Circular No. 78/2016/TT-BQP detailing the procedures for handling administrative violations by the Border Guard Force

CIRCULAR

Article 24regulating the administrative violation handling procedure of the Border Guard Force

Pursuant to the Law on Handling Administrative Violations of 2012;intention administrative violation code 2012;

Pursuant to Decree No. 81/2013/NĐ-CP of July 19, 2013 of the Government detailing some articles and implementing measures of the Law on Handling Administrative Violations;udetailing certain provisions and measures for implementing the Law on Handling Administrative Violations;"b) In addition to the lists of public services issued according to the provisions of Clause 2, Article 4 of this Decree, specialized agencies under provincial People's Committees shall report to the provincial People's Committee for decision-making on amending, supplementing, or issuing the list of public services funded by the state budget within their jurisdiction and consistent with the local budget capacity within the approved budget by the Provincial People's Assembly, and send it to the Ministry of Finance and relevant ministries and sectors for supervision during implementation."c) Supplementing point c of Clause 3 as follows:

Pursuant to Decree No. 112/2013/NĐ-CP of October 2, 2013 of the Government stipulating forms of expulsion penalties, temporary detention measures for violators, escorting violators under administrative procedures, and managing foreigners who violate Vietnamese laws during the expulsion process; Decree No.intention 17/2016/NĐ-CP of March 17, 2016 of the Government amending and supplementing certain provisions of Decree No. 112/2013/NĐ-CP of October 2, 2013 of the Government stipulating forms of expulsion penalties,No. temporary detention measures, escorting violators under administrative procedures, and managing foreigners who violate Vietnamese laws during the expulsion process;of the Government stipulating functions, tasks, powers, and organizational structure of the Ministry of Home Affairsregarding the temporary detention of persons, escorting violators through administrative procedures, and managing foreign nationals who violate Vietnamese laws during deportation proceedings;

Pursuant to Decree No. 115/2013/NĐ-CP of October 3, 2013 of the Government stipulating management and preservation of evidence and means of administrative violations temporarily seized or confiscated under administrative procedures;uconcerning the management and preservation of evidence and means of transportation seized temporarily or confiscated through administrative procedures;

Pursuant to Decree No. 166/2013/NĐ-CP of November 12, 2013 of the Government stipulating enforcement of administrative penalty decisions;

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 the administrative violation handling procedure of the Border Guard Force.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

Article 1. This Circular stipulates the principles, procedures for handling administrative violations, and the responsibilities of agencies, units, organizations, and individuals related to the implementation of administrative violation handling by the Border Guard Force.

Article 2. Handling violations by Chinese fishing vessels that breach regulations on the common fishing area in the Gulf of Tonkin shall be carried out according to separate regulations.

Article 2. Applicability

Chapter 1. PERSONS WITH AUTHORITY TO HANDLE ADMINISTRATIVE VIOLATIONS IN THE BORDER GUARD FORCE

Chapter 2. ORGANIZATIONS AND INDIVIDUALS COMMITTING ADMINISTRATIVE VIOLATIONS AND THOSE RELATED TO SUCH VIOLATIONS

Article 3. Principles of Handling

Article 1. The handling of administrative violations must comply with the principles set forth in Articles 3, 5, and 134 of the Law on Handling Administrative Violations and this Circular.

Article 2. In cases where international treaties to which the Socialist Republic of Vietnam is a party provide different provisions, such treaties shall be applied.

Chapter II

PROCEDURE FOR HANDLING ADMINISTRATIVE VIOLATIONS

Section 1

COLLECTION, RECEIPT, AND PROCESSING OF INFORMATION AND DOCUMENTS ON ADMINISTRATIVE VIOLATIONS

Article 4. Collection and receipt of information and documents on administrative violations

Clause 1. Persons authorized to handle administrative violations within the Border Guard Force, when performing their duties, have the responsibility to collect information and documents about cases suspected of administrative violations from the following sources:

a) From mass media;

b) Reports from superiors or provided by agencies, units, organizations, or individuals;

c) Complaints, reports, accusations of law violations submitted by agencies, units, organizations, or individuals;

d) During inspections, controls, and management activities in the area.

