Circular No. 65/2022/TT-BTC detailing Clause 2 of Article 91 of Decree No. 98/2020/NĐ-CP dated August 26, 2020 of the Government on administrative penalties for violations in trade activities, production, sale of counterfeit goods, prohibited goods, and consumer protection.

CIRCULAR

DETAILING CLAUSE 2, ARTICLE 91 OF THE GOVERNMENTAL DECREE NUMBER98/2020/NĐ-CP AUGUST 26, 2020, GOVERNING ADMINISTRATIVE PENALTIES FOR VIOLATIONS IN COMMERCIAL ACTIVITIES, PRODUCTION AND DISTRIBUTION OF FAKE GOODS AND PROHIBITED GOODS, AND CONSUMER RIGHTS PROTECTION

Pursuant to the Law on Handling Administrative Violations dated June 20, 2012;

Pursuant to the Law Amending and Supplementing Certain Provisions of the Law on Handling Administrative Violations dated November 13, 2020;

Pursuant to the Trade Law dated June 14, 2005;

Pursuant to the Civil Code dated November 24, 2015;

Pursuant to the Law on Foreign Trade Management 2017;

Pursuant to the Governmental Decree No. 98/2020/NĐ-CP dated August 26, 2020 governing administrative penalties for violations in commercial activities, production and distribution of fake goods and prohibited goods, and consumer rights protection;

Pursuant to the Governmental Decree No. 17/2022/NĐ-CP dated January 31, 2022 amending and supplementing certain provisions of several decrees on administrative penalties in the fields of chemicals and industrial explosives; electricity, dam safety, energy efficiency and conservation; commercial activities, production and distribution of fake goods and prohibited goods, and consumer rights protection; oil and gas operations, retail gasoline and gas;

Pursuant to the Governmental Decree No. 118/2021/NĐ-CP dated December 23, 2021 detailing certain provisions and measures for implementing the Law on Handling Administrative Violations;

Pursuant to the Governmental Decree No. 87/2017/NĐ-CP dated July 26, 2017 on the functions, tasks, powers, and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Legal Department;

The Minister of Finance hereby promulgates this Circular detailing Clause 2, Article 91 of the Governmental Decree No. 98/2020/NĐ-CP dated August 26, 2020 governing administrative penalties for violations in commercial activities, production and distribution of fake goods and prohibited goods, and consumer rights protection.

Article 1. Scope of Regulation

This Circular details Clause 2 of Article 91 of the Governmental Decree No. 98/2020/NĐ-CP regarding the illegal gains obtained from the implementation of administrative violations subject to remedial measures which require the return of illegal gains in the form of money, securities, objects, and other assets obtained through such violations, or the payment of an amount equivalent to the value of contraband items and means of transportation that have been disposed of, concealed, or destroyed in violation of the law in the field of commercial activities, production and distribution of fake goods and prohibited goods, and consumer rights protection, to be deposited into the state budget.

Article 2. Applicability

1. Vietnamese individuals or organizations, or foreign individuals or organizations conducting administrative violations within the territory of Vietnam as stipulated in Article 2 of the Governmental Decree No. 98/2020/NĐ-CP, shall be subject to remedial measures requiring the return of illegal gains in the form of money, securities, objects, and other assets obtained through such violations, or the payment of an amount equivalent to the value of contraband items and means of transportation that have been disposed of, concealed, or destroyed in violation of the law in the field of commercial activities, production and distribution of fake goods and prohibited goods, and consumer rights protection, to be deposited into the state budget.

2. Individuals authorized to prepare administrative violation records and those authorized to impose administrative penalties according to Chapter III of the Governmental Decree No. 98/2020/NĐ-CP and Clauses 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 of Article 3 of the Governmental Decree No. 17/2022/NĐ-CP.

Article 3. Principles for Determining the Amount of Illicit Gain Obtained from Implementing Administrative Violations

1. The determination of the amount of illicit gain shall be carried out by the competent authority imposing administrative sanctions and recorded in the decision on administrative sanction or the decision on measures to remedy consequences.

2. The amount of illicit gain shall be determined from the time when organizations or individuals commit administrative violations until the termination of such violations or the issuance of a decision on administrative sanctions or a decision on measures to remedy consequences.

3. In cases where organizations or individuals commit multiple administrative violations, the amount of illicit gain obtained shall be determined separately for each administrative violation.

In cases where organizations or individuals repeatedly commit administrative violations, the amount of illicit gain obtained from implementing such violations shall be determined separately for each occurrence.

Article 4. Illicit Gain

The amount of illicit gain obtained from implementing administrative violations as stipulated in Article 37 of the Law on Handling Administrative Violations; Point e, Clause 3, Article 4 of Decree No. 98/2020/NĐ-CP and Clause 2, Article 3 of Decree No. 17/2022/NĐ-CP shall be property, money, negotiable instruments, or other assets obtained from administrative violations committed in the fields of trade, production, sale of counterfeit goods, prohibited goods, and consumer protection.

