Circular No. 173/2013/TT-BTC guiding the implementation of certain contents regarding the management and handling of contraband items and means of transportation seized for administrative violations under administrative procedures.

CIRCULAR

Guidelines for implementing certain contents regarding the management and handling of contraband items and means of transportation seized or confiscated under administrative proceduresGuidelines for managing and handling contraband items and means of transportation seized or confiscated under administrative procedures

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Pursuant to the Law on Handling Administrative Offenses dated June 20, 2012;

Pursuant to Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing certain provisions and measures for implementing the Law on Handling Administrative Offenses;

Pursuant to Decree No. 115/2013/NĐ-CP dated October 3, 2013 of the Government on the management and preservation of contraband items and means of transportation seized or confiscated under administrative procedures;

Pursuant to Decree No. 60/2003/NĐ-CP dated June 6, 2003, promulgated by the Government detailing and guiding the implementation of the Law on State Budget;

Pursuant to Decree No. 137/2006/NĐ-CP dated November 14, 2006 of the Government on the delegation of state management authority over state assets at administrative agencies and public service units, and assets established with state ownership rights;

Pursuant to Decree No. 52/2009/NĐ-CP dated June 3, 2009 of the Government detailing and guiding the implementation of certain provisions of the Law on Management and Use of State Assets;

BASED ON Decree No. 17/2010/NĐ-CP dated March 4, 2010 of the Government on auctioning assets;

Pursuant to Decree No. 118/2008/NĐ-CP dated November 27, 2008, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

At the proposal of the Director of the State Asset Management Department;

The Minister of Finance issues this Circular guiding the implementation of certain contents regarding the management and handling of contraband items and means of transportation seized or confiscated under administrative procedures.

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular guides the following contents:

1. Handling of contraband items that are goods and products prone to damage.

2. Determining the value of contraband items and means of transportation: The valuation council determines the value of contraband items to establish the sentencing range and penalty authority; the starting price for auctioning contraband items and means of transportation.

3. Managing and using the proceeds from the handling of confiscated items that are incorporated into the state treasury due to administrative violations.

Chapter II
HANDLING OF CONTRABAND ITEMS THAT ARE PRONE TO DAMAGE
AS GOODS AND PRODUCTS

Article 2. Goods and products prone to damage

Goods and products prone to damage include:

1. Fresh food that easily spoils and is difficult to preserve;

2. Flammable and explosive goods (gasoline, diesel, liquefied gas, and other flammable and explosive substances);

3. Medicines, veterinary drugs, and plant protection products with an expiration date of less than 60 days as indicated on the packaging or label;

4. Processed foods and other goods with an expiration date of less than 30 days as indicated on the packaging or label;

5. Seasonal goods (consumer goods for specific seasons or holidays, high-end electronics such as tablets and smartphones), and other goods and products that if not handled immediately after seizure or confiscation will be damaged, unsellable, or past their expiration date.

Article 3. Forms of handling contraband items that are goods and products prone to damage

1. Destruction of goods and products that have been damaged and are no longer usable.

2. Direct sale (without auction), except in cases where destruction is required according to Clause 1 of this Article.

Article 4. Organization of handling contraband items that are goods and products prone to damage

1. For goods and products prone to damage that are handled through direct sale:

a) The person issuing the temporary detention decision in accordance with the law on administrative violation handling (hereinafter referred to as the person issuing the temporary detention decision) decides and organizes the immediate sale of goods and products prone to damage to organizations or individuals who wish to purchase them and bears responsibility for their decisions;

b) The person issuing the temporary detention decision is responsible for organizing the quality assessment of the goods and products being sold; when necessary, the person issuing the temporary detention decision invites specialized agencies to cooperate in assessing the quality of the goods and products;

c) The selling price of goods and products prone to damage is determined by the person issuing the temporary detention decision based on the provisions of Clause 2, Article 60 of the Law on Administrative Violation Handling and the quality of the goods and products prone to damage; in cases where it is not possible to apply the provisions of Clause 2, Article 60 of the Law on Administrative Violation Handling, the person issuing the temporary detention decision shall coordinate with the financial agency at the same level or the financial agency in the locality where the violation occurred (in cases where the higher-level financial agency has delegated authority or in cases where the person issuing the temporary detention decision belongs to an agency not organized according to administrative levels) to determine the selling price of the goods and products prone to damage;

d) The sale of goods and products prone to damage must be recorded in a record. The main content of the record includes: basis for sale; time and place of sale; seller; name, type, origin, quantity, condition of the goods and products at the time of sale; unit price, total payment; buyer and other related contents;

