(Tiểu luận) topic legal regulations on administrative violations and administrative liabilities examine practical implementation in vietnam

Types of administrative penalties include: ...6 3.1 Remedial measures caused by administrative violations: .... An administrative violation is an act committed by an individual or organ

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B GIO D C V  ĐO TO TRƯỜNG ĐI HỌC KINH TẾ QUỐC DÂN

VIỆN NGÂN HNG – TÀI CHÍNH

ESSAY

SUBJECT: FUNDAMENTAL OF LAW

TOPIC: LEGAL REGULATIONS ON ADMINISTRATIVE VIOLATIONS

AND ADMINISTRATIVE LIABILITIES EXAMINE

PRACTICAL IMPLEMENTATION IN VIETNAM

LECTURER: LLM KHANH NGUYEN TRAN

STUDENTS: TRAN NGUYEN BINH

NGUYEN TUAN CUONG

NGUYEN THE DUONG

NGUYEN THI THUY DUONG

NGUYEN SY DUC

CLASS: BFI 64 – FINANCIAL INVESTMENT

Hanoi, December, 8, 2022

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I ADMINISTRATIVE VIOLATION 3

1 What is the administrative violation? 3

2 Principles of handling administrative violations 3

3 Features of administrative violations 4

4 Authority to sanction administrative violations 5

II ADMINISTRATIVE LIABILITIES 5

1 What is administrative liability ? 5

2 Characteristics of administrative liability : 6

3 Types of administrative penalties include: 6

3.1 Remedial measures caused by administrative violations: 7

3.2 Other administrative handling measures : 7

4 Procedures for sanctioning administrative violations 8

5 Subjects sanctioned for administrative violations: 8

III EXAMINE PRACTICAL IMPLEMENTATION IN VIETNAM 9

1 Positive aspects 9

2 Negative aspects 10

3 Solutions 12

IV EXERCISES 14

Reference sources:

Administrative violation link 1

Administrative violation link 2

Administrative liability 1

Administrative liability 2

Example of practical implementation in VietNam: 1

Example of practical implementation in VietNam: 2

Examine practical implementation in Viet Nam: 1

Examine practical implementation in VietNam: 2

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I ADMINISTRATIVE VIOLATION

1 What is the administrative violation?

An administrative violation is an act committed by an individual or organization that violates the provisions of the law on state management but is not a crime and must be sanctioned for administrative violations as prescribed by law

Sanctioning administrative violations means applying punishment forms and corrective actions to people or organizations that commit administrative violations under the law

on managing administrative violations

Handling administrative violations is an important tool in state management activities

to maintain order and discipline in the administrative management of the state This is a problem directly related to the daily lives of people, organizations, production, and the business activities of enterprises

Ex 1: Ms B sells fruit on the sidewalk, where there are regulations prohibiting street vendors The sale of fruit by Ms B is an administrative violation, specifically a violation of the road traffic infrastructure Ms B's behavior will be fined according to the law

Ex 2: Mr C drives a motorbike when participating in traffic but does not wear a helmet Mr C's behavior is an administrative violation in the field of road traffic and will be fined by the law

2 Principles of handling administrative violations

The principles of sanctioning administrative violations include the following:

• All administrative violations must be detected in time and remedied

immediately The process of dealing with administrative violations should be carried out quickly, competently, openly, and fairly by the provisions of the law

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•

agencies by the law

• The handling of administrative violations will be based on the severity and nature of the violation, the subject of the violation, and related circumstances for aggravating, mitigating, and giving appropriate handling measures;

• Administrative violations should only be sanctioned if they are legitimate violations of the law

• An administrative violation is sanctioned only once If many people commit an administrative violation together, each violator will be sanctioned for that administrative violation A person who commits many administrative violations

or commits administrative violations many times shall be sanctioned for each violation, except in cases of repeated administrative violations specified by the government as aggravating circumstances

• Administrative violations are not handled in the following situations:

unexpected events, legitimate defense, urgent situations, or administrative violators who lack administrative responsibility capacity and those who are under-age

• The handling of administrative violations will include the level of fines and other administrative handling measures as prescribed by law

