Circular No. 03/2003/TT-BCN guiding the implementation of certain Articles of Decree No. 74/2003/NĐ-CP dated June 26, 2003 of the Government on administrative penalties for violations in the electricity sector.

CIRCULAR

GUIDELINES FOR IMPLEMENTATION OF CERTAIN ARTICLES OF DECREE NO. 74/2003/NĐ-CPDATED JUNE 26, 2003

OF THE GOVERNMENT ON ADMINISTRATIVE SANCTIONS FOR VIOLATIONS IN THE ELECTRIC POWER SECTORadministrative in the field of electricity

 ______________________

On the basis of Decree No. 55/2003/NĐ-CP dated May 28, 2003 of the Government on the functions, tasks, powers, and organizational structure of the Ministry of Industry;

BASED ON THE ADMINISTRATIVE VIOLATION HANDLING LAW OF JULY 2, 2002;

BASED ON DECREE NO. 74/2003/NĐ-CP DATED JUNE 26, 2003 OF THE GOVERNMENT ON ADMINISTRATIVE SANCTIONS FOR VIOLATIONS IN THE ELECTRIC POWER SECTOR;

THE MINISTRY OF INDUSTRY GUIDES AS FOLLOWS:

I. GENERAL PROVISIONS

1. VIOLATIONS OF ADMINISTRATIVE LAW IN THE ELECTRIC POWER SECTOR ARE INTENTIONAL OR UNINTENTIONAL ACTIONS THAT VIOLATE THE LEGAL PROVISIONS ON STATE MANAGEMENT IN THE FIELD OF ELECTRIC POWER ACTIVITIES AND ELECTRICITY USE, WHICH ARE NOT CRIMINAL OFFENSES AND MUST BE SUBJECT TO ADMINISTRATIVE SANCTIONS AS PROVIDED FOR IN ARTICLE 1 OF DECREE NO. 74/2003/NĐ-CP DATED JUNE 26, 2003 OF THE GOVERNMENT ON ADMINISTRATIVE SANCTIONS FOR VIOLATIONS IN THE ELECTRIC POWER SECTOR (HEREINAFTER REFERRED TO AS DECREE NO. 74/2003/NĐ-CP), INCLUDING:

A) VIOLATIONS OF REGULATIONS ON LICENSES FOR ELECTRIC POWER ACTIVITIES;

B) VIOLATIONS OF REGULATIONS ON CONSTRUCTION, PRODUCTION, TRANSMISSION, AND DISTRIBUTION OF ELECTRICITY;

C) VIOLATIONS OF REGULATIONS ON SUPPLYING ELECTRICITY;

D) VIOLATIONS OF REGULATIONS ON USING ELECTRICITY;

E) VIOLATIONS OF REGULATIONS ON PROTECTING SAFETY OF ELECTRICITY WORKS AND SAFETY ZONES OF ELECTRICITY NETWORKS.

2. ADMINISTRATIVE SANCTIONS AGAINST PERSONS WHO HAVE NOT REACHED ADULTHOOD WHO COMMIT VIOLATIONS OF ADMINISTRATIVE LAW IN THE ELECTRIC POWER SECTOR AS PROVIDED FOR IN CLAUSE 3, ARTICLE 2 OF DECREE NO. 74/2003/NĐ-CP SHALL BE IMPLEMENTED AS FOLLOWS:

PERSONS AGED FROM 14 TO UNDER 16 YEARS OLD WHO COMMIT VIOLATIONS OF ADMINISTRATIVE LAW SHALL BE WARNED.

PERSONS AGED FROM 16 TO UNDER 18 YEARS OLD WHO COMMIT VIOLATIONS OF ADMINISTRATIVE LAW SHALL BE SUBJECT TO THE FORMS OF ADMINISTRATIVE SANCTION AS PROVIDED FOR IN DECREE NO. 74/2003/NĐ-CP. WHEN APPLYING FINES TO THEM, THE AMOUNT OF THE FINE SHALL NOT EXCEED HALF THE AMOUNT OF THE FINE IMPOSED ON ADULTS; IF THEY DO NOT HAVE THE FUNDS TO PAY THE FINE, THEIR PARENTS OR GUARDIANS SHALL PAY ON THEIR BEHALF.

