Department of Justice in Hai Duong, Vietnam: Guidance on the procedure and administrative penalties for COVID-19 prevention and control

Department of Justice in Hai Duong, Vietnam: Guidance on the procedure and administrative penalties for COVID-19 prevention and control (Internet image)

According to Section II of Document 107/STP and Enforcement of Administrative Violations and Judicial Support, the Department of Justice of Hai Duong Province has provided detailed instructions on the procedure and administrative penalties for COVID-19 prevention and control. Specifically, the administrative penalties for COVID-19 prevention and control are implemented according to the provisions of the Law on Handling of Administrative Violations and guiding documents, including the following points:

1. Preparation of administrative violation reports:

*** Regarding the authority to prepare administrative violation reports:

The person with the authority to prepare administrative violation reports is determined in accordance with Article 6, Clauses 1 and 2 of Decree 81/2013/ND-CP on detailed provisions and measures for the implementation of the Law on Handling Administrative Violations (amended and supplemented by Clause 7 of Article 1 of Decree 97/2017/ND-CP), including:

The person with the authority to impose penalties;

Officials and public servants perform official duties and state management tasks in assigned fields.

Note: The specific positions with the authority to prepare administrative violation reports are stipulated in the decrees on administrative penalties in each area of state management.

The decision to impose administrative penalties without preparing reports (as stipulated in Clause 1 of Article 56 of the Law on Handling Administrative Violations) shall be applied in cases where a warning or a fine of up to 250,000 VND for individuals or 500,000 VND for organizations is imposed, and the person with the authority to impose penalties must make a decision on the administrative violation on the spot.

The decision to impose administrative penalties on the spot shall be made according to the form MQD01 issued together with Decree 97/2017/ND-CP for the Chairman of People's Committees at all levels (in cases where there are regulations in Circulars of Ministries and Sectors on persons with the authority to impose administrative penalties, a separate form shall be used).

*** When preparing administrative violation reports, the following points must be taken into consideration:

Regarding the procedures and content of preparing administrative violation reports:

- The administrative violation report must clearly state the date, month, year, and place of the report; the name, position of the person preparing the report; the name, address, occupation of the violator or the name, address of the violating organization; the time, date, month, year, and place of the violation; the violation act; measures to prevent administrative violations and ensure the handling of confiscated items and means of transport (if any); the statement of the violator or their family; if there are witnesses, their names, addresses, and statements must be recorded; the rights and time limit for the violator or their family representative to explain the administrative violation; the receiving agency for the explanation (if any).

In case the violator or their family representative is not present at the place of violation, evades, or, for objective reasons, cannot sign the report, the report must have the signature of the representative of the local authority where the violation occurred or two witnesses.

- Each administrative violation act shall be reported, and a penalty decision shall be issued only once. In the event that an individual or organization commits multiple administrative violation acts in the same violation case, the administrative violation report must clearly state each violation act.

In cases where the violation act has been reported but no penalty decision has been issued and the individual or organization does not comply with the requirements or orders of the person with the authority to impose penalties and intentionally continues to commit the violation act, the person with the authority to impose penalties must apply measures to prevent and ensure the appropriate handling of the administrative violation to end the violation act. When issuing a penalty decision for that act, the person with the authority to impose penalties may apply aggravating circumstances as specified in point i, clause I, Article 10 of the Law on Handling Administrative Violations or impose penalties for not complying with the requirements or orders of the person with the authority to impose penalties and penalties for violation acts that have been reported but no penalty decision has been made.

In the event that the violation act has been penalized but the individual or organization has not complied or is still committing the violation act after the penalty decision has been issued, this violation act shall be considered a new violation act.

- The administrative violation report must be prepared in at least 02 copies and signed by the person preparing the report and the violator or the representative of the violating organization. If the violator does not sign, if there are witnesses or family representatives, they must also sign the report. If the report consists of several sheets, the designated persons (involved in preparing the report) must sign each sheet. If the violator, the representative of the violator's family, or the witness refuses to sign, the reason must be clearly stated in the report.

- Once the administrative violation record is completed, 01 copy must be given to the individual or family representative of the violator; In the event that the administrative violation does not fall under or exceed the sanctioning authority of the person making the record, the record must be immediately transferred to the person with sanctioning authority.

After the administrative violation report is prepared, it must be sent to the competent authority for handling administrative violations as specified in the regulations of each area of state management.

Form: Use the correct form MBB01 issued with Decree 97/2017/ND-CP (except in cases where the Circular of the Ministry or branch under the authority to make records of administrative violations stipulates a separate form).

2. Verification of the complex circumstances of the administrative violation:

- This activity can be conducted before or after the drafting of the administrative violation record and may be carried out in conjunction with the subsequent penalty procedures until the penalty decision is issued.

- In cases with complex circumstances, before issuing the penalty decision, the authorized person responsible for imposing the penalty must verify whether the administrative violation actually occurred, the fault, the personal involvement, the aggravating or mitigating circumstances, etc.

