Updated Regulations-Decree No. 118/2021/NĐ-CP date 23/12/2021

At Article 2.4 on Decree No. 118/2021/NĐ-CP supplemented more applicable objects, including in branches, representative offices, business locations which commit the prohibitions within scope of work and within the authorization term or under the direction, administration, assignment and approval of entities, organizations. These entities, organizations shall be punished in corresponding to the punishment level for organization about the acts of branches, representative offices, business locations.

If the branches, representative offices, business locations commit a violation not within scope of work or not within the authorization term or under the direction, administration, assignment and approval of entities, organizations. These branches, representative offices, business locations shall be responsible and shall be punished in corresponding to the punishment level for organization about the acts of branches, representative offices, business locations.

Supplementing regulations about application of legal documents for sanction

Decree No. 118/2021/NĐ-CP supplement regulations regarding to selection of legal document in order to sanction the administrative violations pursuant to Article 156, Law on Promulgation of Legislative Documents.

“Article 156. Application of legal documents

1. Legal documents are applicable from its effective date. Legal documents shall be applied to the acts occurred at the time such legal documents are effective, except for those that have retrospectively affected.
2. If legal documents have different regulations on the same issue, the higher legal documents shall be applied.
3. If legal documents are issued by the same agency, have different regulations on the same issue, the one that is promulgated later shall apply.
4. If the new legal document does not regulate the legal liability or regulate a less serious legal liability on the acts occurred before the effective date of the document, the new document shall be applied.
5. Application of Vietnam’s legal documents must not obstruct the implementation of the international agreements to which the Socialist Republic of Vietnam is a signatory. In case a Vietnam’s legal documents and an international agreement to which the Socialist Republic of Vietnam is a signatory contain different regulations on the same issue, the international agreement shall be applied, except for the Constitution.”

Note that if the administrative violations occurred within period when many Decrees on sanctioning of administrative violations take effect, but it cannot be determined. So that the selection of applying legal documents to sanction of administrative violations as follows:

• If the infringement ended, Decree shall be affect at the time of termination of such violation shall be applied to sanction;
• If the infringement is occurring, Decree shall be affect at the time of detecting the violation shall be applied to sanction.

Regulating to principles for determining administrative violations

Decree No. 118/2021/NĐ-CP regulate the determination of infringement has ended  or being performed to calculate the statute of limitations for sanctioning an administrative violation as below:

• The ended administrative violations mean the act which performed once time or many times and have determined evidences that such acts was completed before the agency or person detect infringement;
• The administrative violations in progress is an act that is happening at the time a competent agency or person detect infringement and that act is still infringing the state management order.

Guiding determination of monetary punishment for the acts of administrative violations in the case that there are many extenuating, aggravating circumstances

The determination of monetary punishment for the acts of infringement in the case that there are many extenuating, aggravating circumstances:

• When determining the monetary punishment for organizations or individuals that not only violate aggravating circumstances, but also extenuating circumstances, the aggravating circumstances shall be reduced according to the principle that one extenuating circumstances shall be deducted one aggravating circumstances.
• The specific fine level for administrative violations is the average of bracket of the monetary punishment for such violation. In case there are 02 or more extenuating circumstances, the minimum level of the bracket of the monetary punishment shall be applied; if there are 2 or more aggravating circumstances, the maximum level of the bracket of the monetary punishment shall be applied; if there are 2 or more aggravating circumstances, the maximum level of the bracket of the monetary punishment shall be applied.

New regulations for assignment on the power to coerce the sanction of administrative violations

Decree No. 118/2021/ND-CP not only regulate the assignment of the right to sanction, but also regulate the assignment of the right to coerce, specifically: The person is assigned to be the head or in charge of the agencies or units is right to sanction and assign the right of sanction, coerce the sentences, apply to measures to prevent and ensure the handling of administrative violations like a chief.

