Decree No. 40/2011/ND-CP amends and supplements certain articles of Decree No. 49/2005/ND-CP dated April 11, 2005, of the Government on administrative penalties in the field of education.

DECREE

Amending and supplementing some articles of Decree No. 49/2005/NĐ-CP dated April 11, 2005 of the Government on administrative penalties in the field of education

Regarding administrative penalties for violations in the field of education

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

BASED ON THE EDUCATION LAW ON JUNE 14, 2005; THE AMENDMENT AND SUPPLEMENT TO CERTAIN PROVISIONS OF THE EDUCATION LAW ON NOVEMBER 25, 2009;

Pursuant to the Administrative Violations Handling Law dated July 2, 2002;

The Law Amending and Supplementing Some Articles of the Administrative Violations Handling Law dated April 2, 2008;

Considering the proposal of the Minister of Education and Training,

DECREE:

Article 1. Amending and supplementing some articles of Decree No. 49/2005/NĐ-CP dated April 11, 2005 of the Government on administrative penalties for violations in the field of education as follows:

1. Clause 3 of Article 7 is amended and supplemented as follows:

"3. In addition to the forms of punishment prescribed in Clause 1 and Clause 2 of this Article, individuals and organizations violating administrative regulations in the field of education may also be subject to one or more of the following measures to address the consequences of such violations:

a) Compelling restoration to the original state prior to the violation caused by the administrative offense at the request of the competent authority;

b) Compelling suspension or termination of teaching and educational activities;

c) Compelling cancellation of examination results or re-grading of examination papers;

d) Compelling additional teaching, practical guidance, and internship sessions according to the approved plan and providing materials and equipment as required;

đ) Compelling revocation of decisions contrary to the provisions of the competent authority;

e) Compelling restoration of learning rights for students and ensuring the rights of those using diplomas and certificates;

g) Compelling repayment to students of amounts collected and bearing all costs incurred due to the administrative offense;

h) Compelling recovery of diplomas and certificates issued illegally;

i) Compelling removal from Vietnam or re-exportation of imported textbooks, materials, and educational equipment due to illegal administrative offenses;

k) Compelling provision of full conditions to ensure safety for learners and educators;

l) Compelling educational institutions to comply with their own announcements;

m) Stopping implementation of joint training contracts."

4. Having been awarded the title "Outstanding Artist" and subsequently meeting one of the following criteria:

"Article 8. Violations concerning the establishment of educational institutions

1. A fine of VND 1,000,000 to VND 2,000,000 shall be imposed for the act of losing the establishment decision, license, or professional certificate without reporting to the competent authority.

2. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed for any of the following acts: altering, erasing, modifying, selling, transferring, leasing, lending the establishment decision, license, or professional certificate contrary to the provisions of the law.

3. A fine of VND 10,000,000 to VND 100,000,000 shall be imposed for establishing an educational institution illegally, with specific fines for each level of education as follows:

a) VND 10,000,000 to VND 20,000,000 for establishing a preschool or primary-secondary school;

b) VND 20,000,000 to VND 30,000,000 for establishing a vocational college, continuing education center, language center, or computer center;

c) VND 40,000,000 to VND 60,000,000 for a college;

d) VND 60,000,000 to VND 100,000,000 for a university.

4. A fine of VND 500,000 to VND 10,000,000 shall be imposed for organizing educational activities under programs not approved by the competent authority or granting permission beyond authority, with specific fines as follows:

a) VND 500,000 to VND 1,000,000 for preschool education;

b) VND 1,000,000 to VND 2,000,000 for primary-secondary education;

c) VND 3,000,000 to VND 5,000,000 for vocational college and college education;

d) VND 5,000,000 to VND 10,000,000 for university, master's, and doctoral education.

5. Additional forms of punishment and measures to address the consequences for the violations stipulated in this Article:

a) Confiscating evidence and revoking the right to use the license for the violations stipulated in Clause 2 of this Article;

b) Compelling cessation of educational activities and refunding the amount collected to learners for the violations stipulated in Clause 3 and Clause 4 of this Article."

3. Adding Clause 1a and Clause 1b after Clause 1 of Article 9 and amending and supplementing Clauses 2, 3, and 4 of Article 9 as follows:

"1a. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed for failing to comply with the content of the announcement regarding enrollment and training of the unit.