đ) For goods in regulated industries such as flammable and explosive goods, medicines, veterinary drugs, and plant protection products, they can only be sold to organizations or individuals who meet the business conditions stipulated by law.

2. For goods and products handled through destruction:

a) The person issuing the temporary detention decision establishes a Disposal Council to destroy the damaged goods and products specified in Clause 1 of Article 3 of this Circular. The Disposal Council is chaired by the person issuing the temporary detention decision or someone authorized to do so, with other members including representatives of the financial agency at the same level or the financial agency in the locality where the violation occurred (in cases where the higher-level financial agency has delegated authority or in cases where the person issuing the temporary detention decision belongs to an agency not organized according to administrative levels) and representatives of relevant specialized agencies;

b) Methods of destruction: Depending on the nature and characteristics of the goods and products and the requirement to ensure environmental hygiene, destruction is carried out in the following forms:

- Using chemicals;

- Using mechanical methods;

- Burning;

- Burial;

- Other forms as prescribed by law.

c) The destruction of goods and products must be recorded in a record, signed by all members of the Disposal Council. The main content of the record includes: basis and reason for destruction; time and place of destruction; participants in destruction; name, type, origin, quantity, condition of the goods and products at the time of destruction; method of destruction and other related contents.

Article 5. Management of funds obtained from the disposal of items that are easily perishable

a) In cases where the seized items are not confiscated for the national treasury, the entire amount of money obtained must be returned to the owner, manager, or lawful user of the seized items;

Chapter III
DETERMINATION OF THE VALUE OF ITEMS AND MEANS VIOLATING ADMINISTRATIVE REGULATIONS

Article 6. The Council for Determining the Value of Items Violating Administrative Regulations to serve as the basis for determining the fine range and penalty authority

1. The composition of the Council for Determining the Value of Items Violating Administrative Regulations prescribed in Clause 3, Article 60 of the Law on Handling Administrative Violations is specified as follows:

a) For items violating administrative regulations temporarily detained by a competent authority of central agencies and provincial-level agencies:

- The person issuing the temporary detention decision - Chairman of the Council;- Representative of the Department of Finance - Member;

- Representative of related specialized agencies - Member;

- Representative of the specialized department of the agency issuing the temporary detention decision - Member (if any).

b) For items violating administrative regulations temporarily detained by a competent authority of district-level and commune-level agencies:

- Representative of the District Financial and Planning Office or financial officer of the commune - Member;

2. The principles of operation of the Council for Determining the Value of Items Violating Administrative Regulations are stipulated as follows:

- Representative of the specialized department of the agency issuing the temporary detention decision - Member (if any).

b) For items violating administrative regulations temporarily detained by a competent authority of district-level and commune-level agencies:

a) The Council for Determining the Value of Items Violating Administrative Regulations operates on a collective principle. Meetings of the Council are convened by the Chairman of the Council and must have at least two-thirds of the total number of Council members present. The Chairman of the Council for Determining the Value of Items Violating Administrative Regulations chairs the meeting, and in case the Chairman is absent, he/she delegates one (01) member of the Council to chair the meeting;

b) Each member of the Council for Determining the Value of Items Violating Administrative Regulations expresses their opinion regarding the value of the items violating administrative regulations. Decisions on the value of items violating administrative regulations must be approved by more than half of the Council members. In case of a tie vote, the decision is made according to the side supported by the Chairman of the Council (or the person delegated to chair the meeting);

c) The Council for Determining the Value of Items Violating Administrative Regulations must prepare a record of the determination of the value of the items. The valuation record must fully and truthfully reflect the entire process of determining the value of the items according to the Model Record issued together with this Circular.

