Circular 1888/1997/tt-Bkhcn: Guide The Implementation Of Decree No. 57/cp On 31/5/1997 Of Government Regulation On Sanctioning Administrative Violations In The Field Of Measurement And Quality Goods

Original Language Title: Thông tư 1888/1997/TT-BKHCN: Hướng dẫn thi hành Nghị định số 57/CP ngày 31/5/1997 của Chính phủ quy định về xử phạt vi phạm hành chính trong lĩnh vực đo lường và chất lượng hàng hoá

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CIRCULAR guiding the implementation of Decree No. 57/CP on 31-5-1997 Government's regulations on sanctioning administrative violations in the field of measurement and quality goods _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 31-5-1997, the Government issued Decree No. 57/CP provisions on sanctioning administrative violations in the field of measurement and the quality of the goods. The Ministry of science, technology and the environment issued this circular guides the implementation of Decree 57/CP as follows: 1. General provisions 1.1. Sanctioned administrative acts to be infringements of the provisions of the State management of measurement and the quality of the goods due to the Organization, individuals make a way intentionally or unintentionally without prejudice to criminal liability.
1.2. individual organizations stipulated in item 2 article 2 of Decree 57/CP be understood as follows: 1.2.1. Organization: State agencies, the Vietnam Fatherland Front, the front's member organizations, economic organizations, social organizations and armed units established under the provisions of the law of Vietnam, representative offices of foreign enterprises, foreign bodies, non-governmental organizations, etc. activities on the territory of Vietnam.
1.2.2. Individuals, including: The Vietnam qualified acts in accordance with the law of Vietnam.
People from 14 years to under 16 years only sanctioned administrative violations in the field of measurement and the quality of goods for violation due to unintentional and just be caution, a fine of up to 50,000; people from age 16 to under 18 years are sentenced to administrative violations in the field of measurement and the quality of the goods with all his violations, may be applied the sanctions administrative violations prescribed in the terms of Decree No. 57/CP , when a fine against them, then the person has the authority to apply lower penalties for underage people.
A minor administrative violations causing physical damage to indemnification under the provisions of the law.
Case of minors without money and forfeit compensation, then the parent or guardian of that person must file instead.
Active military personnel, reservists in time focused coaching and who belong to the people's public security forces if administrative violations in the field of measurement and quality goods then sanctioned as every other citizen.
Foreigners who live, work or travel on the territory of Vietnam qualified acts in accordance with the law of Vietnam.
1.2.3. for organizations, foreign individuals have violations in the field of measurement and the quality of the goods is not sanctioned by administrative decree No. 57/CP in the following cases: where the international treaties to which Vietnam signed or otherwise;
The case of the Ordinance about diplomatic immunity privileges otherwise.
1.3. only those provisions of article 17, article 18, article 19 of Decree 57/new STOCKS have the right sanctioning administrative violations in the field of measurement and the quality of the goods. Other State agencies if the detected administrative violations in the field of measurement and quality goods not under the control of his sanction, they must transfer to the competent authority sanctioning administrative violations in the field of measurement and quality goods to proceed to handle the offense.
1.3.1. Case Chief level title ear regulation article 17 of Decree 57/CP, the deputies of the titles that have the authority to sanction as Chief level.
1.3.2. where the title Chief level prescribed in clause 2, 3 article 17 of Decree 57/CP absent or are mandated by their text of the titles that have the authority to sanction as Chief level.
1.4. Authority sanctioning administrative violations in the field of measurement and the quality of goods is based on the nature and extent of the violation and the extenuating circumstances, aggravating to decide the form of fines, and the measures taken in other major release correctly and properly.
1.4.1 extenuating circumstances as defined in article 7 the Ordinance handling administrative violations include: organizations, individual administrative violations have prevented alleviate the harmful effects of the breach or voluntary remedial, compensation for damage;
Violation of the conditions that were mental agitation caused by unlawful acts of others;
Violators are pregnant women; elderly people; people who have the disease or disability-aware capacity negated or ability to control his behavior;
Violation by the particularly difficult circumstances that do not themselves cause context;
By the level of backwardness.
