Circular No. 95/2014/TT-BQP guiding the implementation of Decree No. 120/2013/NĐ-CP dated October 9, 2013 of the Government on administrative penalties in the field of national defense and cryptographic communications.

CIRCULAR

HImplementation guidelines for Decree No. 120/2013/NĐ-CP dated October 9, 2013 of the Government on administrative penalties in the field of national defense and cryptographic communications

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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 Governmental Decree No. 120/2013/NĐ-CP dated October 9, 2013 on administrative penalties in the field of national defense and telegraphic communications;

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;

Pursuant to Decree No. 09/2014/NĐ-CP dated January 27, 2014 of the Government stipulating functions, tasks, powers, and organizational structure of the General Office for Official Communications under the Government;

Considering the proposal of the Chief Inspector of the Ministry of National Defense,

The Minister of National Defense issues these guidelines to implement Decree No. 120/2013/NĐ-CP dated October 9, 2013 of the Government on administrative penalties in the field of national defense and cryptographic communications.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

1. These Circulars guide the implementation of Decree No. 120/2013/NĐ-CP dated October 9, 2013 of the Government on administrative penalties in the field of national defense and cryptographic communications (hereinafter referred to as Decree No. 120/2013/NĐ-CP).

2. Other provisions regarding administrative penalties in the field of national defense and cryptographic communications not covered by this Circular shall be implemented in accordance with the Law on Handling Administrative Violations and related detailed regulations.

Article 2. Applicability

This Circular applies to:

1. State management agencies authorized to handle administrative penalties in the field of national defense and cryptographic communications, and individuals assigned such tasks by authorized state management agencies.

2. Organizations and individuals who violate the laws on administrative penalties in the field of national defense and cryptographic communications.

3. Other entities related to administrative penalties in the field of national defense and cryptographic communications as stipulated in this Circular.

Article 3. Determination of the amount of fines in specific cases

1. The specific amount of fine for an administrative violation without aggravating or mitigating circumstances is the midpoint of the fine range prescribed for that violation. The midpoint of the fine range is determined by averaging the maximum and minimum amounts of the fine range.

2. For administrative violations with mitigating circumstances as provided for in Article 9 of the Law on Handling Administrative Violations, the fine may be reduced below the midpoint of the penalty range but must not be lower than the minimum amount of the penalty range; if there are aggravating circumstances as provided for in Article 10 of the Law on Handling Administrative Violations, the fine may be increased above the midpoint of the penalty range but must not exceed the maximum amount of the penalty range.

3. For administrative violations with both mitigating and aggravating circumstances, they shall be offset against each other, one mitigating circumstance offsetting one aggravating circumstance. After offsetting, if no aggravating or mitigating circumstances remain, the fine amount shall be determined according to Clause 1 of this Article; if mitigating or aggravating circumstances still exist, the fine amount shall be determined according to Clause 2 of this Article.

Article 4. Forms to be used in administrative penalties

Forms for administrative penalties in the field of national defense and cryptographic communications shall be implemented in accordance with the laws on issuing, managing, and using forms for administrative penalties under the management of the Ministry of National Defense.

Chapter II

VIOLATIONS, FORMS OF PENALTIES, MEASURES TO REMEDY THE CONSEQUENCES OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF NATIONAL DEFENSE AND TELEGRAPHIC COMMUNICATIONS

Article 5. "Legitimate reasons" as stipulated in Clause 1 of Article 5, Clause 1 of Article 6, Clause 1 of Article 7, Clause 1 of Article 11, and Clause 1 of Article 12 of Decree No. 120/2013/NĐ-CP

1. "Legitimate reasons" as stipulated in Clause 1 of Article 5, Clause 1 of Article 6, Clause 1 of Article 7, Clause 1 of Article 11, and Clause 1 of Article 12 of Decree No. 120/2013/NĐ-CP include the following reasons:

a) A person subject to preliminary military service registration; health check for military service; selection of reserve officers' health check; execution of orders to report for military service; orders to attend reserve officer training; orders to concentrate for training, exercises, readiness inspection, combat readiness (hereinafter referred to as a person performing military service) but falls ill or gets sick during travel.

b) Relatives of a person performing military service including biological parents; parents-in-law or parents-in-law; legal fosterers; wife or husband; biological children or legally adopted children suffering from serious illness.

c) Relatives of a person performing military service including biological parents; parents-in-law or parents-in-law; legal fosterers; wife or husband; biological children or legally adopted children who have died but have not yet been buried.

d) The residence of a person performing military service or the residence of relatives of a person performing military service located in areas affected by natural disasters, epidemics, fires affecting their lives.