đ) Other information sources.

Clause 2. Receipt of information and documents on administrative violations

a) In cases where a report is received regarding an administrative violation, persons authorized to handle administrative violations within the Border Guard Force shall follow the provisions of Article 5 of this Circular.

b) In cases where a report is received directly from the reporter, persons authorized to handle administrative violations within the Border Guard Force shall prepare a report record according to the model attached to this Circular and request the reporter to sign the record; if the reporter cannot write, they shall be asked to affix their fingerprint on the record. Reporters under 18 years old must have a guardian present.

c) In cases where information about an administrative violation is received via telephone, persons authorized to handle administrative violations within the Border Guard Force shall have the responsibility to record the report content; request the reporter to keep it confidential and provide the phone number used for contact and work.

d) Reporting location: At the office of the Border Guard Force agency or unit or at the location where the Border Guard Force Team or Squad is conducting patrol and control tasks in border areas, checkpoints, or at sea.

Article 5. Handling information on administrative violations

1. After collecting and receiving information and documents related to the violation, the authorized person handling administrative violations in the Border Guard Force shall be responsible for processing according to the following procedures:

a) Assessing the reliability and analyzing the collected data;

b) Reporting promptly to the authorized person;

c) Evaluating, verifying, and investigating; when signs of violation are detected, organizing verification, supplementing, and strengthening evidence;

d) For information with signs of violation but not within their authority to handle administrative violations, transferring it to the competent agency and simultaneously reporting to the immediate superior.

2. When conducting activities to receive and process information and documents on violations, based on the nature and severity of the information and documents that may affect the life, health, and reputation of the provider, the authorized person must keep the information and documents confidential, maintain the confidentiality of the identity of the information and document providers, and have a plan to ensure the safety of the information and document providers if requested by the reporter; they must not disclose the information and documents to those without responsibility.

Section 2

ADMINISTRATIVE PENALTY WITHOUT A VIOLATION RECORD

Article 6. Compelling cessation of administrative violation behavior

When discovering ongoing administrative violations, the authorized person handling administrative violations in the Border Guard Force, while performing official duties, decides to compel the cessation of the violation behavior through verbal instructions, sirens, commands, or other forms prescribed by law.

Article 7. Application cases

1. Administrative violation behavior where the form of penalty prescribed is a warning or a fine up to VND 250,000 for individuals, or up to VND 500,000 for organizations.

2. Individuals or organizations committing multiple administrative violation behaviors where the form of penalty for each behavior is a warning or a fine up to VND 250,000 for individuals, or up to VND 500,000 for organizations.

3. In cases of administrative violations discovered through the use of technical equipment, procedural records of administrative violations must be established and penalties imposed according to the procedure with record-keeping as stipulated in Section 3 of this Chapter.

Article 8. Penalty procedures

1. The authorized person imposing administrative penalties in the Border Guard Force as stipulated in Article 40 of the Law on Handling Administrative Violations shall examine and issue an on-the-spot penalty decision, handing over one copy to the individual or organization being penalized. If the person penalized is a minor, the penalty decision must also be sent to their parents or guardians.

2. In cases of fines, the amount of the fine must be clearly stated in the penalty decision.

Individuals or organizations violating the law can pay the fine on the spot to the authorized person imposing the penalty and receive a receipt for the fine payment as prescribed by the Ministry of Finance. The person collecting the fine must directly deposit it into the state treasury or the state treasury's account within seven working days from the date the patrol boat returns to shore or the work team returns to the border guard post.

If individuals or organizations violating the law are unable to pay the fine on the spot, they must pay it at the state treasury or a commercial bank designated by the state treasury for fine collection within ten days from the date of receiving the penalty decision, but they must temporarily retain the violator's documents, assets, items, or means of transportation to ensure enforcement of the penalty decision.

