This is a noteworthy new regulation added to Decree 36/2020/ND-CP on administrative penalties in the field of water resources and minerals.
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This decree has inherited the definition of illegal profits from Decree 33/2017/ND-CP, which states that illegal profits are the benefits acquired from committing a violation. Additionally, it has supplemented the method for calculating illegal profits for each type of resource and mineral.
To be specific:, in accordance with Point r, Clause 3, Article 4 of Decree 36/2020/ND-CP:
The illegal profits obtained from violations in the water resources sector, in the case of water exploitation for hydroelectric production and the production or business of clean water, are all the amounts collected by the organization or individual from committing the violation, minus (-) direct costs for exploiting and using water resources. In cases where organizations or individuals exploit water for non-agricultural production purposes other than hydroelectric production and the production, business of clean water, the illegal profits obtained from the violation are calculated by (=) multiplying the total amount of water exploited by (x) the selling price of clean water for production and business in the province, minus (-) direct costs for exploiting and using water resources.
Illegal profits obtained from violations in the mineral sector are all the equivalent amounts collected from the total volume of minerals exploited multiplied by (x) the price of a unit volume of minerals taxable as resources (tons, m3, kg,...) at the time of violation determination, minus (-) direct costs incurred to obtain that volume of minerals.
As of now, Decree 33/2017/ND-CP does not provide specific regulations on how to calculate illegal profits, only mandating the confiscation of illegal profits. Therefore, the addition of a method for calculating illegal profits in Decree 36/2020/ND-CP will assist the authorities and violators in determining the illegal profits that must be repaid, thereby ensuring the fairness and strictness of the law as well as protecting the rights of those obliged to pay back those illegal profits.
Besides the above calculation method, Decree 36/2020/ND-CP also stipulates clearly that in cases where organizations or individuals have paid for the rights to exploit water resources, mineral exploitation rights, resource taxes, environmental protection fees, and other fees and charges to the state budget due to violations, those expenses are to be deducted when calculating illegal profits.
Refer to other regulations in Decree 36/2020/ND-CP effective from May 10, 2020.
Toan Trung
