Laws of Vietnam

DECREE No. 61/1998/ND-CP OF AUGUST 15, 1998 ON THE INSPECTION AND CONTROL WORK WITH REGARD TO THE ENTERPRISES

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

Pursuant to the Ordinance on Inspection of April 1st, 1990;

In order to readjust inspection and control work with regard to the enterprises;

At the proposal of the State Inspector General,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- The inspection and control of the observance of law by production and business establishments aim to help production and business establishments operate according to law and effectively; strengthen jurisdiction in production and business activities, contributing to the perfection of the managerial mechanism and protecting the interests of the State, and the legitimate rights and interests of production and business establishments.

The production and business establishments defined in this Decree include: State enterprises, joint stock companies, limited liability companies, private enterprises including business individuals and groups defined in Decree No.66/HDBT of March 2, 1992 of the Council of Ministers (now the Government) hereafter collectively referred to as enterprises.

Article 2.- When inspecting and controlling the enterprises in exercise of their function of State management over the enterprises, State agencies must strictly observe the function, competence and procedures stipulated by law and must ensure accuracy, objectivity, openness and democracy.

All acts of misuse and abuse of the inspection and control power to harass and cause difficulties and nuisances to the enterprises.

Article 3.- Inspection and control of an enterprise can be conducted only when it is decided by the Head of a competent State agency; it is forbidden to repeat or conduct more than one inspection and control bearing the same content within a year regarding an enterprise (except extraordinary cases).

Article 4.- At the end of the inspection and control at the enterprise, there must be a written conclusion on the contents of what has been inspected and controlled; the person assigned with the duty of inspection and control must take responsibility before law on his/her conclusion.

Article 5.- The enterprise has the responsibility to regularly check by itself the implementation of the policies and legislation in its production and business activities, willingly discharge its obligations as prescribed by law and strictly carry out the conclusions and decisions conformingly with the legislation on inspection and control of the State agencies.

All acts of obstructing inspection and control activities or buying off officials doing inspection and control work.

Article 6.- The enterprise may refuse an inspection or control that is contrary to the provisions of law and appeal against decisions and conclusions on inspection and control.

Any member of the enterprise has the right to denounce law-breaking acts of the persons entrusted with inspection and control task and shall take responsibility before law on the content of the denunciation.

The complaints and denunciations about inspection and control work at the enterprise must be settled in time and according to law by the competent State agency.

Chapter II

DRAWING UP THE INSPECTION AND CONTROL PROGRAMS AND PLANS

Article 7.- The competent State inspection and control agencies have the responsibility to determine the yearly plan of inspection and control and take the initiative in coordinating with the related agencies in the drawing up of the inspection and control programs and plans.

The inspection and control program and plan must clearly determine the requirements, contents, scope, object and time of implementation and must be approved by the competent authority.

Article 8.- The State Inspector General shall have to direct the elaboration and approval of the inspection programs and plans of the State Inspection Agency, guide the ministries, the ministerial-level agencies, the agencies attached to the Government, the People's Committees of the provinces and cities directly under the Central Government to elaborate the inspection programs of the branches and localities; coordinate with the Chairman of the Supreme People's Procuracy in determining the program and plan of each branch and avoiding overlapping in inspection and control activities.

Article 9.- The Ministers, the heads of ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People's Committees of the provinces and cities directly under the Central Government shall have to direct the elaboration and approval of the programs and plans of inspection and control of their branches and localities.

In case of overlapping of contents and time in the inspection and control programs and plans, the ministers, the heads of ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People's Committees of the provinces and cities directly under the Central Government shall have to coordinate among themselves for settlement. If opinions still vary, the General State Inspector shall sum up the situation and report to the Prime Minister for decision. In the localities, if opinions still vary among the services, branches, and districts, the Chief Inspectors of the provinces and cities directly under the Central Government shall sum up the situation and report to the Presidents of the People's Committees of the provinces and cities directly under the Central Government for decision.

Article 10.- The Chief Inspectors of the ministries, ministerial-level agencies and agencies attached to the Government shall base themselves on the guidance of the State Inspector General and the requirements of the inspectory work of the ministries and branches for which they have the responsibility to elaborate the inspectory programs and plans and submit them to the ministers, the heads of ministerial level agencies and the agencies attached to the Government for approval.

The heads of the agencies with function of control over the enterprise shall have to elaborate the control programs and plans and reach agreement with the Chief Inspector of the Ministry before submitting them to the ministers and the heads of the ministerial level agencies and the agencies attached to the Government for approval.

Article 11.- The Chief Inspectors of the provinces and cities directly under the Central Government shall have to base themselves on the guidance of the State Inspector General and the requirements of the managerial work of their respective localities to elaborate the inspectory programs and plans and sum up the control programs and plans and submit the report to the presidents of the People's Committees of the provinces and cities directly under the Central Government for approval; and to coordinate with the Heads of the People's Procuracies of the same level in determining the inspectory and control programs and supervision at the enterprises in order to avoid overlapping.

Article 12.- The State Auditor General shall have to elaborate the yearly audit program and plans, reach agreement with the State Inspector General and the Minister of Finance before submitting such programs and plans to the Prime Minister for approval.