Section 3

ADMINISTRATIVE PENALTY WITH A VIOLATION RECORD

Article 9. Application Cases

After deciding to compel termination of administrative violation acts as prescribed in Article 6 of this Circular, if the nature and degree of the administrative violation committed by organizations or individuals do not fall under the cases stipulated in Article 7 of this Circular, administrative violation penalties shall be imposed according to the procedure with a record of inspection.

Article 10. Establishment of Administrative Violation Records

1. Border Guard soldiers, Team Leaders, Station Chiefs of Border Guard Stations, Post Chiefs of Border Guard Posts, Squadron Chiefs of Border Guard Squadrons, Port Border Gate Commanders, Provincial Border Guard Commanders, and Border Guard Battalion Commanders under the Border Guard Command directly subordinate to the Ministry of National Defense, while performing their duties, are responsible for establishing administrative violation records in accordance with Article 58 of the Law on Handling Administrative Violations and Article 6 of 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 Violations.

In cases where multiple individuals or organizations jointly commit one administrative violation act or jointly commit multiple administrative violation acts within the same administrative violation case, the authorized penalty-imposing authority shall establish administrative violation records for each individual or organization.

2. In cases where it is objectively impossible to immediately establish an administrative violation record upon apprehension, such record must be established immediately after escorting the violator back to the unit and clearly stating the reason in the record.

3. In cases where the violation is difficult to determine whether it is an administrative violation or a crime at the time, the authorized person establishing the administrative violation record temporarily detains the violator, evidence, means of transportation, and implements verification measures as prescribed in Article 12 of this Circular.

4. For administrative violations transferred from other agencies or units, the authorized penalty-imposing authority shall accept and establish a handover record; if the transferring agency or unit has not established an administrative violation record, then an administrative violation record shall be established.

5. In cases where the administrative violator intentionally avoids or due to objective reasons is absent from the location of the violation, the completed record must bear the signature of a representative of the local commune-level government where the violation occurred or of two witnesses.

6. In cases where the administrative violation does not fall within the penalty-imposing authority of the Border Guard, the violative act must be terminated, an administrative violation record established, evidence temporarily detained, a report submitted to the immediate superior for guidance, and the file, evidence, and violator (if applicable) handed over to the competent authority for handling.

7. In cases where the administrative violation includes acts within the penalty-imposing authority of the Border Guard and acts within the penalty-imposing authority of another agency, the authorized penalty-imposing authority within the Border Guard shall carry out:

a) Conducting investigation activities, making conclusions, and proposing the Chairman of the People's Committee at the competent level to issue a penalty decision;

b) Conducting investigation activities, issuing penalty decisions for acts within the penalty-imposing authority of the Border Guard, simultaneously preparing documents and transferring files, evidence, and means of transportation for administrative violations not within the penalty-imposing authority of the Border Guard to the competent authority, and requesting notification of the penalty results to the Border Guard.

8. The administrative violation record must be established strictly in accordance with the model prescribed in Circular No. 97/2014/TT-BQP dated July 16, 2014 of the Minister of National Defense regarding the issuance, management, and use of forms in administrative violation penalties by the Ministry of National Defense.

Article 11. Application of preventive measures and guarantees for administrative violation handling

1. Authority to apply preventive measures and guarantees for administrative violation handling within the Border Guard Force

a) The Commander of the Border Guard Sea Squadron, the Station Chief of the Border Guard Station, the Commander of the Border Guard Sea Team, the Commander of the Border Guard Sub-region, the Commander of the Border Gate Port Border Guard, the Head of the Border Guard Unit stationed at the border or on islands have the authority to escort violators; temporarily detain persons according to administrative procedures; temporarily seize objects, means of transport, licenses, and certificates of practice according to administrative procedures; search persons according to administrative procedures; search means of transport and items according to administrative procedures; search places where objects and means of transport violating administrative regulations are hidden;

b) The Team Leader of the Border Guard Control Post has the authority to escort violators; temporarily seize objects, means of transport, licenses, and certificates of practice according to administrative procedures as stipulated in Clause 4, Article 125 of the Law on Handling Administrative Violations; search persons according to administrative procedures as stipulated in Clause 2, Article 127 of the Law on Handling Administrative Violations; search means of transport and items according to administrative procedures as stipulated in Clause 3, Article 128 of the Law on Handling Administrative Violations.

c) Border Guard soldiers performing official duties have the authority to escort violators; search persons according to administrative procedures as stipulated in Clause 2, Article 127 of the Law on Handling Administrative Violations; search means of transport and items according to administrative procedures as stipulated in Clause 3, Article 128 of the Law on Handling Administrative Violations.