1b. A fine shall be imposed for violations in joint training programs as follows:

a) VND 5,000,000 to VND 10,000,000 when joint training does not meet the prescribed procedures and formalities;

b) VND 10,000,000 to VND 20,000,000 for signing a training cooperation contract with a partner that does not comply with the regulations on joint training.

2. A fine of VND 10,000,000 to VND 20,000,000 shall be imposed for training and issuing certificates not in accordance with the law.

3. A fine of VND 40,000,000 to VND 60,000,000 for one of the following violations:

a) Training and issuing diplomas of the national education system exceeding the assigned authority;

b) Training fields and specialties outside the assigned authority.

4. Measures to address the consequences for violations stipulated in this Article:

a) Compelling repayment of collected amounts to learners and bearing all costs of organization for refunds for violations stipulated in Clause 1, and recovering illegally issued certificates for violations stipulated in Clause 2 and Clause 3 of this Article;

b) Compelling restoration of learning rights for learners caused by violations stipulated in Clause 1 of this Article according to the decision of the competent authority;

c) Compelling the training institution to comply with the announcement for violations stipulated in Clause 1a of this Article; stopping the implementation of joint training contracts for violations stipulated in point b, Clause 1b of this Article."

5. Clause 1 and Clause 3 of Article 11 are amended and supplemented as follows:

"1. A warning or a fine of VND 200,000 to VND 3,000,000 shall be imposed for failing to teach the required number of lessons or content of knowledge (converted into lesson hours) as prescribed by the competent authority for general education, vocational secondary education, college, university, master's, and doctoral education, as follows:

a) Warning for violations less than 5 lessons in a school year;

b) A fine of VND 200,000 to VND 500,000 for violations between 5 and 10 lessons in a school year;

c) A fine of VND 500,000 to VND 1,000,000 for violations from 11 to 15 class hours in one school year;

d) A fine of VND 1,000,000 to VND 2,000,000 for violations from 16 to 20 class hours in one school year;

đ) A fine of VND 2,000,000 to VND 3,000,000 for violations of 21 class hours or more in one school year."

5. Article 11 is amended and supplemented as follows:

"Article 11. Violations concerning the objects, standards, quotas, and authority for admission.

1. A fine of VND 500,000 to VND 1,000,000 for acts of falsifying or assisting in the falsification of admission application files to gain admission.

2. A fine of VND 1,000,000 to VND 20,000,000 for admitting students to preschool, primary, secondary, or high school levels in violation of the prescribed objects, standards, with specific fines as follows:

a) A fine of VND 1,000,000 to VND 2,000,000 for admitting up to five students in violation;

b) A fine of VND 2,000,000 to VND 3,000,000 for admitting six to ten students in violation;

c) A fine of VND 3,000,000 to VND 5,000,000 for admitting eleven to fifteen students in violation;

d) A fine of VND 5,000,000 to VND 10,000,000 for admitting sixteen to fifty students in violation;

đ) A fine of VND 10,000,000 to VND 20,000,000 for admitting fifty-one or more students in violation.

3. A warning or a fine of VND 3,000,000 to VND 15,000,000 for admitting students for vocational training beyond the quota, or for the wrong objects or standards, with specific fines as follows:

a) A warning for exceeding the admission quota by less than 10%;

b) A fine of VND 3,000,000 to VND 5,000,000 for exceeding the admission quota by 10% to less than 15%, or for admitting fewer than ten students who do not meet the prescribed objects or standards;

c) A fine of VND 5,000,000 to VND 10,000,000 for exceeding the admission quota by 15% to less than 20%, or for admitting ten to twenty students who do not meet the prescribed objects or standards;

d) A fine of VND 10,000,000 to VND 15,000,000 for exceeding the admission quota by 20% or more, or for admitting twenty-one or more students who do not meet the prescribed objects or standards.