đ) A person performing military service does not receive preliminary military service registration notices; health checks for military service; selection of reserve officers' health checks; orders to report for military service; orders to attend reserve officer training; orders to concentrate for training, exercises, readiness inspection, combat readiness due to errors by the person or responsible agency or actions by others causing difficulties or hindrances as stipulated in Article 8 of Chapter II of this Circular.

2. In cases specified in Point a and Point b of Clause 1 of this Article, confirmation from the People's Committee of the commune or hospital, commune health station is required; in cases specified in Point c and Point d of Clause 1 of this Article, confirmation from the People's Committee of the commune is required; in cases specified in Point đ of Clause 1 of this Article, confirmation from the competent state authority is required.

Article 6. The act of "deception to distort the result of health classification" prescribed in Point a Clause 2 Article 6 and Point a Clause 3 Article 11 Decree No. 120/2013/ND-CP.

The act of "deception to distort the result of health classification" prescribed in Point a Clause 2 Article 6 and Point a Clause 3 Article 11 Decree No. 120/2013/ND-CP includes the following acts:

1. Using forms or methods to change one's own health status.

2. Altering the results of one's own health status during health checks or examinations.

3. Asking others to conduct health checks or examinations on one’s behalf.

Article 7. The act of "harboring, shielding deserters" prescribed in Point b Clause 1 Article 8 Decree No. 120/2013/ND-CP.

The act of "harboring, shielding deserters" prescribed in Point b Clause 1 Article 8 Decree No. 120/2013/ND-CP includes the following acts:

1. Allowing deserters to stay at one's home or organization without reporting to competent authorities.

2. Transporting deserters to hide or providing means and materials for deserters to evade capture.

3. Preparing documents to legitimize the act of desertion.

Article 8. The act of "hindering" prescribed in Clause 2 Article 9, Clause 2 Article 21, and Clause 3 Article 23 Decree No. 120/2013/ND-CP.

1. The act of "hindering" prescribed in Clause 2 Article 9 Decree No. 120/2013/ND-CP is an act carried out by individuals or organizations, manifested through one of the following acts:

a) Not reporting or delaying the submission of relevant documents related to the performance of duties and obligations.

b) Using words or actions to obstruct, threaten materially or spiritually against persons responsible for performing tasks related to military service registration, preliminary selection for military service, health examination for military service, and execution of orders for conscription.

2. The act of "hindering" prescribed in Clause 2 Article 21 Decree No. 120/2013/ND-CP is an act manifested through words or actions such as obstruction, material or spiritual threats to prevent others from participating in the self-defense militia force or to prevent persons responsible for organizing, commanding, and managing the self-defense militia force from fulfilling their tasks regarding the organization, training, and activities of the self-defense militia force.

3. The act of "hindering" prescribed in Clause 3 Article 23 Decree No. 120/2013/ND-CP is an act manifested through words or actions such as obstruction, material or spiritual threats against self-defense militia officers and soldiers in the performance of their duties.

Article 9. Acts violating regulations on management, use, and production of military uniforms.

Military uniforms prescribed in Clause 2 Article 8, Articles 32, 33, and 34 Decree No. 120/2013/ND-CP are clothing used in the Military according to the Government's regulations.

Article 10. Determination of the value of land use rights encroached upon converted into money as prescribed in Article 29 Decree No. 120/2013/ND-CP.

The monetary value of land use rights for the area of land encroached upon as prescribed in Clause 1 and Clause 2 Article 29 Decree No. 120/2013/ND-CP is calculated by multiplying the area of land encroached upon with the land price determined by the People's Committee of the province or centrally governed city where the land is located at the time of the administrative violation record.

