Laws of Vietnam

THE MINISTRY OF AGRICULTURE AND RURAL DEVELOPMENT

CIRCULAR No.01-NN/KL/TT OF FEBRUARY 18, 1997 GUIDING THE IMPLEMENTATION OF DECREE NO.77-CP ON SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS IN THE MANAGEMENT AND PROTECTION OF FORESTS AND THE MANAGEMENT OF FORESTRY PRODUCTS

The Government promulgated Decree No.77-CP of November 29, 1996 on sanctions against administrative violations in the protection and management of forests and the management of forestry products. This Decree made full and concrete stipulations on sanctions against violations of the principles of State management of forests for uniform application of sanctions according to the Ordinance on the Handling of Administrative Violations of July 6, 1995 and the stipulations of the Law on the Protection and Development of Forests of August 12, 1991.

In order to ensure strict implementation of Decree No.77-CP, the Ministry of Agriculture and Rural Development gives further guidance and explanations on a number of issues mentioned in Decree No.77-CP.

I- ON GENERAL PROVISIONS

Chapter I of Decree No.77-CP stipulated a number of issues peculiar to forestry. With regard to other stipulations pertaining to the general principle, the Ordinance on the Handling of Administrative Violations shall apply.

1. Concept of forestry products (Article 2):

1.1. The forest timbers, plant species, and rare and precious forest animals mentioned in this Article are the plant and animal species specified in the List of rare and precious forest plants and forest animals issued together with Decree No.18-HDBT of January 17, 1992.

1.2. The common pine timbers mentioned in this Article are divided into 8 groups as specified in Decision No.2198/CN of November 26, 1977 issued by the Ministry of Forestry temporarily classifying the types of timber for common use throughout the country; except a number of types of timber in Groups I and II specified on the List of rare and precious forest plants under Decree No.18-HDBT.

2. Cases that shall be examined for criminal liability (Article 3):

Clause 2, Article 3, of Decree No.77-CP defined violations which no longer come under the jurisdiction against administrative violations, but which shall be examined for criminal liability: these are violations which cause losses beyond the maximum level liable to sanctions against administrative violations stipulated for each violation (Article 4 to Article 14), or the illegal exploitation, hunting, transportation, buying or selling of rare and precious forest plants and forest animals of special value in many aspects (e.g. Group IA and Group IB in the List issued together with Decree No.18-HDBT). With regard to these cases, the Rangers’ Service must cooperate with the Procuracy and Police agencies of the same level to consider them; if they find enough signs of a criminal offence, they must transfer them for prosecution and investigation as stipulated by law.

With regard to the violations to be examined for criminal liability in general and the exercise of the authority of the Rangers’ Service in criminal investigation, the Ministry shall, together with the branches concerned, issue a document giving concrete guidance in replacement of Circular No.16-LN/KL of September 20, 1989 of the Ministry of Forestry guiding the exercise of the tasks and powers of the People’s Rangers’ Service in criminal investigation.

3. On the principle of handling administrative violations:

Article 3 of the Ordinance on the Handling of Administrative Violations stipulates that if a person commits several administrative violations, he/she shall be sanctioned for each violation, and that if many persons commit a violation, each of them shall be sanctioned.

3.1. In case a person commits several administrative violations:

Considering the extent of damage caused by each violation and comparing it to the framework of sanctions, the competent agency shall consider and issue a sanction decision for each violation. If the level of sanction for each of all these violations falls within the jurisdiction of an authorized level, that level shall decide the sanction; if one of the violations falls within the jurisdiction of a higher level, all the dossier shall be submitted to the higher level for deciding sanctions.

When making the report or issuing a sanction decision against the person that has committed several acts of violation, the competent agency shall make only one report and one sanction decision, but it must clearly specify the violations and the level of sanction for each.

3.2. In case many persons organize themselves to commit an administrative violation:

Considering the general extent of damage caused by the violators and comparing it to the framework of sanctions, the competent agency shall consider and decide the highest sanction in the framework of sanctions for that violation which involves an aggravating factor; the violators shall together be subject to that common sanction, and there shall be no separate sanction decision for each of the violators. The report as well as the sanction decision must clearly specify the case of each violator.

In case a violation is detected which involves many persons committing different acts of violation, each person shall be sanctioned for his/her act of violation. For example, in the illegal transport of forestry products, the competent agency shall sanction the owner of the forestry products as well as the user of the means to illegally transport the forestry products.

