Circular No. 29/2004/TT-BQP on guiding the implementation of certain provisions of Decree No. 151/2003/NĐ-CP dated December 9, 2003 of the Government on administrative penalties in the field of national defense.

CIRCULAR

Issued by the Ministry of National Defense under Decision No. 29/2004/TT-BQP dated March 8, 2004 Regarding guidance on the implementation of certain provisions of Government Decree No. 151/2003/NĐ-CP dated December 9, 2003 on administrative penalties for violations in the field of national defenseViolations in the field of national defense

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To implement Government Decree No. 151/2003/NĐ-CP dated December 9, 2003 on administrative penalties for violations in the field of national defense (hereinafter referred to as Decree No. 151/2003/NĐ-CP), the Ministry of National Defense provides guidance on the implementation of certain provisions of the Decree as follows:

I. GENERAL PROVISIONS

1. Principles of Administrative Penalties

The principles of administrative penalties in the field of national defense are stipulated in Article 3 of the Law on Handling Administrative Violations 2002, Article 3 of Decree No. 151/2003/NĐ-CP, and specific provisions in Articles 3 and 4 of Decree No. 134/2003/NĐ-CP dated November 14, 2003 of the Government detailing the implementation of certain provisions of the Law on Handling Administrative Violations 2002 (hereinafter referred to as Decree No. 134/2003/NĐ-CP).

2. Time Limit for Imposing Administrative Penalties and Period Considered as Not Having Been Administered Administrative Penalties

The application of time limits for imposing administrative penalties and periods considered as not having been administered administrative penalties in the field of national defense shall be carried out according to the provisions in Article 4 of Decree No. 151/2003/NĐ-CP and specific provisions in Articles 7 and 9 of Decree No. 134/2003/NĐ-CP.

3. Determination of Fine Amounts, Application of Deportation Punishment, and Revocation of License and Professional Certificate Usage Rights

3.1. Determination of Fine Amounts: When deciding the fine amount prescribed in point b, Clause 1, Article 5 of Decree No. 151/2003/NĐ-CP, the authority with the power to impose penalties must base their decision on the nature and degree of violation to determine the fine amount within the prescribed fine range for each violation. If a violation does not have aggravating circumstances or mitigating circumstances, or if there are both aggravating and mitigating circumstances but they balance each other, the fine amount will be the midpoint of the prescribed fine range for that violation; the midpoint of the fine range is determined by dividing the sum of the minimum and maximum amounts by two. If the violation has mitigating circumstances or more mitigating circumstances than aggravating ones, the fine amount may be reduced below the midpoint but not lower than the minimum amount of the range; if the violation has aggravating circumstances or more aggravating circumstances than mitigating ones, the fine amount may be increased above the midpoint but not higher than the maximum amount of the range.

3.2. When applying the deportation penalty for foreigners violating administrative regulations in the field of national defense as stipulated in point c, Clause 1, Article 5 of Decree No. 151/2003/NĐ-CP, the authority that imposed the penalty transfers the penalty decision and copies of related documents to the immigration management agency of the Ministry of Public Security to carry out deportation procedures in accordance with the law.

3.3. Revocation of License and Professional Certificate Usage Rights

The revocation of license and professional certificate usage rights is carried out according to the provisions in point a, Clause 2, Article 5 of Decree No. 151/2003/NĐ-CP and Article 11 of Decree No. 134/2003/NĐ-CP.

In cases where military personnel, defense civil servants, or defense workers violate administrative regulations and require the penalty of revoking the usage rights of licenses or professional certificates issued by competent military agencies for defense and security tasks, the person imposing the penalty does not directly handle it but sends a document and a copy of the penalty decision to the military unit or agency that issued the license or professional certificate to process it.

If the license or professional certificate is also issued by a competent military agency but not for use in defense and security tasks, it is handled like other citizens.

In cases of revoking the usage rights of firearms permits as stipulated in Clause 3, Article 22 of Decree No. 151/2003/NĐ-CP, the authority imposing the penalty must consider the nature and degree of the violation and the security and public order situation in the locality or area where the violation occurred to decide whether to revoke or not revoke the usage rights of the firearms permit.

II. GROUNDS FOR DETERMINING CERTAIN ADMINISTRATIVE VIOLATIONS IN THE FIELD OF NATIONAL DEFENSE

1. "Legitimate Reasons" as stipulated in Clause 1, Article 8, Clause 1, Article 9, Clause 1, Article 12, and Clause 1, Article 13 of Decree No. 151/2003/NĐ-CP include the following reasons:

a) The individual subject to health examination or conscription, training as reserve officers, or compliance with orders for conscription, training as reserve officers, concentration for training, exercises, readiness inspection, or combat readiness, falls ill or becomes ill during travel.

b) Immediate family members of the individual mentioned in point a, such as biological parents, parents-in-law (including foster parents of spouse), spouse, children (including biological and adopted children) are seriously ill.

c) The residence of the individual mentioned in point a or the residences of the immediate family members mentioned in point b are located in areas affected by natural disasters such as typhoons, floods, landslides, earthquakes, epidemics, or fires, affecting their lives.