1.4.2. Aggravation as stipulated in article 7 the Ordinance handling administrative violations include: organized violation;
Repeat infringers or re-offending;
Tempted to entice a minor infringement, forcing people were dependent on the material, violation of spirit;
Breach of the conditions by the use of alcohol, drunk beer or other stimulants;
Taking advantage of a position of authority to violate;
Taking advantage of the circumstances of war, natural disasters or circumstances of the difficulties other social's fine to violate;
Violation in time are penalty of criminal judgment or executive decisions are handling administrative violations;
After the violation was behaving evade, hide administrative violations.
1.5. Principle of sanctioning administrative violations: 1.5.1. All administrative violations in the field of measurement and the quality of goods must be detected promptly and must be suspended immediately. The sanction must be conducted swiftly, justly. Any consequences due to administrative violations must be fixed in accordance with the law. The Organization, the individual administrative violations caused damage to compensate.
1.5.2. A person or an organization in the same time there are many violations of the administrative sanction on each violation. In the case of the violations are under the authority of a person who sanctions the General sanction decision, but must specify fines for each behavior. If there is one of these violations must sanction a higher level of authority granted to her the whole transfer records, exhibits up higher authority decided to sanction.
1.5.3. Many organizations, individuals performed an administrative violations in the field of measurement and the quality of the goods, each organization, individuals are sanctioned as follows: join the case made a breach in which there is the closely related with each other, each held individuals are sanctioned violation of that violation. Who has the authority to sanction indicated a general sanction, but the decision must indicate the name, address each object sanctioned. If the General penalties fines may not exceed the highest penalties of fine frame has been specified in each of the terms of Decree No. 57/CP for that violation.
The same case there is a violation in an administrative job, but between them they have no relevance with each other in carrying out the infringement of each organization, individuals are sanctioned by punishment decisions. Depending on the nature and extent of the violation of each object which determines the form of violation, the sanction prescribed in each of the terms of Decree No. 57/CP for violations of that person.
1.5.4. The sanction cannot be divided into a number of small infringement infringement to sanction several times to match the authority sanction of his level.
1.6. no cases of administrative violations sanctioned measurement and quality of goods: 1.6.1. End time sanction.
1.6.2. Administrative violations regarding the measurement and the quality of the goods show signs of crime and competent authority sanctioning administrative violations regarding the measurement and the quality of the goods has been transferred the records to the competent authority.

1.6.3. in cases of administrative violations in the urgent situation, unexpected events or who are in violation of mental disease or other diseases do lose cognitive ability or the ability to control the behavior.
The case of urgent situation, unexpected events are interpreted as natural disasters, and the back shows the enemy forces of other guests are not anticipated and has executed any remedies to overcome but could not overcome.
The case of the violation are mental disease or other diseases do lose cognitive ability or ability to control the behavior must then be confirmed by medical authorities.
1.7. The administrative violations in the field of measurement and the quality of the goods stipulated in Decree No. 57/CP coincide with administrative violations in the field of measurement and the quality of the goods specified in the Decree sanctioning administrative violations have determined the jurisdiction of specialized inspection standard-measurement-quality of the sanction as provided defined in Decree No. 57/CP. 1.8. With respect to the violation, resulting in complex, difficult to determine as administrative violations or signs of crime, then Exchange with the people's Procuratorate at the same level and only sanction decision after the opinion of the people's Procuracy.
The violations in the field of measurement and the quality of the goods has decided to suspend the investigation or prosecution for free save the criminal liability of the authorized agency handling the criminal sanction administrative violation according to Decree No. 57/CP. Prohibiting the withholding of violations of criminal signs to handle administration. Authority sanctioning administrative violations based on circular No. 11-TT/LB on 20-11-1990 interdisciplinary's Supreme People's Procuratorate--the Supreme People's Court-Ministry of Interior-Ministry of Justice guidance on handling certain types of crime; Circular No. 01-TT/LB on 25-1-1996 interdisciplinary's Supreme People's Procuratorate--the Supreme People's Court-Ministry of the Interior on the handling of criminal offense instruction 406-TTg to consider violations being prejudice to criminal or administrative sanctions.
1.9. where the Law has different regulations regarding the sanctioning administrative violations regarding the measurement and the quality of the goods, the sanctioning administrative violations applied under the provisions of the law, does not sanction under this Decree.
