Joint Circular No. 36/2012/TTLT-BCT-BCA-BTP-BYT-TANDTC-VKSNDTC guiding the handling of violations related to the illegal importation of alcohol, tobacco products, and tobacco raw materials

JOINT CIRCULAR

Guidelines for handling violations related to trading in smuggled alcohol and tobacco products
and smuggled tobacco raw materials

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Pursuant to the Criminal Code of 1999; Law Amending and Supplementing Certain Articles of the Criminal Code of 2009;

Pursuant to the Law on Legislative Documents of 2008;

Pursuant to the Administrative Violation Handling Decree of July 2, 2002; Decree Amending and Supplementing Certain Articles of the Administrative Violation Handling Decree of April 2, 2008;

Pursuant to Decree No. 36/2012/NĐ-CP dated April 18, 2012, of the Government stipulating the functions, tasks, powers, and organizational structure of Ministries and ministerial-level agencies;

Pursuant to Decree No. 06/2008/ND-CP dated January 16, 2008 of the Government on administrative penalties for violations in commercial activities; Decree No. 112/2010/ND-CP dated December 1, 2010 of the Government amending and supplementing certain articles of Decree No. 06/2008/ND-CP dated January 16, 2008 of the Government on administrative penalties for violations in commercial activities;

Pursuant to Decree No. 06/2009/ND-CP dated January 22, 2009 of the Government on administrative penalties for violations in the production and trading of alcohol and tobacco;

Pursuant to Decree No. 76/2010/ND-CP dated July 12, 2010 Amending and Supplementing Article 11 of Decree No. 06/2009/ND-CP dated January 22, 2009 of the Government on administrative penalties for violations in the production and trading of alcohol and tobacco;

Pursuant to Decree No. 40/2008/ND-CP dated April 7, 2008 of the Government on the production and trading of alcohol;

Pursuant to Decree No. 119/2007/ND-CP dated July 18, 2007 of the Government on the production and trading of tobacco;

Pursuant to Decree No. 128/2008/ND-CP dated December 16, 2008 of the Government detailing the implementation of certain provisions of the Administrative Violation Handling Decree of 2002 and the Decree Amending and Supplementing Certain Articles of the Administrative Violation Handling Decree of 2008;

Pursuant to Decree No. 59/2006/ND-CP dated June 12, 2006 of the Government guiding the implementation of the Commercial Law on goods and services prohibited from trading, restricted trading, and conditional trading; Decree No. 43/2009/ND-CP dated May 7, 2009 of the Government amending and supplementing the list of goods and services prohibited from trading in Decree No. 59/2006/ND-CP dated June 12, 2006 of the Government guiding the implementation of the Commercial Law on goods and services prohibited from trading, restricted trading, and conditional trading;

The Minister of Industry and Trade, the Minister of Public Security, the Minister of Justice, the Minister of Health, the President of the Supreme People's Court, and the Prosecutor General of the Supreme People's Procuracy guide the handling of violations related to trading in smuggled alcohol, tobacco products, and smuggled tobacco raw materials as follows:

Article 1. Scope of Regulation

This Circular guides the handling of violations related to trading in smuggled alcohol, tobacco products, and smuggled tobacco raw materials; the handling of evidence and means used to commit such violations.

Article 2. Applicability

1. Organizations and individuals engaging in the trading of smuggled alcohol, tobacco products, and smuggled tobacco raw materials.

2. Organizations and individuals involved in inspection and handling of violations as prescribed by law.

Article 3. Explanation of Terms

In this Joint Circular, the following terms shall be understood as follows:

1. Trading in smuggled alcohol, smuggled tobacco products, and smuggled tobacco raw materials refers to the performance of one, several, or all of the following activities: export, import, purchase, wholesale, retail, display, online sales promotion, exchange of goods, transportation, carriage for hire, delivery, receipt, carrying, storage, concealment, renting or lending warehouses, renting or lending premises for storage of smuggled alcohol, smuggled tobacco products, and smuggled tobacco raw materials.

2. Smuggled alcohol refers to finished or semi-finished alcohol products produced abroad that do not have complete invoices and certificates as stipulated in Joint Circular No. 60/2011/TTLT-BTC-BCT-BCA dated May 12, 2011 of the Ministry of Finance, Ministry of Industry and Trade, and Ministry of Public Security on the invoice and certificate system for imported goods circulating in the market (referred to as Joint Circular No. 60/2011/TTLT-BCT-BTC-BCA).

