Circular No. 01/NN-KL-TT guiding the implementation of Decree No. 77/CP on administrative penalties for violations in the management of forests, protection of forests, and forest product management.

CIRCULAR

Regarding guidance on implementing Decree No. 77/CP on

administrative penalties for violations in the field of forest management, forest protection, and forest product management

 

The Government has issued Decree No. 77/CP dated November 29, 1996 on administrative penalties for violations in the field of forest management, forest protection, and forest product management. The Decree provides detailed regulations on administrative penalties for acts violating state management rules regarding forests, uniformly enforcing penalties according to the Administrative Violation Handling Law dated July 6, 1995 and provisions of the Forest Protection and Development Law dated August 12, 1991.

To ensure strict implementation of Decree No. 77/CP, the Ministry of Agriculture and Rural Development guides and explains to clarify some issues specified in Decree No. 77/CP.

I. GENERAL PROVISIONS

In Chapter I of Decree No. 77/CP, specific forestry issues are defined, while other general principles are applied according to the Administrative Violation Handling Law.

1. Definition of forest products (Article 2)

1.1. Timber from forests, other types of forest plants, and rare forest animals mentioned herein refer to species of trees and animals specifically listed in the Catalogue of Forest Plants and Rare Forest Animals issued together with Decree No. 18/HĐBT dated January 17, 1992.

1.2. Common timber mentioned herein is classified into eight groups as stipulated in Decision No. 2198/CN dated November 26, 1977 of the Forestry Department on temporarily classifying types of timber for uniform use nationwide, except for certain types of timber belonging to Groups I and II which have been included in the Catalogue of Rare Forest Plants under Decree No. 18/HĐBT.

2. Cases transferred to criminal prosecution (Article 3)

Clause 2, Article 3 of Decree No. 77/CP specifies cases of violations not within the scope of administrative penalties but transferred to criminal prosecution: acts of violation causing damage exceeding the maximum level within the scope of administrative penalties prescribed for each act (Articles 4 to 14) or illegally exploiting, hunting, transporting, buying, and selling rare forest plants and animals with special value (i.e., Groups IA and IB in the Catalogue issued together with Decree No. 18/HĐBT). For such cases, forestry inspection agencies must coordinate with procuratorial and public security agencies at the same level to examine, and if sufficient criminal evidence exists, transfer to investigation and prosecution according to the law.

Regarding cases transferred to criminal prosecution generally and the exercise of authority of forestry inspectors in criminal investigations, the Ministry will issue specific guidelines in conjunction with relevant sectors to replace Circular No. 16-LN/KL dated September 20, 1989 of the Forestry Department guiding the performance of duties and powers of people's forestry inspection agencies in criminal investigations.

3. On the principle of handling administrative violations.

Article 3 of the Administrative Violation Handling Law stipulates that a person who commits multiple administrative violations shall be punished for each violation separately, and multiple persons committing a single violation shall each be punished.

3.1. Case of a person committing multiple administrative violations:

Based on the degree of damage caused by each violation, compare with the penalty ranges and decide on the penalty for each violation. If the penalties for each violation fall within the jurisdiction of the same level, that level shall impose the penalties; if any violation involves a penalty within the jurisdiction of a higher level, the entire case file shall be transferred to the higher level for punishment.

When drafting the violation report and issuing the penalty decision for a person who has committed multiple violations, only one report and one decision need to be prepared, but details about each violation and its corresponding penalty must be clearly recorded.

3.2. Case of multiple persons closely associated to commit a single administrative violation:

Based on the total degree of damage caused by all violators, compare with the penalty range and decide on the highest penalty within the range due to aggravating circumstances, with all violators jointly bearing the penalty. The report and penalty decision must clearly record the violators.

In cases where a violation is discovered involving multiple violators with different violations, penalties shall be imposed on each violator for their respective violations. For example, in a case of illegal transportation of forest products, the competent authority shall impose penalties on the owner of the forest products and the person renting the transport vehicle for illegal transportation.