1.10. Time sanctioning administrative violations with regard to the violations in the field of measurement and the quality of the goods is one year from the date the administrative infringement is done; the time limit on the count is two years for administrative violations in the field of production and trade of fake goods, export goods business, import list must check the State of quality. Within the time limit on, if the individual, the Organization has new administrative violations or willfully evading, obstructing the sanctions do not apply time limits.
1.11. The deadline is considered not yet sanctioned administrative offense is one year from the date the individual, organization, execution done decide sanction from either the most effective sanction decisions without re-offending.
2. About the violation, and the sanction level form of Decree 57/CP has specific provisions the breach, form, the sanctions and other measures for each violation.
2.1. About the sanctions: sanctions are applied independently or may apply more fine forms and other measures.
2.1.1. The main sanctions: caution: only caution for violations of specified forms of caution and only caution if that infringement is the violation minor, first, there are extenuating circumstances, not consequences.
Fine: Just a fine for violations of the nature, the degree must apply shape. Fines have to be specified in each of the terms of Decree No. 57/CP violation there are extenuating circumstances, the penalty may be lower, but not below the lowest level of fine frame has been specified. Violations are aggravating the punishment to the highest level of fine frame has been specified.
2.1.2. The additional sanctions: in addition to the forms of punishment, depending on the nature and extent of the violation, individual organizations can be applied the additional sanctions: the right to use have limited time or no time limit the types of licenses, certificates, papers by other organs of the State authorities in the field of measurement and quality goods and notify the Agency has granted the license, certificate etc. ... that know. When permission is granted is not the right authority or license to have content that is unlawful, the person who has the authority to sanction conduct revoked immediately, and notify the State Agency has licensed it to know.
Confiscated exhibits, the means used to cause violation of administrative law allow confiscated.
Temporarily suspend operations if it deems may cause consequences in terms of safety, hygiene, the environment and the economy; temporarily suspend the production, repair, testing the measuring means contrary to law on metrology; suspend the use or putting into circulation of means of measurements is not legitimate and packaging goods under unsatisfactory quantitative measurement.
The additional sanctions on this not be applied independent of which must accompany the application form of punishment in the case of Decree 57/CP are prescribed forms of additional penalties.
2.1.3. other measures: Besides the main penalty, additional penalty form any violation of administrative measure and the quality of the goods may also be forced to apply other measures: enforce the remedy of environmental pollution, the spread of disease due to administrative violations caused.
Tying compensation due to administrative violations cause: the compensation was conducted according to the principles of the agreement between the parties that the behavior that caused the damage and the damaged party. For the material damage worth up to 1.000.000 VND which do not settle, the authority sanctioned the decision to compensation, the loss of value from 1.000.000 VND on be resolved in accordance to civil proceedings. In the case of non-identified person to compensation of damage shall calculate the amount of damage and that it is a violation of exhibits to additional State funds confiscated.
2.2. Determining the administrative violations in the field of measurement and the quality of the goods and the level of sanction: Decree No. 57/CP from article 6 to article 16 the provisions of 11 groups of administrative violations in the field of measurement and the quality of the goods, each group has several specific violations. When sanctions based on the texts of the relevant existing legislation to identify properly sanctioned behavior.
2.2.1. The measurement of the production of means of measurements in an inspection to the State sanctioned under article 6 of Decree 57/CP. 2.2.2. The breach of the measurement in the repair of means of measurements in an inspection to the State sanctioned under article 7 of Decree 57/CP. When applying Paragraph 2 article 7 of Decree 57/CP to note the following points: the organization or individual was allowed to produce, or be recognized auditing capabilities , or authorized means of control measure, when conducting repair measure the same type is not registered in the State Agency of metrology.
The other objects when repair of measuring media practice in an to state testing (except where the measuring media handle the repairs) are to be registered in the State Agency of metrology.

