Circular No. 47/2014/TT-BCA detailing the implementation of certain provisions of Decree No. 115/2013/NĐ-CP dated October 3, 2013 on the management and preservation of evidence and means of administrative violations temporarily detained or confiscated through administrative procedures.

CIRCULAR

Regulations detailing the implementation of certain provisions of Decree No. 115/2013/NĐ-CP dated October 3, 2013 on management and preservation of items and means of administrative violation subject to temporary detention and confiscation through administrative procedures.

preservation of items and means of administrative violation subject to temporary detention and confiscation through administrative procedures.  temporarily detained and confiscated through administrative procedures.

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Pursuant to Decree No. 115/2013/NĐ-CP dated October 3, 2013 on management and preservation of items and means of administrative violation subject to temporary detention and confiscation through administrative procedures (hereinafter referred to as Decree No. 115/2013/NĐ-CP);

Pursuant to Decree No. 77/2009/NĐ-CP dated September 15, 2009 stipulating the functions, tasks, powers, and organizational structure of the Ministry of Public Security (amended and supplemented by Decree No. 21/2014/NĐ-CP dated March 25, 2014);

At the proposal of the Director of the Department of Legal Affairs and Administrative Reform and Justice;

The Minister of Public Security issues this Circular to detail the implementation of certain provisions of Decree No. 115/2013/NĐ-CP dated October 3, 2013 on management and preservation of items and means of administrative violation subject to temporary detention and confiscation through administrative procedures.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular stipulates the place for temporary detention of items and means of administrative violation subject to temporary detention and confiscation through administrative procedures (hereinafter referred to as items and means subject to temporary detention and confiscation); ensuring safety when managing and preserving items and means subject to temporary detention and confiscation; arranging dedicated staff for the management and preservation of items and means subject to temporary detention and confiscation; transferring means of transportation that violate administrative regulations to organizations and individuals who violated the regulations for custody and preservation; depositing security money for means of transportation subject to temporary detention through administrative procedures; procedures for returning items and means subject to temporary detention; collection, submission, management, and utilization of storage fees, berth fees, and preservation fees for items and means subject to temporary detention.

Article 2. Applicability

1. Vietnamese organizations and individuals and foreign organizations and individuals with items and means of administrative violation subject to temporary detention and confiscation.

Organizations, institutions, and individuals related to the management and preservation of items and means of administrative violation subject to temporary detention and confiscation.

Chapter II

MANAGEMENT AND PRESERVATION OF ITEMS AND MEANS SUBJECT TO TEMPORARY DETENTION AND CONFISCATION

Article 3. Conditions for places of temporary detention of items and means subject to temporary detention and confiscation

1. For places of temporary detention that are houses, warehouses, or yards

a) Must ensure safety, hygiene conditions, and not cause harm to human life and health. In cases where the place of temporary detention of items and means is outdoors, there must be a roof or other rain and sun protection facilities.

b) Must be dry and well-ventilated; have lighting equipment.

c) Must have a protective fence around it and a drainage system.

d) Must have fire prevention and firefighting rules; equipped with appropriate fire prevention and firefighting equipment.

e) Must have suitable technical equipment and facilities for managing and preserving each type of item and means subject to temporary detention. The head of the place of temporary detention of items and means must develop and organize training for fire prevention and explosion control plans.

2. For places of temporary detention that are water ports or boat docks, they must meet the conditions specified in points a and b of Clause 1 of this Article. Specifically, for places of temporary detention that are water ports, they must also meet the standards of inland waterway ports.

3. For places of temporary detention that are agency headquarters or other places designated by authorized persons for temporary detention and confiscation but must meet the conditions specified in points a and b of Clause 1 of this Article.

Article 4. Ensuring safety when managing and preserving items and means subject to temporary detention and confiscation

1. For items and means subject to temporary detention and confiscation that are machines or means using gasoline, diesel, or other flammable and explosive fuels, before being placed in the place of temporary detention, all fuel must be drained from the containers.

2. For items and means subject to temporary detention and confiscation that are goods or products easily causing environmental pollution, disease spread, or damage, appropriate technical equipment and facilities must be provided to preserve them during the period of temporary detention.