2. In cases where preventive measures and guarantees for administrative violation handling as prescribed in Clause 1 of this Article must be applied, the person authorized to apply such measures and guarantees must comply with the provisions of the law on handling administrative violations. If the preventive measure that needs to be applied does not fall within their authority, they must report to the person authorized to make the decision.

3. The person authorized to apply preventive measures and guarantees for administrative violation handling must comply with the principles of application as prescribed in Article 120 of the Law on Handling Administrative Violations, based on the circumstances for applying such measures, the procedures for applying preventive measures as prescribed in Articles 122, 123, 124, 125, 126, 127, 128, 129 of the Law on Handling Administrative Violations, and Decree No. 112/2013/ND-CP dated October 2, 2013 of the Government prescribing forms of expulsion penalties, temporary detention measures, escorting violators according to administrative procedures, and managing foreign nationals who violate Vietnamese laws during the expulsion process, and Decree No. 17/2016/ND-CP dated March 17, 2016 of the Government amending and supplementing some articles of Decree No. 112/2013/ND-CP dated October 2, 2013 of the Government prescribing forms of expulsion penalties, temporary detention measures, escorting violators according to administrative procedures, and managing foreign nationals who violate Vietnamese laws during the expulsion process.

4. Temporary seizure of objects and means of transport violating administrative regulations shall be managed and preserved according to the regime prescribed in Decree No. 115/2013/ND-CP dated October 3, 2013 of the Government regarding the management and preservation of objects and means of transport temporarily seized and confiscated according to administrative procedures.

Article 12. Verification of Circumstances of Administrative Violation Cases

1. After drafting the administrative violation record or receiving an administrative violation case, if necessary, the competent authority must develop a plan to verify the following circumstances:

a) The act of administrative violation;

b) The individual or organization committing the act of administrative violation, their fault, and personal background;

c) Aggravating circumstances and mitigating circumstances;

d) The situation where a decision on administrative penalty is not made;

đ) The nature and extent of damage caused by the administrative violation;

e) Documents, objects, and means related to the administrative violation;

g) Other circumstances significant for considering and deciding on administrative penalties.

In cases where it is necessary to determine the value of the objects of administrative violations as the basis for determining the fine range, the authority handling the case must determine the value of the objects according to Article 60 of the Law on Handling Administrative Violations and bear responsibility for the results of such determination; the basis for determining the value and relevant documents concerning the determination of the value of the objects of administrative violations must be reflected in the administrative violation penalty file.

2. Methods of verification

a) Taking statements from individuals who violated, representatives of organizations that violated, victims, and witnesses. If audio or video recording devices are used during the statement-taking process, after completing the recording, those present must listen to and review the recordings, then seal the data storage device with signatures of all relevant parties on the seal;

b) Clarifying issues still in doubt or contradictory in statements or issues requiring proof to conclude the administrative violation case;

c) Working with relevant agencies, organizations, and individuals; if necessary, working with them through sending request letters for opinions or dispatching staff to work directly. Staff assigned to work with relevant agencies, organizations, and individuals must have an introduction letter signed by the competent authority and must draft a work record. The work record must clearly state the content of the work and list in detail all documents provided by the agencies, organizations, and individuals (if any);

d) Requesting expert examination of documents, samples, and means when necessary. The expert examination shall be conducted in accordance with the laws on expert examination;

đ) Requesting relevant functional agencies to review files, certificates, or respond to issues still in doubt related to individuals, objects, and means of administrative violations;

e) Collecting evidence, materials, means, and objects related to the administrative violation case;

g) Other verification methods not contrary to the law and local customs.

