Circular No. 07/2023/TT-BQP guides the implementation of certain provisions of Decree No. 120/2013/NĐ-CP dated October 9, 2013 of the Government on administrative penalties for violations in the national defense, cryptographic, and border management sectors; and Decree No. 37/2022/NĐ-CP dated June 6, 2022 of the Government amending and supplementing certain provisions of decrees on administrative penalties for violations in the national defense, cryptographic, and border management sectors; management and protection of the national border; and on the continental shelf, islands, and maritime areas of the Socialist Republic of Vietnam.

CIRCULAR

GUIDELINES FOR IMPLEMENTING CERTAIN ARTICLES OF THE GOVERNMENTAL DECREE NO. 120/2013/NĐ-CP OF OCTOBER 9, 2013 ON ADMINISTRATIVE PENALTIES IN THE FIELD OF NATIONAL DEFENSE AND TELEGRAPHIC COMMUNICATIONS, AND THE GOVERNMENTAL DECREE NO. 37/2022/NĐ-CP OF JUNE 6, 2022 AMENDING AND SUPPLEMENTING CERTAIN PROVISIONS OF GOVERNMENTAL DECREES ON ADMINISTRATIVE PENALTIES IN THE FIELD OF NATIONAL DEFENSE AND TELEGRAPHIC COMMUNICATIONS; BORDER MANAGEMENT AND PROTECTION; IN MARITIME AREAS, ISLANDS, AND CONTINENTAL SHELVES OF THE SOCIALIST REPUBLIC OF VIETNAM

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Pursuant to Governmental Decree No. 120/2013/NĐ-CP dated October 9, 2013 on administrative penalties in the field of national defense and telegraphic communications;

Pursuant to Governmental Decree No. 37/2022/NĐ-CP dated June 6, 2022 amending and supplementing certain provisions of governmental decrees on administrative penalties in the field of national defense and telegraphic communications; border management and protection; in maritime areas, islands, and continental shelves of the Socialist Republic of Vietnam;

Pursuant to Decree No. 01/2022/NĐ-CP dated November 30, 2022 of the Government stipulating functions, tasks, powers, and organizational structure of the Ministry of National Defense;

Article 1. Amending and supplementing some articles of Circular No. 218/2013/TT-BQP dated December 19, 2013, issued by the Minister of National Defense guiding complaints and handling complaints in the Military (hereinafter referred to as Circular No. 218/2013/TT-BQP) as follows:

The Minister of National Defense issues this Circular guiding the implementation of certain articles of Governmental Decree No. 120/2013/NĐ-CP dated October 9, 2013 on administrative penalties in the field of national defense and telegraphic communications (hereinafter referred to as Decree No. 120/2013/NĐ-CP) and Governmental Decree No. 37/2022/NĐ-CP dated June 6, 2022 amending and supplementing certain articles of governmental decrees on administrative penalties in the field of national defense and telegraphic communications; border management and protection; in maritime areas, islands, and continental shelves of the Socialist Republic of Vietnam (hereinafter referred to as Decree No. 37/2022/NĐ-CP).

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular guides the implementation of Clause 1, Clause 2 Article 4; Article 6; Clause 2 Article 7; Point a Clause 2 Article 11; Article 12; Point a, Point b Clause 2 Article 23; Clause 1 Article 30 of Decree No. 120/2013/NĐ-CP, amended and supplemented at Clause 5, Clause 7, Clause 8, Clause 9, Clause 12, Clause 24, Clause 26, Clause 27, Clause 28 Article 1 of Decree No. 37/2022/NĐ-CP and additional provisions at Clause 13, Clause 16, Clause 17, Clause 18, Clause 19 and Clause 46 Article 1 of Decree No. 37/2022/NĐ-CP.

Article 2. Applicability

This Circular applies to organizations and individuals in Vietnam; foreign organizations and individuals committing administrative violations related to national defense and telegraphic communications within the territory of Vietnam; persons authorized to issue records of inspection, persons authorized to impose administrative penalties, and organizations and individuals related to administrative penalties in the field of national defense and telegraphic communications.

Article 3. Determination of the amount of fines in specific cases

1. The specific amount of fine for a single administrative violation shall be implemented according to Clause 4 Article 23 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020.

2. Determination of the specific amount of fine for a single administrative violation in cases involving multiple aggravating and mitigating circumstances shall be implemented according to Clause 1 Article 9 of Governmental Decree No. 118/2021/NĐ-CP dated December 23, 2021 detailing certain provisions and measures for implementing the Law on Handling Administrative Violations (hereinafter referred to as Decree No. 118/2021/NĐ-CP).