3 Features of administrative violations

Based on the concepts of the law on handling administrative violations mentioned above, we can draw some characteristics of administrative violations as follows:

Firstly, administrative violations are acts that violate the provisions of the law on state management but are not crimes

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forced to do it; in this case, the subject is not charged according to state management rules

Secondly, administrative violations are guilty acts performed by subjects who have full capacity to be subject to administrative sanctions under the law The offense is a sign

of the subject's will and desire to commit administrative violations Offenses in administrative violations will manifest as intentional and unintentional

Thirdly, subjects who commit administrative violations will be handled according to the provisions of the law

4 Authority to sanction administrative violations

To ensure that the determination of administrative sanction authority is transparent and clear, that conflicts are avoided, and that the provisions of the current Administrative Sanctions Law are followed

Initially, use legal fine levels and forms to impose sanctioning authority on

administrative offenders

Second, the level of the fine is specified by those who have the authority to sanction administrative violations In particular, the fine level for organizations will be two times higher than for individuals

Lastly, the competent authority that imposes penalties for administrative violations in the fields of social safety, security and order, environmental protection, and road traffic with a fine not exceeding two times the amount of the violation The specific

administrative penalty level will be decided by the People's Council

II ADMINISTRATIVE LIABILITIES

1 What is administrative liability ?

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individual before the State Individuals and organizations commit administrative violations that infringe upon the state management order and only the State has the right to impose sanctions on those subjects

Ex: Cuong was driving a motorbike and was asked by the police to stop for an alcohol test Cuong's alcohol test results exceed the prescribed level, so he will be

administratively sanctioned by the law

2 Characteristics of administrative liability :

- It is a form of liability applied to individuals and organizations that commit

administrative violations in the fields of state management

- Competent authority that applies administrative responsibility are mainly state administrative agencies and officials or employees of such agencies

- The prosecution of administrative liability is carried out based on the provisions of administrative law and according to administrative procedures

3 Types of administrative penalties:

- Warning;

- Monetary fine;

- Deprivation of the right to use licenses or practice certificates or suspension of operations for a definite time;

- Confiscation of material evidence of administrative violations and means used to commit administrative violations;

- Expulsion

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In which, warning and fine are considered as the main form of fine Other penalties can

be specified as main or additional penalties in decrees sanctioning administrative violations in the fields of state management

3.1 Remedial measures caused by administrative violations:

For each administrative violation, in addition to the application of a sanction,

individuals or organizations that commit administrative violations may be subject to the application of one or more remedial measures in Clause 1, Article 28 of the 2012 Law on Handling of Administrative Violations These are the following measures:

- Forced restoration to the original state;

- Forcible dismantling of works or parts of works built without permits or constructed

in contravention of permits;

- Forced to take measures to overcome environmental pollution, disease spread, etc

3.2 Other administrative handling measures :

Other administrative handling measures are only applied to individuals who are Vietnamese citizens who violate the law on security, social order and safety but are not serious enough to be examined for penal liability Apply these measures to educate violators' sense of law observance; educate and create conditions for violators to become honest citizens, useful to society and prevent their recidivism Other

administrative handling measures include:

- Education in communes, wards, towns

- Put in reform school

- Taken to a medical facility

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There are two types of administrative sanctioning procedures:

- Sanctioning administrative violations without making a record is applied in the case of sanctioning warnings or fines below 250,000 VND (for individuals) and 500,000 VND (for organizations) and the person with sanctioning competence shall issue a sanctioning decision on the spot without making a record

- In case of being fined 250,000 VND (for individuals) or 500,000 VND (for organizations) or more, competent agencies must carry out sanctioning procedures as follows:

• Make a record of administrative violations, signed by the maker and the violator If there are any victims or witnesses, they must sign the minutes If both refuse to sign, the reason must be clearly stated in the minutes

• The sanctioning minutes will have 2 copies: one for the person making the record and one for the organization or individual If the violation exceeds the record maker's sanctioning power, the record must be sent to a higher competent authority

• After making a record of the violation, the competent person should identify specific circumstances that related to the incident to consider and make a decision

5 Subjects sanctioned for administrative violations:

-Persons from full 14 years old to under 16 years old will be administratively sanctioned for intentional administrative violations; persons aged full 16 years or older shall be administratively sanctioned for all administrative violations