4. A fine of VND 10,000,000 to VND 80,000,000 for admitting students for college, university, master's, or doctoral programs beyond the quota, or for the wrong objects or standards, with specific fines as follows:

a) A fine of VND 10,000,000 to VND 20,000,000 for exceeding the admission quota by 5% to less than 10%;

b) A fine of VND 20,000,000 to VND 40,000,000 for exceeding the admission quota by 10% to less than 15%, or for admitting fewer than ten students who do not meet the prescribed objects or standards;

c) A fine of VND 40,000,000 to VND 60,000,000 for exceeding the admission quota by 15% to less than 20%, or for admitting ten to twenty students who do not meet the prescribed objects or standards;

d) A fine of VND 60,000,000 to VND 80,000,000 for exceeding the admission quota by 20% or more, or for admitting twenty-one or more students who do not meet the prescribed objects or standards.

5. A fine for admitting students for national education training or certification without the authorized authority, with specific fines as follows:

a) A fine of VND 5,000,000 to VND 10,000,000 for announcing admissions (by any means) before obtaining permission from the competent authority;

b) A fine of VND 20,000,000 to VND 30,000,000 for collecting applications, organizing exams or selection processes, or summoning candidates before obtaining authorization from the competent authority.

6. A fine of VND 5,000,000 to VND 60,000,000 for violating regulations on admitting students for overseas training or at educational institutions with foreign elements operating within Vietnam under general education, vocational training, college, university, master's, or doctoral programs, with specific fines as follows:

a) A fine of VND 5,000,000 to VND 10,000,000 for admitting up to five students in violation;

b) A fine of VND 10,000,000 to VND 20,000,000 for admitting six to ten students in violation;

c) A fine of VND 20,000,000 to VND 30,000,000 for admitting eleven to fifteen students in violation;

d) A fine of VND 30,000,000 to VND 40,000,000 for admitting sixteen to twenty students in violation;

đ) A fine of VND 40,000,000 to VND 50,000,000 for admitting twenty-one to twenty-five students in violation;

e) A fine of VND 50,000,000 to VND 60,000,000 for admitting twenty-six or more students in violation.

7. Additional penalties for violations stipulated in this Article:

a) Confiscation of evidence for violations stipulated in Clause 1 of this Article;

b) Suspension of the right to use a license for a limited period if it is the first offense, and indefinitely if it is a repeat offense, for violations stipulated in Clauses 3, 4, and 6 of this Article.

8. Measures to remedy consequences for violations stipulated in this Article:

a) Compel the cancellation of erroneous decisions made due to acts stipulated in Clauses 1, 2, 3, 4, and 5 of this Article;

b) Compel the return of all fees collected from students and bear all costs associated with the return for acts stipulated in Clauses 2, 3, 4, 5, and 6 of this Article."

6. Clause 4 and Point c Clause 5 Article 12 shall be amended and supplemented as follows:

"4. A fine of VND 6,000,000 to VND 10,000,000 for acts of swapping examination papers or assisting others in swapping examination papers of candidates.

c) Grading examination papers for admission or graduation incorrectly according to the answer key, scoring scale, or incorrect procedures."

7. Article 13 is amended and supplemented as follows:

"Article 13. Violations concerning the assessment of student learning outcomes in general education institutions, vocational training institutions, and higher education institutions.

1. A warning or a fine of VND 200,000 to VND 2,000,000 for failing to fully implement the regulations of the competent authority regarding examination, grading, evaluation, and classification of learning outcomes, affecting the results of subjects, semesters, or academic years of students, with specific fines as follows:

a) A warning or a fine of VND 200,000 to VND 500,000 for violations in general education institutions;

b) A fine of VND 500,000 to VND 1,000,000 for violations at vocational college education institutions;

c) A fine of VND 1,000,000 to VND 2,000,000 for violations at higher education institutions.

2. Measures to remedy consequences for violations stipulated in this Article:

Compel the restoration of examination results, assessment, and academic classification to reflect the actual situation of learners for violations stipulated in Clause 1 of this Article.

8. Clause 2, 3, 4, and 5 of Article 14 shall be amended and supplemented as follows:

"2. A fine of VND 1,000,000 to VND 2,000,000 for the act of using illegal diplomas or certificates.

3. A fine of VND 2,000,000 to VND 5,000,000 for one of the following acts:

a) Failure to establish or inadequately establish records as required to serve as the basis for issuing, managing diplomas, or certificates;

b) False certification or distortion of records leading to the issuance of diplomas or certificates to individuals who do not meet the criteria.

