Many shortcomings in process and manual book on handling administrative violations

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According to the assessment of the Legal Department, since Decision No. 166/QD-TCHQ and Decision No. 376/QD-TCHQ (2021) were issued, the Customs authority has issued about 15,000 administrative penalty decisions annually. Thereby, the handling of administrative violations has greatly supported the technical operations of the sector such as risk management, post-clearance audit, investigation and anti-smuggling, etc.

The contents of Decision No. 166/QD-TCHQ and Decision No. 376/QD-TCHQ has outlined the steps in the sanctioning process, but has not clearly defined responsibilities nor specified work contents for civil servants, authorized persons who have sanctioning authority, and the Customs agency handling the violation case.

However, to implement the procedures, it requires regular inspection by the General Department of Customs to promptly detect errors and violations in sanctioning, thereby providing forms of rewards, handling violations and requiring Customs officials to have the capacity to properly implement regulations in accordance with the actual case.

Many types of infringing goods seized by the Customs force in Mong Cai City. Photo: Q.H

The Legal Department said that the procedures of complaint settlement and the manual book on handling administrative violations in the customs sector issued on the basis of the 2012 Law on Handling of Administrative Violations, Decree 128/2020/ND-CP, Decree 81/2013/ND-CP (amended and supplemented by Decree 97/2017/ND-CP) detail a number of articles and measures to implement the Law on Handling of Administrative Violations.

The Legal Department said that, to date, a number of the above legal bases have been replaced by other documents or have been amended, supplemented or are expected to be replaced.

Specifically, the 2012 Law on Handling of Administrative Violations was amended and supplemented by Law No. 67/2020/QH14 (effective from January 1, 2022). According to the provisions of Law No. 67/2020/QH14, there are no longer regulations on extending the time limit for issuing a decision on sanctioning or extending the time limit for temporarily seizing the infringing goods.

At the same time, the regulations on making a record of administrative violations have also changed, such as: the main content of the record, the location of making the record, the time limit for transferring the record to the competent authority for sanctioning, determining the record as the basis for issuing a decision on sanctioning.

Or Decree 81/2013/ND-CP (amended and supplemented by Decree 97/2017/ND-CP) has been replaced by Decree 118/2021/ND-CP dated December 23, 2021 of the Government. However, Decree 118/2021/ND-CP is also being revised and supplemented by the Ministry of Justice and is currently in the draft revision stage after consulting with Government members, expected to be submitted to the Government for signing the promulgation in November 2024).

In addition, Decree 138/2021/ND-CP; Decree 102/2021/ND-CP; Circular 05/2021/TT-TTCP... have new contents such as determining one-time sanctions for multiple violations, violations that have ended and violations in progress.

Notably, Circular 77/2022/TT-BTC of the Ministry of Finance abolishes Circular 90/2020/TT-BTC regulating the forms used for administrative sanctions in the customs sector.

Through monitoring the work of administrative penalty settlement, resolving difficulties and recommendations reflected by enterprises, local customs departments, and through the inspection of administrative penalty settlement, the Legal Department has summarized difficulties and shortcomings within the scope of Decision No. 166/QD-TCHQ and Decision No. 376/QD-TCHQ as well as identified limitations related to the skills of determining violations, skills of making records, skills of advising, proposing and making decisions on administrative penalty settlement.

Specifically, the limitations include incorrect determination of violations; the content of the records is sketchy, lacks logic or identifies the wrong subject of violation; the penalty decision records the behavior, form of penalty, and remedial measures incorrectly; has not strictly implemented regulations related to the order and procedures for implementing administrative procedures...

From the practical implementation of legal regulations, the Legal Department considers that the Customs sector needs to have new guidelines for implementation to ensure that the handling of administrative procedures must comply with regulations and the current situation.

To ensure that the enforcement of the law on handling administrative violations is clear and convenient and meets the digital transformation goals of the Customs sector in the coming period, the Legal Department believes that Decision No. 166/QD-TCHQ and Decision No. 376/QD-TCHQ need to be amended, supplemented and replaced to be consistent with the legal documents that have been amended and supplemented by the Government, ministries and agencies. At the same time, some problems arising in the implementation of administrative procedures need to be resolved.

Instruct reporting regime on law enforcement on handling administrative violations

Especially, clarifying responsibilities of customs officials in the implementation of the administrative penalty settlement is a must to meet actual requirements.