Article 7. Determination of the Starting Price for Auctioning Items and Means Confiscated and Transferred to the State Treasury Due to Administrative Violations

2. In the following cases, a Council must be established to determine the starting price:

a) When the means violating administrative regulations are handed over for auction without having been valued;

b) If the date of the planned auction exceeds sixty days from the date of determining the value of the items violating administrative regulations according to Article 60 of the Law on Handling Administrative Violations;

c) If the value of the items determined according to Article 60 of the Law on Handling Administrative Violations and guided by Article 6 of this Circular differs (higher or lower) by ten percent or more compared to the price of similar goods as announced by the Department of Finance at the time of handing over for auction.

The composition of the Council, principles of operation, and operating costs of the Council for Determining the Starting Price for Auctioning Items and Means Violating Administrative Regulations; principles, methods, and procedures for determining the starting price for auctioning are implemented in accordance with the guidance of the Ministry of Finance in Circular No. 137/2010/TT-BTC dated September 15, 2010, on determining the starting price of state assets for auction and the financial system of the Council for Auctioning State Assets (hereinafter referred to as Circular No. 137/2010/TT-BTC).

3. The re-determination of the starting price for items and means confiscated and transferred to the state treasury due to administrative violations in the event of an unsuccessful auction shall be carried out in accordance with the provisions of Article 49 of Government Decree No. 17/2010/NĐ-CP dated March 4, 2010, on Auctioning Assets (hereinafter referred to as Decree No. 17/2010/NĐ-CP).

MANAGEMENT AND USE OF FUNDS OBTAINED FROM THE DISPOSAL OF ITEMS AND MEANS CONFINDED TO THE STATE TREASURY

Chapter IV
DUE TO ADMINISTRATIVE VIOLATIONS
PROCEDURE FOR PROCESSING EVIDENCE AND MEANS OF TRANSPORTATION CONFISCATED AND DEPOSITED INTO THE STATE TREASURY DUE TO ADMINISTRATIVE VIOLATIONS
DUE TO ADMINISTRATIVE VIOLATIONS

1. Funds obtained from the disposal of confiscated items and means transferred to the state treasury due to administrative violations include:

a) The amount of money from selling confiscated items and means transferred to the state treasury due to administrative violations;

b) The non-refundable advance payment made by participants in auctions according to the provisions of the law (except for cases specified in Clause 2, Article 38 of Decree No. 17/2010/NĐ-CP).

2. All funds obtained from the disposal of confiscated items and means transferred to the state treasury due to administrative violations must be deposited into a temporary holding account opened by the financial agency at the State Treasury according to the following regulations:

a) For confiscated items and means due to administrative violations decided to be confiscated by the authority with central-level jurisdiction, the funds obtained shall be deposited into the temporary holding account of the Provincial Department of Finance;

b) For confiscated items and means due to administrative violations decided to be confiscated by the authority with provincial-level jurisdiction, the funds obtained shall be deposited into the temporary holding account of the Provincial Department of Finance;

c) For confiscated items and means due to administrative violations decided to be confiscated by the authority with district or commune-level jurisdiction, the funds obtained shall be deposited into the temporary holding account of the District Financial Planning Office.

3. After deducting expenses as stipulated in Article 9 of this Circular, the funds obtained from the disposal of confiscated items and means transferred to the state treasury due to administrative violations must be paid into the state budget within five working days as follows:

a) For confiscated items and means due to administrative violations decided to be confiscated by the authority with central-level jurisdiction, they shall be paid into the central budget;

b) For confiscated items and means due to administrative violations decided to be confiscated by the authority with local-level jurisdiction, they shall be paid into the local budget according to the current regulations on the decentralization of the state budget.

4. The financial agency has the responsibility to monitor the funds obtained from the disposal of confiscated items and means transferred to the state treasury due to administrative violations, deposited into the temporary holding account of the financial agency opened at the State Treasury, by each unit.

5. Annually, the District Financial Planning Office is responsible for summarizing the management, use, and payment into the state budget of the funds obtained on the temporary holding account at the district level and sending it to the Provincial Department of Finance. The Provincial Department of Finance will consolidate the management, use, and payment into the state budget of the funds obtained on the temporary holding account within the province and send the consolidated report on the management, use, and payment into the central budget of the funds obtained on the temporary holding account of central agencies located in the locality to the Ministry of Finance. The Ministry of Finance is responsible for consolidating and inspecting the management, use, and payment into the state budget of the funds obtained on the temporary holding account of central agencies nationwide.