3. Smuggled tobacco products refer to products made entirely or partially from tobacco raw materials and processed in the form of cigarettes, cigars, shredded tobacco for pipe smoking, and other forms used for smoking, chewing, sniffing, produced abroad without complete invoices and certificates as stipulated in Joint Circular No. 60/2011/TTLT-BCT-BTC-BCA.

4. Smuggled tobacco raw materials refer to loose tobacco leaves, pre-processed tobacco leaves with stems removed, shredded tobacco, tobacco sheets, tobacco stems, and other substitute products used to produce tobacco products originating from abroad without complete invoices and certificates as stipulated in Joint Circular No. 60/2011/TTLT-BCT-BTC-BCA.

5. Unit of Product refers to bottles, jars, boxes, bags, and other containers holding smuggled alcohol.

Article 4. Handling of violations related to the illegal importation of alcohol

1. For acts violating the provisions set out in Clause 8 and Clause 9 of Article 11a of Decree No. 06/2009/ND-CP dated January 22, 2009 of the Government on administrative penalties for violations in the production and trading of alcohol and tobacco products, as amended and supplemented by Decree No. 76/2010/ND-CP dated July 12, 2010 (hereinafter referred to as Decree No. 06/2009/ND-CP as amended and supplemented), within three working days from the date of discovering signs of criminal offenses, organizations or individuals with authority to discover or handle the violation must transfer all files to the competent criminal proceedings agency to pursue criminal responsibility.

In cases where the competent criminal proceedings agency determines that the act of violation does not have sufficient characteristics to constitute a crime but has signs of administrative violations, the authorized person of the criminal proceedings agency must issue a decision to return the case file to the agency or individual with authority to impose administrative penalties, and within three working days from the date of the decision, must send back the case file together with the decision to the agency or individual with authority to impose administrative penalties.

2. Organizations or individuals transporting, carrying for hire, delivering, receiving, carrying, storing, harboring, renting warehouses, or renting places to store illegally imported alcohol shall be punished according to the provisions of Article 22 of Decree No. 06/2008/ND-CP dated January 16, 2008 of the Government on administrative penalties for violations in commercial activities, as amended and supplemented by Decree No. 112/2010/ND-CP dated December 1, 2010 of the Government (hereinafter referred to as Decree No. 06/2008/ND-CP as amended and supplemented).

3. Means of transport used to transport illegally imported alcohol shall be confiscated and disposed of according to the provisions of Article 22 of Decree No. 06/2008/ND-CP as amended and supplemented.

4. Illegally imported alcohol shall be confiscated and disposed of according to the provisions of Articles 5 and 6 of this Circular.

Article 5. Disposal of Confiscated Illegally Imported Alcohol

1. Illegally imported alcohol confiscated in a single violation must be destroyed in the following cases:

a) Without a brand name, unable to identify the manufacturer;

b) With a quantity less than 100 (one hundred) units of product;

c) With a quantity of 100 (one hundred) units of product or more, which, upon examination according to point a, Clause 1 of Article 6 of this Circular, have at least one unit of product among the total number of samples examined having components, specifications, and concentrations not conforming to those of the corresponding standard product provided by the legitimate manufacturer, or not conforming to the national technical regulations of Vietnam, or not conforming to food safety regulations for the product (in cases where there are no corresponding technical regulations), shall be destroyed according to the law.

2. Illegally imported alcohol may be auctioned if all samples examined according to point a, Clause 1 of Article 6 of this Circular have components, specifications, and concentrations conforming to those of the corresponding standard product provided by the legitimate manufacturer and conforming to the national technical regulations of Vietnam, or conforming to food safety regulations for the product (in cases where there are no corresponding technical regulations). The procedures and fees collected from the auction must comply with current laws.

3. Methods of destruction:

Illegally imported alcohol and containers confiscated must be completely destroyed using methods consistent with environmental protection laws.

4. Destruction Agency:

The state agency with authority to handle the case shall establish a destruction committee, organize the destruction process, or entrust an organization with the necessary conditions to carry out the destruction according to the law.

