Circular No. 47/2015/TT-BQP guides the implementation of certain provisions of Decree No. 169/2013/NĐ-CP dated November 12, 2013, of the Government on administrative penalties for violations in the field of management and protection of national borders.

CIRCULAR

Guidelines for implementing certain provisions of Decree No. 169/2013/NĐ-CP dated November 12, 2013 of the Government on administrative penalties in the field of management and protection of national borders

Pursuant to the Law on Handling Administrative Offenses 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. 169/2013/NĐ-CP dated November 12, 2013 of the Government on administrative penalties in the field of management and protection of national borders;

Pursuant to Decree No. 35/2013/NĐ-CP dated April 22, 2013, of the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of National Defense;

Considering the proposal of the Commander of the Border Guard Force,

The Minister of National Defense promulgates this Circular guiding the implementation of certain provisions of Decree No. 169/2013/NĐ-CP dated November 12, 2013 of the Government on administrative penalties in the field of management and protection of national borders.

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

1. This Circular guides the implementation of certain provisions of Decree No. 169/2013/NĐ-CP dated November 12, 2013 of the Government on administrative penalties in the field of management and protection of national borders (hereinafter referred to as Decree No. 169/2013/NĐ-CP).

2. Other regulations on administrative penalties in the field of management and protection of national borders not covered by this Circular shall be implemented in accordance with the Law on Handling Administrative Violations and related legal documents.

Article 2. Applicability

1. Vietnamese individuals and organizations and foreign individuals and organizations committing administrative violations in the field of management and protection of national borders.

2. Individuals authorized to impose penalties and authorized to prepare administrative violation records pursuant to Decree No. 169/2013/NĐ-CP; relevant agencies, organizations, and individuals.

Article 3. Forms to be used in administrative penalties

Forms to be used in administrative penalties in the field of management and protection of national borders shall be implemented in accordance with Circular No. 97/2014/TT-BQP dated July 16, 2014 of the Minister of National Defense on the issuance, management, and use of forms in administrative penalties of the Ministry of National Defense.

Chapter II
ADMINISTRATIVE VIOLATIONS

Article 4. Acts violating regulations on the management and protection of national border lines, boundary markers, and signs indicating national border lines

1. The act of conducting geological surveys, extracting natural resources, and mining minerals that alter signs indicating national border lines, boundary markers, and border works as stipulated in Point a Clause 1 Article 4 of Decree No. 169/2013/NĐ-CP is the act of drilling, digging, or using technological equipment to conduct geological surveys and extract mineral types as stipulated in Clause 1 Article 2 of the Minerals Law 2010 within the border area, causing erosion of river and stream banks, dams along rivers and streams, and border works, leading to misalignment of signs indicating national border lines or erosion, collapse, and damage to boundary markers.

2. The act of constructing water conservancy projects on rivers and streams along the border without permission from competent authorities as stipulated in Point b Clause 1 Article 4 of Decree No. 169/2013/NĐ-CP is the act of carrying out such activities without a permit from the competent state agency or carrying out activities inconsistent with the permit.

3. The act of damaging, moving, or engaging in any other harmful actions towards boundary markers, signs indicating national border lines, and warning signs in the border area, border works as stipulated in Point a Clause 2 Article 4 of Decree No. 169/2013/NĐ-CP is the act of breaking, destroying, drilling, digging, or taking other actions that cause damage or movement to boundary markers and signs indicating national border lines.

Article 5. Acts violating regulations on crossing the border

1. Documents specified in Point a Clause 1 Article 5 Decree No. 169/2013/ND-CP for each route are as follows:

a) Vietnam-China border route is the Border Area Entry-Exit Pass;

b) Vietnam-Laos border route is one of the following documents: Border Pass; Permit to enter provinces and cities of Vietnam; Border Certificate still valid for use;

c) Vietnam-Cambodia border route is one of the following documents: National Identity Card; Border Pass.

2. Crossing the border not in accordance with the points stipulated in Point b Clause 1 Article 5 Decree No. 169/2013/ND-CP is the act of residents permitted to cross to the neighboring country's border area but not entering through the designated border gate or agreed border crossing point.

3. Residents crossing the border not in accordance with the time stipulated in Point c Clause 1 Article 5 Decree No. 169/2013/ND-CP are residents permitted to cross the border but staying beyond the prescribed time under the Border Regulations Agreement and border crossing agreements signed between Vietnam and the neighboring country.

4. The act of exceeding the scope stipulated in Point đ Clause 1 Article 5 Decree No. 169/2013/ND-CP is the act of residents permitted to cross the border but going beyond the scope of one commune or equivalent administrative unit as provided in the Border Regulations Agreement signed between Vietnam and the neighboring country.

