Circular No. 88/2010/TT-BTC guiding the implementation of certain contents of the Government's Decree No. 96/2009/NĐ-CP dated October 30, 2009 on the handling of buried or sunken property discovered or found on mainland, islands, and waters of Vietnam.

CIRCULAR

Guidelines for implementing certain contents of Decree No. 96/2009/NĐ-CP dated October 30, 2009 of the Government on the handling of buried or sunken property discovered or found within the territory, islands, and waters of Vietnam,islands, and waters of Vietnam

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Pursuant to Decree No. 96/2009/NĐ-CP dated October 30, 2009 of the Government on the handling of buried or sunken property discovered or found within the territory, islands, and waters of Vietnam;

Pursuant to Decree No. 118/2008/NĐ-CP dated November 27, 2008, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

The Ministry of Finance issues guidelines for implementing certain contents of Decree No. 96/2009/NĐ-CP dated October 30, 2009 of the Government on the handling of buried or sunken property discovered or found within the territory, islands, and waters of Vietnam (hereinafter referred to as Decree No. 96/2009/NĐ-CP) as follows:

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

1. This Circular guides the implementation of the following contents:

a) Establishing the Appraisal Board to determine the value of buried or sunken property that has been discovered or found;

b) Paying expenses related to exploration, excavation, salvage, and handling of property as stipulated in Clause 2, Article 12 and Article 18 of Decree No. 96/2009/NĐ-CP; paying rewards to organizations and individuals as stipulated in Article 16 of Decree No. 96/2009/NĐ-CP; and paying the value of the property to organizations and individuals who have accidentally found it as stipulated in Article 17 of Decree No. 96/2009/NĐ-CP.

2. In cases where international treaties on the handling of buried or sunken property to which Vietnam is a party provide different provisions from those set forth in this Circular, such treaties shall be followed.

Article 2. Applicability

1. Organizations and individuals discovering or finding buried or sunken property.

2. State agencies authorized to handle buried or sunken property that has been discovered or found.

3. Agencies and units entrusted with receiving and preserving buried or sunken property that has been discovered or found.

4. Other entities related to the handling of buried or sunken property that has been discovered or found.

Article 3. Expenses related to exploration, excavation, salvage, and handling of buried or sunken property

1. Contents of expenses related to exploration, excavation, salvage, and handling of buried or sunken property shall be implemented in accordance with the provisions of Article 18 of Decree No. 96/2009/NĐ-CP.

2. Specific levels of expenditure are defined as follows:

a) For expenditures that have standards, norms, and regulations prescribed by competent state agencies, they shall be implemented according to the prescribed standards, norms, and regulations;

b) For expenditures that do not have standards, norms, and regulations prescribed by competent state agencies, the head of the agency or unit responsible for handling buried or sunken property shall decide on the expenditure but must ensure compliance with the current financial management system of the State and bear full responsibility for their decision.

3. Method of payment for expenses related to exploration, excavation, salvage, and handling of buried or sunken property calculated based on excavated or salvaged items as stipulated in Clause 1, Article 18 of Decree No. 96/2009/NĐ-CP:

a) Organizations and individuals entrusted with exploring, excavating, and salvaging property shall be responsible for advancing all funds to implement exploration, excavation, and salvage activities according to the plan approved by the competent state agency;

b) Determination of the quantity of items for payment of exploration, excavation, and salvage expenses shall be carried out after completion of excavation and salvage, corresponding to the exploration, excavation, and salvage expenses according to the plan approved by the competent state agency under Article 6 of Decree No. 96/2009/NĐ-CP.

In cases where the quantity of items for payment is determined before the execution of excavation and salvage, based on the quantity and type of items expected to be excavated and salvaged, the competent state agency approving the plan for exploration, excavation, and salvage of property under Article 6 of Decree No. 96/2009/NĐ-CP shall decide the ratio of distribution of items for payment of exploration, excavation, and salvage expenses. The distribution of items after excavation and salvage must ensure transparency, fairness, objectivity, and consistency with the approved plan for exploration, excavation, and salvage of property.