The area of land encroached upon is the area recorded in the administrative violation record. In case the person committing the administrative violation appeals the data on the area of land, the appellant has the right to request the competent authority imposing the penalty to commission an appraisal. The appraisal costs shall be borne by the person being penalized if the appraisal result is consistent with the area of land recorded in the administrative violation record (the appraisal result of the area of land may have an allowable deviation of 0.25%).

Article 11. Application of supplementary administrative penalty form of confiscation of evidence and means of administrative violation as prescribed in Decree No. 120/2013/NĐ-CP

1. When applying the supplementary administrative penalty form of confiscation of evidence and means of administrative violation as prescribed in Decree No. 120/2013/NĐ-CP, the authorized authority must prepare a record in accordance with Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing certain provisions and measures to implement the Law on Handling Administrative Violations (hereinafter referred to as Decree No. 81/2013/NĐ-CP). The record must clearly state the name, quantity, type, registration number (if available), condition, and quality of the confiscated objects, money, goods, and means of administrative violation, and must have the signatures of the person conducting the confiscation, the person being penalized or their representative organization, and a witness; if the person being penalized or their representative organization is absent, there must be two witnesses present. For evidence and means of administrative violation that need to be sealed, they must be sealed in the presence of the person being penalized, the representative of the organization being penalized, or a witness; the sealing process must be recorded in the record.

2. For evidence and means of administrative violation currently under temporary detention, if the authorized authority discovers changes in the condition of the evidence and means compared to the time of the decision for temporary detention, they must prepare a record of these changes; the record must have the signatures of the person preparing the record, the person responsible for temporary detention, and a witness.

3. Handling of evidence and means of administrative violation shall be carried out in accordance with Article 82 of the Law on Handling Administrative Violations.

Article 12. Application of supplementary administrative penalty form of revocation of certificate of eligibility to participate in national defense industry activities as prescribed in Clause 3, Article 19 and Clause 6, Article 20 of Decree No. 120/2013/NĐ-CP and the form of administrative penalty prescribed in Clause 5, Article 20 of Decree No. 120/2013/NĐ-CP 1. In cases where an individual or organization commits multiple administrative violations and is penalized in the same instance, including two or more violations subject to the supplementary administrative penalty of revoking the certificate of eligibility to participate in national defense industry activities, the longest period of revocation of the certificate of eligibility to participate in national defense industry activities shall apply to the most serious violation.

2. In cases where penalties are imposed for engaging in national defense industry activities without obtaining a certificate of eligibility to participate in national defense industry activities as prescribed in Clause 5, Article 20 of Decree No. 120/2013/NĐ-CP, the authorized authority must notify in writing the superior management agency under the Ministry of National Defense of the entity implementing the contract.

Article 13. Measures to remedy consequences requiring compulsory military service as stipulated by the Law on Military Service Obligation

Measures to remedy consequences requiring compulsory military service as stipulated by the Law on Military Service Obligation for the violation prescribed in Point a, Clause 1, Article 8 of Decree No. 120/2013/NĐ-CP are citizens continuing to comply with regulations on registering for military service, preliminary selection, health examination for military service, and enlistment as prescribed by the Law on Military Service Obligation.

Measures to rectify the consequences of being compelled to perform military service obligations as prescribed by the Law on Military Service for the acts specified in Point a Clause 1 Article 8 Decree No. 120/2013/NĐ-CP are that citizens must continue to comply with the provisions regarding registration for military service, preliminary selection, health examination for military service performance, and enlistment as stipulated by the Law on Military Service.

Chapter III

AUTHORITY, PROCEDURES FOR ADMINISTRATIVE SANCTIONS AND ENFORCEMENT OF DECISIONS ON ADMINISTRATIVE SANCTIONS IN THE FIELD OF NATIONAL DEFENSE AND COMMUNICATION SECURITY

Article 14. Allocation of Administrative Violation Sanctioning Authority in the Defense and Confidentiality Sector

1. In cases where administrative violations in the defense and confidentiality sector fall under the sanctioning authority of multiple individuals, the administrative violation sanction shall be carried out by the first individual to handle the case.