II. ON VIOLATIONS AND FORMS AND LEVELS OF PENALTIES

In Chapter II of Decree No. 77/CP, clear regulations are provided on violations in the fields of forest management, forest protection, and forest product management, comprising eleven violations from Articles 4 to 14. Each violation specifies the maximum damage to forests or forest products and the maximum fine; penalties are divided into levels to match the severity of the violation; forms of warning or fines, supplementary penalties, and other measures appropriate to each type of administrative violation are also specified.

1. Determining the violation.

In the administrative violation report and penalty assessment, the name of the violation as specified in Articles 4 to 14 must be accurately identified and recorded; subsequently, determine which Article of the Forest Protection and Development Law (FPDL) and which specific provision of the implementing regulations (government, ministry, or provincial/municipal regulations) the violation contravenes to further clarify the administrative violation, such as:

1.1. Illegally destroying forests (Article 4): violates Article 13 FPDL and the specific provisions in Article 23 of the Land Law.

1.2. Illegally exploiting forests (Article 5): depending on the specific act, it may violate one of Articles 19, 37, 38, or 39 FPDL; for rare timber and forest products mentioned herein and in Article 12 of Decree No. 77/CP, which are forest plants in Group IIA, it violates the specific provisions in Decree No. 18/HĐBT dated January 17, 1992.

1.3. Illegally burning forests to create swidden fields (Article 6): violates Article 21 FPDL.

1.4. Violation of fire prevention and firefighting regulations for forests (Article 7): violation of Article 22 of the Forest Protection Law and specifically at Decree No. 22/CP dated March 9, 1995 issued by the Government to stipulate fire prevention and firefighting regulations for forests.

1.5. Violation of pest control regulations for forests (Article 8): violation of Article 23 of the Forest Protection Law.

1.6. Unauthorized grazing of livestock in forests (Article 9): violation of Article 21 of the Forest Protection Law.

1.7. Unauthorized hunting of forest animals (Article 10): violation of Article 19 of the Forest Protection Law; for rare forest animals mentioned in this Article, which belong to Group IIB, the specific regulations are stipulated in Decree No. 18/HĐBT dated January 17, 1992.

1.8. Causing damage to forest land (Article 11): violation of Article 24 of the Forest Protection Law.

1.9. Unauthorized transportation, purchase, and sale of forest products (Article 12): violation of Article 20 of the Forest Protection Law and specifically at Circular No. 11-LN/KL dated October 31, 1995 issued by the Ministry of Forestry guiding the inspection of logging, transportation, processing, export, and trading of forest products.

1.10. Violation of state management regulations on wood processing and forest products (Article 13): violation of specific regulations stipulated in Decision No. 2375NN-CBNLS/QĐ dated December 30, 1996 issued by the Minister of Agriculture and Rural Development regarding the examination of planning networks and issuance of permits for wood processing and other forest products for enterprises.

1.11. Violation of procedures for forestry inspection (Article 14): violation of specific regulations stipulated in Circular No. 11-LN/KL dated October 31, 1995.

2. Application of forms and degrees of administrative penalties.

2.1. For each violation (Articles 4 to 14), clear monetary penalty ranges corresponding to the damage caused by administrative violations have been specified. When imposing penalties, the authority with the power to impose penalties, in addition to issuing warnings or fining individuals or organizations according to their jurisdiction, may also apply one or more additional penalty forms and measures provided in the last clauses of each Article depending on the nature and degree of the violation.

2.2. Calculation of fines:

When imposing penalties for a violation, based on the extent of damage caused by the violation, determine the monetary penalty range, temporarily calculate the fine amount by dividing the highest fine within that range by the highest level of damage and multiplying it by the actual damage caused by the violation. On this basis, consider factors such as the nature and degree of the violation, the background of the violator, mitigating or aggravating circumstances to decide the specific fine amount and the application of additional penalty forms and measures for that violation.