II- ON VIOLATIONS AND THE FORMS AND LEVELS OF SANCTION

Chapter II of Decree No.77-CP clearly stipulates that the violations in the management and protection of forests and the management of forestry products include 11 acts defined in Article 4 to Article 14. For each act, the maximum extent of damage caused to a forest or to forestry products and the maximum level of fine are specified; each level of sanction is converted into a level of fine so that the competent agency can within its power hand a sanction corresponding to the seriousness of the violation; the form of sanction - warning or fine - is specified, so are the forms of additional sanction and other measures corresponding to each administrative violation.

1. Determining the violations:

In making a report on administrative violations and handing the sanctions, the competent agency must determine and correctly write the name of the violation as stipulated in Article 4 to Article 14; then it has to specify which Article of the Law on Forest Protection and Development (LFPD) and which concrete stipulation of a document of the Government, a Ministry or a province or district guiding the implementation of that Law has been violated in order to clarify such administrative violation, such as:

1.1. Illegally destroying forests (Article 4): a violation of Article 13 of LFPD and the concrete stipulation in Article 23 of the Land Law.

1.2. Illegally exploiting forests (Article 5): depending on each specific case, it may be a violation of one of Articles 19, 37, 38 and 39 of LFPD; if the objects of violation are the rare and precious timber and forestry products defined in this Article and Article 12 of Decree No.77-CP, that is forest plants in Group IIA, it is a violation of the concrete stipulation in Decree No.18-HDBT of January 17, 1992.

1.3. Illegally cutting and burning forests to make terraced fields (Article 6): a violation of Article 21 of LFPD.

1.4. Violating the stipulations on the prevention and fight against forest fires (Article 7): a violation of Article 22 of LFPD and Decree No.22-CP of March 9, 1995 of the Government stipulating the prevention and fight against forest fires.

1.5. Violating the stipulations on the prevention and elimination of forest pest (Article 8): a violation of Article 23 of LFPD.

1.6. Illegally tending domestic animals in forests (Article 9): a violation of Article 21 of LFPD.

1.7. Illegally hunting and catching forest animals (Article 10): a violation of Article 19 of LFPD; if the objects of violation are the rare and precious forest animals defined in this Article, that is, the rare and precious forest animals in Group IIB, it is a violation of the concrete stipulation in Decree No.18-HDBT of January 17, 1992.

1.8. Damaging forest land (Article 11): a violation of Article 24 of LFPD.

1.9. Illegally transporting, buying or selling forestry products (Article 12): a violation of Article 20 of LFPD and the concrete stipulations in Circular No.11-LN/KL of October 31, 1995 of the Ministry of Forestry guiding the control of the exploitation, transportation, processing, exporting and trading of forestry products.

1.10. Violating the stipulations on the State management of the processing of timber and forestry products (Article 13): a violation of the concrete stipulations in Decision No.2375NN-CBNLS/QD of December 30, 1996 of the Minister of Agriculture and Rural Development issuing the Regulations on the consideration and ratification of network planning and the granting of permits to enterprises for the processing of timber and other forestry products.

1.11. Violating the procedure of submitting to the control of forestry products (Article 14): a violation of the concrete stipulations in Circular No.11-LN/KL of October 31, 1995.

2. Forms and levels of sanction:

2.1. For each violation (Article 4 to Article 14), a level of fine is set correspondingly to the damage caused by the administrative violation. When considering sanctions, the person authorized to impose sanctions, in addition to serving a warning or imposing fines on those individuals or organizations that have committed administrative violations shall, according to his competence, apply one or several additional sanctions and other measures stipulated in the last clauses of each Article, depending on the character and seriousness of the violations.

2.2. Method of calculating fines:

When judging an act of violation, the competent agency shall consider the extent of damage caused by the violation to determine the level of fine and temporarily set a fine by dividing the highest fine within that framework by the highest extent of damage and multiplying it by the extent of damage caused by the violation. On the basis of this temporarily calculated fine, considering the character and seriousness of the violation, the personal records of the violator, and the extenuating or aggravating circumstances, the competent agency shall decide a concrete fine and to apply supplementary forms of sanction and other measures.

2.3. Fining and confiscating illegal forestry products:

In sanctioning administrative violations in forest protection, it has in fact been difficult to impose a fine and also to confiscate the illegal forestry products, but this is a principle in handling the violations that cause damage to forests and forestry products. The confiscation of illegal forestry products is of great practical significance in fighting violations and in retrieving property for the State. That is why, when sanctioning the acts of cutting trees and destroying forests, illegally exploiting, collecting, transporting, buying and selling forestry products, particularly fraudulent acts or acts that cause damage to the rare and precious forest plants and forest animals, it is necessary to apply both forms of sanction. In special cases where the violator meets with financial difficulty and does not have money to pay the fine or is not able to fully pay the fine, the competent agency can impose a lighter fine or serve a warning and confiscate the illegal forestry products; in case the violator really needs such forestry products and is a local inhabitant eligible for the preferential treatment policy, and the forestry products belong to the common types, the competent agency can impose a fine and allow him/her to use those forestry products.

Generally speaking, in considering sanctions it is necessary to consider the circumstances of the violator and the aim of his/her violation to decide a rational and reasonable sanction in each specific case to ensure that the sanction has a practical effect.

2.4. Stripping the right to use a permit within the jurisdiction of the competent agency is revoking the permit issued by the agency of the same level to the person concerned (a permit for exploiting forests, transporting, processing and exporting forestry products) which the violator has deliberately infringed on or counterfeited; this measure shall be taken when the competent agency deems it necessary to revoke the permit to prevent a repeat of the violation. In case of ultravires, it must report them to the authorized State agency and request it to revoke the permit.

III- COMPETENCE AND PROCEDURE OF HANDING SANCTIONS

A- COMPETENCE OF HANDING SANCTIONS:

1. Competence of the Rangers’ Service to hand sanctions (Article 15):

1.1. When detecting an act of violation within their competence to hand sanctions, the Rangers on mission shall have to take the following steps:

- If it is a minor violation and if they deem it necessary to serve a warning or to impose a fine of up to 20,000 VND without confiscating the evidences and the working means involved, they shall decide a sanction on the spot by serving a verbal warning or imposing a fine by issuing a Sanction Decision.

- If they deem it necessary to impose a fine of more than 20,000 VND to 100,000 VND and confiscating the illegal forestry products and the working means involved, they must make a report on the administrative violation as stipulated in Article 47 of the Ordinance on the Handling of Administrative Violations, temporarily seize the illegal forestry products and the working means involved and report it to the head of the agency for settlement. After receiving the written instruction of the Head of the Service, the rangers shall decide to impose a fine (without confiscating the illegal forestry products and the working means involved) or to impose a fine and confiscate the illegal forestry products and the working means involved in the same Sanction Decision.

The Rangers must comply with the set model form and the guidance of the Ministry of Agriculture and Rural Development when issuing a Sanction Decision within their competence.

If the Rangers detect an act of violation which is ultravires, after making a report on it and temporarily seizing the evidences and the working means involved, they must promptly report it to the Head of the Service or refer it to the authorized level for settlement.

1.2. On the exercise of the power of the Head of a Rangers’ Station and the Head of a Mobile Rangers’ Team to impose sanctions, the Rangers’ Services of provincial level should closely direct these units to hand sanctions within their competence and in accordance with the provisions of law on administrative sanctions. These Services should review and consolidate the Rangers’ Stations in terms of material facilities and particularly professional level in order to ensure a correct exercise of the sanctioning power of these Stations; for the time being, it is necessary to direct on an experimental basis the transfer of the sanctioning competence to a number of Stations and then to sum up and draw experiences for application by other Stations.

The Rangers’ Stations and the Mobile Rangers’ Teams can use their own seal in the legal activities of their unit; when detecting a violation and making a report, if the act of violation falls within the sanctioning power of the Stations or the Teams, the Head of the Rangers’ Station or the Head of the Mobile Rangers’ Team shall consider and decide a fine and confiscate the illegal forestry products and the working means involved by issuing a Sanction Decision according to the stipulations and the guidance of the Ministry of Agriculture and Rural Development.

1.3. On the competence to confiscate illegal forestry products:

Article 15 of Decree No.77-CP stipulates that the Heads of the Rangers’ Stations or a higher level can confiscate the illegal forestry products within the framework of sanctions under their jurisdiction, that is, the volume or the value of forestry products lies within the framework of sanctions of each level. The confiscation of the working means involved is another aspect of the competence. The Stations and the Teams are empowered to confiscate the working means involved in the violation with a maximum value of 10 million VND; the Rangers’ Services of district level with the maximum value of 20 million VND, and the Rangers’ Services of provincial level and the Rangers’ Department with an unlimited value.

The competence to confiscate illegal forestry products and to hand a fine belongs to the competence of each level when deciding a sanction.