Chapter II

VIOLATIONS, FORMS OF PENALTIES, MEASURES TO REMEDY THE CONSEQUENCES OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF NATIONAL DEFENSE AND TELEGRAPHIC COMMUNICATIONS

Article 4. "Legitimate reasons" stipulated in Articles 6, 7, 11, and 12 of Decree No. 120/2013/NĐ-CP, amended and supplemented in Clauses 8, 9, 12, and 13 of Article 1 of Decree No. 37/2022/NĐ-CP.

1. "Legitimate reasons" include one of the following cases:

a) A person subject to military service examination or health check-up; health check-up for reserve officer selection; execution of orders to report for conscription; orders to attend reserve officer training; orders to concentrate for training, exercises, readiness inspection for mobilization, and combat readiness (hereinafter referred to as a person performing military service duties) but falls ill, suffers an accident, or becomes ill or suffers an accident on the way and must be treated at a medical facility.

b) Relatives of a person performing military service duties, including: biological father, biological mother; father-in-law, mother-in-law, or father-in-law, mother-in-law; adoptive father, adoptive mother; legal guardian; spouse; biological child, legally adopted child who is seriously ill or injured and being treated at a medical facility.

c) The death of relatives of a person performing military service duties as specified in point b of this clause, but funeral arrangements have not been made or the funeral has not yet concluded.

d) The residence of a person performing military service duties or the residence of relatives of a person performing military service duties as specified in point b of this clause is located in an area affected by natural disasters, epidemics, or fires severely impacting their living conditions.

đ) A person performing military service duties does not receive an order for military service examination or health check-up; health check-up for reserve officer selection; orders to report for conscription; orders to attend reserve officer training; orders to concentrate for training, exercises, readiness inspection for mobilization, and combat readiness; or although receiving an order, the order does not clearly specify the time and place due to the fault of the person or responsible agency, or due to the actions of others obstructing as provided in Article 7 of this Circular.

2. In the case specified in points a and b of Clause 1 of this Article, there must be confirmation from the People's Committee of the commune where the person resides or the medical facility that has provided treatment or the commune health station where the person resides; in the case specified in points c and d of Clause 1 of this Article, there must be confirmation from the People's Committee of the commune where the person resides; in the case specified in point đ of Clause 1 of this Article, there must be confirmation from the People's Committee of the commune where the person resides or the competent authority.

Article 5. Violations of registration regulations for military service as stipulated in Clause 2 of Article 4 of Decree No. 120/2013/NĐ-CP, amended and supplemented in Clause 7 of Article 1 of Decree No. 37/2022/NĐ-CP.

1. The act of "Failure to Supplementally Register Military Service" stipulated in point c of Clause 2 of Article 4 of Decree No. 120/2013/NĐ-CP, amended and supplemented in Clause 7 of Article 1 of Decree No. 37/2022/NĐ-CP refers to a citizen's failure to directly go to the Military Command of the commune to supplementally register military service when there is a change in job position, educational level, professional qualifications, health status, and other information related to military service as prescribed in Article 6 of Decree No. 13/2016/NĐ-CP dated February 19, 2016, of the Government on the procedures and regulations for registering and the system of policies for citizens during the period of military service registration, health check-up, and examination (hereinafter referred to as Decree No. 13/2016/NĐ-CP).

2. The act of "Failure to Register Military Service When Changing Place of Residence or Work" stipulated in point d of Clause 2 of Article 4 of Decree No. 120/2013/NĐ-CP, amended and supplemented in Clause 7 of Article 1 of Decree No. 37/2022/NĐ-CP refers to a citizen who has registered for military service, when leaving the administrative unit of the district where they reside or work or study for three consecutive months or more, failing to directly go to the Military Command of the commune to complete the procedures for transferring military service registration out or in as prescribed in Article 7 of Decree No. 13/2016/NĐ-CP.

3. The act of "Failure to Register Temporary Absence Military Service" stipulated in point đ of Clause 2 of Article 4 of Decree No. 120/2013/NĐ-CP, amended and supplemented in Clause 7 of Article 1 of Decree No. 37/2022/NĐ-CP refers to a citizen who has registered for military service, when leaving the administrative unit of the district where they reside or work or study for three months or more, failing to go to the Military Command of the commune, ward, town where they have registered military service to directly register temporary absence military service as prescribed in Article 8 of Decree No. 13/2016/NĐ-CP.