2.3. Imposing fines and confiscating illegally obtained forest products.

In administrative penalties concerning forests, applying both fines and confiscation of illegally obtained forest products simultaneously often presents difficulties in practice, but this is a principle in handling violations causing damage to forests and forest products. Confiscation of illegally obtained forest products has significant practical importance in preventing violations and recovering assets for the State. Therefore, when penalizing acts of unauthorized deforestation, logging, hunting, transporting, purchasing, and selling forest products, especially those involving fraud or causing damage to rare forest plants and animals, both penalty forms should be emphasized. In exceptional cases where the violator has economic difficulties and cannot pay the fine, a lighter fine or warning and confiscation of illegally obtained forest products can be imposed; or if the violator genuinely needs to use the forest products and belongs to a local population group requiring support, and the illegally obtained forest products are common types, only a fine may be imposed and the use of the forest products allowed.

Generally, when imposing penalties, the violator's identity, purpose of the violation, and reasonable and appropriate handling of each specific case must be considered to ensure the effectiveness of the penalties.

2.4. Revocation of permits within the authority's jurisdiction involves not allowing the violator to use certain permits issued by the issuing agency (logging permits, transportation, processing, and export permits for forest products) that the violator intentionally violated or falsified; applied in cases where it is deemed necessary to revoke the violator's permit to prevent recurrence. For cases exceeding the authority's jurisdiction, they must report to the competent state agency to request revocation of the permit.

III. ON AUTHORITY AND PROCEDURES FOR IMPOSING PENALTIES

A. PENALTY AUTHORITY

1. Authority to impose penalties of the Forest Rangers (Article 15)

1.1. Forest Ranger staff performing duties upon discovering violations within their authority to impose penalties shall handle as follows:

If the violation is minor and requires a warning or a fine up to 20,000 dong without confiscating the contraband items or means of violation, the penalty shall be decided on the spot in the form of a verbal warning or a fine decision.

If the violation requires a fine from over 20,000 dong to 100,000 dong and confiscation of illegally obtained forest products or means of violation, a record of administrative violation must be established according to Article 47 of the Administrative Violation Handling Ordinance, temporarily seize the illegally obtained forest products or means of violation, and report to the direct supervisor for handling. After receiving the direct supervisor's written handling opinion, the Forest Ranger staff shall decide on the fine (if not confiscating the illegally obtained forest products or means of violation) or impose a fine and confiscate the illegally obtained forest products or means of violation in the same penalty decision.

The issuance of the penalty decision by Forest Ranger staff must comply with the prescribed format and guidelines of the Ministry of Agriculture and Rural Development.

If Forest Ranger staff discover violations exceeding their authority to impose penalties, after establishing a record and temporarily seizing the contraband items or means of violation, they must promptly report to the direct supervisor for handling or transfer to the competent authority for handling.

1.2. Regarding the implementation of the penalty imposition authority of the Forest Ranger Station Director, the Mobile Forest Protection Team Leader, and the Forest Protection Branches, they need to strictly direct these units to impose penalties within their respective authorities and in accordance with the provisions of the law on administrative penalties. It is necessary to organize a review and consolidate the Forest Ranger Stations' material foundations, especially their professional capabilities, to ensure the exercise of penalty imposition authority at the station level; in the short term, it is necessary to pilot delegating penalty imposition authority to some stations, then summarize experiences for further implementation at other stations.

The Forest Ranger Stations and Mobile Forest Protection Teams may use their own seals in their legal activities; when discovering violations and preparing violation reports, if the violation falls within the penalty imposition authority of the Station or Team, the Forest Ranger Station Director or Mobile Forest Protection Team Leader shall examine and decide on fines, confiscation of illegal forest products, and violative means through a Penalty Decision, in accordance with the regulations and guidance of the Ministry of Agriculture and Rural Development.

1.3. On the authority to confiscate illegal forest products.

Article 15 of Decree 77/CP stipulates that from the Forest Ranger Station Director level upwards has the authority to confiscate illegal forest products within the penalty range of their authority, i.e., the quantity or value of forest products within the penalty range of each level. As for the confiscation of violative means, this is another authority and is defined with a maximum value of violative means confiscated within the authority of the Station and Team up to 10,000,000 VND, of the District up to 20,000,000 VND, and there is no restriction on this authority for the Branch and Forest Protection Bureau levels.

The authority to confiscate illegal forest products is linked to the fine amount within the authority of each level when deciding on penalties.