3. The verification of circumstances of administrative violation cases must be documented in writing.

Article 13. Proposing Measures for Handling

Staff responsible for verification must:

1. Study the file, analyze, and conclude on the nature and degree of administrative violations;

2. Select corresponding legal provisions for application;

3. Report the verification results, propose handling directions, specify the article and clause of the legal document applied, form and level of punishment, measures to mitigate consequences.

Article 14. Issuing Administrative Offense Sanction Decisions

1. The issuance of administrative offense sanction decisions shall be carried out as follows:

a) When one individual or organization commits multiple administrative offenses and is subject to punishment in the same instance, only one administrative offense sanction decision shall be issued, specifying the form and level of punishment for each administrative offense.

b) When multiple individuals or organizations jointly commit one administrative offense, one or more administrative offense sanction decisions may be issued to determine the form and level of punishment for each individual or organization.

c) When multiple individuals or organizations commit different administrative offenses in the same case, one or more administrative offense sanction decisions may be issued to determine the form and level of punishment for each administrative offense committed by each individual or organization.

d) In cases where an individual or organization exercises the right to explain, the person authorized to handle administrative violations within the Border Guard Force must, before issuing the administrative offense sanction decision, consider, resolve, and organize an explanation session in accordance with Article 61 of the Law on Handling Administrative Violations.

2. Time limit for issuing administrative offense sanction decisions

a) Within seven days from the date of establishing the administrative violation record, the person authorized to impose administrative sanctions within the Border Guard Force must issue the administrative offense sanction decision.

b) In cases involving complex circumstances and not falling under the explanation provisions stipulated in Clause 2 and Clause 3 of Article 61 of the Law on Handling Administrative Violations, the time limit for issuing the decision is thirty days from the date of establishing the administrative violation record.

c) In cases of particularly serious incidents involving complex circumstances and not falling under the explanation provisions stipulated in Clause 2 and Clause 3 of Article 61 of the Law on Handling Administrative Violations, if additional time is deemed necessary for verification and evidence collection, the person authorized to handle administrative violations must report in writing to their direct superior requesting an extension; such extension must be in writing and cannot exceed thirty days.

d) In cases where administrative violation cases are received from investigative agencies, the time limit for issuing the administrative offense sanction decision is thirty days from the date of receiving the case file. If additional verification is required as stipulated in Point c of Clause 1 of this Article, the maximum time limit shall not exceed forty-five days.

e) Beyond the time limits specified in Points a, b, c, and d of this Clause, no administrative offense sanction decision may be issued, but measures to mitigate consequences and confiscation of prohibited goods may still be applied according to the law.

3. Administrative offense sanction decisions must be issued in the correct format, targeting the correct party, within the correct time frame, and within the appropriate authority, and must include all contents as prescribed in Circular No. 97/2014/TT-BQP dated July 16, 2014, issued by the Minister of National Defense regarding the issuance, management, and use of forms in administrative offense sanctions of the Ministry of National Defense, and must be sent to the individual or representative of the organization being sanctioned, the fine collection agency, and other relevant agencies within two days from the date of issuing the administrative offense sanction decision with the establishment of the record.

4. Stamping of administrative offense sanction decisions

a) Administrative offense sanction decisions issued by the person authorized to impose sanctions shall bear the stamp of the agency of the person authorized to impose sanctions for that offense.

b) For administrative offense sanction decisions issued by the Border Guard Control Station Commander, the Border Guard Station Commander, the Border Guard Squadron Commander under the Border Guard Flotilla, and Border Guard soldiers without a seal, the stamp of the issuing agency shall be affixed at the top left corner of the decision, where the name of the issuing agency is recorded.

Article 15. Enforcement of Administrative Offense Penalty Decisions

1. Individuals and organizations subject to administrative offense penalties must comply with the penalty decision within ten days from the date of receipt of the penalty decision; in cases where the penalty decision specifies an enforcement period exceeding ten days, such period shall be followed.