Article 6. Quality Appraisal of Seized Smuggled Alcohol

The quality appraisal of smuggled alcohol for the basis of handling shall be carried out according to the following procedures:

1. Sampling for Appraisal:

a) For cases of violations involving the seizure of smuggled alcohol in quantities of 100 (one hundred) units of products or more, and all products of the same brand code, type, volume, brand name, and production factory, which are uniformly packaged with identical external forms (shape, bottle color, label, cap, import seal, manufacturer's unique marks without scratches, damage, or signs of reuse), the sampling ratio for appraisal shall be at least 05% of the seized alcohol quantity;

b) Sampling Method: The samples for appraisal will be taken randomly, objectively, and truthfully from the seized alcohol of the same violation case;

c) Organizations or entities responsible for organizing sampling: The organizations or entities authorized to handle the case according to the law and currently handling the case shall conduct sampling according to the above method in compliance with the law, with the presence of the violator or a representative of another related organization or entity as stipulated in administrative violation handling procedures or corresponding litigation procedures. Representatives of the trademark owner or importer, or business operators may be invited to witness the sampling process.

2. Reference Standards for Appraising Seized Smuggled Alcohol are the quality standards of the same type and brand name of the legitimate manufacturer and the corresponding national technical regulations of Vietnam, or food safety regulations for the product (in cases where there are no corresponding technical regulations).

3. The appraisal results of authorized organizations or entities must specifically determine the components, indices, and concentrations of the sampled alcohol and provide conclusions on whether they comply with the manufacturer's standards and the corresponding national technical regulations of Vietnam, or food safety regulations for the product (in cases where there are no corresponding technical regulations).

Article 7. Handling Violations Related to the Business of Smuggled Tobacco Products

1. For acts violating the provisions of Clause 9, Clause 10, Article 11b of Decree No. 06/2009/NĐ-CP amended and supplemented, within three working days from the date of discovering criminal signs, the authorized organization or individual who discovers or handles the violation must transfer the entire file to the competent criminal procedure agency to pursue criminal responsibility.

In cases where the competent criminal procedure agency considers the act of violation does not have sufficient signs to constitute a crime but has signs of administrative violation, the authorized person of the criminal procedure agency must issue a decision to return the violation file to the authorized administrative penalty agency or person within three working days from the date of issuance and send the file along with the decision to the authorized agency or person.

2. For acts of selling, transporting, storing smuggled tobacco products, the determination of quantity as the basis for pursuing criminal responsibility is as follows:

a) Quantity from 1,500 packs to less than 4,500 packs is considered a large quantity;

b) Quantity from 4,500 packs to less than 13,500 packs is considered a very large quantity;

c) Quantity of 13,500 packs or more is considered an exceptionally large quantity.

3. Handling of Evidence of Violation:

a) Tobacco products are destroyed according to current laws;

b) Transport means for smuggled tobacco products are handled according to Article 18 of Decree No. 06/2008/NĐ-CP amended and supplemented.

Article 8. Handling violations related to the business of illegally imported tobacco raw materials.

1. For acts violating the provisions stipulated in Clause 9 and Clause 10 of Article 11c of Decree No. 06/2009/NĐ-CP, within three (3) working days from the date of discovering signs of criminal offenses, the organization or individual with authority to discover or handle the violation must transfer the entire file to the competent criminal proceedings agency for criminal responsibility pursuit.

In cases where the competent criminal procedure agency considers the act of violation does not have sufficient signs to constitute a crime but has signs of administrative violation, the authorized person of the criminal procedure agency must issue a decision to return the violation file to the authorized administrative penalty agency or person within three working days from the date of issuance and send the file along with the decision to the authorized agency or person.

2. Handling of evidence and means of violation:

a) In cases of violation involving a consistent quantity of tobacco raw materials (same consignment, same origin, same packaging specifications, packaging, type), with a quantity of 2,000 kilograms or more, ensuring quality after the conclusion of the authorized agency's appraisal, such materials shall be organized for public auction to the state treasury according to current regulations for cigarette manufacturing plants with production licenses.

b) Tobacco raw materials with quantities below 2,000 kilograms shall be destroyed in accordance with the law.

c) Non-uniform quantities of tobacco shall be destroyed regardless of quantity.

d) Consistent quantities of tobacco raw materials of 2,000 kilograms or more but not meeting quality standards shall be destroyed.

e) The transportation means for illegally imported tobacco raw materials shall be handled in accordance with Article 22 of Decree No. 06/2008/NĐ-CP.

Article 9. Effective Date

1. This Circular takes effect from January 22, 2013.

2. During implementation, if any difficulties arise, organizations and individuals should promptly report to the Ministry of Industry and Trade for guidance and direction.