Article 5. Determination of Illicit Gain in the Form of Money

1. The amount of illicit gain obtained in the form of money shall be the total amount of money received by organizations or individuals from administrative violations and calculated based on the proceeds from the transfer or consumption of goods, provision of services in violation after deducting direct costs constituting the goods or services, based on documents and evidence proving the legality and validity of these costs provided by the violating organization or individual.

2. The basis for determining the amount of money obtained by organizations or individuals committing administrative violations shall be equal to the quantity of goods or volume of services transferred or consumed multiplied by the unit price of goods or services minus direct costs constituting the goods or services (if the violating organization or individual has complete documents and evidence to prove the legality and validity of these costs). Specifically:

a) The quantity of goods or volume of services transferred or consumed shall be determined based on the declaration of the violating organization or individual and verified by the competent authority imposing sanctions.

b) The unit price of goods or services shall be determined based on the documents and evidence of the violating organization or individual. In the absence of documents and evidence to determine the unit price, it shall be determined according to the market price of similar goods or services at the time of discovery of the violation.

In cases where the quantity, volume, or unit price cannot be determined, the amount of illicit gain obtained shall be the entire amount of money received from transferring, consuming, disposing of, or destroying goods in violation of regulations.

3. In cases where organizations or individuals accept processing for foreign traders and implement violations regarding the origin of exported or imported goods, they must return the amount of illicit gain obtained from such violations. The amount of illicit gain from processing activities shall be the total amount of money received from processing activities (rental fees, processing fees) minus direct costs constituting rental fees and processing fees (if the violating organization or individual has complete documents and evidence to prove the legality and validity of these costs).

In cases where organizations or individuals violate regulations by transferring, consuming, disposing of, or destroying processed goods, the amount of illicit gain to be paid into the state budget shall be the total amount of money mentioned above plus the value of the confiscated items obtained through illegal transfers, consumption, disposal, or destruction.

4. In cases of transferring, consuming prohibited goods, counterfeit goods, smuggled goods, or providing conditional business services, the amount of illicit gain obtained in the form of money shall be the total amount of money received from transferring, consuming goods, or providing such services.

Article 6. Determining the amount of illegal gains in the form of negotiable instruments

1. The amount of illegal gains obtained through negotiable instruments is the entire negotiable instruments that organizations and individuals in violation have obtained from administrative violations.

2. Negotiable instruments referred to in Clause 1 of this Article are negotiable instruments as defined by the Civil Code and other types of negotiable instruments as prescribed by specialized laws.

3. In cases where negotiable instruments have been transferred, the amount of illegal gains shall be determined based on the actual amount received at the time of transfer.

In cases where valuable papers have been disposed of or destroyed, the amount of unlawful gain is determined based on the book value of the issuing organization at the time of disposal or destruction.

Article 7. Determining the amount of illegal gains in the form of objects and other assets

1. The amount of illegal gains in the form of objects and other assets that organizations and individuals in violation have obtained from administrative violations are other assets as defined by the Civil Code.

2. Objects referred to in Clause 1 of this Article shall be determined according to Articles 110, 111, 112, 113, and 114 of the Civil Code.

3. Other assets referred to in Clause 1 of this Article shall be determined according to Articles 105, 107, 109, and 115 of the Civil Code.

4. In cases where objects and other assets that are not prohibited goods, counterfeit goods, or smuggled goods have been transferred, sold, or destroyed, the amount of illegal gains shall be determined based on the equivalent market value of similar assets or based on the book value of the asset (if there is no market value) or based on the monetary value of the asset recorded on the export declaration or import declaration (if it is exported or imported goods) of the organization or individual in violation, after deducting direct costs constituting the goods based on supporting documents proving the legality and validity of such costs.

In cases where prohibited goods, counterfeit goods, or smuggled goods have been transferred or sold, the amount of illegal gains shall be determined as the total amount of money received by the organization or individual when carrying out the transfer.

Article 8. Determining the amount of money to be paid for contraband items and means of transportation in violation of administrative regulations that have been consumed, disposed of, or destroyed contrary to the law

In cases where contraband items and means of transportation in violation of administrative regulations have been consumed, disposed of, or destroyed contrary to the law, the organization or individual in violation must pay back an amount equivalent to the value of the contraband items and means of transportation in violation of administrative regulations that have been consumed, disposed of, or destroyed contrary to the law.

Article 9. Effective Date

1. This Circular takes effect from January 1, 2023, and replaces Circular No. 149/2014/TT-BTC dated October 10, 2014, issued by the Minister of Finance regarding the amount of illegal gains obtained from implementing acts of administrative violations to be surrendered to the state budget.

2. In cases where the legal normative documents cited in this Circular are amended, supplemented, or replaced, the citation shall be carried out according to the amended, supplemented, or replaced documents.

During implementation, if any difficulties arise, please report them promptly to the Ministry of Finance for consideration and resolution./.