Article 6. The act of "deception to distort the result of health classification for oneself" prescribed in Point a Clause 2 Article 6; Clause 2 Article 7 and Point a Clause 2 Article 11 Decree No. 120/2013/NĐ-CP, amended and supplemented in Clause 8, Clause 9, Clause 12 Article 1 Decree No. 37/2022/NĐ-CP.

1. The act of "deception to distort the result of health classification for oneself" prescribed in Clause 8 Article 1 Decree No. 37/2022/NĐ-CP is one of the following cases:

a) Using measures intentionally to change one's own health condition immediately before or during the health examination to evade military service obligations and has been concluded by the competent authority as a deceptive act, such as using various types of drugs, stimulants, prohibited substances; self-inflicting injuries, damaging one's own health, or other measures to change one's own health condition.

b) Altering the result of one's own health classification during the inspection or health examination to evade military service obligations.

c) Asking another person to conduct the inspection or health examination on one's behalf.

2. The act of "deception to evade conscription orders issued after having passed the military service health screening with conditions for enlistment" prescribed in Clause 9 Article 1 Decree No. 37/2022/NĐ-CP is the act of using forms or measures to change one's own health condition compared to the results of the military service health screening confirmed by the Military Service Health Examination Board as meeting the conditions for enlistment.

Article 7. The act of "hindering" prescribed in Clause 2 Article 21, Clause 3 Article 23 Decree No. 120/2013/NĐ-CP, amended and supplemented in Clause 16, Clause 17, Clause 18 and Clause 19 Article 1 Decree No. 37/2022/NĐ-CP.

1. The act of "hindering" prescribed in Clause 2 Article 21 Decree No. 120/2013/NĐ-CP, amended and supplemented in Clause 16 Article 1 Decree No. 37/2022/NĐ-CP is the act expressed through speech or actions such as obstructing, threatening materially or spiritually to prevent those responsible for organizing and building the People's Militia Self-Defense Force from fulfilling their tasks regarding the implementation of decisions by state agencies with authority on organizing and building the People's Militia Self-Defense Force.

2. The act of "hindering" prescribed in Clause 17 Article 1 Decree No. 37/2022/NĐ-CP is the act expressed through speech or actions such as obstructing, threatening materially or spiritually to prevent others from daring or being able to join the People's Militia Self-Defense Force.

3. The act of "hindering" prescribed in Clause 18 Article 1 Decree No. 37/2022/NĐ-CP is the act expressed through speech or actions such as obstructing, threatening materially or spiritually to prevent the organization of militia self-defense training from being carried out according to the plan of the competent authority or preventing those summoned to participate in militia self-defense training from fulfilling their training tasks as stipulated.

4. The act of "hindering" prescribed in Point a, Point b Clause 2 Article 23 Decree No. 120/2013/NĐ-CP, amended and supplemented in Clause 19 Article 1 Decree No. 37/2022/NĐ-CP is the act expressed through speech or actions such as obstructing, threatening materially or spiritually to prevent militia self-defense personnel from performing their duties as prescribed by law, or implementing decisions on mobilizing militia self-defense personnel to perform tasks of state agencies with authority.

Article 8. Implementation of administrative penalties related to defense land, unmanned aircraft, and ultra-light aircraft as stipulated in Clause 46, Article 1 of Decree No. 37/2022/NĐ-CP.

1. When discovering violations concerning the use of defense land as prescribed in Decree No. 91/2019/NĐ-CP dated November 19, 2019 of the Government on administrative penalties for violations in the field of land (hereinafter referred to as Decree No. 91/2019/NĐ-CP), amended and supplemented by Decree No. 04/2022/NĐ-CP dated January 6, 2022 of the Government amending and supplementing certain articles of decrees on administrative penalties in the fields of land, water resources, minerals; meteorology, hydrology; surveying and mapping (hereinafter referred to as Decree No. 04/2022/NĐ-CP), the authority with the power to record the violation and impose administrative penalties as stipulated in Clause 37, Article 1 of Decree No. 37/2022/NĐ-CP must proceed to record the violation and impose administrative penalties according to regulations; specifically:

a) The determination of the amount of illegal gains obtained from acts of encroaching upon or occupying defense land shall be carried out in accordance with the provisions of Clause 2, Article 7 of Decree No. 91/2019/NĐ-CP, amended and supplemented in Clause 2, Article 1 of Decree No. 04/2022/NĐ-CP of the Government, as follows:

b) The determination of acts of encroaching upon or occupying defense land and the level of penalties and measures to remedy consequences shall be carried out in accordance with the provisions of Clause 4, Article 14 of Decree No. 91/2019/NĐ-CP.

c) The determination of acts of destroying defense land and the level of penalties and measures to remedy consequences shall be carried out in accordance with the provisions of Article 15 of Decree No. 91/2019/NĐ-CP.

d) The determination of acts of obstructing or causing damage to the use of defense land and the level of penalties and measures to remedy consequences shall be carried out in accordance with the provisions of Article 16 of Decree No. 91/2019/NĐ-CP.