Chapter II
APPRAISAL BOARD TO DETERMINE THE VALUE OF BURIED OR SUNken PROPERTY BURIED OR SUNken PROPERTY

Article 4. Establishment of the Appraisal Board to Determine the Value of Buried or Sunken Assets

1. The competent state agency that approves the handling plan for buried or sunken assets as stipulated in Clause 2, Article 11 of Decree No. 96/2009/ND-CP shall decide to establish the Appraisal Board to Determine the Value of Buried or Sunken Assets (hereinafter referred to as the Appraisal Board).

2. The composition of the Appraisal Board includes:

a) The head of the agency deciding to establish the Appraisal Board or the person authorized to act as the Chairman of the Board;

b) A representative from the financial authority (the Ministry of Finance for buried or sunken assets whose handling plan is approved by the central-level competent state agency; the Department of Finance for buried or sunken assets whose handling plan is approved by the local-level competent state agency);

c) A representative from the entity assigned the task of receiving and preserving the assets as stipulated in Clause 2 and Clause 3, Article 9 of Decree No. 96/2009/ND-CP;

d) Representative of the technical department or experts on property;

e) Other relevant members.

3. The minimum number of members of the Appraisal Board is five people.

Representatives of organizations or individuals who randomly discover the assets or have contributed to discovering and providing information about buried or sunken assets are entitled to attend meetings of the Appraisal Board and may express their opinions but do not have voting rights.

4. The Appraisal Board may engage or instruct the entity assigned the task of receiving and preserving the assets as stipulated in Clause 2 and Clause 3, Article 9 of Decree No. 96/2009/ND-CP to hire an organization with the necessary conditions for appraisal activities to determine the value of buried or sunken assets for consideration and reference before making a decision.

5. The Appraisal Board is responsible for appraising buried or sunken assets according to the legal provisions on principles, methods, and standards for asset valuation. In special cases where the value of the assets cannot be determined, the Appraisal Board must issue a written notice to the competent state agency as stipulated in Clause 3, Article 16 of Decree No. 96/2009/ND-CP to inform them so they can decide on the reward amount as provided for in Clause 5, Article 16 of Decree No. 96/2009/ND-CP.

6. The operating costs of the Appraisal Board and the costs of hiring an organization with the necessary conditions for appraisal activities (if applicable) are included in the handling costs of the assets and are paid according to the provisions of Article 19 of Decree No. 96/2009/ND-CP.

Article 5. Principles of Operation of the Appraisal Board

1. The Appraisal Board operates based on the principle of collective work. At least two-thirds of the total number of members of the Appraisal Board must attend each meeting. Decisions of the Appraisal Board must be approved by more than half of its members and recorded in minutes. In case of a tie vote, the side supported by the Chairman of the Board prevails.

2. The Valuation Council prepares minutes on the valuation of assets. The asset valuation minutes must promptly, fully, and truthfully record the entire valuation process.

3. The main contents of the asset appraisal minutes include: Name and position of the Chairman of the Asset Appraisal Board and other members of the Board; names of those attending the asset appraisal session; time and location of the asset appraisal; results of the asset value survey; opinions of the Board members and attendees at the asset appraisal session; results of the Appraisal Board's vote on the asset value; completion time and location of the asset appraisal; signatures of the Appraisal Board members.

The asset appraisal minutes must be kept in the asset appraisal file.

Article 6. Utilization of the asset value determined by the Appraisal Board

The asset value determined by the Valuation Council serves as the basis for:

1. Awarding bonuses to organizations and individuals as prescribed in Article 16 of Decree No. 96/2009/NĐ-CP and guided in Chapter IV of this Circular;

2. Paying the portion of the asset value to organizations and individuals who accidentally find assets as prescribed in Article 17 of Decree No. 96/2009/NĐ-CP and guided in Chapter V of this Circular, except when such assets are sold at auction;

3. Paying exploration, excavation, and salvage costs for assets when competent state agencies decide to pay these costs in kind, with payment determined after completion of excavation and salvage;

4. Determining the starting price for organizing an auction.

Chapter III
PAYMENT OF COSTS IN CASES OF RETURNING DISCOVERED BURIED OR SUNK ASSETS TO THE LEGAL OWNERFOR THE LEGAL OWNER

Article 7. Payment of costs in cases of accidental discovery of assets

The legal owner who is returned the asset shall be responsible for paying:

1. Transportation and storage costs for the organization or individual who accidentally finds and surrenders the asset. The amount payable shall be agreed upon by both parties based on actual incurred costs. In case the parties cannot agree on transportation and storage costs, it shall be resolved according to the provisions of civil law;

2. Costs for notifying the asset's owner and other related costs (if any) for the agency or unit entrusted with receiving and storing the asset. The amount payable shall be determined according to the guidance provided in Article 3 of this Circular.