According to Clause 1, Article 3 of Decree 77/CP, when applying a penalty amount with mitigating circumstances, the fine amount can be reduced but not below the minimum of the penalty range, and with aggravating circumstances, the fine amount can be increased but not exceed the maximum of the penalty range. Therefore, when imposing a penalty on a violation with mitigating or aggravating circumstances, the fine amount may differ, falling within the penalty imposition and confiscation of illegal forest products authority of different levels within that penalty range.

For example, an act of illegally transporting forest products with a volume of 6 cubic meters of ordinary wood species discovered and documented by the District Forest Protection Office. The violation's severity falls within the penalty range from over 1,000,000 VND to 5,000,000 VND as specified in Clause 3, Article 12 of Decree 77/CP. The temporary calculated fine amount is 3,000,000 VND, exceeding the penalty authority of the District Forest Protection Office. In cases with mitigating circumstances, according to regulations, the fine amount can be reduced to between over 1,000,000 VND and 2,000,000 VND and confiscation of illegal forest products; such form and penalty amount are within the authority of the District Forest Protection Office Director. Conversely, in cases with aggravating circumstances, the fine amount can be increased up to 5,000,000 VND and confiscation of illegal forest products; such form and penalty amount fall within the authority of the Branch Forest Protection Office Director or the Chairman of the People's Committee of the district.

2. Authority to impose penalties of People's Committees at various levels (Article 16).

Clause 4, Article 16 of Decree 77/CP stipulates that local-level Forest Protection agencies have the responsibility to assist the same-level People's Committees in examining and deciding on penalties and organizing the implementation of those decisions. This responsibility is carried out as follows:

2.1. On the authority to impose penalties of the Chairman of the People's Committee of Communes, implemented in accordance with Clause 1, Article 16 of Decree 77/CP. Specifically regarding the confiscation of illegal forest products within the commune-level penalty authority, when the commune temporarily holds illegal forest products to report to the local Forest Protection agency for handling, the local Forest Protection Station must closely cooperate with the commune and promptly provide written opinions on the handling of the illegal forest products so that the Chairman of the People's Committee of the commune can decide on the penalty in the same Penalty Decision, following the prescribed model and guidance of the Ministry of Agriculture and Rural Development. After confiscation, the local Forest Protection agency is responsible for storing and disposing of the illegal forest products according to current regulations.

At the commune level, where there is no local Forest Protection agency, the Forest Protection Branches have the responsibility to direct the Forest Protection Stations to assist the People's Committees of communes in implementing penalties within their respective authorities and in accordance with the provisions of the law on administrative penalties, such as guiding the use and management of legal forms, the application of penalty examination procedures.

2.2. The authority to impose penalties of the Chairman of the People's Committee of districts and provinces, implemented in accordance with Clauses 2 and 3, Article 16 of Decree 77/CP.

With the advisory responsibility of local-level Forest Protection agencies, for cases of violations exceeding the penalty authority of the District Forest Protection Office discovered, documented by the District Office, or transferred from lower levels and within the penalty authority of the Chairman of the People's Committee of the district; and for cases of violations exceeding the penalty authority of the Forest Protection Branch discovered, documented by the Branch, or transferred from lower levels, the District or Branch Forest Protection Office shall prepare complete files to submit to the Chairman of the People's Committee of the district or province for examination and signing of the Penalty Decision, and subsequently organize the implementation of the Penalty Decision, such as collecting fines, managing and disposing of confiscated violative means, and resolving necessary expenses in the penalty process.

3. Responsibilities for coordination among functional agencies (Article 18)

Article 18 of Decree 77/CP clearly stipulates the responsibilities of functional agencies such as Police, Customs, Tax, Market Management, and Specialized Inspections in coordinating with the Forest Protection agencies to combat and prevent violations of forestry laws. The Forest Protection Branches need to proactively advise and assist the provincial and municipal People's Committees in directing these functional agencies to fulfill their responsibilities well, building cooperative relationships and putting them into regular operation.

In cases where competent authorities detect violations, prepare records, and transfer files and evidence to the Forest Protection Authority for handling, the Forest Protection Authority must closely cooperate to promptly address the violation acts and resolve necessary expenses according to current regulations for the competent authorities.