đ) The determination of acts of violating regulations on management boundaries of defense land and the level of penalties and measures to remedy consequences shall be carried out in accordance with the provisions of Article 34 of Decree No. 91/2019/NĐ-CP.

e) The determination of the area of defense land violated and the level of administrative penalty for such violations shall be carried out in accordance with the provisions of Article 8 of Decree No. 91/2019/NĐ-CP.

2. When discovering violations concerning unmanned aircraft and ultra-light aircraft, the authority with the power to record the violation and impose administrative penalties in the fields of national defense and telecommunication shall implement according to the provisions of Decree No. 144/2021/NĐ-CP dated December 31, 2021 of the Government on administrative penalties for violations in the fields of security, public order, social safety; prevention and control of social evils; fire prevention and fighting; rescue and relief; prevention and control of domestic violence. In cases where the authority exceeds its jurisdiction, the case file shall be transferred to the competent authority for punishment in accordance with regulations.

Article 9. Application of supplementary administrative penalties in the form of confiscation of evidence and means of administrative violations as stipulated in Decree No. 120/2013/NĐ-CP, amended and supplemented by Article 1 of Decree No. 37/2022/NĐ-CP.

1. When applying the supplementary administrative penalty of confiscation of evidence and means of administrative violations in the fields of national defense and telecommunication, the authority executing the duty shall carry out the procedures for confiscating evidence and means of administrative violations in accordance with Article 81 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020.

2. The handling of evidence and means of administrative violations that have been decided to be confiscated shall be carried out in accordance with Clause 42, Article 1 of the Law Amending and Supplementing Certain Articles of the Law on Handling Administrative Violations 2020.

3. The handling of evidence and means of administrative violations that have been seized or used illegally to commit administrative violations and are subject to confiscation shall be carried out in accordance with Article 23 of Decree No. 118/2021/NĐ-CP.

4. The determination of the authority to impose penalties in cases where evidence and means of administrative violations are prohibited from storage or circulation shall be carried out in accordance with Article 24 of Decree No. 118/2021/NĐ-CP.

Article 10. Measures to remedy consequences for being compelled to fulfill military service obligations as prescribed by the Law on Military Service Obligations.

The measures to remedy consequences for being compelled to fulfill military service obligations as prescribed by the Law on Military Service Obligations for acts stipulated in Clause 2, Article 7 of Decree No. 120/2013/NĐ-CP, amended and supplemented in Clause 5, Clause 9, Article 1 of Decree No. 37/2022/NĐ-CP shall be that citizens must continue to comply with regulations on health check-ups and physical examinations for military service fulfillment, and enlistment during the next round of health check-ups and enlistment according to the provisions of the Law on Military Service Obligations and other related legal documents immediately after the decision to apply remedial measures takes effect.

Chapter III

AUTHORITY, PROCEDURES FOR ADMINISTRATIVE SANCTIONS AND ENFORCEMENT OF DECISIONS ON ADMINISTRATIVE SANCTIONS IN THE FIELD OF NATIONAL DEFENSE AND COMMUNICATION SECURITY

Article 11. Determination of authority for administrative sanctions in the field of national defense and communication security.

1. In cases where administrative violations in the field of national defense and communication security fall under the authority of multiple individuals to impose sanctions, the administrative sanction shall be implemented in accordance with Clause 3, Article 52 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020.

2. In cases where one person commits multiple administrative violations in the field of national defense and communication security, the authority to impose administrative sanctions shall be determined in accordance with Clause 4, Article 52 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020.

Article 12. Administrative Sanctions in the Field of National Defense and Communication Security without Creating an Administrative Violation Record.

Administrative sanctions in the field of national defense and communication security without creating an administrative violation record shall be applied in cases where warnings are imposed for violations specified in Clause 1, Article 4 of Decree No. 120/2013/NĐ-CP, which shall be carried out in accordance with Article 56 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020.

Article 13. Administrative Sanctions in the Field of National Defense and Communication Security with an Administrative Violation Record.