Article 8. Payment of costs in cases of excavation and salvage of assets

The legal owner who is returned the asset shall be responsible for paying all reasonable costs as stipulated in Article 18 of Decree No. 96/2009/NĐ-CP to the agency or unit entrusted with receiving and storing the asset. The amount payable shall be determined according to the guidance provided in Article 3 of this Circular.

Chapter IV
AWARDING BONUSES TO ORGANIZATIONS AND INDIVIDUALS WHO ACCIDENTALLY FIND AND SUBMIT ASSETS OR DISCOVER AND PROVIDE ACCURATE INFORMATION ABOUT BURIED OR SUNK ASSETS

Article 9. Determination of asset value for award purposes

1. The Asset Appraisal Board specified in Article 4 of this Circular shall be responsible for determining the asset value for award purposes as follows:

a) In cases where the asset is processed through auction as prescribed in point d, Clause 1, Article 11 of Decree No. 96/2009/NĐ-CP, the asset value for awards is the winning bid price;

b) In cases where the asset is transferred to a state agency with the function of retaining and managing as prescribed in point b, Clause 1, Article 11 of Decree No. 96/2009/NĐ-CP, the asset value is the value determined by the Appraisal Board.

2. The asset value for awards prescribed in Article 16 of Decree No. 96/2009/NĐ-CP shall be determined as follows:

Article 10. Procedures for awarding bonuses

1. Organizations and individuals eligible for awards as prescribed in Clause 1, Article 16 of Decree No. 96/2009/NĐ-CP shall submit a request for awarding bonuses to the agency or unit entrusted with receiving and storing the asset.

2. Within thirty days from the date of receipt of the request from the organization or individual as prescribed in Clause 1 of this Article, the agency or unit entrusted with receiving and storing the asset shall be responsible for submitting to the competent state authority as prescribed in Clauses 3 and 4, Article 16 of Decree No. 96/2009/NĐ-CP for a specific award decision. The main contents of the award decision include:

a) Legal basis for awarding bonuses to organizations and individuals;

b) Name of the organization or individual to be awarded;

c) Amount of the award for the organization or individual;

d) Time limit for awarding;

đ) Agency or unit responsible for awarding (the determination of the agency or unit responsible for awarding is based on the provisions of Article 19 of Decree No. 96/2009/NĐ-CP);

e) Source of the award.

The decision shall be sent to the recipient, the agency or unit responsible for awarding, and the state financial authority at the same level.

3. In cases where the award source is used from the state budget, legitimate income of the agency with the function of retaining and managing assets, and maritime security fees, based on the award decision of the competent state authority as prescribed in Clause 2 of this Article, the agency or unit entrusted with awarding shall be responsible for submitting to the competent authority for a decision or deciding within its authority on the use of these sources of funds for awards according to the law.

4. Within ninety days from the date of the award decision of the competent state authority, the agency or unit responsible for awarding shall implement the payment of bonuses to the organization or individual entitled to the award as prescribed.

Chapter V
PAYMENT OF THE PORTION OF THE ASSET VALUE TO ORGANIZATIONS, INDIVIDUALS WHO ACCIDENTALLY FIND ASSETS IN CASES WHERE THE OWNER CANNOT BE IDENTIFIED

Article 11. Determining the value of property for settlement purposes

1. For properties disposed of through public auction, the value of the property for settlement purposes shall be determined based on the winning bid price.

2. In other cases, the value of the property shall be determined by the Appraisal Board as prescribed in Article 4 of this Circular.