2.2.3. The breach of the measurement in the trade measure means in an audit, the State must be sanctioned under article 8 of Decree 57/CP. 2.2.4. The breach of the measure in the use of media in an audit, the State must be sanctioned under article 9 of Decree 57/CP. 2.2.5. The breach of measurement in production to cover goods packing available according to quantify then sanctioned under article 10 of Decree 57/CP. 2.2.6. The breach of the measurement in the trade of goods packing available according to quantify then sanctioned under article 11 of Decree 57/CP. 2.2.7. The breach of regulations on quality standards of disclosure and registration of the quality of the goods in the production of goods in the list to register the quality or the quality of voluntary registration, the sanctioned under article 12 of Decree 57/CP. When applying paragraph 1, point b article 12 of the decree to note is the change compared to the registered content quality including changes in catalog quality criteria, quality levels of packaging, presentation and content of the product label.
Changes in the way the presentation and content of the product label is the difference between the actual use of the label and the label has been registered agency acceptance of quality. These points can be: change the layout, the colors and designs decorate the label;
Change the size, colors and designs of the printed word, the picture on the label;
More or less the content of the label;
Do not record the full range of information needs to be added when the finished product as of the time of production, shelf, use the best products etc.
2.2.8. The violation of rules of certification of conformity of production of the goods, the sanctioned under article 13 of Decree 57/CP. When applying a d, paragraph 2, this should confiscate and cancel stamps, seals, approved it, forcing the Organization, individuals violating the suspensions and political advertisement. If this administrative violations have the aggravation of violations are considered acts of producing counterfeit and sanctioned according to paragraph 1 article 15 of Decree 57/CP. 2.2.9. The breach of the quality of the goods in the trade sanction under article 14 of Decree 57/CP. When applying this to note the following: violation of clause 1, 2 it must temporarily suspend traffic and search for appropriate disposal measures.
Violation of Clause 3, then forced to compensation due to administrative violations cause; forced to recycle or destroy inferior quality goods likely to cause damage to human health, pollute the environment, the spread of disease.
2.2.10. The breach in the production, trafficking in counterfeit goods but not yet to the level of prejudice criminal liability then sanctioned under article 15 of Decree 57/CP. When applying this to note that these goods are one of the signs below are considered counterfeiting: goods with counterfeit products , identical or similar to the product labels of a different manufacturing facilities have registered quality;
The goods bearing the trademark is identical or similar to the point of having the ability to make consumers confused with trademarks of other sale basis protected industrial property right or have been protected by the international treaties to which Vietnam participates.
The goods do not bear a label products registered with the standard body-measurement-quality.
The goods are marked accordingly when the Vietnam standards have not yet been certified and standard fits seal Vietnam. If this violation has extenuating circumstances shall sanction according to the d item 2 article 13 of Decree 57/CP. valuable goods use not true to the origin, nature, and the use of it but is not harmful to humans, the environment pollution.
2.2.11. The violation of the provisions of the State inspection of the quality of import and export goods in the business of import and export goods in the list to check the quality of the State-sanctioned under article 16 of Decree 57/CP. 3. On the jurisdiction and procedures of sanctioning administrative violations in the field of measurement and quality goods 3.1. About the authority sanction: 3.1.1. Specialized inspectors standard-measurement-in quality inspection institutions of State administration was assigned responsibility for the governance of quality goods Decree 86/CP of the Government; Specialized inspectors standard-measurement-quality inspector in the Department of science, technology and environment and in the Inspector General Directorate of standard-measurement-quality make the right sanction prescribed in clause 1 article 17 of Decree 57/CP. 3.1.2. The Chief Inspector of the standard professional-level quality-measurement the central cities, (Chief Inspectors) make the right sanction prescribed in clause 2 article 17 of Decree 57/CP for the service has complicated details, apply additional penalties that goods, exhibits means of administrative violation confiscated or destroyed over 15 million dong, the Chief Inspector of the Department send records and report to the Chief Inspector of the Ministry of science, technology and the environment (Chief Inspector) and after that the guidance of the Chief Inspector of the Ministry's decision to sanction.
For those violations apply shape on 10. 000.000 copper Director (corresponding to the Ministry was the Government assigned state management responsibility for the quality of the goods according to the Decree 86/CP) transfer of records to the provincial people's Committee to the Chairman of the provincial people's Committee decision to sanction. After you have decided to sanction of the provincial people's Committee Chairman, Chief Inspector of the Department responsible for enforcing the Organization decided to sanction.