Chapter III

INSPECTION AND CONTROL PROCEDURES

Section 1.- INSPECTION PROCEDURES

Article 13.- The promulgation of the inspection decision must be based on the program and plan already approved; the decision of inspection shall be issued by the heads of the inspection agencies in the system of State inspectory organizations or the head of the State management agency and must be notified to the enterprise at least 7 days before the issue of the inspection decision, except for extraordinary inspections or revisions as stipulated in Article 16 and Article 17 of this Decree.

Article 14.- The decision of inspection must clearly state:

1. The legal basis for the inspection;

2. Content, requirements and scope of the inspection;

3. The inspection time-limit;

4. Composition of the inspection team and power and responsibility of the inspection team;

5. Rights and obligations of the inspected enterprise.

Article 15.-

1. Time-limit of the inspection at an enterprise shall not exceed thirty days.

2. When necessary, the person who issues the inspection decision can extend this time-limit. The extention shall not exceed thirty days.

3. The time-limit of the inspection shall begin from the date of the issue of the inspection decision at the enterprise till the issue of the draft conclusion of the inspection team.

Article 16.-

1. Extraordinary inspection shall be conducted only when the enterprise commits a law-breaking act.

2. The decision on extraordinary inspection shall be issued by the head of the inspection agency in the system of inspection organizations of the State or the head of the State management agency.

Article 17.-

1. Revision can be conducted only when there are grounds showing that the inspection conclusion at the enterprise are not accurate or are not objective or new details are detected.

2. The revision decisions shall be issued by the State Inspector General, the Ministers, the Heads of ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People's Committees of the provinces and cities directly under the Central Government or by the Prime Minister himself.

3. The revision decision must clearly state the requirements, contents and the revision time-limit.

4. The revision time-limit shall coincide with the inspection time-limit stipulated in Article 15 of this Decree.

Article 18.- The inspection team must strictly comply with the requirements, contents and time-limit stipulated in the inspection decision. In cases where the enterprise is detected to have signs of law breaking, in addition to the contents stipulated in the decision, these signs must be notified in time to the person who has issued the inspection decision for handling.

Article 19.- In the course of inspection, the application of measures of property inventorization and sealing of documents must comply with the order and procedures prescribed by law.

The inspection team or the inspector can work only with the responsible person of the enterprise at the office or the office of the enterprise and must follow a work schedule. There must be at least two persons present when the responsible person of the enterprise directly explains to the inspection team.

Article 20.- Within the time-limit set in Article 15 of this Decree, the inspection team must publicize the draft resolution of the inspection with the inspected enterprise. This publication must be done in writing.

If the enterprise does not agree with the content of the draft, it may explain to the inspection team. The explanations of the enterprise must be recorded in writing and examined and a conclusion thereon must be made.

Article 21.- Within 20 days at the latest after the publication of the draft conclusion on the inspection, the inspection team must produce a formal written conclusion on the contents already inspected. The inspection conclusions must be sent to the person who has issued the decision on inspection, the inspected enterprise and the higher State inspection organization.

In case the inspection conclusion is related to a Party member, the person who has issued the inspection decision shall have to supply related documents and conclusions to the Party Committee and the competent Inspection Commission of the Party when requested.

Article 22.- The inspection conclusion is a document determining the inspected contents at the enterprise, the legal basis for competent State agencies to issue decisions to handle the affair. Inspection teams who come later shall have to study and use the contents of the conclusions reached by the earlier teams. The inspected enterprise shall have to supply the document on earlier inspection conclusions at the request of the inspection team.

Section 2.- CONTROL PROCEDURE

Article 23.- The issue of the control decision must be based on the approved program and plan or on detection of a law breaking act.

The control decision shall be issued by the head of the agency with control function.

The control decision must be notified to the enterprise to be controlled at least three days before the control, except in extraordinary control when a law-breaking act is detected.

Article 24.- The control decision must clearly state:

1. The legal basis for control;

2. The content, requirement and scope of control;

3. The time-limit of the control;

4. The composition of the control team, powers and responsibility of the persons conducting the control task;

5. Powers and obligations of the controlled enterprise.

Article 25.- The time-limit for direct control of a control is five days at most from the issue of the control decision at the enterprise. In special cases, the person who has issued the control decision may extend this time limit. The extension shall not exceed the time-limit set for each control.

Article 26.- The person assigned with the task of control is allowed to control only documents, materials, books and vouchers of the enterprise related to the contents listed in the control decision.

Article 27.- Three days at the latest after the end of the time-limit set at Article 25 of this Decree, the person assigned with the task of control must make a written conclusion on the controlled contents. This document must be sent to the person who has issued the control decision and the controlled enterprise.

Article 28.- The control procedures of the State audit agencies shall comply with the provisions of the law on State audit.

Article 29.- Under the control program and plan or when a violation of law in the domain of State management concerning security, order and social security happens or when a denunciation is made against a crime related to the enterprise, the Economic Police, the Economic Security Force, the Cultural Security Force, the Administrative Management Police on Social Order and Security, the Fire Prevention and Combat Police, the Drug-related Crime Prevention and Combat Police shall, according to their respective functions, conduct inspection of the books, papers, documents, stores, and meet the responsible persons, the knowledgeable persons and perform other activities as prescribed by law.

