Joint Circular No. 02/TTLN guiding the handling of certain acts infringing upon market management in the border areas between Vietnam and China

JOINT CIRCULAR

GUIDELINES ON THE HANDLING OF CERTAIN ACTIONS VIOLATING BORDER MARKET MANAGEMENT BETWEEN VIETNAM AND CHINA ISSUED BY THE SUPREME PEOPLE'S COURT, NATIONAL PROSECUTION AUTHORITY, AND THE MINISTRY OF INTERIOR NO. 02/TTLN ON JUNE 20, 1992

The Chairman of the Council of Ministers has recently issued Directive No. 94/CT dated March 25, 1992 on organizing and managing border markets between Vietnam and China under new circumstances. In order to effectively implement this directive from the Chairman of the Council of Ministers, the Supreme People's Court, National Prosecution Authority, and the Ministry of Interior hereby provide the following unified guidelines:

1. Public Security agencies, Prosecution agencies, and Courts at localities bordering with China must closely coordinate with other agencies such as Customs, Border Defense, Market Management, strictly enforce Directive No. 94/CT dated March 25, 1992 of the Chairman of the Council of Ministers on organizing and managing border markets between Vietnam and China under new circumstances; resolutely and severely handle, prosecute, and promptly try actions violating border market management between Vietnam and China under new circumstances.

2. According to Point 1, Section II of Directive No. 94-CT of the Chairman of the Council of Ministers, only Trading Companies and other economic entities (including Central State-owned Enterprises, Local State-owned Enterprises, Joint Stock Companies, Private Enterprises, Cooperative Enterprises, and Foreign Joint Ventures under the Law on Foreign Investment in Vietnam) with import-export business licenses issued by the Minister of Trade and Tourism are allowed to engage in import-export trade. Therefore, in cases where organizations, units, or entities not belonging to the aforementioned categories, or those belonging to the aforementioned categories but without import-export business licenses issued by the Minister of Trade and Tourism, engage in import-export trade, or even if they have import-export business licenses issued by the Minister of Trade and Tourism but conduct import-export trade inconsistent with the contents of their licenses, such activities are illegal and must be handled according to the law. If criminal responsibility needs to be pursued against individuals engaging in illegal import-export trade, they shall be prosecuted and tried for the crime of smuggling across borders (Article 97 of the Penal Code). If the goods are military weapons, military technical equipment, explosives, flammable materials, toxic substances, radioactive materials, narcotics, or obscene cultural products, then depending on specific circumstances, in addition to pursuing criminal responsibility for the crime of smuggling across borders, criminal responsibility for corresponding crimes (as stipulated in Articles 95, 96, 96a, and 99 of the Penal Code) will also be pursued.

3. According to Point 2, Section II of Directive No. 94-CT of the Chairman of the Council of Ministers, participants in small-scale cross-border trade can only be small traders and must meet the following conditions:

- Having capital lower than the statutory minimum capital as prescribed in Decree No. 221/HĐBT dated July 23, 1991 of the Council of Ministers;

- Must be permanent residents in border areas;

- Must hold a business license for trading issued by the People's Committee of the district according to Decree No. 66-HĐBT dated March 2, 1992 of the Council of Ministers;

- Must hold a permit for small-scale cross-border trade issued by the People's Committee of the province.

At the same time, according to Point 2, Section II of Directive No. 94-CT of the Chairman of the Council of Ministers, small-scale cross-border traders are not permitted to engage in small-scale cross-border trade of goods prohibited by the state, goods subject to quota management by the state for import and export, and goods uniformly balanced for import and export by the state (specific lists of these goods are periodically announced by the Ministry of Trade and Tourism). Small-scale cross-border traders must pay small-scale cross-border trade import and export taxes and be subject to customs control.

Therefore, anyone engaging in small-scale cross-border trade without meeting the above conditions, or even if they meet all the above conditions but engage in small-scale cross-border trade of goods listed in the specific list periodically announced by the Ministry of Trade and Tourism as prohibited from small-scale cross-border trade, are acting illegally and must be handled according to the law. If criminal responsibility needs to be pursued against them, they shall be prosecuted and tried for the crime of "smuggling across borders" (Article 97 of the Penal Code). If the goods are military weapons, military technical equipment, explosives, flammable materials, toxic substances, radioactive materials, narcotics, or obscene cultural products, they will also be handled according to the guidelines provided in Point 2.

4. Organizations from China and individuals residing in China who are permitted to trade at Vietnamese border markets must pay turnover tax and income tax according to Vietnamese tax laws; if any organization or individual evades tax payment, they must be handled according to Vietnamese law. If violators do not fall within the provisions of Clause 2, Article 5 of the Penal Code and criminal responsibility needs to be pursued against them, they shall be prosecuted and tried for the crime of "tax evasion" (Article 169 of the Penal Code).

5. According to Point 3, Section II of Directive No. 94-CT of the Chairman of the Council of Ministers, citizens of each side may carry a certain amount of their own country's currency when crossing the border for trading purposes at border markets. Therefore, anyone carrying an amount exceeding the limit set by the State Bank of Vietnam must be handled according to Vietnamese law. If criminal responsibility needs to be pursued against them, they shall be prosecuted and tried for the crime of transporting foreign currency across borders illegally (Article 97 of the Penal Code).

6. Organizations of China and individuals residing in China who engage in illegal fishing of marine resources and other resources within Vietnam's internal waters, territorial sea, exclusive economic zone, and continental shelf, violating Vietnam’s regulations on protecting fishery resources, shall be subject to legal proceedings under Vietnamese law. In cases where the violators do not fall under any of the categories specified in Clause 2, Article 5 of the Penal Code and criminal responsibility must be pursued against them, they shall be prosecuted for the crime of "violating regulations on exploration, exploitation, and protection of resources in the subsoil, in the maritime areas and the continental shelf of Vietnam" (Article 179 of the Penal Code).

7. When handling such violations, public security agencies, prosecution offices, and courts must thoroughly understand the guidelines set forth in Joint Circulars No. 11-TTLN dated November 20, 1990, and No. 12-TTLN dated December 31, 1990, issued by the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Home Affairs, to ensure that investigations, prosecutions, and trials are conducted strictly and in accordance with the law.