3.1.3. The Chief Justice Inspector of the General Directorate of professional standards-measurement-quality make the right sanction under paragraph 3 article 17 of Decree 57/CP for the service has complicated details, apply additional penalties that goods, exhibits, means of administrative violation confiscated or destroyed over 25 million contract, then send the report to the Chief Inspector and After you have the guidance of the Chief Inspector of the Ministry's decision to sanction.
3.1.4. The Chief Inspector of the Ministry of science, technology and the environment make the right sanction under paragraph 3 article 17 of Decree 57/CP with respect to the violations in the following cases: by the recommendations of the Inspector Corps standard-measurement-quality that the Minister of science, technology and environment or the Chief ministerial decision established.
Due to the recommendations of the Chief Justice Inspector of the General Directorate of standard-measurement-quality.
According to the directive of the Prime Minister or the Minister of science, technology and the environment.
3.1.5. the people's Committee of the level of implementation of the right to sanction prescribed in articles 26, 27, 28 Ordinance handling administrative violations.
3.1.6. The police agencies, customs, market management and other specialized Inspection Agency made the right to sanction prescribed in articles 29, 30, 33, 34 Ordinance on handling administrative violations.
3.1.7. principles delineate the authority sanctioning administrative violations: people's Committee the authority sanctioning administrative violations in the field of measurement and the quality of the goods subject to the local management.
Police agencies, customs, market management and specialized inspection agencies have the authority sanctioning administrative violations in the field of measurement and the quality of the goods subject to its management.
In the cases of administrative violations in the field of measurement and the quality of the goods under the authority of more sanctions, the agency sanctioned by the Agency accepting first taken.
3.2. procedure for sanctioning of administrative violations and make decision sanctioning administrative violations.

3.2.1. When sanctioning administrative violations in the field of measurement and quality goods by caution, does not have to set the minutes and decisions that could sanction in place.
3.2.2. When sanctioning administrative violations in the field of measurement and quality goods by shape under Decree No. 57/CP, the Authority set up a sanctions administrative violations.
The minutes of administrative violations must specify day, month, year, location set thereon; they held the name formed thereon; they, the name, address, occupation or violator name, address offending organization; day, month, year, location occurred in violation of; offending content; measures to prevent violations and ensure the administrative sanctions (if any); the testimony of the person in violation or breach of the Organization's representative, if there are witnesses, victims or damaged organization representative must then specify them, your name, address, their testimony.
The minutes must be established at least two copies; must be the person who set up the minutes and the breach or infringement organization representative; If there are witnesses, victims, they also must sign the minutes; If the witness; the victims refused to sign it must specify the reason on the minutes. In the case of a multiple sheets, these people said on the signing on each sheet.
Minutes of finishing are awarded to individuals, organized a violation; If the established thereon without authority to sanction, they must send the minutes to the competent handling.
3.2.3. decision sanctioning administrative violations within 15 days or 30 days (if there are more complex) from the date of establishment of the minutes of the administrative violation, the person has the authority to decide on sanctions.
The decision to sanction must specify day, month, year of decision; they, the name, the position of the decision; they, the name, address, occupation of the offense or the name, the address of the offending organization; Article, paragraph, text name law is applied, sanctions, sanctions, additional measures for handling of exhibits, media; remedial measures; the time limit where decisive enforcement sanction and signature of the sanction decision.
In deciding sanctions must also specify, if the individual, the organization sanctioned involuntary enforcement by coercive enforcement; the right to complain, the place and the time of the complaint.
Decide on sanctions to take effect from the date of signing or can write effective date and must be sent to the individual, the organization sanctioned, the Agency collects the fines within 3 days from the date the decision to sanction.
Since the date of the decision to sanction, the individual, the organization sanctioned to make sanctions decisions, if deliberately fail then coerced.
The decision to sanction coercive decisions are right and have the task of organizing the coercive.
The Chief Inspector of the Department, the Chief Justice Inspector of the General Directorate of standard-measurement-quality, Chief Inspector of the Ministry (the Ministry was the Government assigned state management responsibility for the quality of the goods according to Decree No. 87/CP) requested the people's police force organised jointly enforce coercive decisions prescribed in paragraph 3 Article 55 Ordinance on handling administrative violations.