4. A fine of VND 3,000,000 to VND 7,000,000 for violations related to the management and issuance of certificates according to the specific fines set forth below:

a) A fine of VND 3,000,000 to VND 5,000,000 for the act of destroying or distorting records or documents serving as the basis for issuing or certifying the legality of certificates;

b) A fine of VND 5,000,000 to VND 7,000,000 for the act of issuing decisions to issue certificates illegally.

5. A fine for violations related to the management and issuance of diplomas according to the specific fines set forth below:

a) A fine of VND 7,000,000 to VND 10,000,000 for the act of destroying or distorting records or documents serving as the basis for issuing or certifying the legality of diplomas;

b) A fine of VND 10,000,000 to VND 15,000,000 for the act of issuing decisions to issue diplomas contrary to regulations."

9. Clause 1 of Article 15 is amended and supplemented as follows:

"1. A warning or a fine of VND 500,000 to VND 15,000,000 for the act of using teachers who do not meet the prescribed training standards according to the specific fines set forth below:

a) A warning or a fine of VND 500,000 to VND 1,000,000 for the act of using kindergarten teachers who do not meet the standards;

b) A fine of VND 1,000,000 to VND 2,000,000 for the act of using primary and secondary school teachers who do not meet the standards;

c) A fine of VND 3,000,000 to VND 5,000,000 for the act of using vocational college teachers, teachers at continuing education centers, language centers, or computer centers who do not meet the standards;

d) A fine of VND 5,000,000 to VND 10,000,000 for the act of using college lecturers who do not meet the standards;

đ) A fine of VND 11,000,000 to VND 15,000,000 for the act of using university lecturers, master's, and doctoral instructors who do not meet the standards."

10. Add Article 16a after Article 16 as follows:

"Article 16a. Violations of provisions on material conditions ensuring safety for teaching and learning activities in educational institutions

1. A warning or a fine of VND 5,000,000 to VND 10,000,000 for failing to ensure sufficient material conditions and causing accidents involving students or teachers according to the specific fines set forth below:

a) A warning for failing to ensure sufficient material conditions for students or teachers;

b) A fine of VND 5,000,000 to VND 10,000,000 for causing accidents involving students or teachers.

2. Measures to remedy consequences:

Supplement the conditions to ensure compliance with the regulations on material conditions for students and teachers."

11. Add Article 16b after Article 16a as follows:

"Article 16b. Abuse or mistreatment of students; violation of the dignity or physical integrity of educators.

1. A fine of VND 1,000,000 to VND 3,000,000 for the act of abusing or mistreating students.

2. A fine of VND 3,000,000 to VND 5,000,000 for the act of violating the dignity or physical integrity of educators."

12. Clause 1 and 3 of Article 17 shall be amended and supplemented as follows:

"1. A warning or a fine of VND 200,000 to VND 2,000,000 for negligence in management resulting in the unauthorized alteration of student transcripts, grade sheets, score cards, or other materials related to the evaluation of academic performance according to the specific fines set forth below:

a) A warning or a fine of VND 200,000 to VND 500,000 for violations involving up to two students;

b) A fine of VND 500,000 to VND 1,000,000 for violations involving three to five students;

c) A fine of VND 1,000,000 to VND 2,000,000 for violations involving six or more students.

3. Measures to remedy consequences for violations stipulated in this Article:

Compel the restoration of the original state altered due to the violation stipulated in Clause 1 of this Article and supplement complete records due to the violation stipulated in Clause 2 of this Article."

13. Clause 1 of Article 18 shall be amended and supplemented as follows:

"1. A fine of VND 10,000,000 to VND 15,000,000 for issuing decisions contrary to regulations to purchase, accept gifts, use textbooks, educational materials, and educational equipment that do not meet quality standards, adversely affecting teaching and learning."

14. Clause 1 of Article 20 is amended and supplemented as follows:

"1. A warning or a fine of VND 200,000 to VND 10,000,000 for making disciplinary decisions to expel students contrary to regulations according to the specific fines set forth below:

a) A warning or a fine of VND 200,000 to VND 500,000 for violations involving up to two students;

b) A fine of VND 1,000,000 to VND 2,000,000 for violations involving three to five students;

c) A fine of VND 3,000,000 to VND 4,000,000 for violations involving six to ten students;

d) A fine of VND 5,000,000 to VND 10,000,000 for violations involving eleven or more students."