In cases where individuals or organizations subject to administrative offense penalties appeal or initiate litigation against the administrative offense penalty decision, they still must comply with the penalty decision, except for the cases stipulated in Clause 3, Article 15 of the Law on Handling Administrative Violations.

2. The authority issuing the administrative offense penalty decision has the responsibility to monitor and inspect the compliance with the penalty decision by the individuals and organizations subject to penalties, the agencies collecting fines, and other related agencies, and report the results of enforcing the penalty decision to the immediate superior agency and the local judicial agency's database management agency according to the provisions of Article 21 of this Circular.

3. Enforcement of Fine Penalty Decisions

a) Individuals and organizations subject to penalties must pay the fine at the state treasury specified in the decision;

b) Procedures for paying fines, managing funds collected from administrative offense penalties, payment receipts, and fine payments shall be carried out in accordance with the provisions of Articles 78 and 83 of the Law on Handling Administrative Violations;

c) In cases of deferring the enforcement of fine penalty decisions, reducing or exempting fines, or paying fines in installments, the provisions of Articles 76, 77, and 79 of the Law on Handling Administrative Violations; Articles 10 and 11 of Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing certain articles and measures for implementing the Law on Handling Administrative Violations; and Circular No. 153/2013/TT-BTC dated November 30, 2013 of the Minister of Finance regarding procedures for collecting and paying fines, fine collection receipts, and budgetary funds ensuring the operation of administrative violation enforcement forces shall apply.

4. In cases where the time limit specified in Clause 1 of this Article or the deferred compliance time limit for fine penalty decisions is exceeded and the individual or organization subject to penalties does not voluntarily comply, coercive enforcement measures shall be applied.

The principles, procedures, formalities, authorities applying coercive enforcement measures for administrative offense penalty decisions, and decisions applying remedial measures for administrative violations, when not imposing penalties, responsibilities for enforcement and ensuring enforcement of coercive enforcement decisions shall be implemented according to the provisions of Article 86, Point c Clause 1, Clause 2 Article 87, and Article 88 of the Law on Handling Administrative Violations and Decree No. 166/2013/NĐ-CP dated November 12, 2013 of the Government on Coercive Enforcement of Administrative Offense Penalty Decisions.

5. The transfer and delivery of administrative offense penalty decisions for enforcement shall be carried out according to the provisions of Articles 70 and 71 of the Law on Handling Administrative Violations.

6. Cases of administrative violations that require public announcement through mass media shall be handled according to the provisions of Article 72 of the Law on Handling Administrative Violations.

7. The statute of limitations for enforcing administrative offense penalty decisions is one year, calculated from the date of issuance of the decision; beyond this period, the penalty decision will not be enforced, except in cases where the penalty decision includes confiscation of contraband items or means of transportation involved in administrative violations, or applies remedial measures, which must still be enforced if necessary to protect the environment, ensure traffic safety, construction, and social security and public order. In cases where individuals or organizations subject to penalties intentionally evade or delay compliance, the statute of limitations provided in this Clause shall be calculated from the end of the evasion or delay behavior.

8. In cases where the supplementary penalty form of suspending the right to use licenses or certificates for a period specified in the penalty decision is applied, the authority issuing the penalty decision shall implement the procedures stipulated in Article 80 of the Law on Handling Administrative Violations.

9. In cases where the supplementary penalty form of confiscating contraband items or means of transportation involved in administrative violations and handling confiscated items and means of transportation is applied, it shall be carried out according to the provisions of Articles 81 and 82 of the Law on Handling Administrative Violations, and the management and preservation of confiscated items and means of transportation shall be conducted according to the provisions of Decree No. 115/2013/NĐ-CP dated October 3, 2013 of the Government on Managing and Preserving Contraband Items or Means of Transportation Involved in Administrative Violations Seized Through Administrative Procedures.

Article 16. Revocation of Administrative Offense Penalty Decisions

1. Authority to revoke administrative offense penalty decisions: The person who issued the decision, their superior, or the competent authority may issue a decision to revoke an administrative offense penalty decision that has been promulgated.

