Administrative handling measures according to Vietnamese law

Administrative handling measures according to Vietnamese law (Source: Internet)

1. What are administrative handling measures?

According to Clause 3, Article 2 of the Law on Handling of Administrative Violations 2012 (amended in 2020), administrative handling measures are measures applied for individuals who commit acts of law violation on security, social order and safety, however, do not constitute crimes, including measures of education at communes, wards, towns; sending to reformatories; sending to compulsory education establishments and sending to compulsory detoxification establishments .

2. Administrative handling measures in Vietnam

2.1. The measure of education at communes, wards, district towns of Vietnam

Education at communes, wards, district towns means administrative handling measure applied to subjects specified in Article 90 of this Article in order to educate, manage them at residence in case it is not necessary to isolate them from community.

Specifically, in Article 90 of the Law on Handling of Administrative Violations 2012 (amended in 2020), subjects applying the measure of education in communes, wards and townships include:

(i) Persons aged between 12 years and under 14 years who commit acts suspected to be very serious intentional crimes defined in the Criminal Code 2015 (amended in 2017).

(ii) Persons aged between 14 years and under 16 years who commit acts suspected to be serious intentional crimes defined in the Criminal Code 2015 (amended in 2017).

(iii) Persons aged between 14 years and under 16 years who have been administratively sanctioned twice, and on whom an administrative violation record is issued at the third attempt within 06 months, for one of the acts of causing public disorder, property theft, gambling, fraud or illegal racing.

(iv) Persons aged between 16 years and under 18 years who have been administratively sanctioned twice, and on whom a administrative violation record is issued at the third attempt within 06 months, for one of the acts, such as offending the dignity and honor of other persons; injuring or harming the health of other persons; illegally seizing, destroying or intentionally damaging the property of other persons; causing public disorder; property theft; gambling; fraud; illegal racing, which are not treated as crimes.

(v) Persons aged 14 years or older who have been administratively sanctioned twice, and on whom a administrative violation record is issued at the third attempt within 06 months, for the act of illegally using narcotic substances.

(vi) Persons aged 18 years or older who have been administratively sanctioned twice, and on whom a administrative violation record is issued at the third attempt within 06 months, for one of the acts, such as offending the dignity and honor of other persons; injuring or harming the health of other persons; illegally seizing, destroying or intentionally damaging the property of other persons; causing public disorder; property theft; gambling; fraud; illegal racing; mistreating or torturing grandparents, parents, spouses, children, grandchildren or fosterers, which are not treated as crimes.

(vii) Persons defined in (i), (ii), (iii), (iv) and persons aged between 14 years and under 18 years specified in clause 1 of this Article, who do not have stable residences shall be referred to social protection establishments or child support establishments to put them under control and have them educated during the period of implementation of the measure of rendering compulsory educational services at communes, wards or towns.

If a person aged 18 years or older that is covered by clause 5 of this Article does not have a stable residence, he/she shall be referred to the People's Committee of the commune where he/she is found illegally using narcotics at the third attempt to put him/her under control.

The duration of application of the measure of education at communes, wards, district towns is from 3 to 6 months. (Clause 2, Article 89 of the Law on Handling of Administrative Violations 2012 (amended in 2020))

2.2. Measures for sending to reformatories in Vietnam

Specifically, in Clause 1, Article 91 of the Law on Handling of Administrative Violations 2012 (amended in 2020), The sending to reformatories means a administrative handling measure applying to persons committing acts violating law aiming to help them to follow general education, apprentice, labor and have living activities under management and education of school

The subjects subject to the measure of sending to reformatories are specified in Article 92 of the Law on Handling of Administrative Violations 2012 (amended in 2020), specifically as follows:

- Persons aged between 12 years and under 14 years who commit acts suspected to be extremely serious crimes defined in the Criminal Code 2015 (amended in 2017).

- Persons aged between 14 years and under 16 years who commit acts suspected to be very or extremely serious crimes defined in the Criminal Code 2015 (amended in 2017), except for those crimes prescribed in clause 2 of Article 12 in the Criminal Code 2015 (amended in 2017).

- Persons aged between 14 years and under 16 years who commit one of the acts prescribed in clause 2 and 3 of Article 90 herein, and are already subject to the sanction of receiving compulsory educational services at communes, wards or towns before.

- Persons aged between 16 years and under 18 years who commit one of the acts prescribed in clause 4 of Article 90 herein which are not crimes, and are already subject to the sanction of receiving compulsory educational services at communes, wards or towns before.

- Exemption from the sanction of being compulsorily sent to reform schools shall be granted in the following cases:

+ Persons are incapable of fulfilling administrative liabilities;

= Pregnant persons obtaining health certificates from healthcare establishments at the district or higher level;

= Women or persons, by themselves, taking care of children under 36 months of age, who are certified by the People's Committees of the communes where they are residing.

The time limit for application of measure sending to reformatory is between 06 months and 24 months. (Clause 2, Article 91 of Law on Handling of Administrative Violations 2012 (amended in 2020))

2.3. Measures for sending to compulsory education establishments in Vietnam

he sending to compulsory education establishments means the administrative handling measure applied to person committing acts violating law in order to labor, follow general education, apprentice and have living activities under management of compulsory education establishments. (Clause 1, Article 93 of the Law on Handling of Administrative Violations 2012 (amended in 2020))

Specifically, in Article 94 of the Law on Handling of Administrative Violations 2012 (amended in 2020), subjects subject to the measure of sending to compulsory educational institutions include:

- Persons aged full 18 years or older who have been administratively sanctioned twice and have been made a record of administrative violations at the third violation within 06 months for one of the acts specified in section (vi) but are not criminals and have no stable residence;

- A person aged 18 years or older who commits one of the acts specified in item (vi) but is not a crime and has previously been subject to the measure of education in a commune, ward, or township.

In particular, this measure does not apply to the measure of sending to a compulsory education institution in the following cases:

- Persons who do not have administrative capacity;

- Persons under 18 years of age;

- Female over 55 years old, male over 60 years old;

- The pregnant person has a certificate from a medical examination and treatment establishment at the district level or higher [141].

- Female or the only person who is raising a child under 36 months old, certified by the People's Committee of the commune where that person resides.

The duration of application of the measure of consignment to a compulsory education institution is from 6 months to 24 months.

3. Administrative handling measure application principles in Vietnam

According to Clause 2, Article 3 of the Law on Handling of Administrative Violations 2012 (amended in 2020), the principles for applying administrative handling measures include:

- Individuals are only subject to administrative handling measures if they fall into one of the subjects specified in Articles 90, 92, 94, and 96 of the Law on Handling of Administrative Violations 2012 (amended in 2020);

- The application of administrative handling measures must be carried out according to the provisions of Point b, Clause 1, Article 3 of the Law on Handling of Administrative Violations 2012 (amended in 2020);

- The decision on the time limit for application of administrative handling measures must be based on the nature, severity, and consequences of the violation, the personal identity of the violator, and the extenuating and aggravating circumstances;

- Persons competent to apply administrative handling measures shall have to prove administrative violations. Individuals subject to administrative handling measures have the right to prove by themselves or through their legal representatives that they have not committed administrative violations.

Thanh Rin

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE