Laws of Vietnam

DECREE No.78-CP OF NOVEMBER 29, 1996 OF THE GOVERNMENT ON SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS IN THE DOMAIN OF PLANT PROTECTION AND EPIDEMIOLOGY CONTROL

THE GOVERNMENT

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- The administrative violations in the domain of plant protection and epidemiology control are violations committed by individuals and/or organizations intentionally or unintentionally but not seriously enough to be examined for penal liability. They include:

1. Violations of regulations on the fight against pests that damage plant resources.

2. Violations of regulations on plant epidemiology control.

3. Violations of regulations on the disinfection of objects which are subject to plant epidemiology control for export, import or preservation in storehouses.

4. Violations of regulations on the management of plant protection drugs.

Article 2.- Objects of application:

1. Any organization or individual committing acts of administrative violation in the domain of plant protection and epidemiology control shall be sanctioned in accordance with this Decree.

2. Foreign organizations or individuals committing acts of administrative violations in the domain of plant protection and epidemiology control shall be sanctioned in accordance with this Decree, except otherwise provided for by international treaties which Vietnam has signed or acceded to.

Article 3.- Principles for the handling of administrative violations in the domain of plant protection and epidemiology control:

1. The competence to handle administrative violations in the domain of plant protection and epidemiology control shall comply with the provisions of the Ordinance on the Handling of Administrative Violations and shall be specified in Articles 11, 12 and 13 of this Decree.

2. All acts of administrative violation in the domain of plant protection and epidemiology control must be detected in time and stopped immediately, and the sanction must be imposed quickly and fairly. All consequences of the administrative violation must be overcome in accordance with law. An organization or individual committing an act of administrative violation thus causing material damage shall have to pay compensation in accordance with the provisions of law.

3. An act of administrative violation shall be sanctioned only once; an individual committing many acts of administrative violation shall be sanctioned for each violation. If many individuals commit one act of administrative violation each of the violators shall be sanctioned.

4. The sanction against administrative violations must be based on the nature and extent of the violation as well as the aggravating and extenuating factors provided for in Articles 7 and 8 of the Ordinance on the Handling of Administrative Violations of July 6, 1995 so as to determine the form, level and measure of sanction in accordance with the provisions of this Decree and other Decrees and Regulations of the Government on the sanction against administrative violations.

5. No administrative sanction shall be imposed if the offender is suffering from mental illness or other diseases which render him/her incapable of being aware of or controlling his/her act and in case of emergency or contingency.

Article 4.- Statute of limitations for sanction and time limit for being considered as having not been sanctioned administratively:

The statute of limitations for sanction and time limit for being considered as having not been sanctioned administratively shall comply with Articles 9 and 10 of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

Article 5.- Forms of sanction:

When sanctions are imposed against administrative violations in accordance with this Decree, the person competent to sanction shall apply only those forms of sanction and other measures already specified by law. More concretely:

1. A warning shall be served against minor and first-time violations with extenuating factors.

2. Fines shall be decided depending on the nature and extent of the violation.

The amount of fine for an act of administrative violation shall be the average in the fine bracket provided for in this Decree.

The amount of fine for a violation with extenuating factors may be lower than the average but must not be less than the minimum level prescribed in the fine bracket. The amount of fine for a violation with aggravating factors may be higher than the average but must not exceed the maximum level in the fine bracket provided for in this Decree.

3. Depending on the nature and extent of the violation, the organization or individual that commits an administrative violation in the domain of plant protection and epidemiology control shall also be subject to one or many following additional forms of sanction:

a/ Stripping of the right to use the operation license for plant protection services, for disinfection or for trading in plant protection drugs, and revoking the certificate of plant epidemiology control;

b/ Sealing, confiscating the goods, material evidences and means used for the violation;

c/ Forcible compensation for the damage caused by the administrative violation valued up to 1,000,000 VND;

d/ Destroying or sending back to the original place the objects subject to plant epidemiology control and means infected by objects of plant epidemiology control of Vietnam which cannot be isolated or eliminated in Vietnam;

e/ Destroying or sending back to the original place plant protection drugs the use of which is banned in Vietnam.

An organization or individual subject to sanctions prescribed in Points d and e, Item 3 of this Article shall have to observe the provisions of law and bear all the costs for sealing, confiscating, destroying and sending back the goods and tools of the violation to the place of origin.

Chapter II

FORMS AND LEVELS OF SANCTION AGAINST ACTS OF ADMINISTRATIVE VIOLATIONS IN THE DOMAIN OF PLANT PROTECTION AND EPIDEMIOLOGY CONTROL

Article 6.- Forms and levels of sanction against violations of regulations on the fight against pests that cause damage to plant resources in infested areas:

A warning or fine of 200,000 VND to 1,000,000 VND shall be imposed on acts of bringing in or out of infested area plant resources infected with dangerous harmful organisms which have been declared a pest but not yet overcome in that area.

Article 7.- Forms and levels of sanction against violations of regulations on plant epidemiology control:

1. A warning or fine of 200,000 VND to 1,000,000 VND shall be imposed on one of the following violations:

a/ Failing to obtain a certificate of plant epidemiology control from the Plant Protection Services or plant epidemiology control agencies at the place of departure when moving plant resources subject to plant epidemiology control from an infested area to another province or city directly under the Central Government;

b/ Discarding plant resources infected with objects of plant epidemiology control, thus causing the pest to spread to other areas;

2. A fine of 1,000,000 VND to 3,000,000 VND shall be imposed on one of the following violations:

a/ Failing to complete the prescribed procedures for plant epidemiology control declaration before importing, exporting or transiting plant resources;

b/ Transporting, loading and unloading plant resources infected with objects of plant epidemiology control out of the prescribed place.

3. A fine of 3,000,000 VND to 10,000,000 VND shall be imposed on one of the following violations:

a/ Failing to observe provisions on the regime of treatment of objects infected with objects of plant epidemiology control in Vietnam;

b/ Transporting or circulating a large quantity of plant resources which have been found infected with objects of plant epidemiology control without strictly observing the regulations of the competent plant epidemiology control agency;

c/ Transporting in transit plant resources without permission of the competent plant epidemiology control agency of Vietnam, failing to take all necessary measures for the prevention of harmful organisms in accordance with the regulations of Vietnam or failing to obtain certificates of plant epidemiology control from the plant epidemiology control agency at the place of origin;

d/ Evading the inspection and epidemiology control of plant resources;

e/ Failing to seal off, isolate and stamp out beds of harmful organisms subject to plant epidemiology control under an order already promulgated;

f/ Bringing into Vietnamese territory objects subject to plant epidemiology control without certificates of plant epidemiology control granted by the exporting country or without completing epidemiology control procedures at the border gate;

4. A fine of 10,000,000 VND to 30,000,000 VND shall be imposed on one of the following violations:

a/ Failing to apply measures to treat the objects subject to plant epidemiology control when they are exported or imported as provided for by the plant epidemiology control agency;

b/ The owner of the objects subject to plant epidemiology control makes false declarations, covers up or substitutes the objects subject to plant epidemiology control when lots of imported, exported goods are being checked by the plant epidemiology control agency; adding or substituting goods not yet quarantined for goods already certified for plant epidemiology control;

5. A fine of 20,000,000 VND to 50,000,000 VND shall be imposed on one of the following violations:

a/ Bringing from overseas into Vietnam live objects of plant epidemiology control, which are on Vietnam’s list of plant epidemiology control objects without permission from the Ministry of Agriculture and Rural Development.

b/ Though the plant epidemiology control officer has discovered T.G. termites in storehouses, the owner of the objects still takes no measure for treatment or produces no certification by the competent plant epidemiology control agency that such termite has been eradicated;

6. A fine of 25,000,000 VND to 80,000,000 VND shall be imposed on one of the following violations:

a/ During the process of transporting the objects subject to plant epidemiology control, the plant epidemiology control officer discovers that the objects have been infected with T.G termites, but the owner fails to take thorough treatment measures as directed and produces no certification by the competent plant epidemiology control agency that such type of termite has been eradicated;

b/ Though being aware of the promulgation of other objects of plant epidemiology control, places and time of their production, processing, preservation and transportation, he/she still takes no measure for treatment or refuses to follow the treatment guidance given by the plant epidemiology control agency which is competent to certify that such objects of plant epidemiology control have been eradicated.

Article 8.- Forms and levels of sanction against violations of the regulation on disinfection:

1. A fine of 1,000,000 VND to 3,000,000 VND for the failure to get an operation license on the disinfection of objects subject to plant epidemiology control for export, import and preservation, granted by the competent State agency managing the plant protection and epidemiology control.

2. A fine of 5,000,000 to 20,000,000 VND shall be imposed on one of the following violations:

a/ Using disinfectants listed as plant protection drugs banned from use in Vietnam;

b/ Using disinfectants contrarily to the regulation, causing adverse effect on the disinfected objects or polluting the environment and badly affecting the people’s health and living organisms.

3. An organization or individual that violates provisions in Clause 2 of this Article shall also be stripped of the right to use their operation licenses and forced to take measures to overcome the environmental pollution.

Article 9.- Forms and levels of sanction against violations of the regulation on plant protection drugs:

1. A warning or a fine of 200,000 VND to 1,000,000 VND shall be imposed on one of the following violations:

a/ Failing to meet the technical requirements on safety in the transportation and preservation of drugs and drug materials with regard to the transport means and storehouses;

b/ Preserving, transporting and trading in drugs and drug materials at places shared by men, livestock and food;

c/ Trading in drugs and drug materials without permit;

d/ If the violation of the provisions of Points b and c, Clause 1 of this Article is repeated once or many times, the fine may go up to 5,000,000 VND.

2. A fine of 1,000,000 VND to 3,000,000 VND shall be imposed on one of the following violations:

a/ Producing or processing drugs not in accordance with prescription in the permit;

b/ An individual providing services in plant protection who uses plant protection drugs not in conformity with technical requirements or the required quarantine time, thus causing poisoning to people and livestock and polluting the environment;

c/ Experimenting new drugs at places other than permitted;

d/ Trading in drugs without labels or with labels not as prescribed.

3. A fine of 3,000,000 VND to 10,000,000 VND shall be imposed on one of the following violations:

a/ Producing, making drugs without permits;

b/ Experimenting new drugs without permits;

c/ Trading in poor-quality or outdated drugs;

d/ Trading in drugs outside the list of plant protection drugs allowed for use in Vietnam.

4. A fine of 10,000,000 VND to 30,000,000 VND shall be imposed on one of the following violations:

a/ Importing drugs or drug materials on the list of plant protection drugs banned from use in Vietnam;

b/ Producing and/or processing drugs not in accordance with the technical requirements already registered and written on the packing;

c/ Trading in banned or faked drugs.

d/ An organization or individual that provides services but uses plant protection drugs outside the list of plant protection drugs allowed for use in Vietnam or drugs on the list of plant protection drugs banned from use in Vietnam.

5. A fine of 25,000,000 VND to 80,000,000 VND shall be imposed on one of the following violations:

a/ Producing and/or processing drugs on the list of plant protection drugs banned from use in Vietnam;

b/ Producing and/or processing faked drugs but not seriously enough to be examined for penal liability;

c/ Trading in banned or faked drugs in large quantities with intentional and repeated violations.

6. Compulsory compensation for damage shall be imposed on an organization or individual violating the provisions of Point b, Clause 2 and Point d, Clause 4 of this Article.

7. Forcible destruction or sending back to the place of origin, for violations of the provisions of Point a, Clause 4 of this Article.

8. The sealing and confiscation of drugs and production means with regard to violations of the provisions of Points a and c, Clause 3, Points b and c, Clause 4, Points a, b and c, Clause 5 of this Article.

9. The stripping of the right to use an operation license shall be applied to a violation of the provisions of Points a and b, Clause 2 with aggravating factors, Points a, b and c, Clause 4 and Points a, b and c, Clause 5 of this Article.

Article 10.- Forms and levels of sanction against violations of the regulation on administrative management over plant protection and epidemiology control and plant protection drugs:

1. A warning or fine of 200,000 VND to 1,000,000 VND shall be imposed on one of the following violations:

a/ Correcting or erasing the operation license for plant protection, for disinfection or trading in plant protection drugs, permit for the import of vegetal goods or certificates of plant epidemiology control, certificates of quality control and of the excess quantity of plant protection drugs;

b/ Obstructing and failing to meet requirements of the plant protection and plant epidemiology control officers or plant protection and epidemiology control inspectors on duty.

2. A fine of 500,000 VND to 2,000,000 VND shall be imposed on one of the following violations:

a/ Counterfeiting operation licenses for plant protection, disinfection or trading in plant protection drugs, permits for the import of vegetal goods or certificates of plant epidemiology control, certificates of quality control and of the excess quantity of plant protection drugs;

b/ Letting another use one’s own licenses, permits or certificates to conduct business;

c/ Threatening to use or using force against plant epidemiology control and plant protection officers, plant protection and epidemiology control inspectors on duty, but not seriously enough to be examined for penal liability.

3. A fine of 3,000,000 VND to 10,000,000 VND shall be imposed on one of the following violations:

a/ Correcting the dossiers of application for licenses, permits or registration certificates of plant protection, plant epidemiology control, disinfection and plant protection drugs;

b/ Giving wrong information or advertisements not in conformity with the properties and utility of the plant protection drugs already registered in Vietnam;

c/ Circulating drugs with labels not ratified by the competent level or not in conformity with the ratified form;

d/ Correcting, counterfeiting labels of other drugs which have been registered and are being circulated on the market.

4. The confiscation of labels of drugs shall be applied to the violations of the provisions of Points c and d, Clause 3 of this Article.

5. Stripping of the right to use the operation license shall be applied to the violations of the provisions of Point b, Clause 2, Point b, Clause 3 of this Article.

Chapter III

COMPETENCE TO SANCTION AGAINST ADMINISTRATIVE VIOLATIONS IN THE DOMAIN OF PLANT PROTECTION AND EPIDEMIOLOGY CONTROL

Article 11.- Competence of the plant protection and epidemiology control inspectors to sanction against administrative violations:

1. The plant protection and epidemiology control inspector on duty shall have the right to serve a warning or a fine of up to 200,000 VND, confiscate material evidences and means used for the administrative violation valued up to 500,000 VND and apply other measures provided for in Points a, b and d, Clause 3, Article 11 of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

2. The Chief Inspector of the Plant Protection Service of a province or city directly under the Central Government shall have the right to fine up to 10,000,000 VND and apply other measures prescribed in Article 5 of this Decree.

3. The Chief Inspector of the Plant Protection Department shall have the right to fine up to 20,000,000 VND and apply all sanctioning measures provided for in this Decree.

Article 12.- Competence of the Presidents of the People’s Committees of all levels to impose sanctions:

1. The President of the People's Committee of a commune, precinct or township shall have the right to serve a warning or a fine of up to 200,000 VND, confiscate material evidences and means used for the administrative violation valued up to 500,000 VND, order forcible compensation of up to 500,000 VND for damage caused by the administrative violation, the suspension of activities polluting the environment and the destruction of toxic objects which adversely affect the people’s health.

2. The President of the People’s Committee of a district, town or provincial city shall have the right to serve a warning or a fine of up to 10,000,000 VND, and decide additional sanctions as well as measures provided for in Clauses 2 and 3, Article 11 of the Ordinance on the Handling of Administrative Violations, except the stripping of the right to use the permit granted by the higher-level State agency in which case the President of the district People’s Committee shall issue a decision to suspend the violation and propose the competent State agency to withdraw the permit.

3. The President of the People’s Committee of a province or city directly under the Central Government shall have the right to serve a warning or a fine of up to 100,000,000 VND, to apply additional sanctions and measures provided for in Items 2 and 3, Article 11 of the Ordinance on the Handling of Administrative Violations, except the stripping of the right to use permit granted by the higher-level State agency in which case the President of the provincial People’s Committee shall issue a decision to suspend the violation and propose the competent State agency to withdraw the permit.

Article 13.- Sanctioning competence of other agencies:

1. Besides the sanctions stipulated in Articles 11 and 12 of this Decree, the person competent to impose sanctions in accordance with the provisions of the Ordinance on the Handling of Administrative Violations, when discovering an administrative violation prescribed in this Decree that falls within the field and scope of his/her management shall have the right to impose sanctions but must strictly observe the provisions of Articles 46, 47 and 48 of the Ordinance on the Handling of Administrative Violations.

2. Where an administrative violation comes under the jurisdiction of many agencies, the handling thereof shall be undertaken by the first agency to receive the dossier.

Chapter IV

PROCEDURES FOR SANCTIONING AGAINST ADMINISTRATIVE VIOLATIONS IN THE DOMAIN OF PLANT PROTECTION AND EPIDEMIOLOGY CONTROL

Article 14.- Procedures for sanctioning against administrative violations:

1. The procedure and order for sanctioning against administrative violations in the domain of plant protection and epidemiology control shall comply with the provisions of Articles 45, 46, 47, 48 and 49 of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

2. An organization or individual subject to fines shall have to pay them at the place specified in the fining decision and shall be entitled to get the fine receipt; Without the fine receipt, the offender can refuse to pay the fine; the person competent to sanction against administrative violations shall have to point out to the offending organization or individual the Article, Clause or name of the legal document or law they have violated.

3. Except for simple sanctions, all the sanctioned administrative violations shall have to be fully filed at the agency competente to impose sanctions within the time limits prescribed by current provisions.

4. When applying the form of counterfeiting material evidences and means used for the violation, the person competent to impose sanctions shall have to strictly follow the procedures provided for in Article 51 of the Ordinance on the Handling of Administrative Violations. The confiscated goods, material evidences and means related to administrative violations shall be transferred to the financial agency of the same level for the organization of auctions as prescribed. The proceeds shall be remitted into the State Treasury as prescribed. In cases where goods, material evidences and means of the offenders destroyed or sent back to the place of origin, the offender shall have to do it in accordance with the provisions of law.

5. The regime of management and use of the collected fines against administrative violations shall comply with the regulations of the State.

Article 15.- The procedure for stripping the right to use the operation license shall comply with Article 50 of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

Article 16.- Implementation of sanction decisions and forcible implementation of sanction decisions against administrative violations in the domain of plant protection and epidemiology control:

1. An organization or individual that is sanctioned for an administrative violation under this Decree shall have to strictly implement the sanctioning decision made by the agency or person competent to impose sanction within the prescribed time limit. Failing to implement the sanctioning decision, they shall be forced to implement them as prescribed in Article 55 of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

2. When applying measures of forcible implementation of sanctions against administrative violations, the competent agency or person shall have to follow the order and procedures for forcible measures as prescribed by law.

Article 17.- Application of measures to prevent administrative violations in the domain of plant protection and epidemiology control:

1.- To prevent in time administrative violations and ensure the handling of administrative violations in the domain of plant protection and epidemiology control, the competent persons and agencies are entitled to apply measures to prevent administrative violations in accordance with Article 38 of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

2. The competence, order and procedures for the application of preventive measures against administrative violations and ensure the sanction against administrative violations in the domain of plant protection and epidemiology control shall comply with the provisions of Articles 39, 40, 41, 42, 43 and 44 of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

Chapter V

PROTEST, DENUNCIATION AND HANDLING OF VIOLATIONS

Article 18.- The protest and denunciation of decisioxns on sanctions against administrative violations in the domain of plant protection and epidemiology control and the settlement thereof are provided for as follows:

1. All citizens have the right to denounce before competent State agencies any administrative violations committed by organizations or individuals and denounce violations committed by persons competent to sanction against administrative violations in the domain of plant protection and epidemiology control.

2. An organization or individual subject to administrative sanctions or administrative preventive measures or their lawful representatives shall have the right to lodge a protest or denunciation against the sanctions or preventive measures imposed on them.

3. The procedure, order, time-limit and competence for making protests, denunciations and the settlement thereof shall comply with the provisions of Articles 87, 88 and 90 of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

Article 19.- Handling of violations committed by the persons competent to sanction administrative violations in the domain of plant protection and epidemiology control:

A person competent to handle administrative violations in the domain of plant protection and epidemiology control, who abuses his/her power to hassle others, tolerate or cover up violations, fails to handle or handle them in time, properly or in accordance with his/her vested power, illegally possesses or uses money, goods, material evidences and means related to the violations, obstructs the legal circulation of goods causing damage to organizations or individuals, shall, depending on the nature and seriousness of his/her violations, be either sanctioned administratively or examined for penal liability; if material losses are caused, compensation must be made in accordance with the provisions of law.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 20.- This Decree takes effect from the date of its signing and replaces the provisions on the handling of administrative violations in the domain of plant protection and epidemiology control issued together with Decree No.92-CP of November 27, 1993 of the Government.

The Minister of Agriculture and Rural Development shall be responsible for guiding the implementation of this Decree.

Article 21.- The Ministers, the Heads of the ministerial-level agencies, the Heads of the agencies attached to the Government and the Presidents of the People’s Committees of the provinces and cities directly under the Central Government shall have to implement this Decree.

On behalf of the Government

For the Prime Minister

Deputy Prime Minister

PHAN VAN KHAI