Cases mentioned in points a, b, and c must be confirmed by the People's Committee of the commune or a commune-level hospital or health station.

d) The individual mentioned in point a did not receive the health examination notice, conscription order, reserve officer training order, or concentration for training, exercise, readiness inspection, or combat readiness order due to the fault of the individual or responsible agency or due to actions by others causing difficulties or hindrances as detailed in point 4, Part II of this Circular.

2. Acts of deception or bribery of medical staff to falsify health factors to evade military service as stipulated in Clause 2, Article 8, and evasion of reserve officer training as stipulated in Clause 3, Article 12 of Decree No. 151/2003/NĐ-CP, are:

a) The act of deceit regarding one's health status involves falsely reporting one’s health condition, such as claiming to have diseases that one does not actually have, or using drugs or other means to temporarily exhibit symptoms of illness, for example: having good eyesight but falsely declaring poor vision and deliberately misreading the eye chart during a vision test; taking medication to appear swollen as if suffering from a serious illness... or acts such as altering health assessment conclusions, substituting another person who is unfit for a health examination.

b) The act of bribing medical personnel to distort health factors involves using any means, whether emotional or material, to influence medical personnel responsible for health checks or examinations, thereby distorting health factors leading to a conclusion of being unfit for military service or officer training.

3- The act of violating regulations on performing military service.

a) The act of desertion as defined in Clause 1 and Clause 2, Article 11 of Decree No. 151/2003/NĐ-CP is the unauthorized departure from the military with the intent to avoid serving in active duty. This act is manifested by leaving the unit without permission or failing to return to the unit within the prescribed time after being on leave, on sick leave, recuperation, or transferring units. The battalion-level commander or equivalent must promptly issue a notification of desertion when there is evidence of a soldier deserting, clearly stating the unit has reduced the number of soldiers. The violation is determined for punishment when the People's Committee at the commune level and the military authority at the district level receive the notification of desertion and reduction in the number of soldiers issued by the battalion-level commander or equivalent.

b) The act of harboring or shielding a deserter as defined in Clause 3, Article 11 of Decree No. 151/2003/NĐ-CP involves allowing a deserter to hide at home or in an organization without reporting to the competent authority; issuing documents to legitimize the act of desertion.

4- The act of obstructing or hindering those responsible for implementing regulations on registering for military service, executing orders to report for conscription, enforcing regulations on performing the Law on Military Service as stipulated in Clause 1 and Clause 2, Article 10; obstructing or hindering those responsible for executing health check-up notifications or orders to attend reserve officer training as stipulated in Clause 4, Article 12; obstructing or hindering reserve soldiers in performing regulations on concentrating for training, exercises, readiness inspections as stipulated in Clause 2, Article 13 of Decree No. 151/2003/NĐ-CP, is:

 The act of obstruction or hindrance carried out by individuals or organizations, demonstrated through actions such as failing to notify or delaying the notification of relevant documents related to responsibilities and obligations, or using words and actions to threaten and prevent others from fulfilling their legal responsibilities and tasks.

Those responsible for implementing regulations on performing the Law on Military Service include individuals responsible for registering for military service, registering reserve soldiers, conducting health examinations, selecting new recruits, conscription, calling up reserve soldiers for concentrated training... These individuals may be members of the Military Service Council or persons assigned to perform these tasks.

5- The act of obstructing the construction of civilian self-defense forces as defined in Clause 1, Article 20 of Decree No. 151/2003/NĐ-CP is manifested through verbal or physical actions such as preventing, threatening materially or spiritually to deter others from joining the civilian self-defense force, or causing those responsible for organizing and managing the civilian self-defense force to refrain from organizing or performing their duties in constructing the civilian self-defense force.

6- When examining violations stipulated in Articles 23, 24, and 26 of Decree No. 151/2003/NĐ-CP, the determination of restricted areas, protected zones, and safety belts around defense works and military areas is based on signs, markers, fences, or guarded boundaries.

7- The act of disseminating secret information about defense works and military areas or places where defense works and military areas are located as defined in Clause 1, Article 25 of Decree No. 151/2003/NĐ-CP is demonstrated through speech or correspondence to inform others of secret information about defense works and military areas.

8- The act of dumping waste near defense works as defined in Point a, Clause 2, Point b, Clause 3, Article 26 of Decree No. 151/2003/NĐ-CP is considered within the immediate vicinity of defense works, if dumping waste, excavating, or exploiting materials at that location will directly or indirectly affect the defense works.

9- The act of constructing projects affecting defense works and military areas as defined in Clause 4, Article 26 of Decree No. 151/2003/NĐ-CP includes all cases of constructing projects within the area of defense works and military areas without the approval of the competent authority.