PERSONS WHO HAVE NOT REACHED ADULTHOOD WHO COMMIT VIOLATIONS OF ADMINISTRATIVE LAW IN THE ELECTRIC POWER SECTOR AND CAUSE DAMAGE SHALL BE RESPONSIBLE FOR COMPENSATION IN ACCORDANCE WITH THE PROVISIONS OF THE LAW.

3.  ORGANIZED VIOLATIONS IN THE ELECTRIC POWER SECTOR ARE SITUATIONS WHERE TWO OR MORE PERSONS COLLABORATE AND INTENTIONALLY COMMIT VIOLATIONS OF ADMINISTRATIVE LAW. 

4. REPEATED VIOLATIONS IN THE SAME FIELD OF ELECTRIC POWER ARE SITUATIONS WHERE VIOLATIONS OF ADMINISTRATIVE LAW IN THE ELECTRIC POWER SECTOR ARE COMMITTED AFTER PREVIOUS VIOLATIONS BUT HAVE NOT BEEN SANCTIONED AND THE TIME LIMIT FOR SANCTIONING HAS NOT YET EXPIRED.

5. REPEAT VIOLATION IS A SITUATION WHERE AN ADMINISTRATIVE VIOLATION IN THE ELECTRIC POWER SECTOR HAS BEEN SANCTIONED BUT WITHIN ONE YEAR FROM THE DATE OF COMPLETING THE EXECUTION OF THE DECISION ON SANCTION OR FROM THE DATE THE EFFECTIVE PERIOD OF THE DECISION ON SANCTION HAS EXPIRED, THE VIOLATOR AGAIN COMMITS AN ADMINISTRATIVE VIOLATION AS PROVIDED FOR IN CHAPTER II OF DECREE NO. 74/2003/NĐ-CP.

6. URGENT SITUATION AS PROVIDED FOR IN CLAUSE 5, ARTICLE 3 OF DECREE NO. 74/2003/NĐ-CP IS A SITUATION WHERE A PERSON, TO AVOID AN ACTUAL THREAT TO THE INTERESTS OF THE STATE, OF AN ORGANIZATION, OR OF THEIR OWN OR OTHERS' LEGITIMATE RIGHTS AND INTERESTS, HAS NO OTHER WAY BUT TO CAUSE A SMALLER DAMAGE THAN THE DAMAGE TO BE PREVENTED. ACTIONS CAUSING DAMAGE IN AN URGENT SITUATION ARE NOT SUBJECT TO ADMINISTRATIVE SANCTIONS.

7. SELF-DEFENSE AS PROVIDED FOR IN CLAUSE 5, ARTICLE 3 OF DECREE NO. 74/2003/NĐ-CP IS THE ACTION OF A PERSON WHO DEFENDS THE INTERESTS OF THE STATE, OF AN ORGANIZATION, OR THEIR OWN OR OTHERS' LEGITIMATE RIGHTS AND INTERESTS BY NECESSARILY RESISTING A PERSON WHO IS COMMITTING AN ILLEGAL ACT AGAINST SUCH INTERESTS. SELF-DEFENSE IS NOT SUBJECT TO ADMINISTRATIVE VIOLATION.

8. UNEXPECTED EVENT AS PROVIDED FOR IN CLAUSE 5, ARTICLE 3 OF DECREE NO. 74/2003/NĐ-CP IS A SITUATION WHERE A PERSON CANNOT FORESEE OR IS NOT REQUIRED TO FORESEE THE CONSEQUENCES OF THEIR ACTIONS. ADMINISTRATIVE VIOLATIONS ARE NOT SANCTIONED IN CASES OF UNEXPECTED EVENTS.

9. PERSONS WHO COMMIT ADMINISTRATIVE VIOLATIONS WHILE SUFFERING FROM MENTAL ILLNESS OR OTHER DISEASES THAT IMPAIR THEIR ABILITY TO PERCEIVE OR CONTROL THEIR ACTIONS AS PROVIDED FOR IN CLAUSE 5, ARTICLE 3 OF DECREE NO. 74/2003/NĐ-CP ARE NOT SUBJECT TO ADMINISTRATIVE SANCTIONS.

10. PERIODS AND STATUTES OF LIMITATION IN DECREE NO. 74/2003/NĐ-CP ARE SPECIFIED IN MONTHS OR YEARS, THEN THE PERIOD IS CALCULATED IN CALENDAR MONTHS OR YEARS.