1. Contents of expenses related to the management and disposal of items and means due to administrative violations include:

a) Costs for testing, appraisal, and determining the value of items serving as the basis for determining the fine range and penalty authority;

b) Costs for caring for and rescuing wild animals from the time of temporary detention until their release into the natural environment as prescribed or transfer according to the decision of the competent authority;

c) Transportation, delivery, and storage costs from the time of the temporary detention or confiscation decision until the completion of the disposal of confiscated items and means due to administrative violations. If the agency issuing the temporary detention or confiscation decision has been allocated warehouses, staff, transportation vehicles, etc., by the state, then the costs related to the transportation and storage of these confiscated items and means shall not be reimbursed;

d) Costs for publishing notices to find the owners of confiscated items and means (if applicable);

đ) Repair costs for confiscated items and means due to administrative violations if repairs are necessary for sale or if the increased value exceeds the repair costs (if applicable);

e) Costs for determining the value of items, starting auction prices, and conducting auctions for the Administrative Violation Item Valuation Council, the Administrative Violation Item Starting Price Determination Council, and the Confiscated Item Auction Council, which are implemented according to Articles 9 and 12 of Circular No. 137/2010/TT-BTC;

g) Auction fees (in case of successful auction) or actual reasonable costs (in case of unsuccessful auction) paid to professional organizations conducting the auction. The fee rate is applied according to the regulations of the Ministry of Finance regarding the auction fees for state assets;

h) Costs for the Liquidation Council of confiscated items and means due to administrative violations: The Chairman of the Liquidation Council decides on expenditures based on the financial system of the asset auction council as stipulated in Circular No. 137/2010/TT-BTC;

i) Actual and reasonable costs for demolishing and destroying confiscated items and means due to administrative violations (excluding cases where the violation items are subject to measures requiring destruction according to the Law on Handling Administrative Violations).

2. Expenditure levels:

For expenses that have standards, quotas, and systems prescribed by authorized state agencies, they shall be implemented according to those regulations. For expenses without such standards, quotas, and systems, the head of the agency issuing the confiscation decision shall decide based on the actual occurrence and the available budget for handling administrative violation items and means and bear responsibility for their decisions.

3. Payment vouchers and approval procedures:

a) The expenses to be paid must have reasonable and valid vouchers as prescribed. In cases where the expenses are incurred by state agencies with competent authority (such as appraisal costs, etc.), they may use the receipt issued by that state agency as the basis for payment of such expenses;

b) The Department of Finance shall approve the expenses for handling administrative violation items and means seized by persons with competent authority at the central level and persons with competent authority at the provincial level who issue the seizure decision; the Financial and Planning Office at the district level shall approve the expenses for handling administrative violation items and means seized by persons with competent authority at the district and commune levels who issue the seizure decision.

4. The payment of the expenses specified in Clause 1 of this Article shall be made according to the actual reasonable and valid expenditure of each case or the quota set by the state agency with competent authority based on the proposal of the agency issuing the seizure decision.

Based on the actual management and handling of administrative violation items and means, the Minister, head of the central agency, People's Committee of provinces and centrally governed cities shall stipulate the ratio (quota) of management and handling expenses of administrative violation items and means over the amount received from their handling to apply uniformly to agencies with competent authority within the scope of management of ministries, sectors, and localities.

1. For confiscated items and means due to administrative violations that are sold for disposal, the source of funds to cover the contents specified in Article 9 of this Circular shall be sourced from the proceeds obtained from selling the confiscated items and means due to administrative violations. If the proceeds obtained are insufficient to pay the expenses, the remaining expenses shall be allocated from the annual regular budget of the unit entrusted with the main responsibility for managing and disposing of the confiscated items and means due to administrative violations to ensure the funding for the disposal of confiscated items and means due to administrative violations.