For records and files transferred by competent authorities, if the Forest Protection Authority finds them insufficient, it shall continue to complete the files, such as verifying, preparing supplementary verification records to the initial violation record, taking statements from the parties involved, witnesses, inspecting the scene... to clarify the nature and extent of the violation and other factors, sufficient grounds to decide on penalties.

4. Handling cases exceeding penalty authority (Article 19)

A violation that is recorded, based on the degree of damage caused and the corresponding fine range within the penalty authority of which level, the file shall be transferred to that level for handling. The transfer of files is carried out through the system of Forest Protection Authorities at various levels in the locality, handled by the level with authority; in cases exceeding the authority of the Forest Protection Station or Forest Protection Sub-department, the Station or Sub-department shall fully prepare the file to advise the People's Committee of the district or province for handling.

B. PROCEDURES FOR IMPOSING ADMINISTRATIVE PENALTIES

1. Applying preventive measures (Article 22)

The application of preventive measures must comply with the procedures stipulated in Articles 39 to 44 of the Administrative Violation Handling Ordinance.

Regarding temporary detention of persons and administrative body searches, the decision-making authority is the Head of the Forest Protection Station, the Head of the Mobile Forest Protection Station.

Regarding the temporary detention of contraband forest products and means of transportation in violation, based on the authority to confiscate illegal forest products and means of transportation as provided for in Article 15 of Decree 77/CP, the decision-making authority for temporarily detaining illegal forest products and means of transportation is the head of the Forest Protection Authority from the level of the Forest Protection Station Director, Mobile Forest Protection Team Leader upwards.

2. Collection and payment of fines (Article 24).

The Forest Protection Authorities at all levels shall collect and pay fines in accordance with the provisions of Article 24 of Decree 77/CP. The collected fines must be deposited into the State budget through accounts opened at the National Treasury. Fine receipts must be issued by the Ministry of Finance (General Department of Taxation); the management and use of fine receipts must be carried out according to the stamp tax regime of the Ministry of Finance.

The Forest Protection Sub-departments have the responsibility to coordinate with the Department of Finance and the Tax Department to discuss and unify guidance on the method of collecting and paying fines, the management system of fine receipts, and the payment of fines within their localities.

3. Expenses for handling violations (Article 27)

Based on Clause 6, Article 27 of Decree 77/CP and Clause 6, Point B, Section II of Circular No. 52-TC/CSTC dated September 12, 1996 of the Ministry of Finance guiding the collection and use of fines for administrative violations, the Forest Protection Sub-departments shall coordinate with the Department of Finance and the Tax Department to discuss and unify guidance within their localities regarding the content of expenditures, advance payment systems, and settlement of expenditures for cases of forest law violations that have been handled.

4. Effectiveness of Decree 77/CP

According to Article 30 of Decree 77/CP, this Decree takes effect from the date of signature, i.e., November 29, 1996, and replaces Decree 14/CP dated December 5, 1992 of the Government promulgating regulations on administrative penalties in the field of forest management and protection.

Therefore, cases of violations that have been detected, recorded, and not yet handled up to now must be uniformly penalized according to Decree 77/CP, not according to the expired Decree 14/CP.

Upon receipt of this Circular, the Ministries, People's Committees of provinces and centrally governed cities have the responsibility to study and implement Decree 77/CP, this Circular, and disseminate it throughout sectors and levels down to the grassroots level. The Forest Protection Sub-departments have the responsibility to assist the People's Committees of provinces and centrally governed cities in directing implementation, first and foremost directing the local Forest Protection forces to strictly implement the Decree, monitoring and summarizing the situation of administrative violation inspections and penalties in the locality to report to the People's Committees of provinces and centrally governed cities and the Ministry of Agriculture and Rural Development.

The Forest Protection Department has the responsibility to monitor, direct, and inspect the implementation, summarize the overall situation, and report results periodically to the Ministry of Agriculture and Rural Development and the Government.

This Circular takes effect from the date of signature. The Ministry will issue a system of forms and guidance to ensure the implementation of legal procedures for administrative penalties in the field of forest management, forest protection, and forest product management as prescribed in Decree 77/CP./.