2. In cases where the administrative offense penalty decision was issued beyond the authority, in the wrong format, against the wrong subject, or after the deadline, or if new circumstances arise requiring a re-evaluation of the violation or the violator, the administrative offense penalty decision must be revoked.

3. Based on specific circumstances regarding the reasons for revoking the administrative offense penalty decision, the person who issued the decision shall issue a new administrative offense penalty decision or transfer the case file to the competent criminal prosecution agency, the competent authority to impose penalties, or another competent authority to handle the matter.

Article 17. Transfer of Administrative Violation Cases for Criminal Prosecution

1. The transfer of administrative violation cases for criminal prosecution shall be carried out in accordance with the provisions of Article 62 of the Law on Handling Administrative Offenses.

2. For cases discovered and arrested at the initial stage, where an administrative offense record has been established but during the administrative investigation process, if there are sufficient elements constituting a crime, the authorized person must prepare a report detailing the criminal signs specified in a specific article of the Penal Code and transfer the file to the competent authority for criminal investigation according to the criminal procedure.

3. If the person who established the administrative offense record has the authority to conduct criminal investigations according to the criminal procedure, they shall continue to handle and conduct investigative activities within their authority.

4. In cases where the person who established the administrative offense record belongs to Border Guard units without the authority to conduct criminal investigations, they must issue a decision to transfer the administrative violation case for criminal prosecution according to the following procedures:

a) In cases where the crime falls under the jurisdiction of the Border Guard for investigation, the file shall be transferred to the Provincial Border Guard Command for investigation;

b) In cases where the crime does not fall under the jurisdiction of the Border Guard for investigation, they must report to their direct superior for instructions to transfer the file to the competent investigative authority.

Article 18. Transfer of Case Files for Administrative Offense Penalties

1. For cases initially showing signs of criminal activity, where the Border Guard has established a record upon apprehending someone committing a crime, initiated a criminal case, indicted suspects, and applied preventive measures according to the criminal procedure, but during the investigation, it is concluded that the actions do not constitute a crime but show signs of an administrative offense, the authorized person must transfer the file for administrative offense penalties according to the following procedures:

a) Prepare a report on the results of the investigation and verification of the administrative offense as stipulated in specific clauses, articles, and decrees, and propose that the authorized person issue an administrative offense penalty decision;

b) If a criminal case has been initiated, suspects indicted, and preventive measures applied according to the criminal procedure, then the criminal investigation must be terminated, the indictment canceled, and the preventive measures lifted before transferring the file for administrative offense penalties;

c) If the person handling the case has the authority to impose penalties for the administrative offense, they shall issue a penalty decision; if not, they must transfer the file to the person with the authority to issue the penalty decision;

d) For smuggling and illegal transportation of goods across borders where the owner, manager, or lawful user cannot be immediately identified, after establishing a record of temporarily seizing the contraband items and means of transport, the authorized person must organize an investigation to identify the owner, manager, or lawful user. If, after investigation, the owner, manager, or lawful user still cannot be identified, the authorized person must announce at least twice consecutively through mass media and publicly post at the office of the authority confiscating the items; within thirty days from the date of announcement and public posting, if the owner, manager, or lawful user cannot be identified or they do not claim the items, the authorized person shall issue a decision to confiscate the contraband items and means of transport for disposal.

2. In all cases of transferring case files, there must be a transfer decision and a handover record. The handover record must fully list each document, contraband item, and means of transport included in the transferred file, and both the giver and receiver must sign the handover record.

Article 19. Acceptance of Administrative Violation Cases Transferred from Other Agencies for Handling by the Border Guard Force

1. The Border Guard Force shall only accept administrative violation cases within its authority to impose penalties.

2. The administrative violation case files transferred from other agencies must include a transfer decision accompanied by relevant documents, evidence, tools, and means used in committing the violation (if any), and a request for administrative penalty issued by the transferring agency. The acceptance of documents, evidence, tools, and means of violation must be recorded in a handover record. The handover record must fully list each type of document, evidence, tool, and means contained in the file, and must be signed by both the transferring and receiving parties.