Article 12. Settlement in cases where found property has a value up to ten months of the minimum wage

1. For property, after deducting reasonable related expenses, if its value is up to ten months of the minimum wage stipulated by the State (at the time of finding and turning over the property), then the property (in kind) shall be returned to the random individual or organization that found it.

2. Upon receiving the property, the random individual or organization that finds the property shall bear the responsibility for paying reasonable related expenses (costs for identifying the owner, transportation, storage, and valuation of the property). If the random individual or organization that finds the property does not accept the property or does not pay the reasonable related expenses, the property shall belong to the State.

Article 13. Settlement in cases where found property has a value greater than ten months of the minimum wage

For property, after deducting reasonable related expenses, if its value is greater than ten months of the minimum wage stipulated by the State (at the time of finding and turning over the property), the random individual or organization that finds the property shall be settled as follows:

1. In the case where the random individual or organization that finds and turns over the property requests to receive the property (in kind) and the property cannot be divided, such individual or organization shall receive the property (in kind) while bearing the responsibility for paying reasonable related expenses and the portion of the property's value belonging to the State as prescribed in point b, clause 1, Article 17 of Decree No. 96/2009/NĐ-CP.

2. In the case where the random individual or organization that finds and turns over the property requests to receive the property (in kind) and the property can be divided, the random individual or organization that finds the property shall be allocated the property in kind corresponding to the portion of the property's value they are entitled to according to point b, clause 1, Article 17 of Decree No. 96/2009/NĐ-CP.

3. In the case where the random individual or organization that finds and turns over the property requests to receive the value of the property in cash, the random individual or organization that finds the property shall be paid the value of the property they are entitled to according to point b, clause 1, Article 17 of Decree No. 96/2009/NĐ-CP in cash.

The settlement of the value of the property for the random individual or organization that finds the property in kind or in cash as prescribed in this Article shall be decided by the competent state agency as prescribed in clause 2, Article 17 of Decree No. 96/2009/NĐ-CP.

Article 14. Settlement procedures

1. Individuals or organizations eligible for settlement of the value of property as prescribed in clause 1, Article 17 of Decree No. 96/2009/NĐ-CP shall submit a request for settlement of the value of the property they are entitled to to the agency or unit assigned the task of receiving and storing the property.

2. Within thirty days from the date of receipt of the request from the individuals or organizations as prescribed in clause 1 of this Article, the agency or unit assigned the task of receiving and storing the property shall have the responsibility to report to the competent state agency as prescribed in clause 2, Article 17 of Decree No. 96/2009/NĐ-CP to decide specifically the amount entitled to the individuals or organizations. The main contents of this decision include:

a) Legal basis for settling the value of the property for the random individual or organization that finds and turns over the property;

b) Name of the individual or organization entitled to settle the value of the property found and turned over randomly;

c) Value of the property settled for the random individual or organization that finds and turns over the property; expenses the individual or organization must settle (if any);

d) Method of settlement (in kind, in cash);

đ) Time limit for settlement;

e) Source of funds for settlement (in the case of cash settlement);

g) Agency or unit responsible for settling the value of the property for the random individual or organization that finds and turns over the property.

The decision shall be sent to the beneficiary, the agency or unit assigned the task of settlement, and the state financial authority at the same level.

3. In the case where the source of funds for settlement is used from the state budget, legitimate income of the agency with the function of holding and managing property, and maritime security fees, based on the decision on settling the value of the property for the random individual or organization that finds and turns over the property by the competent state agency as prescribed in clause 2 of this Article, the agency or unit assigned the task of settlement shall have the responsibility to report to the competent authority to decide or decide within their authority on the use of these sources of funds for settlement in accordance with the law.

4. Within ninety days from the date of the decision on the amount entitled to the random individual or organization that finds and turns over the property by the competent state agency, the agency or unit responsible for settlement shall implement the settlement of the value of the property for the entitled individuals or organizations as prescribed.

Chapter VI
IMPLEMENTING PROVISIONS

Article 15. Implementation Provisions

1. This Circular takes effect from August 1, 2010.

2. During the implementation of this Circular, if any difficulties arise, please reflect them to the Ministry of Finance for coordination in resolution./.