Clarify firecrackers to facilitate handling of violations

250kg of firecrackers hidden in imported sofas seized by customs

Firecrackers and fireworks were seizedby the 1st Squadron (Anti-Smuggling Investigation Department) in coordination with the police force in early 2020 in the Northeast Sea. Photo: T.B

Anti-cross regulation

According to Lao Cai Customs Department, the criminal handling of the illegal possession, transportation and sale of firecrackers is currently facing difficulties.

On November 22, 2016, the National Assembly passed aLaw amending and supplementing Article 6 and Appendix 4 on the list of sectors and trades subject to conditional investment and business in the Law on Investment 2014 (Law amending and supplementing the Law Investment in 2014). In which, the provision of "trading in firecrackers and explosives" is added to industries and trades banned from business investment (Article 6). This regulation cameinto force from January 1, 2017. Thus, from this time, "firecrackers" are considered banned goods as previously prescribed.

“Acts of trading in firecrackers can still be criminally prosecuted for producing, storing, transporting and trading in prohibited goods according to the provisions of the Penal Code. This regulation only prohibits investment and trading in "firecrackers", not firecrackers in general. Therefore, only "firecrackers" are considered banned goods according to the provisions of law, while not all types of firecrackers are banned goods. Thus, it can be understood that "fireworks" or "explosive fireworks" are not regulated by this regulation," Lao Cai Customs Department analyzed.

However, according to the provisions in List II, Appendix I of Decree 69/2018 / ND-CP dated May 15, 2018 detailing a number of articles of the Law on Foreign Trade Management, "firecrackers of all kinds" may be understood to include: "fireworks" or "explosive fireworks" on the list of goods banned from import. Thereby, leading to inadequacies.

The amended and supplemented Investment Law in 2016 and the Law on Foreign Trade Management 2017 overlap on the subject of adjustment, causing difficulties in the application of legal documents in handling acts of illegally trading and transporting firecrackers.

In addition, the Law on Investment and Decree No. 36/2009 / ND-CP of the Government on the management and use of firecrackers also led toinconsistencies in the understanding and application of laws to deal with illegally storing, transporting and selling firecrackers.

Regarding the inadequacy of handling violations of firecrackers, the Ministry of Public Security also mentioned in the proposal to the Government to develop a Decree replacing Decree No. 36/2009 / ND-CP.

Specifically, Clauses 3 and 4, Article 3 of Decree No. 36/2009 / ND-CP stipulate thatfirecrackers are products containing firecrackers made with different technologies regardless of origin and place of manufacture. When under the effect of mechanical, thermal, chemical or electrical stimuli cause an explosion.

Fireworks are a product containing fireworks. When there is a chemical, thermal, chemical or electrical stimulus effect, there will be a chemical reaction that produces a light effect with color, explosion or no explosion.

Difficulties in handling

According to the Ministry of Public Security, the above concepts are not clear and specific; fireworks that cause explosions do not separate. Because, in essence, fireworks that cause explosions are using explosives and causing harm to human lives, health, people's property and affecting the environment.

At the same time, Clauses 41 and 42 Article 1 of the Penal Code No. 12/2017 / QH14 amending and supplementing a number of articles of the Penal Code No. 100/2015 / QH13 only stipulates criminal penalties for manufacturing, trading, transporting and storing firecrackers; while fireworks will not be penalized.

"Thus, in reality, the competent forces are facingmany difficulties in dealing with acts of producing, buying, selling, transporting and storing fireworks and explosives,"the report of the Ministry of Public Security stated.

Therefore, the development of a Decree to replace Decree No. 36/2009 / ND-CP in order to improve the effectiveness and efficiency of state management of firecrackers; creating legal corridors in production, trading, management, preservation, use and prevention and fighting against violations of firecrackers.

At the same time, ensure the consistency between the Decree and the Criminal Code 2015, amended and supplemented in 2017 and other legal documents for criminal and administrative handling of manufacturing acts. Illegally producing, trading, storing, transporting and using firecrackers, explosives to avoid legal gaps in the handling of the above acts.