3. Strictly prohibit placing flammable and explosive substances, toxic substances, or radioactive materials in the place of temporary detention if such place does not have the necessary conditions and technical facilities to store these substances.

Article 5. Arrangement of places for temporary detention of seized items and means

1. The place for temporary detention of items and means may be a separate detention place of one agency or a common detention place of multiple agencies authorized to temporarily detain items and means in violation.

For agencies that frequently need to temporarily detain a large quantity of items and means, the People's Committee of the province or centrally governed city shall be responsible for allocating land and funding to build a detention place.

2. In cases where the agency temporarily detaining items and means does not have the conditions to build a detention place or the scale of construction of the detention place is insufficient to manage and preserve all detained and confiscated items and means, the agency authorized to temporarily detain items and means may lease a separate detention place of its own.

The leasing of a detention place must be concluded through a contract. The contents of the contract must comply with the requirements stipulated in the Civil Code and the requirements of managing detained and confiscated items and means according to administrative procedures, including the following main points: Object of the contract; price and payment method; term and method of implementing the contract; rights and obligations of the parties; liability for compensation due to breach of contract; other contents.

3. In cases where a small number of items and means are temporarily detained or the items and means are small and compact and it is deemed unnecessary to transfer them to a detention place such as a house, warehouse, dock, or yard, the person authorized to temporarily detain items and means may decide to temporarily detain those items and means at their own agency's headquarters. In this case, the person authorized to temporarily detain items and means must hand over the detained items and means to staff who have the ability and conditions to manage them.

4. In cases where it is impossible to arrange a detention place for temporarily detained and confiscated items and means as prescribed in Clauses 1, 2, and 3 of this Article, the detention place for items and means shall be determined by the person authorized to detain and confiscate but must meet the conditions stipulated in Article 3 of this Circular.

Article 6. Arrangement of specialized staff for managing and preserving temporarily detained and confiscated items and means

Agencies with detention places for items and means or entrusted to manage common detention places must arrange specialized staff for managing and preserving temporarily detained items and means, specifically as follows:

1. In cases where the detention place for items and means is a separate detention place of one agency, the head of that agency shall arrange specialized staff for managing and preserving the items and means.

2. In cases where the detention place for items and means is a common detention place of multiple different agencies in the locality, the arrangement of specialized staff for managing and preserving the items and means shall be carried out according to the regulations of the Chairman of the People's Committee at the same level or by agreement among local agencies.

Article 7. Handing Over Traffic Violation Means to Organizations and Individuals for Custody and Preservation

Handing over traffic violation means to organizations and individuals for custody and preservation shall be implemented in accordance with Article 14 of Decree No. 115/2013/ND-CP and the following provisions:

1. Traffic violation means subject to temporary detention to ensure enforcement of administrative penalty decisions, if the organization or individual in violation meets one of the conditions specified in Clause 1 of Article 14 of Decree No. 115/2013/ND-CP, the person authorized to temporarily detain may hand over the means to the organization or individual in violation for custody and preservation under the management of the agency issuing the temporary detention decision (except in cases as provided for in Clause 5 of Article 15 of Decree No. 115/2013/ND-CP), specifically:

a) The organization or individual in violation must submit a request to the agency authorized to temporarily detain requesting to keep and preserve the means; in the request, clearly state the name, address, occupation of the violator or the name, address of the violating organization, the administrative violation, the name, quantity, characteristics, type, serial number, brand, code, origin, year of manufacture, engine number, frame number, displacement (if applicable), condition of the means, place of custody and preservation.

When submitting the request, the individual in violation must attach a copy of the household registration book or temporary residence certificate or confirmation from the head of the agency or unit where the individual in violation works; for organizations in violation, they must attach a confirmation from the People's Committee of the commune, ward, town where the organization has its office.

b) Within no more than two working days from the date of receiving the request, the agency authorized to temporarily detain must examine and decide on handing over the means to the organization or individual in violation for custody and preservation. For cases with many complicated circumstances requiring additional time for verification, within no more than five working days from the date of receiving the request, the agency authorized to temporarily detain must examine and decide on handing over the means to the organization or individual in violation for custody and preservation. If the means are not handed over to the organization or individual in violation for custody and preservation, the reasons must be clearly stated.