Individuals, organizations coerced must bear all costs of the Organization of the implementation of coercive measures.
The decision fines from 2 million contract and decided to confiscate exhibits means violate valid from 5 million contract over to send immediately to the people's Procuratorate at the same level.
The decision sanctioning administrative violations most effective after one year from the date of the decision; in the case of individuals, the organization sanctioned deliberately evade, delay did not apply this time.
4. Regarding complaints, accusations and complaints, accusations 4.1. Complaints and complaint resolution: sequence, complaint procedures and complaint resolution decision sanctioning administrative violations in the field of measurement and the quality of the goods made in accordance with Articles 87, 88 and 89 Ordinance on handling administrative violations.
4.1.1. the deciding authority sanctioning administrative violations in the field of measurement and the quality of the goods is responsible for resolving complaints with respect to the first complaint decided his sanction decision.
4.1.2. The Chief Inspector of the Department, the Chief Justice Inspector of the General Directorate of standard-measurement-quality, Chief Inspector of the Ministry addressed the second complaint against the complainant decided to sanction of organizational inspectors inspected the same level. This settlement decision is the final decision.
4.1.3. The Director of the Department of complaints with respect to the second complaint decided to sanction of the Chief Inspector of the Department; General Director of the Bureau of standards-measurement-quality complaints twice against the complainant decided to sanction of the Chief Inspector Of the Bureau; The Secretary of the Ministry to solve the second complaint against the complainant decided to sanction of the Chief Inspector, the decision to settle is the final decision.
4.1.4. The President of the people's Committee of the district, County, town, and city in the second complaint resolution for sanctions decision of the President of the people's Committee of the communes, wards and towns. This settlement decision is the final decision.
4.1.5. The Chairman of the provincial people's Committee resolved the second complaint against the complainant decided to sanction of the President of the people's Committee of the district, County, town, city in the province. This settlement decision is the final decision.
4.1.6. The school of Ministry of science, technology and environment to resolve the complaint with respect to the second complaint decided to sanction of the President of the provincial people's Committee. If the Chairman of the provincial people's Committee agreed with the decision of the Minister of science, technology and the environment, the decision of the Minister of science, technology and the environment is finally decided. The case of the Chairman of the provincial people's Committee does not agree with the decision of the Minister of science, technology and environment, the Chairman of the provincial people's Committee to appeal to the State Inspector General. The decision by the State Inspector General's final decision.
4.1.7. If does not agree with the decision to solve the first complaint against the decision to sanction the complainant can appeal to the upper level of the sanction under the above sequence or sue to Court of administrative courts granted.
4.2. Denounce and to resolve accusations: 4.2.1. The citizen's accusations follow paragraph 1 Article 23 of Decree 57/CP. 4.2.2. The resolution denounced by citizens follow paragraph 4 Article 23 of Decree 57/CP. 5. About implementation 5.1. Pursuant to Decree No. 57/CP and circulars, the ministries have the function of sanctioning administrative violations in the field of measurement and quality goods need organizing direction, guidance officers, employees in the industry understand and implement the regulations when conducting sanctioning administrative violations; often in collaboration with the Ministry of science, technology and environment and the Ministry of industry, have different functions in the Organization of the implementation of Decree No. 57/CP. 5.2. General Director of the Bureau of standards-measurement-quality, Chief Inspector of the Ministry of science, technology and the environment has the responsibility to help the Ministry of science, technology and environment direction, guide, check out the sets, the facility had functional sanctioning administrative violations in the field of measurement and quality goods in implementation of Decree 57/CP.

5.3. The Director of the Department of science, technology and the environment, central cities have a responsibility to help people's Committee, the city in the Organization directing the implementation of Decree No. 57/local STOCKS; track, general situation of administrative punishment by Decree No. 57/CP to report to the provincial people's Committee, central cities and the Ministry of science, technology and the environment; timely proposals with these obstacles while performing.
5.4. The currency and using the money on administrative violations sanctions measure and quality of goods apply in circular No. 52 TC/CSTC 12 September 1996 by the Ministry of finance.