The control must be undertaken by written decision of the Director, Deputy Director of the Public Security Service of the province or city directly under the Central Government, the Head or Deputy Head of the Public Security Service of the rural/urban district, provincial capital or town of the province. The Heads of the Economic Police Department, the Economic Security Department, the Cultural Security Department, the Administrative Management Police on Social Order and Security, the Fire Prevention and Combat Police, the Drug-related Crime Prevention and Combat Police. The decision must clearly state the grounds, contents, time-limit of the control and the person(s) performing the task of control.

The activities of prosecution and investigation of a criminal case must comply with the prescriptions of the Code on Criminal Procedures on the procedures, competence and time limit of these activities.

Chapter IV

RIGHTS AND OBLIGATIONS OF THE ENTERPRISE AND RESPONSIBILITY OF THE STATE AGENCIES IN INSPECTION AND CONTROL ACTIVITIES

Article 30.-

1. The enterprise subject to inspection and control has the right:

a/ To refuse the inspection and control pending the decision of the head of the competent State agency stipulated in this Decree; to propose the competent person to settle overlapping in inspection and control of the enterprise as stipulated in Article 31 of this Decree;

b/ To propose explanations about the contents of the inspection and control;

c/ To receive the inspection and control conclusions;

d/ To complain and denounce as stipulated by law against the law-contravening acts in the process of the inspection and control of the enterprise;

e/ To ask for compensation for damage caused by law-contravening measures of handling by inspection and control officials.

2. The enterprise subject to inspection and control has the duty:

a/ To appoint a competent person to work with the inspection or control team, the inspector or controller;

b/ To supply timely information, materials and reports at the request of the person assigned with the task of inspection or control, and take responsibility before law on the supplied information, materials and reports;

c/ To strictly carry out the requests, proposals, decisions and conclusions on the inspection and control.

Article 31.-

1. The Ministers, the Heads of ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People's Committees of the provinces and cities directly under the Central Government shall settle the overlapping among the inspection and control teams within the State management powers of their respective Ministries, branches and localities and at the proposal of the Chief Inspectors of the same level.

2. The State Inspector General shall settle the overlapping among the inspection and control teams by decision of the Ministers, the Heads of ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People's Committees of the provinces and cities directly under the Central Government.

Article 32.-

1. In the process of control, if deeming that the affair needs to be inspected, the person assigned with the task of control must report to the competent authority in order to conduct inspection according to the order prescribed by law.

2. In the process of inspection and control if signs of criminality are detected, the person assigned with the task of inspection and control must propose to the competent level to transfer the dossier or inform the investigation agency as prescribed by the legislation on criminal procedures.

Article 33.- The person assigned with the task of inspection and control has the responsibility to manage and use correctly the vouchers and documents supplied by the enterprise, strictly observe the regulations on secrecy and must not supply to anyone without responsibility the information and documents related to the inspection and control.

Article 34.- It is strictly forbidden to conduct inspection and control of an enterprise without the decision of the competent State agency, or to expand the subjects and scope of inspection and control without authorization, or to use blank papers or violate other provisions on the procedures of inspection and control.

The person assigned with the task of inspection and control is strictly forbidden to harass and cause difficulties and nuisances, to deliberately make conclusions untruthfully or to cover up the persons who commit acts of violation, or to put forward requests in contravention of law to the enterprise under inspection and control, or to impose pressure against the enterprise under inspection and control in the explanations and in answering questions.

It is strictly forbidden to buy off or bribe in any form the person performing the inspection and control task.

Article 35.- The Ministers, the Heads of ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People's Committees of the provinces and cities directly under the Central Government shall, within the State managerial powers of their respective ministries, branches and localities, have to settle or direct the Chief Inspectors of the same level to settle the complaints and denunciations about the inspection and control at the enterprises as prescribed by law.

Article 36.- Persons who violate the provisions of this Decree shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability; if damage is caused, compensation therefor must be made as prescribed by law.

Chapter V

IMPLEMENTATION PROVISIONS

Article 37.- The State Inspector General shall help the Prime Minister in directing, checking and urging the implementation of this Decree; every six months they shall have to preside over the meeting with the related Ministries and branches and together with them draw the experiences. They shall propose to the Prime Minister measures to handle newly arising questions in the inspection and control work.

Article 38.- The State Inspector General shall coordinate with the Chairman of the Supreme People's Procuracy to delineate the scopes of inspection and control, handle overlapping and repetitious questions in the inspection and control activities.

The Chief Inspectors of the provinces and cities directly under the Central Government shall coordinate with the Head of the People's Procuracies of the same level to handle overlapping and repetitious questions in the inspection and control work within their localities.

Article 39.- The Ministers, the Heads of 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 organize and direct the implementation of this Decree.

Article 40.- This Decree takes effect 15 days after its signing. The earlier regulations which are contrary to this Decree are now annulled.

On behalf of the Government

Prime Minister

PHAN VAN KHAI