According to the stipulations in Clause 1, Article 3, of Decree No.77-CP, when applying a level of sanction with extenuating circumstances, the authorized agency can reduce the fine, but not lower than the minimum level in the framework of sanctions, and when there is an aggravating factor, it can increase the fine, but not higher than the maximum level in the framework of fines. Thus, when considering a sanction against a violation with extenuating circumstances or an aggravating factor, the levels of fines may be different and it is within the power of different levels to hand a fine and to confiscate illegal forestry products within that framework of sanctions.

For example: the illegal transportation of 6m3 of common timber log shall be checked and a report of the violation is made by the Rangers’ Service of district level. This act of violation with such extent of damage lies within the framework of fines from more than 1 million VND to 5 million VND stipulated in Clause 3, Article 12, of Decree No.77-CP. The level of fine temporarily calculated as directed above is 3 million VND, which is outside the competence of the Rangers’ Service of district level. In case it involves an extenuating factor, the level of fine may be reduced as stipulated from more than 1 million VND to 2 million VND and the illegal forestry products are confiscated; this form and level of sanction comes under the competence of the Head of the Rangers’ Service of district level. On the contrary, if it involves aggravating factors, the service can increase the fine to a maximum level of 5 million VND and confiscate the illegal forestry products; this form and level of fine comes under the competence of the Head of the Rangers’ Service of provincial level or the President of the People’s Committee of district level.

2. Sanctioning competence of the People’s Committees of different levels (Article 16):

Clause 4, Article 16, of Decree No.77-CP stipulates that the local Rangers’ Services of different levels shall have to help the People’s Committees of the same levels in considering and deciding sanctions and organizing the enforcement of that Sanction Decision. That responsibility shall be effected as follows:

2.1. The President of the People’s Committees of commune level shall exercise his/her competence as stipulated in Clause 1, Article 16, of Decree No.77-CP. Regarding the confiscation of illegal forestry products within the framework of sanctions under the commune level’s jurisdiction, when the commune temporarily seizes illegal forestry products to report to the local Rangers’ Service for settlement, the Rangers’ Service of district level or the local Rangers’ Station must closely cooperate with the commune and promptly give its written opinion on the handling of such illegal forestry products so that the President of the People’s Committee of the commune may decide the sanction in the same Sanction Decision according to the model form and the guidance of the Ministry of Agriculture and Rural Development. After confiscating the illegal forestry products, the local Rangers’ Service shall have to preserve and settle them according to the law currently in force.

As the communes have no Rangers’ organization of the same level, the Rangers’ Service of provincial level shall have to direct the Rangers’ Service of district level and the Rangers’ Stations to help the People’s Committee of the commune in applying sanctions according to their competence and to the provisions of law on the handling of administrative violations such as by guiding the use and management of legal model forms and the application of the procedure of considering and applying sanctions.

2.2. The Presidents of the People’s Committees of district and provincial levels shall exercise their sanctioning competence as stipulated in Clause 2 and Clause 3, Article 16, of Decree No.77-CP.

In his/her capacity as adviser to the local Rangers’ Services at different levels, the President of the district People’s Committee shall exercise his/her competence to impose sanctions against the violations which are outside the competence of the district Rangers’ Service, but which have been detected and reported by the district Rangers’ Service, or which have been referred to them from a lower level. Regarding the violations which are outside the competence of the provincial Rangers’ Services, but which have been detected and reported by the provincial Rangers’ Service or which have been referred to them from a lower level, then the district Rangers’ Service or the provincial Rangers’ Service shall prepare a full dossier and submit it to the President of the district People’s Committee or the President of the provincial People’s Committee to consider and sign the Sanction Decision, and then organize the enforcement of the Sanction Decision such as the collection and remittance of fines, the management and handling of the evidences and the working means confiscated, and the settlement of the necessary expenses in enforcing the sanctions.

3. Responsibility of the specialized agencies to cooperate (Article 18):

Article 18 of Decree No.77-CP clearly stipulated the responsibility of the specialized agencies such as the Police, the Customs Office, the Taxation Office, the Market Control Force and the Specialized Inspectors to cooperate with the Rangers’ Services in trying to prevent violations of the Forest Protection Law. The provincial Rangers’ Services should actively advise and help the provincial and municipal People’s Committees to direct the specialized agencies in satisfactorily fulfilling this responsibility, establishing a cooperative relationship and making it a regular activity.

When the specialized agencies detect a violation, make a report on it and transfer the dossier and exhibits to the Rangers’ Service for settlement, the Rangers’ Service must closely cooperate with them to handle in time the violation and settle the necessary expenses according to the current regime for the specialized agencies.