10- The act of encroaching upon defense land as defined in Clause 1, Article 28 of Decree No. 151/2003/NĐ-CP, if not reaching the level of criminal prosecution, shall be subject to administrative penalties regardless of the extent of the encroachment. However, when imposing penalties, consideration should be given to the extent of encroachment, the purpose of the encroachment, and the importance of the encroached land to determine the penalty and apply appropriate fines.

11- Military transport vehicles as defined in Article 29 and Article 30 of Decree No. 151/2003/NĐ-CP include road, rail, waterway, air transport vehicles, and transport vehicles bearing special license plates reserved for the Military, or transport vehicles currently mobilized for military purposes.

The act of impersonating motorcycles, automobiles, and military transportation vehicles as defined in Article 30 of Decree No. 151/2003/NĐ-CP is attaching military vehicle license plates, painting or affixing signs, flags, and symbols exclusively reserved for the Military and military activities to motorcycles, automobiles, and other transportation means not belonging to the Military's equipment or not being mobilized for military purposes.

12- Acts violating regulations on the use of military uniforms.

a) Military uniforms include those types specifically defined in Articles 31, 32, and 33 of Decree No. 151/2003/NĐ-CP and other types of military uniforms such as boots, sandals, backpacks, tents, hammocks, jackets, quilts, mosquito nets, bags, carrying cases, or tools used for daily life, training, and combat by the Military.

b) The act of producing counterfeit military uniforms as stipulated in Clause 1, Article 33 of Decree No. 151/2003/NĐ-CP is the production of types and models similar to those produced by the Military and state-assigned facilities, making it difficult to distinguish between genuine and fake items when used.

c) The act of producing or counterfeiting various types of military uniforms, insignia, work badges, and flags exclusively for the Military when performing duties as specified in Clause 1, Article 33, and Clause 1, Article 36 of Decree No. 151/2003/NĐ-CP shall be subject to administrative penalties if they do not reach the level requiring criminal prosecution, regardless of quantity. However, when imposing penalties, consideration should be given to the quantity and nature of the violation to determine the appropriate fine amount.

III. PROCEDURES AND FORMS FOR ADMINISTRATIVE PENALTIES AND ENFORCEMENT OF DECISIONS ON ADMINISTRATIVE PENALTIES

1- Procedures and forms for administrative penalties in the field of national defense, enforcement of penalty decisions, cessation of violations, and enforcement of penalty decisions are carried out according to Article 45 and Article 46 of Decree No. 151/2003/NĐ-CP and Articles 18, 19, 20, 21, 22, 23, 27, 28, 29, and 30 of Decree No. 134/2003/NĐ-CP.

Forms related to handling administrative violations in the field of national defense are implemented according to the provisions of Decree No. 134/2003/NĐ-CP.

2- Handling of documents, evidence, and means seized to ensure the execution of fines in cases where the execution of the fine decision is deferred is carried out according to Article 26 of Decree No. 134/2003/NĐ-CP.

3- Determination of value and handling of evidence and means of administrative violations are carried out according to Articles 31, 32, 33, and 34 of Decree No. 134/2003/NĐ-CP.

4- Collection and submission of fines for administrative violations in the field of national defense are carried out according to the provisions of Article 44 of Decree No. 151/2003/NĐ-CP, Article 25 of Decree No. 134/2003/NĐ-CP, and guidelines from the Ministry of Finance.

5- Procedures for applying expulsion penalties against foreigners.

When applying the expulsion penalty against foreigners who commit administrative violations in the field of national defense (as the main or additional punishment), within three days from the date of issuing the penalty decision, the authority issuing the penalty must send the penalty decision and relevant documents to the immigration management agency under the Ministry of Public Security to proceed with the expulsion procedures according to the law.

Management of foreigners during the period of expulsion procedures is carried out according to the law.

6- Procedures for requesting enforcement of the decision on compulsory measures and responsibilities of military control forces in enforcing the decision on compulsory measures by the heads of defense inspectors at all levels as stipulated in Clause 5, Article 46 of Decree No. 151/2003/NĐ-CP.

The head of the Defense Inspectorate that has issued a decision on compulsory enforcement of the administrative penalty decision must issue a written request to the commander of the unit with military control forces stationed in the area or where the compulsory enforcement is required. The commander of the unit has the responsibility to comply with these requests.

Organization and command of the Military Control Force in performing compulsory enforcement tasks are conducted by the person authorized to implement the compulsory enforcement decision.

Compulsory enforcement must be carried out in accordance with the law.

IV. EFFECTIVENESS OF IMPLEMENTATION

This Circular takes effect fifteen days after its publication in the Official Gazette. Any issues encountered during implementation should be promptly reported to the Ministry of National Defense for supplementary guidance.

                                        Pham Van Tra

                                        (Signed)