2. The agency authorized to temporarily detain the means shall be responsible for managing and preserving the violation means from the issuance of the temporary detention decision until handing over the means to the organization or individual in violation for custody and preservation.

3. When handing over the means to the organization or individual in violation for custody and preservation, the person authorized to temporarily detain must prepare a record in accordance with Clause 2 of Article 14 of Decree No. 115/2013/ND-CP and temporarily detain the vehicle registration certificate to ensure enforcement of the penalty decision (except in cases where the organization or individual in violation has posted a bond). The temporary detention of the certificate must be recorded in a record; in the record, clearly state the date, month, year of temporary detention of the certificate; name, position of the person authorized to temporarily detain; name of the organization or individual whose certificate is temporarily detained; reason, duration of temporary detention. The record must be signed by the organization or individual in violation whose certificate is temporarily detained and the person authorized to temporarily detain; the record is prepared in two copies, each party keeps one copy.

The organization or individual entrusted with custody and preservation of the means is responsible for returning the means to their own place of preservation.

4. Organizations and individuals during the period of holding and preserving the means of transportation shall not arbitrarily change the place of holding and preserving; in case it is necessary to change the place of holding and preserving, such change must be agreed upon in writing by the authorized authority. The place of holding and preserving the means of transportation must meet the conditions stipulated in Clause 2, Article 6 of Decree No. 115/2013/NĐ-CP.

Article 8. Deposit for guaranteeing traffic means temporarily detained according to administrative procedures

Depositing money as a guarantee for traffic means temporarily detained according to administrative procedures shall be carried out in accordance with Article 15 of Decree No. 115/2013/NĐ-CP and the following provisions:

1. Organizations and individuals who violate the law must submit a request to the competent authority temporarily detaining the means of transportation to propose being allowed to hold and preserve the means of transportation; in the request, clearly state the name, address, occupation of the violator or the name, address of the violating organization, administrative violation behavior, name, quantity, characteristics, type, number, brand, symbol, origin, year of production, engine number, frame number, displacement (if any), condition of the means of transportation, place of holding and preserving the means of transportation.

2. The time limit for considering and deciding on the transfer of the means of transportation to organizations and individuals who violate the law to hold and preserve, and the responsibility for managing and preserving the violating means of transportation during the time of considering and deciding on the transfer to organizations and individuals who violate the law to hold and preserve shall be implemented in accordance with Point b, Clause 1 and Clause 2 of Article 7 of this Circular.

3. If organizations and individuals who have violated the law use the means of transportation or allow other organizations and individuals to use the means of transportation they are entrusted to hold and preserve for illegal racing, resisting public officials, disrupting public order, causing traffic accidents, or using them as means to commit other violations of the law, then that violating means of transportation will be transferred back to the temporary detention place as prescribed. Such violations will be handled according to the law.

Organizations and individuals who violate the law are responsible for returning the means of transportation to the temporary detention place as prescribed. In cases where they cannot return the means of transportation themselves or do not comply voluntarily, the person who decides to temporarily detain the means of transportation shall organize the return of the means of transportation to the temporary detention place; organizations and individuals who violate the law must bear the costs for returning the means of transportation to the temporary detention place.

4. Organizations and individuals deposit money as a guarantee for the authorized authority temporarily detaining the means of transportation. The amount of money deposited as a guarantee must be at least equal to the maximum fine within the fine range prescribed for one administrative violation; in cases where multiple administrative violations are committed in the same incident, the amount of money deposited as a guarantee must be at least equal to the total maximum fines for all violations.

After receiving the money deposited as a guarantee, the authorized authority temporarily detaining the means of transportation must immediately transfer that amount to the financial department of the authority to manage it; if the authorized authority temporarily detaining the means of transportation loses the money deposited as a guarantee or uses the money deposited as a guarantee, depending on the nature and severity of the violation, they will be disciplined and required to compensate according to the law.