2. In cases where an individual commits multiple administrative violations in the defense and confidentiality sector, the administrative violation sanctioning authority shall be determined according to the following principles:

a) If the form, level, amount of confiscated property, and measures to mitigate consequences for each violation are all within the sanctioning authority of the individual imposing the administrative sanction, then the sanctioning authority remains with that individual;

b) If the form, level, amount of confiscated property, and measures to mitigate consequences for one of the violations exceed the sanctioning authority of the individual imposing the administrative sanction, then that individual must transfer the violation case to the competent authority with sanctioning power;

c) If the violation falls under the administrative sanctioning authority of multiple individuals from different sectors, then the sanctioning authority belongs to the Chairman of the People's Committee at the location where the violation occurred.

Article 15. Administrative Sanctions in the Defense and Confidentiality Sector without Creating a Violation Record

Administrative sanctions in the defense and confidentiality sector without creating a violation record shall be applied in cases of warning or fines for violations stipulated in Clause 2, Article 4 of Decree No. 120/2013/NĐ-CP, with a fine up to VND 250,000 for individuals, and the person with sanctioning authority must issue the sanction decision on the spot.

Article 16. Administrative Sanctions in the Defense and Confidentiality Sector with a Violation Record

1. Administrative sanctions in the defense and confidentiality sector with a violation record shall be applied to administrative violations committed by individuals and organizations not covered by Article 15 of this Circular.

2. The creation of a violation record and the authority to create such records in the defense and confidentiality sector shall be implemented according to the provisions of Article 58 of the Law on Handling Administrative Violations, Article 6 of Decree No. 81/2013/NĐ-CP, Article 43 and Article 49 of Decree No. 120/2013/NĐ-CP.

3. In cases where individuals or organizations have committed administrative violations in the defense and confidentiality sector and have been discovered, recorded in inspection or audit reports, or concluded in written documents by competent agencies, there is no need to create a violation record before issuing the administrative violation sanction decision. The person with sanctioning authority bases the decision on the inspection or audit report or conclusion.

Article 17. Explanation by Organizations and Individuals Committing Administrative Violations in the Defense and Confidentiality Sector

1. For organizations and individuals committing administrative violations in the defense and confidentiality sector subject to supplementary sanctions of revoking certificates of eligibility to participate in national defense industry activities as stipulated in Clause 3, Article 19, and Clause 6, Article 20 of Decree No. 120/2013/NĐ-CP, or subject to maximum fines within the monetary penalty range for those violations of VND 15,000,000 or more for individuals, and VND 30,000,000 or more for organizations, the violators have the right to explain directly or in writing to the person with sanctioning authority.

2. The person with sanctioning authority has the responsibility to consider the explanations of the violators before issuing the sanction decision, except in cases where the violators do not request an explanation within the time limit specified in Clause 2 and Clause 3 of Article 61 of the Law on Handling Administrative Violations.

3. The time limit and procedures for explaining administrative violations in the defense and confidentiality sector are regulated in Clause 2 and Clause 3 of Article 61 of the Law on Handling Administrative Violations.

Article 18. Transfer of administrative violation case files in the defense and cryptographic sectors with signs of criminal offenses for criminal responsibility pursuit

1. During the process of imposing administrative penalties in the defense and cryptographic sectors, if it is found that the organization or individual violating the law has signs of criminal offenses, the authority responsible for imposing penalties must immediately transfer the file to the criminal proceedings agency.

2. In cases where the authority responsible for imposing penalties has issued a decision on administrative penalties in the defense and cryptographic sectors, if the violation is discovered to have signs of criminal offenses before the statute of limitations for criminal responsibility pursuit expires, then the authority issuing the administrative penalty decision must issue a decision to temporarily suspend the execution of that decision within three days from the date of issuance of the temporary suspension decision, and transfer the file for handling the violation to the competent criminal proceedings agency for processing; in cases where the administrative penalty decision has been fully executed, the authority issuing the administrative penalty decision must transfer the violation case file to the criminal proceedings agency for processing.

3. The criminal proceedings agency receiving the case file according to Clause 1 and Clause 2 of this Article shall be responsible for examining and concluding the case and notifying the result in writing to the authority transferring the file within the time limit prescribed by criminal procedure law; in cases where no criminal case is initiated, within three days from the date of the decision not to initiate a criminal case, the criminal proceedings agency must return the case file to the authority imposing administrative penalties which transferred the file.