5. The act of allowing others to use or using the Border Certificate, Border Recognition Certificate, or Border Area Entry-Exit Pass of another person to cross the border as stipulated in Clause 2 Article 5 Decree No. 169/2013/ND-CP includes the following acts:

a) Lending, renting, or borrowing from another person.

b) Giving, presenting, or receiving such gifts.

c) Buying, selling.

d) Using another person’s documents without authorization.

6. The act of encroaching in the border area as stipulated in Point b Clause 5 Article 5 Decree No. 169/2013/ND-CP is the act of residents of this country entering the neighboring country's border area to marry or reside without permission from the competent authority.

Article 6. Acts violating regulations on residence and movement in the border area

1. Acts of residing and moving not in accordance with regulations in the border area as stipulated in Point a Clause 1 Article 6 Decree No. 169/2013/ND-CP include the following acts:

a) Residing and moving in the border area not in accordance with Decree No. 34/2014/ND-CP dated April 29, 2014 of the Government on the Regulations of the land border area of the Socialist Republic of Vietnam; Decree of the Government on Management of activities of people and means of transport in the border sea area of the Socialist Republic of Vietnam.

b) The act of those permitted to reside and move in the border area but not complying with Decree No. 34/2014/ND-CP dated April 29, 2014 of the Government on the Regulations of the land border area of the Socialist Republic of Vietnam; Decree of the Government on Management of activities of people and means of transport in the border sea area of the Socialist Republic of Vietnam.

2. The act of concealing or assisting others to illegally reside and move in the border area as stipulated in Point b Clause 1 Article 6 Decree No. 169/2013/ND-CP is the act of knowing that others are not permitted to reside and move in the border area but concealing, harboring, assisting, or facilitating their residence and movement in the border area.

Article 7. Acts violating regulations on management and protection of border works, signboards, restricted areas within the border region

1. The act of damaging, moving, dismantling signboards indicating "border area", "border belt", "restricted area", "port area" and other signboards within the border region as stipulated in Point b Clause 4 Article 7 Decree No. 169/2013/ND-CP is an act that changes the initial state, tilts, topples, moves, or renders ineffective such signboards.

2. Border works as defined in Clause 5 Article 7 Decree No. 169/2013/ND-CP include tunnels, trenches, fortifications, combat bunkers, observation towers, border patrol routes, radar systems, radio transmission stations, and other facilities serving national border management and protection tasks within the border region.

Article 8. Acts violating regulations on ensuring security and order at sea port gates

The act of allowing others to use Permits to Shore, Cards, or Permits to Board Vessels; using another person's Permit to Shore, Card, or Permit to Board Vessels as stipulated in Clause 3 Article 10 Decree No. 169/2013/ND-CP includes the following acts:

1. Lending, renting to or borrowing from others.

2. Giving, receiving gifts, or giving, receiving gifts.

3. Buying, selling.

4. Using another person’s documents without authorization.

Article 9. Acts violating regulations on entry, exit, and activities within land border gate areas

1. The act of residing, traveling outside the prescribed regulations within the scope of the land border gate area, failing to register or report to competent authorities when conducting activities within the land border gate area as stipulated in Clause 1 Article 11 Decree No. 169/2013/ND-CP is an act violating the regulations on residence, travel, and activities within the land border gate area as provided for in Decree No. 112/2014/ND-CP dated November 21, 2014 of the Government on the management of land border gates.

2. The act of allowing others to use business permits or using another person's business permit as stipulated in Points d and e Clause 2 Article 11 Decree No. 169/2013/ND-CP includes lending, renting to or borrowing from others, buying, selling, or using another person's business permit to engage in business or practice a profession within the land border gate area.

Chapter III
AUTHORITY TO ISSUE ADMINISTRATIVE VIOLATION DECISIONS AND VIOLATION RECORDS

Article 10. Competence to impose administrative penalties

1. Those persons specified in Articles 13, 14, 15, 16, 17, 18, 19, and Article 20 Decree No. 169/2013/ND-CP have the competence to impose administrative penalties on acts of administrative violations in the field of national border management and protection.

2. For acts of administrative violations in the maritime transport sector occurring in the border sea area or sea port gate area as stipulated in Article 12 Decree No. 169/2013/ND-CP, the authority to impose penalties, forms, levels of penalties, and measures to remedy consequences shall be applied according to the provisions of Article 72 Decree No. 93/2013/ND-CP dated August 20, 2013 of the Government on imposing administrative penalties in the field of maritime transport and inland waterway transport.