PERIODS IN DECREE NO. 74/2003/NĐ-CP AND THIS CIRCULAR ARE SPECIFIED IN DAYS, THEN THE PERIOD IS CALCULATED IN WORKING DAYS. 

II. ON VIOLATIONS OF ADMINISTRATIVE LAW IN THE ELECTRIC POWER SECTOR

1. THE VIOLATION PROVIDED FOR IN POINT A, CLAUSE 1, ARTICLE 7 IS THE ACTION OF TAKING ADVANTAGE OF THE CONSTRUCTION, OPERATION, OR MAINTENANCE OF THE ELECTRICITY GRID TO CUT DOWN TREES, PRUNE TREES, OR DEMOLISH STRUCTURES IN VIOLATION OF THE LAWS ON THE SAFETY OF THE ELECTRICITY GRID.

2. THE VIOLATION PROVIDED FOR IN POINT B, CLAUSE 3, ARTICLE 7 IS THE ACTION OF ORGANIZATIONS OR INDIVIDUALS ENGAGED IN THE ELECTRIC POWER SECTOR VIOLATING ONE OF THE PROVISIONS ON INVESTMENT DEVELOPMENT OF THE ELECTRIC POWER SECTOR SUCH AS INVESTING WITHOUT COMPLYING WITH THE NATIONAL ELECTRIC POWER DEVELOPMENT PLAN OR THE LOCAL ELECTRIC POWER DEVELOPMENT PLAN; VIOLATING TECHNICAL DESIGN PROVISIONS; VIOLATING THE PROVISIONS OF DECISION NO. 50/2002/QĐ-BCN DATED NOVEMBER 25, 2002 OF THE MINISTER OF INDUSTRY ON THE MANAGEMENT OF INDEPENDENT ELECTRIC POWER PROJECTS; VIOLATING OTHER PROVISIONS ON INVESTMENT DEVELOPMENT OF THE ELECTRIC POWER SECTOR.

3. THE VIOLATION PROVIDED FOR IN POINT A, CLAUSE 1, ARTICLE 8 IS THE ACTION OF INSPECTING ORGANIZATIONS OR INDIVIDUALS USING ELECTRICITY WITHOUT PRESENTING EITHER OF THE TWO TYPES OF DOCUMENTS: THE ELECTRIC POWER INSPECTOR CARD OR THE INSPECTION DECISION OF THE GRID MANAGEMENT AUTHORITY.

THE INSPECTOR CARD IS THE ELECTRIC POWER INSPECTOR CARD AS PROVIDED FOR IN DECISION NO. 42/2002/QĐ-BCN DATED OCTOBER 9, 2002 OF THE MINISTER OF INDUSTRY ON THE PROVISIONS ON INSPECTION OF ELECTRICITY SUPPLY AND USE AND VIOLATION HANDLING OF ELECTRICITY PURCHASE AND SALE CONTRACTS (HEREINAFTER REFERRED TO AS DECISION NO. 42/2002/QĐ-BCN).

THE INSPECTION DECISION IS THE DOCUMENT ISSUED BY THE SELLER OF ELECTRICITY ASSIGNING TASKS, WHICH CLEARLY STATES THE REASON, PURPOSE, OBJECT, CONTENT, TIME, AND PARTICIPANTS OF THE INSPECTION.

4. THE VIOLATION PROVIDED FOR IN POINT B, CLAUSE 1, ARTICLE 8 IS THE ACTION OF VIOLATING ANY OF THE CONTENTS OF THE NOTICE AS PROVIDED FOR IN THE PROCEDURE AND PROCEDURAL REGULATIONS ON SUSPENDING ELECTRICITY SUPPLY ANNEXED TO DECISION NO. 52/2001/QĐ-BCN DATED NOVEMBER 12, 2001 OF THE MINISTER OF INDUSTRY.

5. WORK SHEET Article 8, Point a, Clause 3 provides that the work permit form allows work on electrical equipment, specifying the workplace, time, content of work, conditions for conducting the work, components of the working unit, and the person responsible for safety.

6. Task Assignment Form Article 8, Point a, Clause 3 provides that the work permit form is the order issued by the authorized person of the electricity selling unit assigning tasks to staff members within their own unit, including: Operation Ticket; Equipment Replacement and Repair Ticket; Meter Suspension and Removal Ticket; Work Order.