5. The act of depositing money as a guarantee and refunding the money deposited as a guarantee must be recorded in a record. In the record, clearly state the date, month, year of depositing and refunding the money deposited as a guarantee; the name, position of the person deciding to allow the deposit of money as a guarantee; the name of the organization or individual depositing and receiving back the money deposited as a guarantee; the reason for depositing and receiving back the money deposited as a guarantee; the amount of money deposited as a guarantee; the term of depositing the money as a guarantee; the responsibility of the organization or individual depositing the money as a guarantee. The record must have the signature of the person authorized to decide on the deposit of money as a guarantee and the organization or individual depositing the money as a guarantee. The record is made in two copies, each party keeps one copy.

Article 9. Procedures for returning seized items and means of transport

1. The return of seized items and means of transport must be based on a written decision to return issued by the authority that made the decision to seize.

2. When returning seized items and means of transport, the person assigned the task of managing and preserving the seized items and means of transport shall carry out the following procedures:

a) Verify the decision to return; check the identity card and other relevant documents of the person receiving the items.

The person receiving the returned items and means of transport must be the violator with the seized items and means of transport, or a representative of the administrative violation organization recorded in the decision to seize the items and means of transport. If the aforementioned persons authorize another person to receive the items and means of transport, they must establish a power of attorney in accordance with the provisions of the law.

b) Require the person receiving the returned items and means of transport to compare with the seizure record to verify the name, quantity, characteristics, type, serial number, brand, marking, origin, year of manufacture, engine number, frame number, capacity (if applicable), condition of the seized items and means of transport under the witness of the management officer.

c) Prepare a record of returning the seized items and means of transport.

Article 10. Collection, payment, management, and use of storage fees, wharfage fees, and preservation fees for seized items and means of transport

1. For seized items and means of transport that are returned to the organization or individual who violated administrative regulations but were not confiscated, when receiving the returned items and means of transport, the organization or individual violating the regulations must pay the storage fee, wharfage fee, and preservation fee for the period during which the items and means of transport were seized.

No storage fee, wharfage fee, or preservation fee will be collected during the period when the administrative violation items and means of transport are seized if the owner of the items and means of transport is not at fault in the administrative violation or if the confiscation measure is applied to the items and means of transport or the organization or individual who violated the regulations retains and preserves the means of transport according to Articles 14 and 15 of Decree No. 115/2013/NĐ-CP.

2. The agency of the person issuing the decision to seize the items and means of transport (in cases where it organizes the storage and preservation of the seized items and means of transport itself) or the organization hired by the agency of the person issuing the decision to seize the items and means of transport to store and preserve the seized items and means of transport shall collect the storage fee, wharfage fee, and preservation fee for the seized items and means of transport.

3. The level of storage fee, wharfage fee, and preservation fee for seized items and means of transport; the collection, payment, management, and use of the storage fee, wharfage fee, and preservation fee for seized items and means of transport shall be implemented in accordance with the regulations of the Ministry of Finance.

Chapter III

IMPLEMENTATION

Article 11. Effective Date

This Circular takes effect from December 7, 2014, and replaces Circular No. 41/2010/TT-BCA dated November 4, 2010, issued by the Minister of Public Security detailing the implementation of certain provisions of Decree No. 70/2006/NĐ-CP dated July 24, 2006, and Decree No. 22/2009/NĐ-CP dated February 24, 2009, regarding the management of seized items and means of transport under administrative procedures within the People's Public Security Forces.

Article 12. Responsibility for Implementation

1. Heads of public security units and localities, heads of agencies and units authorized to seize items and means of transport for administrative violations within their scope of duties and powers are responsible for inspecting and urging the implementation of this Circular.

2. Directors of the General Directorates, heads of units directly under the Ministry of Public Security, Directors of Public Security Departments of provinces and centrally-administered cities, Directors of Fire Prevention and Fighting Departments of provinces and centrally-administered cities, and related organizations and individuals are responsible for implementing this Circular.

During the implementation of this Circular, if there are difficulties or obstacles, public security units and localities, organizations, and individuals related to the matter shall report to the Ministry of Public Security for timely guidance./.