2. For confiscated items and means due to administrative violations that are disposed of through destruction (except in cases where the violated items are subject to measures to eliminate consequences and must be destroyed according to the provisions of the Law on Handling Administrative Violations), the source of funds to cover the contents specified in Article 9 of this Circular shall be allocated from the annual regular budget of the unit entrusted with the main responsibility for managing and disposing of the confiscated items and means due to administrative violations to ensure the funding for the disposal of confiscated items and means due to administrative violations.

3. For confiscated items and means due to administrative violations transferred to agencies and units for storage and management or transferred to agencies and units for management and use, the expenses incurred before the decision approving the disposal plan by the state agency with competent authority shall be allocated from the annual regular budget of the unit entrusted with the main responsibility for managing and disposing of the confiscated items and means due to administrative violations to ensure the funding for the disposal of confiscated items and means due to administrative violations; the expenses incurred from the date of the decision approving the disposal plan by the state agency with competent authority until the completion of the transfer shall be paid by the receiving agency or unit.

Chapter V
IMPLEMENTING PROVISIONS

Article 11. Effective Date

1. This Circular takes effect from January 5, 2014.

2. This Circular replaces and abolishes the following documents:

a) Circular No. 12/2010/TT-BTC dated January 20, 2010, of the Ministry of Finance guiding the handling of easily damaged goods and items that are administrative violation items and the management of the proceeds from the handling of confiscated items and means that are national treasury funds due to administrative violations;

b) Circular No. 139/2011/TT-BTC dated October 10, 2011, of the Ministry of Finance amending and supplementing Circular No. 12/2010/TT-BTC dated January 20, 2010, of the Ministry of Finance guiding the handling of easily damaged goods and items that are administrative violation items and the management of the proceeds from the handling of confiscated items and means that are national treasury funds due to administrative violations;

c) Circular No. 215/2012/TT-BTC dated December 10, 2012, of the Ministry of Finance guiding the implementation of certain contents regarding the management and handling of confiscated items and means that are national treasury funds due to administrative violations;

d) Paragraph 2 of Clause 2, Point d of Clause 3 of Article 13, and Clause 2 of Article 14 of Circular No. 137/2010/TT-BTC dated September 15, 2010, of the Ministry of Finance stipulating the determination of the initial price of state assets auctioned and the financial system of the State Asset Auction Council;

đ) The phrase "except in the case of auctioning administrative violation items and means confiscated and deposited into the national treasury" in Clause 2 of Article 1 of Circular No. 03/2012/TT-BTC dated January 5, 2012, of the Ministry of Finance guiding the rates, collection, submission, management, and use of auction fees, participation fees in auctions, and license fees for issuing auction certificates;

e) The provisions on the management and use of proceeds from the sale of goods, items, and means confiscated and deposited into the national treasury due to administrative violations in Circular No. 59/2008/TT-BTC dated July 4, 2008, of the Ministry of Finance guiding the management and use of revenue from handling violations of laws in the field of anti-smuggling, commercial fraud, and fake goods, and Circular No. 51/2010/TT-BTC dated April 14, 2010, of the Ministry of Finance amending and supplementing Circular No. 59/2008/TT-BTC dated July 4, 2008, of the Ministry of Finance guiding the management and use of revenue from handling violations of laws in the field of anti-smuggling, commercial fraud, and fake goods.

3. For cases where there is a decision to confiscate and deposit into the national treasury before July 1, 2013, the management of the proceeds from the handling of administrative violation items and means shall be carried out according to the regulations in effect at the time of the decision to confiscate and deposit into the national treasury; the provisions of this Circular shall not be applied. For cases where there is a decision to confiscate and deposit into the national treasury from July 1, 2013, the management of the proceeds from the handling of administrative violation items and means shall be carried out according to the provisions of this Circular.

4. In cases where the agency of the decision-making authority enters into a contract with a professional auction organization to auction off the confiscated items and administrative violations in accordance with the Law on Handling Administrative Violations from July 1, 2013, it is permitted to pay the auction fees to the professional auction organization in accordance with the provisions of this Circular.

5. During the implementation process, if any difficulties arise, agencies, organizations, and units are requested to report to the Ministry of Finance for coordination in resolving them./.