7. Professional Card Article 8, Point a, Clause 3 provides that it is the Calibration Technician Card for the person calibrating the meter when calibrating the meter.

8. The act provided for in Article 8, Point b, Clause 3 is the act of not handling the fault within two hours from receiving the notification from the electricity buyer about the power grid fault managed by the seller, except in cases stipulated in Clause 1, Article 4 of Decision No. 42/2002/QĐ-BCN.

9.  The act provided for in Article 8, Point b, Clause 5 is the act of violating the provisions of Decision No. 52/2001/BCN-QĐ dated November 12, 2001, issued by the Minister of Industry regarding the procedures and formalities for stopping electricity supply.

10. The penalty for violations stipulated in Clause 3 and Clause 5 of Article 9 Decree No. 74/2003/NĐ-CP applies to all individuals and organizations committing acts of stealing electricity.

In the case where an individual has committed the act of stealing electricity and has been indicted, prosecuted, or had a decision made to bring the case to trial under criminal proceedings, but subsequently there is a decision to suspend investigation or terminate the case to handle administratively by the competent authority, they will be subject to administrative violation penalties and the highest fine amount will be applied depending on the purpose of stealing electricity.

Determining the stolen electricity quantity is calculated according to the provisions of Decision No. 42/2002/QĐ-BCN.

11. The act provided for in Article 9, Point b, Clause 4 is the act of organizations or individuals using additional sources of electricity other than those specified in the contract with the seller without the seller's consent.

12. The act provided for in Article 10, Point a, Clause 4 is the act of not placing warning signs, signal lights, or guidance markers in hazardous areas at locations of electrical works as prescribed in Vietnamese Standard 2572-78 and regulations of the transportation sector; the act of not placing boundary markers along underground cables in the ground is the act of not marking fully along the underground cables in the ground as prescribed in Electrical Equipment Regulations 11 TCN 19:1984.

III. REGARDING THE PROCEDURES FOR ADMINISTRATIVE VIOLATION PENALTIES

IN THE ELECTRICITY SECTOR

1. Regarding the simple procedure for imposing penalties as stipulated in Clause 2, Article 15: Imposing penalties through the simple procedure means that the authorized person imposing penalties does not prepare a record but issues a penalty decision on the spot. Cases that can be handled through the simple procedure include:

a) Administrative violations prescribed to be punished with a warning or a fine up to 100,000 VND;

b) Multiple administrative violations committed by one person, where each violation is prescribed to be punished with a warning or a fine up to 100,000 VND.

In the case of imposing penalties through the simple procedure, the authorized person does not prepare a record but issues a penalty decision on the spot. The penalty decision must be in writing according to the prescribed model, clearly stating the date, month, year of issuance; name, address of the violator or name, address of the violating organization; the violation; location of the violation; article and clause of the applicable document; name, position of the decision maker.

The penalty decision must be handed over to the individual or organization being penalized. If it is a monetary fine, the amount of the fine must be clearly stated in the decision.

Individuals or organizations being penalized may pay the fine on the spot to the authorized person imposing penalties and receive a receipt for payment issued by the Ministry of Finance. In the event that the fine is not paid on the spot, the individual or organization violating the law must pay the fine at the State Treasury within the time limit stipulated in Clause 1, Article 58 of the Administrative Violation Handling Ordinance.

2. Regarding the authority to prepare records of administrative violations of Electricity Inspection Officers

Electricity inspection officers performing their duties have the responsibility to prepare records according to the prescribed model in Decree No. 74/2003/NĐ-CP for administrative violations in the electricity sector that they discover and immediately transfer to the authorized person imposing penalties. The record must contain all signatures as required by Clause 3, Article 55 of the Administrative Violation Handling Ordinance.

3. Regarding the procedure for confiscating evidence and means of violation at Clause 4, Article 15:

a) When confiscating evidence and means of violation listed in the penalty decision, the authorized person must prepare a record. The record must clearly state the name, quantity, condition, quality of the confiscated evidence and must have the signature of the confiscator, the violator or representative of the violating organization, and the witness.

b) In cases requiring sealing of evidence and means of violation, this must be done immediately in front of the violator or representative of the violating organization and the witness; if the violator or representative of the violating organization is absent, there must be at least two witnesses present.

c) Handling evidence and means of administrative violation

 For confiscated evidence and means, the person who issued the confiscation decision is responsible for preserving them.