15. Article 21 shall be amended and supplemented as follows:

"Article 21. Violations of universal education provisions

1. A warning or a fine of VND 200,000 to VND 500,000 for obstructing the attendance of students at compulsory education levels.

2. A fine of VND 1,000,000 to VND 2,000,000 for inciting or encouraging students at compulsory education levels to skip or drop out of school."

16. Article 24 shall be amended and supplemented as follows:

"Article 24. Delegation of administrative penalty enforcement in the field of education

The authority prescribed in Article 22 and Clause 2, Clause 3 of Article 23 of this Decree is authorized to implement in accordance with the provisions of Article 41 of the Ordinance amending and supplementing certain articles of the Administrative Violation Handling Ordinance 2008.

17. Article 26 is amended and supplemented as follows:

Article 26. Administrative violation handling procedures in the field of education

1. The procedure for drafting the record of inspection and the decision on administrative penalty shall be carried out in accordance with the provisions of Articles 21, 22, and 23 of Decree No. 128/2008/NĐ-CP dated December 16, 2008 of the Government detailing the implementation of certain articles of the Administrative Violation Handling Ordinance 2002 and the Ordinance amending and supplementing certain articles of the Administrative Violation Handling Ordinance 2008.

2. The imposition and payment of fines must comply with the procedures stipulated in Articles 26 and 28 of Decree No. 128/2008/NĐ-CP dated December 16, 2008 of the Government detailing the implementation of certain articles of the Administrative Violation Handling Ordinance 2002 and the Ordinance amending and supplementing certain articles of the Administrative Violation Handling Ordinance 2008.

3. The procedure for revoking the establishment decision, license, and professional certificate shall be implemented in accordance with the provisions of Article 59 of the Administrative Violation Handling Ordinance and Article 11 of Decree No. 128/2008/NĐ-CP dated December 16, 2008 of the Government detailing the implementation of certain articles of the Administrative Violation Handling Ordinance 2002 and the Ordinance amending and supplementing certain articles of the Administrative Violation Handling Ordinance 2008.

4. The procedure for confiscating and disposing of evidence and means of administrative violations in the field of education shall be carried out in accordance with Articles 60 and 61 of the Administrative Violation Handling Ordinance and Article 34 of Decree No. 128/2008/NĐ-CP dated December 16, 2008 of the Government detailing the implementation of certain articles of the Administrative Violation Handling Ordinance 2002 and the Ordinance amending and supplementing certain articles of the Administrative Violation Handling Ordinance 2008.

18. Clause 1 of Article 27 is amended and supplemented as follows:

"1. Individuals and organizations violating administrative regulations in the field of education must comply with the administrative penalty decision within ten days from the date of receipt of the decision, except in cases provided for in Article 65 of the Administrative Violation Handling Ordinance. The method of calculating the time limit is specified in Article 9 of Decree No. 128/2008/NĐ-CP dated December 16, 2008 of the Government detailing the implementation of certain articles of the Administrative Violation Handling Ordinance 2002 and the Ordinance amending and supplementing certain articles of the Administrative Violation Handling Ordinance 2008."

19. Clause 1 of Article 28 is amended and supplemented as follows:

"1. Individuals, organizations, or their lawful representatives have the right to appeal against the administrative penalty decision of the authority prescribed in Articles 22, 23, and 24 of this Decree. The appeal procedure and resolution of appeals shall be carried out in accordance with the provisions of Article 118 of the Administrative Violation Handling Ordinance. The jurisdiction and time limit for appeals and resolving appeals shall be applied in accordance with the laws on handling appeals and complaints. An appeal against an administrative penalty decision does not suspend the execution of the administrative penalty decision in the field of education."

Article 2. Effective Date

This Decree takes effect from August 1, 2011.

All previous regulations contrary to the provisions of this Decree are abolished.

Article 3. Responsibility for Implementation

The Ministers, Heads of ministerial-level agencies, Heads of government-attached agencies, Chairpersons of provincial People's Committees under the central city shall be responsible for implementing this Decree./.