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administrative violations shall be handled like other citizens; In case it is necessary to apply the penalty of deprivation of the right to use licenses, practice certificates or suspension of activities related to national defense and security for a definite time, the People's Army or the People's Public Security will have the authority to sanction

- Organizations are administratively sanctioned for all administrative violations

- Foreign individuals and organizations commit administrative violations within the territory, contiguous zone, exclusive economic zone and continental shelf of the Socialist Republic of Vietnam; On board aircraft bearing Vietnamese nationality or seagoing ships flying the Vietnamese flag, they shall be administratively sanctioned by Vietnamese law, except in the case of an international treaty to which the Socialist Republic of Vietnam is a member

III EXAMINE PRACTICAL IMPLEMENTATION IN VIETNAM

1 Positive aspects

The Ministry of Justice stated that incidents of administrative infractions have generally been identified and dealt with promptly through competence, order, and processes, ensuring the national law and order From 66% in 2014 to 95% in 2022, there has been an increase in the proportion of instances that have been sanctioned for all cases that have been discovered

Most offenders consciously follow the judgments regarding the sanctions for

administrative violations and are aware of their violations In recent years, the rate of compliance with punitive rulings has been relatively high (about 95%) The primary causes of cases that haven't been put into action yet are that offenders lack a stable accommodation or have the inability to pay fines

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been promoted with exceptional effectiveness after 10 years of implementing the Law

on Sanctions of Administrative Violations: administrative infractions have been timely detected and treated following the legal order and procedure; the degree of law compliance and the implementation of sanctioning decisions has been reasonably higher; the sense of law observance of people, as well as agencies and competent persons, has risen

2 Negative aspects

On the contrary, with increasingly sophisticated expedients used in social life, the administrative violation is becoming more and more complicated These violations mostly occur in areas like road traffic, social law and order, environmental protection, food safety, business, and land construction

The main justification for the situation of infractions is that some people do not fully grasp and are unaware of how to comply with the law The absence of steady employment for violators, the moral decay of some teenagers, the harmful effects of the market economy, or some infractions committed for financial gain are the causes of this predicament

The current fund made for dealing with administrative infractions is relatively small, particularly when the condition of facilities and equipment do not meet established standards Even though the fact that the management area is vast and complicated, the civil servants assigned to handle administrative infractions in local units still lack force, making difficulty for detecting and dealing with infractions

The representative of the Ministry of Justice stated that the maximum fine level in the fields and the specific fine levels for basic violations are appropriate given at the time and are based on the maximum fine level specified in Article 24 of the Law on Handling of Administrative Violations However, the reality of recent applications

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level of the fine for each act is not proportionate to the type and severity of the consequences of the breach

Ex 1: Mr Pham Hoanh Son (Hoanh Son Group) - Chairman of the board of directors of Sao Vang Rubber Company (SRC) bought nearly 6.9 million SRC shares from June 30

to July 2, 2020, but did not report this trading to the government

At that time, those shares of Hoanh Son Group were estimated at about 53 billion VND And the amount that the State Securities Commission sanctioned for Hoanh Son Group was 110 million VND

→According to Clause 1, Article 5 of Decree No 156/2020/ND-CP, the State Securities Commission handled an administrative violation promptly with the right competent and order And Hoanh Son Group also immediately abided by the law

However, it can be seen that the fine was not commensurate with the nature and seriousness of the violation 110 million VND compared to the profit of 53 billion VND Hoanh Son Group earned is too small Many individuals and units can take advantage of this and willingly pay small fines to reap great profits Hence, these handling measures need to be put under great scrutiny

Ex 2: On August 16, 2022, the Provincial People's Committee and the Department of Agriculture and Rural Development of Kien Giang province inspected the illegal construction in the Phu Quoc marine reserve in An Thoi, Phu Quoc

At May Rut island, the sea encroachment project invested by Minh Huy Phu Quoc One Member Co., Ltd (Minh Huy Phu Quoc Company) is building, including a long concrete bridge and a great number of rocks encroaching on the sea corridor as a check-in place for tourists