3. Principles for determining the authority to impose penalties:

a) For acts of administrative violations in the field of national border management and protection not within their own authority, the agencies or forces directly discovering such violations shall temporarily detain violators, means of transportation, evidence of violation, permits, and certificates of practice and transfer them to the Border Guard or the competent authority with the nearest jurisdiction for handling according to the regulations.

b) For acts of administrative violations in the field of national border management and protection within the authority of multiple persons, the penalty shall be imposed by the first person to handle the case.

c) The authority to impose penalties of those persons specified in Articles 13, 14, 15, 16, 17, 18, 19, and Article 20 Decree No. 169/2013/ND-CP shall be determined based on the maximum level of fines prescribed for each type of violation. If the maximum fine level or supplementary form of penalty or remedial measure prescribed does not fall within their authority, then the person handling the administrative violation case must transfer the case file, evidence, and means of transportation related to the violation to the person with the appropriate authority for handling according to the law.

Article 11. Granting Authority to Impose Administrative Sanctions

The authority to impose administrative sanctions as stipulated in Clauses 2, 3, 4 of Article 13, Article 14, Clauses 2, 3, 4, 5 of Article 15, Clauses 3, 4, 5, 6, 7 of Article 16; Clauses 2, 3 of Article 17, Clauses 2, 3 of Article 18, Article 19 and Article 20 of Decree No. 169/2013/NĐ-CP may delegate such authority to deputy officials in accordance with Article 54 of the Law on Handling Administrative Violations.

Article 12. Authority to Apply Additional Sanctions in the Form of Confiscation of Evidence and Means of Administrative Violations

The authority to apply additional sanctions in the form of confiscation of evidence and means of administrative violations as stipulated in Point d Clause 4 of Article 13 of Decree No. 169/2013/NĐ-CP for Commanders of Border Guard Battalions at provincial level and Commanders of Border Guard Fleets shall be applied in accordance with Point c Clause 4 of Article 40 of the Law on Handling Administrative Violations.

Article 13. Authority to Apply Measures to Mitigate Consequences

1. The Commander of a Border Guard Post, the Commander of a Border Guard Subdistrict, and the Commander of a Border Guard Battalion at provincial level where there is a land border have the authority to apply measures to mitigate consequences requiring departure from the area of a border gate or border zone.

2. The Commander of a Border Gate Port Guard Post, the Commander of a Border Gate Port Guard, and the Commander of a Border Guard Battalion at provincial level where there is a sea border have the authority to apply measures to mitigate consequences requiring the return of shore access permits issued to crew members and staff when foreign vessels dock at the port.

3. The Commander of a Border Guard Battalion at provincial level where there is a border has the authority to apply measures to mitigate consequences involving the recovery of Border Identification Cards, Border Recognition Certificates, or Border Entry and Exit Passes.

4. The Commander of a Border Guard Post, the Commander of a Border Guard Subdistrict, and the Commander of a Border Guard Battalion at provincial level where there is a land border have the authority to apply measures to mitigate consequences involving the destruction of forged Border Identification Cards, Border Recognition Certificates, or Border Entry and Exit Passes.

5. The Commander of a Border Gate Port Guard, the Commander of a Border Gate Port Guard Post, and the Commander of a Border Guard Battalion at provincial level where there is a sea border have the authority to apply measures to mitigate consequences involving the destruction of forged permits to operate in the area of a border gate or seaport.

Chapter IV
IMPLEMENTATION

Article 14. Effective Date

1. This Circular takes effect from August 5, 2015.

2. Repeal Circular No. 101/2008/TT-BQP dated July 9, 2008 of the Minister of National Defense guiding the implementation of administrative sanctions in the management and protection of national borders.

3. In cases where laws referred to in this Circular are amended or supplemented, they shall be implemented according to the amended or supplemented laws.

Article 15. Responsibility for Implementation

1. The Commander of the Border Guard Corps is responsible for organizing and implementing the handling of administrative violations in the field of border management and protection in accordance with the provisions of the law.

2. The Commander of the Border Guard Battalion at provincial level, directly under the Central Government, shall take the lead and coordinate with the Department of Justice and relevant sectors to advise the People's Committee of the province, directly under the Central Government, where there is a border to organize the implementation of this Circular.

3. The direct head of the authority to impose administrative sanctions in the management and protection of national borders is responsible for organizing and implementing the implementation of administrative sanctions in the management and protection of national borders and supervising the implementation by subordinate levels.

4. During the implementation process, if any difficulties arise, agencies, units, and organizations shall promptly report to the Ministry of National Defense (through the General Staff of the Border Guard Corps) for consolidation and reporting to the Ministry of National Defense for consideration and decision./.