For evidence and means that are devices used to steal electricity, depending on specific circumstances, the person issuing the confiscation decision must take measures to eliminate the functions of the device used to commit the act of stealing electricity before transferring it to the auction agency.

For items and means of transport involved in an administrative violation with a value of 10,000,000 VND or more, the person issuing the confiscation decision shall transfer them to the provincial auction service center where the confiscated items and means of transport are located for public auction. If the items and means of transport involved in an administrative violation have a value less than 10,000,000 VND, the person who issued the confiscation decision shall transfer them to the district financial agency to organize the public auction. The public auction of items and means of transport involved in administrative violations shall be carried out in accordance with the provisions of the law on public auctions.

The proceeds from the public auction of items and means of transport involved in administrative violations, after deducting expenses as prescribed by law, must be deposited into the state budget through an account opened at the State Treasury.

For items and means of transport involved in administrative violations where the owner, manager, or lawful user is unknown or does not claim them, the authorized confiscation authority must announce this on mass media and publicly post it at their office; within thirty days from the date of the public announcement, if the owner, manager, or lawful user cannot be identified or does not claim them, the authorized authority must issue a confiscation decision for the items and means of transport involved in the violation.

For items and means of transport that were seized or illegally used to commit administrative violations, they must be returned to the owner, manager, or lawful user.

Storage fees, wharfage fees, preservation fees for items and means of transport involved in administrative violations, and other expenses consistent with the provisions of the law shall be deducted from the proceeds of the sale of these items and means of transport.

No storage fees, wharfage fees, or preservation fees shall be charged during the period when items and means of transport are temporarily detained if the owner of the items and means of transport has no fault in the administrative violation or if confiscation measures are not applied to the items and means of transport.

4. Time limit for issuing an administrative violation penalty decision in the field of electricity is determined as follows:

a) For simple cases where the violation is clear and does not require further investigation, the penalty decision must be issued within ten days from the date of recording the administrative violation.

b) For cases with complex circumstances such as items and means of transport requiring appraisal, the need to identify the subject of the administrative violation, or other complex circumstances, the time limit for issuing the penalty decision is thirty days from the date of recording the administrative violation. 

5. Implementation of the administrative violation penalty decision and enforcement of the administrative violation penalty decision in the field of electricity shall be carried out in accordance with Article 16 of Decree No. 74/2003/NĐ-CP and specifically guide certain points regarding enforcement and the authority to issue enforcement decisions as follows:

a) After ten days from the date of receiving the penalty decision, if individuals or organizations do not voluntarily comply, the Chairperson of the People's Committee at the commune, district, or province level; the Head of the Police Department at the district level, the Director of the Police Department at the provincial level; the Inspector-in-Charge of the Electricity Inspection Agency under the Provincial Industry Department, and the Inspector-in-Charge of the Electricity Inspection Agency under the Ministry of Industry will issue an enforcement decision in accordance with the law.  county, province; the Head of the Police of the county level, the Director of the Police of the provincial level; the Inspector General of Electricity Inspection of the Department of Industry and the Inspector General of Electricity Inspection of the Ministry of Industry shall issue a decision on compulsory enforcement in accordance with the provisions of the law.

Individuals or organizations penalized for administrative violations who do not voluntarily comply with the penalty decision shall be enforced by the following measures:

Deducting part of the salary or income, deducting money from a bank account;

Seizing assets of equivalent value to the fine amount for public auction;

Other enforcement measures to implement the confiscation of items and means of transport used for administrative violations; compelling restoration to the original condition before the administrative violation occurred or compelling the demolition of unauthorized construction works.

b) Individuals or organizations receiving an enforcement decision must strictly comply with the enforcement decision and bear all costs related to organizing the enforcement measures.

IV. IMPLEMENTATION

1. All levels of People's Committees and heads of relevant agencies and units have the responsibility to organize the implementation, dissemination, guidance, and inspection of the implementation of Decree No. 74/2003/NĐ-CP and this Circular.

2. This Circular takes effect fifteen days after its publication in the Official Gazette.

3. During the implementation process, if there are difficulties, organizations and individuals are advised to report to the Ministry of Industry for consideration and resolution./.