If the criminal proceedings agency makes a decision to initiate a criminal case, the authority imposing administrative penalties in the defense and cryptographic sectors must revoke the administrative penalty decision and transfer the documentation regarding the enforcement of the decision to the criminal proceedings agency.

4. The transfer of case files of violations with signs of criminal offenses for criminal responsibility pursuit must be notified to the violator.

Article 19. Issuing and enforcing administrative penalty decisions

1. The issuance of administrative penalty decisions shall be carried out in accordance with the provisions of Article 67 and Article 68 of the Law on Handling Administrative Violations, and Article 6 of Decree No. 81/2013/NĐ-CP.

2. The enforcement of administrative penalty decisions shall be carried out in accordance with the provisions of Section 2, Chapter III, Part II of the Law on Handling Administrative Violations.

3. The authority issuing the administrative penalty decision shall be responsible for monitoring, inspecting, urging the violator to comply with the administrative penalty decision and issuing a decision on compulsory enforcement in cases where the administrative penalty decision is not implemented within the prescribed time limit.

4. Compulsory enforcement of administrative penalty decisions in the defense and cryptographic sectors shall be carried out in accordance with the provisions of Section 3, Chapter III, Part II of the Law on Handling Administrative Violations and Decree No. 166/2013/NĐ-CP dated November 12, 2013 of the Government on compulsory enforcement of administrative penalty decisions.

Article 20. Handling late payment of fines

1. Individuals or organizations subject to administrative penalties who fail to pay fines within the deadline for implementing the administrative violation handling decision in the defense and cryptographic sectors shall be handled in accordance with Clause 1 of Article 78 of the Law on Handling Administrative Violations.

2. Late payment of fines shall not be counted during the period of considering and deciding to exempt, reduce the remaining fine amount, or allow payment in installments; individuals committing administrative violations in the defense and cryptographic sectors may postpone the enforcement of the administrative penalty decision in accordance with the law.

3. The number of days of late payment of fines shall be calculated from the day following the last day of the fine payment deadline, the postponement period of the administrative penalty decision enforcement until the day immediately preceding the day when the individual or organization pays the fine into the State budget, including holidays and rest days as stipulated.

Chapter IV

IMPLEMENTING PROVISIONS

Article 21. Transitional Provisions

1. For administrative violations in the defense sector occurring before November 22, 2013, the provisions of Decree No. 151/2003/NĐ-CP dated December 9, 2003 of the Government on administrative penalties in the defense sector shall apply for resolution.

2. In cases where administrative violations in the defense sector occur before November 22, 2013 but are only discovered or being considered and resolved thereafter, the provisions of Decree No. 120/2013/NĐ-CP and this Circular shall apply for handling if they are beneficial to the individual or organization committing the violation.

3. For administrative penalty decisions in the defense and cryptographic sectors that have been issued or fully enforced before the effective date of this Circular, if the individual or organization subject to administrative penalties still lodges complaints, the provisions of the law in effect at the time of the violation shall apply for resolution.

Article 22. Effectiveness

This Circular takes effect from August 25, 2014 and replaces Circular No. 29/2004/TT-BQP dated March 8, 2004 of the Minister of National Defense guiding the implementation of some articles of Decree No. 151/2003/NĐ-CP dated December 9, 2003 of the Government on administrative penalties in the defense sector.

Article 23. Responsibility for Implementation

1. The direct head of the authority responsible for imposing administrative penalties in the defense and cryptographic sectors shall be responsible for organizing and inspecting the imposition of administrative penalties in the defense and cryptographic sectors by subordinate levels.

2. The agency of the authority responsible for imposing administrative penalties in the defense and cryptographic sectors shall be responsible for fully exercising its powers and obligations in detecting and handling violations in the defense and cryptographic sectors as prescribed in Decree No. 120/2013/NĐ-CP and guided in this Circular.

3. State agencies, organizations, and individuals, upon discovering administrative violations in the defense and cryptographic sectors, shall be responsible for transferring the file or reporting to the competent authority for imposing administrative penalties in the defense and cryptographic sectors as prescribed in Decree No. 120/2013/NĐ-CP for consideration and handling in accordance with the regulations.

4. During the implementation process, if any difficulties arise, relevant agencies, organizations, and units are requested to promptly reflect them to the Ministry of National Defense for examination and coordination in resolving them./.