciphering; national border management and protection; education: from VND 50 million to VND 75 million;
- Electricity: from VND 50 million to VND 100 million;
- Protection of consumer’s rights: from VND 100 million to VND 200 million;
- Irrigation (formerly is irrigation project management); press: from VND 100 million to VND 250 million;
- Real property business: from VND 150 million to VND 500 million.
(according to Clause 10 Article 1 of the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam amending and supplementing some clauses of Article 24 of the Law on handling of administrative violations 2012)
>> View more: Amended Law on handling of administrative violations 2020 of Vietnam: Increasing maximum penalties in 10 areas
4. Supplementing maximum penalties in 06 areas
Concurrently, the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam has also supplemented provisions on maximum penalties for 06 following areas:
- Beliefs and religions (formerly is only religions); foreign affairs: a fine of up to VND 30 million;
- Rescue: a fine of up to VND 50 million;
- Printing; information security: a fine of up to VND 100 million;
- Intellectual property: a fine of up to VND 250 million.
5. Supplementing titles competent to sanction administrative violations
The Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam has supplemented titles competent to sanction administrative violations to ensure consistency and synchronization with the Law of State Audit Office of Vietnam (Clause 24 Article 1 of the of the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam Article supplementing Article 48a placed below Article 48 of the Law on handling of administrative violations 2012); amending the authority of the National Competition Committee (Clause 20 Article 1 of the of the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam Article supplementing Article 45a placed below Article 45 of the Law on handling of administrative violations 2012). In particular, the provisions on the sanctioning competence of the President of the National Competition Commission in the amended Law have been adjusted in the direction that the sanctioning of competition violations is carried out in accordance with the Competition Law of Vietnam.
Moreover, the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam has supplemented sanctioning competence of civil judgment enforcement agencies. Clause 5 Article 49 of the Law on handling of administrative violations 2012 and the amending Law both stipulate the sanctioning competence of the Director of the General Department of Civil Judgment Execution, however, the Law on Civil Judgment Execution amended and supplemented with a number of articles according to Law No. 64/2014/QH13 and Law No. 23/2018/QH14 does not specify the sanctioning authority of this title, so the consistency is not guaranteed. The practical implementation of the law on sanctioning administrative violations in recent years shows that the General Director of the General Department of Civil Judgment Execution still exercises the sanctioning competence according to the provisions of the Law on Handling of Administrative Violations. Therefore, in order to ensure the consistency of the legal system, in line with practical implementation, the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam has added the sanctioning competence of the General Director of the General Department of Civil Judgment Execution to Clause 1 Article 163 of the Law Enforcement of Civil Judgments of Vietnam (Article 2 of the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam).
The Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam also supplements 08 groups of titles (mainly belonging to agencies organized vertically at the provincial or inter-provincial level) have the authority to confiscate material evidences and means of administrative violations regardless of the value of material evidences and means; other titles have the authority to confiscate material evidences and means with a value not exceeding 02 times the fine level according to their competence.
6. Increasing the limitation periods for issuance of administrative sanction decisions
According to Clause 34 Article 1 of the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam, the limitation periods for issuance of administrative sanction decisions is amended as follows:
- For the cases or matters not covered by points b and c of this clause, the limitation period for issuing a sanction decision shall be 07 working days from the date of making a written record of administrative violation; For cases or matters where files thereof must be transferred to persons having sanctioning authority, the limitation period for issuing a sanction decision shall be 10 working days from the date of making a written record of administrative violation;
- As for cases and matters in which individuals or organizations request explanations or verification of relevant facts and details specified in Article 59 herein, the limitation period for issuance of a sanction decision shall be 1 month from the date of making and issuing an administrative violation record;
- As for cases and matters covered by point b of this clause, if they are extremely serious, involve complicated facts and details, need more time to carry out further verification and collection of evidence, the limitation period for issuance of a sanction decision shall be 02 months from the date of making and issuing an administrative violation record.
The Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam has increased the time limit for issuing decisions on sanctioning administrative violations to 10 working days for cases in which files must be transferred to persons with sanctioning competence. For the case in which the case must be explained or determined the value of material evidence, etc. which is particularly serious, contains many complicated circumstances and requires more time to verify and collect evidences, the time limit for issuing a decision the maximum sanction is 02 months from the date of making the minutes.
7. Amending the limitation period for imposition of an administrative penalty
According to Clause 4 Article 1 of the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam, the limitation period for imposition of an administrative penalty shall be 01 year, except in the following cases: the limitation period for imposition of sanctions against administrative violations arising from the following sectors and activities: accounting; invoices; fees and charges; insurance business; price management; securities; intellectual property; construction; fishery; forestry; investigation, planning, exploration, extraction and use of water resources; oil and gas and other mining activities; environmental protection; atomic energy; management and development of houses and offices; land; levees; press; publishing; commodity production, export, import and trading; manufacturing and trading of banned and counterfeit goods; foreign worker management, the statute of limitations for sanctioning administrative violations, shall be 02 years.
Thus, the statute of limitations for sanctioning administrative violations in the field of invoices is 02 years. The limitation period for imposition of sanctions against administrative violations arising from taxes shall be subject to laws on tax administration.
8. Supplementing provisions on postponement, exemption or reduction of fines
Specifically, according to Clause 37 Article 1 of the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam amending and supplementing Article 76 of the Law on handling of administrative violations 2012, adjournment of execution or enforcement of sanction decisions shall be required if the following conditions are fully met:
- The violating individual is fined 2,000,000 VND or more, or the violating organization is fined 100,000,000 VND or more;
- The violating individual is facing economic difficulties due to natural disasters, calamities, fires, epidemics, dangerous diseases or accidents; the violating organization is facing special or unexpected economic difficulties caused by natural disasters, disasters, fires or epidemics.
Thus, the amended Law has supplemented regulations on the postponement of fines for organizations subject to a fine of VND 100,000,000 or more and facing special or unexpected economic difficulties due to natural disasters, disasters, fires, epidemics instead of just apply the suspension of fines to individuals in the current Law on handling of administrative violations. Concurrently, the amended Law also reduces the amount of fines for individuals facing economic difficulties due to natural disasters, disasters, fires, epidemics, and fatal diseases compared to current regulations.
>>> View more: Supplementing cases of adjournment, exemption and reduction of administrative fines in Vietnam from 2022
9. Supplementing 04 cases of administrative sanction imposed in the detention form
Specifically, according to Point a Clause 61 Article 1 of the Law on amendments and supplements to certain articles of Law on handling of administrative violations 2020 of Vietnam amending and supplementing Clause 1 Article 122 of the Law on handling of administrative violations 2012, the administrative sanction imposed in the detention form shall only be applied in the following cases:
- It is necessary to immediately stop or militate against acts of disturbance of public order or injuring other persons; (regulated in Law on handling of administrative violations 2012)
- It is necessary to deter and prevent acts of smuggling and illegal cross-border transportation of goods; (amended by the Law on Customs 2014 of Vietnam)
- The detention is a way to ensure the execution of the sanction of sending violators to reform schools, sending violators to compulsory educational establishments and sending violators to compulsory detoxification centers; (new provision)
- Persons committing acts of domestic violence violate contact prohibition decisions according to the provisions of laws on domestic violence prevention and control; (new provision)
- It is necessary to define the current state of addiction to narcotics of persons illegally using narcotics. (new provision)
Thus, compared with the Law on Handling of Administrative Violations 2012, the revised Law on Handling of Administrative Violations 2020 has added 01 case of temporary detention according to the amended and supplemented administrative procedures in the Customs Law 2014 and added 03 completely new cases. Accordingly, from January 01, 2022, there will be all 05 cases of temporary detention according to administrative procedures.
Thuy Tram