During the term of assignment of the right, the assigner still has the authority to sanction, coerce the sentences and apply measures to prevent and ensure the handling of administrative violations. Decree No. 81/2013/ND-CP and Decree 97/2017/ND-CP did not regulate this content before, so it was very difficult to assign the right from the chief to the deputy.

The term to issue the record of administrative violations

Decree No. 81/2013/ND-CP regulate clearly about the term to issue the record of administrative violations:

The record  shall be issued within 2 working days from the detecting date of infringement;

• In the case that there are many complicated circumstances, wide scope which effect to rights and benefits of individuals, organizations, the record shall be issued within 5 working days from the detecting date of infringement;
• In case that infringement is detected by means, technical equipment or the value of material evidences, means must be determined, assessed, tested, inspected, examined and verified related facts, the record of administrative violations shall be made within 03 working days from the date on which infringer is determined by using means, technical equipment or receiving date of the result of determining the value of material evidences, means, assessment, test, inspection, examination and determination of relevant facts;
• In case that the administrative violations occur on the aircraft, ship, or train, the competent person is title to issue the record or the aircraft commander, captain or the head of train is responsible to issue the record of administrative violations and transfer it to the competent person who is title to sanction within 02 working days since the arrival of the aircraft, ship or train at the airport, port, or train station;
• In case that there are many differently administrative violations for a case, one of which is detected by means, technical equipment or the value of material evidences, means must be determined, assessed, tested, inspected, examined and verified related facts, the record shall be made within 03 working days from the date when infringer is determined by using means, technical equipment or receiving date of the result of determining the value of material evidences, means, assessment, test, inspection, examination and determination of relevant facts;

Regulating the case in which don’t apply the term on correction, modification, supplementation or cancellation on a part of the sentences, the explanation of administrative violations

Decree No. 118/2021/ND-CP clearly regulated the case in which don’t apply the term on correction, modification, supplementation or cancellation on a part of the sentences as below:

The sentences have the sanctioning form of confiscating material evidences, means of administrative violations, remedial measures pursuant to Article 74.1, Law on Handling Administrative Violations;

There is the decision on complaint settlement of the competent person or competent agency about amendment, supplement, cancellation a part of decision;

There is a judgment or decision on amendment, supplementation or cancellation of a part of the decision which is sued.

In addition to keep the provision of Decree 97/2017/ND-CP regarding term of amending the sentences is 1 year, Decree No. 118/2021/ND also regulate the case if it has to be corrected, modified, supplemented, or canceled a part, issue the new decision many times, the term is 2 years from the issuing date of decision of correction, amendment, supplementation or cancellation.

The explanation of administrative violations

Decree No. 118/2021/ND-CP clearly regulated about the explanation of administrative violations as below:

In case that the infringers don’t respond:

In case that the infringing individual or infringing organization don’t send the explanation in written or don’t send request in written for extension of term for explanation within specified term Article 61.2, Law on Administrative Violations or clearly stating opinions in the record about renouncing to exercise the right of explanation, the eligible person shall issue sentences within the term at Article 66.1.a, Law on Handling of Administrative Violations: “For the cases don’t cover Article 66.1.b, 66.1.c, the term for issuing a sentence shall be 07 working days from the issuing date of the record of administrative violation; For cases must be transferred dossiers to eligible person, the term for issuing the sentences shall be 10 working days from the issuing  date of the record of administrative violations, except for case at Article 63.3 of this Law”;

In case that the infringers respond:

• In case that the infringing individual or infringing organization requires explanation according to Article 61.2, 61.3, 61.4, Law on Administrative Violations, the eligible person issues the sentences within the term at Article 66.1.b, 66.1.c Law on Administrative Violations.
• For cases which individuals or organizations request explanations or verification of relevant facts at Article 59, the term for issuance of sentence shall be 1 month from the issuing date of the record;
• For cases covered by Clause b which is extremely serious, complicated facts, need more time to carry out further verification and collection of evidence, the term for issuance of sentences shall be 2 months from the issuing date of the record of administrative violations;”

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