1. Administrative sanctions in the field of national defense and communication security with an administrative violation record shall be applied to individual and organizational administrative violations not covered by Article 12 of this Circular.

2. The creation of an administrative violation record shall be carried out in accordance with Article 58 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020, and Article 12 of Decree No. 118/2021/NĐ-CP.

Article 14. Explanation by Organizations and Individuals Committing Administrative Violations in the Field of National Defense and Communication Security.

The explanation, form of explanation, organization of an explanation session, and consideration of explanations shall be carried out in accordance with Article 61 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020, and Article 17 of Decree No. 118/2021/NĐ-CP.

Article 15. Transfer of Case Files of Administrative Violations in the Field of National Defense and Communication Security with Signs of Criminal Offenses for Criminal Prosecution.

1. During the process of examining a case of administrative violation for imposition of administrative sanctions in the field of national defense and communication security, if signs of criminal offenses are found, the authority imposing sanctions must immediately transfer the case file to the competent investigative body in accordance with Article 62 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020 for handling.

2. The transfer of the case file to the competent investigative body must be recorded in a handover document for the case file of administrative violations in accordance with the regulations.

Article 16. Issuing and enforcing administrative penalty decisions

1. The issuance of administrative penalty decisions for violations in the national defense and telecommunication sectors shall be carried out in accordance with Article 67 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020.

2. The content of administrative penalty decisions for violations in the national defense and telecommunication sectors shall be carried out in accordance with Article 68 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020.

3. The enforcement of administrative penalty decisions for violations in the national defense and telecommunication sectors shall be carried out in accordance with Section 2, Chapter III, Part II of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020.

4. Forced execution of administrative penalty decisions for violations in the national defense and telecommunication sectors shall be carried out in accordance with Section 3, Chapter III, Part II of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020, and Decree No. 166/2013/NĐ-CP dated November 12, 2013 of the Government on forced execution of administrative penalty decisions.

Article 17. Forms and procedures for paying fines

1. Individuals and organizations violating administrative regulations in the national defense and telecommunication sectors shall pay fines according to the form prescribed in Clause 1 of Article 20 of Decree No. 118/2021/NĐ-CP.

2. Individuals and organizations violating administrative regulations in the national defense and telecommunication sectors shall follow the procedures for paying fines as stipulated in Article 78 of the Law on Handling Administrative Violations 2012, amended and supplemented in 2020, and Clause 2 of Article 20 of Decree No. 118/2021/NĐ-CP.

3. Receipts for collecting and paying fines and late payment penalties for administrative violations shall be implemented in accordance with Article 21 of Decree No. 118/2021/NĐ-CP.

Chapter IV

IMPLEMENTING PROVISIONS

Article 18. Transitional Provisions

1. For administrative violations in the national defense and telecommunication sectors occurring before July 22, 2022 and still under resolution, Decree No. 120/2013/NĐ-CP and Circular No. 95/2014/TT-BQP dated July 7, 2014 of the Minister of National Defense guiding the implementation of some articles of Decree No. 120/2013/NĐ-CP dated October 9, 2013 of the Government on handling administrative violations in the national defense and telecommunication sectors shall be applied for resolution.

2. Administrative violations in the national defense and telecommunication sectors occurring before July 22, 2022 but discovered later or under review and resolution, shall be handled according to the provisions of Decree No. 37/2022/NĐ-CP and this Circular if it is beneficial to the individuals or organizations that violated the regulations.

3. For administrative penalty decisions in the national defense and telecommunication sectors issued or fully enforced before the effective date of this Circular, if the individuals or organizations subject to administrative penalties still have complaints, the provisions of the laws in effect at the time of the violation shall be applied for resolution.

Article 19. Effective Date

This Circular takes effect from March 14, 2023 and replaces Circular No. 95/2014/TT-BQP dated July 7, 2014 of the Minister of National Defense guiding the implementation of some articles of Decree No. 120/2013/NĐ-CP dated October 9, 2013 of the Government on handling administrative violations in the national defense and telecommunication sectors.

Article 20. Responsibility for Implementation

1. The Chief of General Staff, the Director of the Political General Department, the heads of agencies, units, and related organizations and individuals are responsible for implementing this Circular.

2. In cases where the cited documents in this Circular are amended, supplemented, or replaced, they shall be implemented according to the amended, supplemented, or replacing documents.

3. During the implementation process, if any difficulties arise, the agencies and units are requested to promptly report to the Ministry of National Defense (through the Inspectorate of the Ministry of National Defense) for consideration and resolution./.