- The verification process must be documented to ensure the objectivity and accuracy of the complex circumstances of the administrative violation.

3. Temporary seizure of exhibits, vehicles, licenses, and professional certificates through administrative procedures (if any): carried out in accordance with the provisions of Article 125 of the Law on Handling of Administrative Violations.

4. Transfer of cases showing signs of criminal offenses for criminal liability prosecution and transfer of cases for administrative penalty:

During the examination of the case, the authorized person responsible for imposing the penalty must accurately assess the severity and nature of the administrative violation; if the violation is serious, it must be transferred to the competent agency for criminal prosecution, or vice versa.

The procedures, formalities, and time frame for examining and transferring the case between the competent agencies for imposing penalties and the prosecuting agency shall be carried out in accordance with the provisions of Articles 62 and 63 of the Law on the Handling of Administrative Violations.

Note: Comply with the provisions on the time limit for handling administrative violations and the time limit for pursuing criminal liability for the violator to avoid letting criminal offenses go unpunished. The deadline for issuing the penalty decision in this case is 30 days, or a maximum of 45 days.

5. Issuance of administrative penalty decisions:

The deadline for issuing the penalty decision is 7 days from the date of drafting the administrative violation record. In complex cases, the deadline for issuing the penalty decision is 30 days, and in particularly serious cases with many complex circumstances, the deadline is 60 days (but an extension must be requested in accordance with Article 1, Clause 66 of the Law on Handling of Administrative Violations).

In cases where one or more penalty decisions are issued for multiple individuals or organizations committing the same administrative violation, or when multiple individuals or organizations commit different administrative violations in the same case, the decision must clearly indicate the form and level of penalty for each violation committed by the organization or individual.

- Determination of the specific amount of fine in specific cases:

+ The specific amount of fine for an administrative violation without aggravating or mitigating circumstances is the average level of the prescribed fine range for that offense. The average level is determined by averaging the maximum and minimum levels of the fine range.

+ For an administrative violation with mitigating circumstances as stipulated in Article 9 of the Law on Handling of Administrative Violations, the fine may be reduced below the average level of the penalty range but not lower than the minimum level of that range; if there are aggravating circumstances as stipulated in Article 10 of the Law on Handling of Administrative Violations, the fine may be increased above the average level of the penalty range but not higher than the maximum level of that range.

+ For an administrative offense that has both mitigating and aggravating circumstances, the reduction principle applies, with one mitigating circumstance offsetting one aggravating circumstance. After offsetting, if there are no remaining aggravating or mitigating circumstances, the fine is determined according to the provisions in point 1 of this content. If there are remaining mitigating or aggravating circumstances, the fine is determined according to the provisions in point 2 of this content.

- The deadline for enforcing the penalty decision is 10 days from the date of receiving the penalty decision, unless a longer period is specified in the decision.

- Some notes when issuing administrative penalty decisions:

+ Using the correct form MQD02 issued with Decree 97/2017/ND-CP (except in cases where a Ministerial Circular specifies the use of a separate form).

+ In cases where a deputy issues the decision, the authorization document must be clearly stated.

+ Effective date of the decision: It can be from the date of signing or a specific date stated in the decision.

+ Measures to remedy the consequences: The correct form of remedy must be stated in accordance with the provisions of the Law on Handling of Administrative Violations and related documents.

+ In case of a monetary penalty, the name and address of the Treasury office for payment or the name of the bank authorized by the State Treasury for collection must be clearly stated for the violator to comply with.

+ The modification, supplementation, correction, or cancellation of administrative penalty decisions shall be carried out in accordance with Articles 8, 9, 10, 11, and 12 of Decree 97/2017/ND-CP amending and supplementing certain provisions of Decree 81/2013/ND-CP.

6. Public announcement on mass media of administrative penalties for individuals and organizations violating administrative regulations: This is carried out in accordance with the provisions of Article 72 of the Law on Handling of Administrative Violations, Article 8 of Decree 81/2013/ND-CP detailing certain provisions and measures for the implementation of the Law on Handling of Administrative Violations, and Article 9 of Decision 19/2019/QD-UBND dated June 4, 2019 of the People's Committee of Hai Duong province on the coordination regulations in the state management of the implementation of laws on handling administrative violations in the province.

7. Enforcement of administrative penalty decisions:

In cases where individuals or organizations who have been administratively fined do not voluntarily comply with the penalty decision as prescribed, enforcement measures will be taken.

The enforcement of administrative penalty decisions is carried out in accordance with Articles 85, 86, 87, and 88 of the Law on Handling of Administrative Violations and Decree 166/2013/ND-CP dated November 12, 2013 of the Government on enforcement measures for administrative penalty decisions.

8. Storage of administrative penalty records: This is implemented in accordance with the provisions of Clause 2 of Article 57 of the Law on the Handling of Administrative Violations and the guidance of the competent authorities in charge of issuing penalty decisions as prescribed.

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