Regarding the report and dossier transferred to them by the specialized agencies, if the Rangers’ Service considers them to be inadequate, it should complete the dossier by checking it and making a supplementary report to the original report, getting the declarations of the guilty person(s) and witness(es), examining the site of the violation... to further clarify the act, the character and seriousness of the violation and other factors in order to have a basis for considering in order to decide a sanction.

4. Settling the cases outside one’s competence (Article 19):

When a violation is detected and a report of it is made, the extent of the damage caused and the corresponding level of fine should be considered to see which level is empowered to settle it, then the dossier should be submitted to that level for settlement. The transfer of the dossiers is effected through the system of local Rangers’ Services at different levels, and the Rangers’ Service concerned shall settle the dossier within its competence. If the case is outside the competence of the district Rangers’ Service or the provincial Rangers’ Service, these Services should prepare a full dossier and submit it to the district or provincial People’s Committee for settlement.

B- PROCEDURE OF HANDING SANCTIONS:

1. Applying preventive measures (Article 22):

The application of preventive measures must comply with the procedures defined in Article 39 to Article 44 of the Ordinance on the Handling of Administrative Violations.

On the temporary seizure and search of persons according to administrative procedure, the persons authorized to issue a decision on this matter are the Head of the district Rangers’ Service and the Head of the district Rangers’ Service of Appeal.

On the temporary seizure of the evidences and the working means involved, considering the power to confiscate the illegal forestry products and the working means involved as stipulated in Article 15 of Decree No.77-CP, the persons authorized to issue a decision for temporary seizure of the illegal forestry products and the working means involved are the Head of the Rangers’ Service from the Head of the Rangers’ Station and the Mobile Rangers’ Team upwards.

2. Collection and remittance of fines (Article 24):

The Rangers’ Service at different levels shall collect and remit fines according to the stipulations of Article 24 of Decree No.77-CP. The fines collected must be remitted to the State budget in the accounts opened by the unit at the State Treasury. The receipts of fines collected must be issued by the Ministry of Finance (the General Taxation Department). The management and use of the receipts of fines collected must be conducted according to the regime of taxes set by the Ministry of Finance.

The provincial Rangers’ Services shall have to cooperate with the Finance Services and the Taxation Department to give guidance on the ways of collecting and remitting fines, the regime of managing the receipts of fines collected and remitting fines for uniform application in the localities.

3. Expenses in handling violations (Article 27):

Considering Clause 6, Article 27, of Decree No.77-CP, and Clause 6, Point B, Section II, of Circular No.52-TC/CSTC of September 12, 1996 of the Ministry of Finance guiding the collection and use of fines imposed on administrative violations, the provincial Rangers’ Services shall cooperate with the Finance Services and the Taxation Department to give guidance on the contents of the expenses, the regime of making advance payments, and accounting of payments for the expenses in the handling of the violations of the forest law for uniform application in the localities.

4. Implementation effect of Decree No.77-CP:

Under Article 30 of Decree No.77-CP this Decree takes effect from the date of its signing on November 29, 1996, and this Decree replaces Decree No.14-CP of December 5, 1992 of the Government issuing Stipulations on the handling of administrative violations in the management and protection of forests.

Therefore, all the violations which have been detected and reported but which are not yet handled must be uniformly sanctioned according to Decree No.77-CP, and not according to Decree No.14-CP which has been annulled.

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Upon receiving this Circular, the Ministries and the People’s Committees of the provinces and cities directly under the Central Government shall have to study and have a full grasp of Decree No.77-CP and this Circular, and implement them in all branches and at all levels down to the grassroots level. The provincial Rangers’ Services shall help the provincial and municipal People’s Committees in directing the implementation of these documents, first of all directing the local Rangers to strictly implement the Decree, follow and sum up the examination and handling of administrative violations in the localities and report them to the provincial and municipal People’s Committees and the Ministry of Agriculture and Rural Development.

The Rangers’ Department shall have to follow, direct and inspect the implementation of these documents, sum up the general situation and make periodical reports on the results to the Ministry of Agriculture and Rural Development and the Government.

This Circular takes effect from the date of its signing. The Ministry shall issue a set of model forms and guide its implementation to ensure full observance of the legal procedures for sanctioning administrative violations in the management and protection of forests and the management of forestry products stipulated in Decree No.77-CP.

For the Minister of Agriculture and Rural Development

Vice-Minister,