3. After accepting the case file from another agency, the authorized person to impose administrative penalties in the Border Guard Force shall carry out the following necessary procedures:

a) In cases where it is determined that the matter exceeds their authority to impose administrative penalties, they shall report to their immediate superior and transfer the case file to the person with the authority to impose penalties.

b) In cases within their authority to impose penalties, and where sufficient evidence is available to determine the administrative violation, they shall immediately prepare an administrative violation record, issue a decision, and organize the implementation of the administrative penalty decision.

Article 20. Handling Complaints, Accusations, and Lawsuits

1. The handling of complaints and accusations against decisions on administrative penalties, decisions to apply preventive measures, and guarantees for administrative violation handling by authorized persons in the Border Guard Force shall be carried out in accordance with the provisions of the Law on Complaints, the Law on Accusations, and detailed regulations and guidance documents.

2. The resolution of lawsuits concerning decisions on administrative penalties, decisions to apply preventive measures, and guarantees for administrative violation handling by authorized persons in the Border Guard Force shall be carried out in accordance with the laws governing the resolution of administrative cases.

Section 4

REPORTING SYSTEM, FILE CREATION, AND RECORD STORAGE FOR ADMINISTRATIVE VIOLATION HANDLING WORK

Article 21. Reporting on Administrative Violation Handling Work

1. Authorized persons to impose administrative penalties must daily report to their direct superiors on the results of administrative violation handling according to the national database management regulations for administrative violation handling and the regulations of the Ministry of National Defense.

2. The Border Guard Post Commander, the Border Guard Squadron Commander, the Border Guard Sub-region Commander, the Border Guard Port Commandant, and the Border Guard Sea Unit Commander must daily and weekly report the situation of administrative violation handling in their units to the Provincial Border Guard Command. The Border Guard Sea Brigade Commander must daily, weekly, monthly, quarterly, biannually, and annually report the situation of administrative violation handling in their unit to the Border Guard Corps Command.

3. The Provincial Border Guard Command and the Border Guard Sea Brigade are responsible for monitoring and statistically reporting the situation of administrative violations and the results of administrative violation handling in their units to the Border Guard Corps Command.

4. The Border Guard Corps Staff, in collaboration with the Drug Prevention and Crime Suppression Department of the Border Guard Corps Command, are responsible for monitoring and statistically reporting the situation of administrative violations and the results of administrative violation handling in Border Guard agencies and units, and regularly quarterly, biannually, and annually report to the Ministry of National Defense according to the Ministry of National Defense's regulations on administrative violation handling management.

Article 22. Establishing and storing administrative violation case files

1. After concluding a case, the Border Guard agency or unit shall complete the administrative violation case file in accordance with the laws on handling administrative violations and this Circular.

2. The level at which the decision to impose an administrative penalty is issued shall store the original case file and documents at that level upon conclusion of the case.

3. In cases where the People's Committee of a district or province issues a decision to impose an administrative penalty, the proposing unit shall request the People's Committee of the district or province to provide a copy of the case file for storage at its own level.

4. Destruction of documents with no archival value may only be carried out upon issuance of a written decision by an authorized person. Determination of archival documents, retention period, and destruction of archival documents shall be conducted in accordance with the Law on Archives and Decree No. 01/2013/NĐ-CP dated January 3, 2013, detailing the implementation of the Law on Archives.

Chapter III

IMPLEMENTING PROVISIONS

Article 23. Effectiveness of Implementation

This Circular takes effect from August 1, 2016.

Article 24. Implementation Organization

1. The Commander of the Border Guard Force, heads of Border Guard agencies and units, and heads of related agencies and units are responsible for implementing this Circular. The Commander of the Border Guard Force is responsible for managing, monitoring, inspecting, and urging the implementation of this Circular.

2. Any difficulties encountered during implementation shall be compiled and reported by the Border Guard Command to the Ministry of National Defense for consideration and decision./.