Thông tư 173/2020/TT-BQP hướng dẫn Nghị định 96/2020/NĐ-CP quy định về xử phạt vi phạm hành chính trong lĩnh vực quản lý, bảo vệ biên giới quốc gia do Bộ Quốc phòng ban hành

CIRCULAR

ELABORATING CERTAIN ARTICLES OF THE GOVERNMENT’S DECREE NO. 96/2020/ND-CP DATED AUGUST 24, 2020 ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON NATIONAL BORDER MANAGEMENT AND PROTECTION

Pursuant to the Government’s Decree No. 96/2020/ND-CP dated August 24, 2020 on penalties for administrative violations against regulations on national border management and protection;

Pursuant to the Government’s Decree No. 164/2017/ND-CP dated December 30, 2017 defining the functions, tasks, powers and organizational structure of the Ministry of National Defense;

At the request of the Border Guard High Command.

The Minister of National Defense hereby promulgates a Circular elaborating certain Articles of the Government’s Decree No. 96/2020/ND-CP dated August 24, 2020 on penalties for administrative violations against regulations on national border management and protection.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular elaborates Point a Clause 1, Point a, Point c Clause 2 Article 5; Clause 1, Point b Clause 2, Point a Clause 3, Point c, Point e Clause 5, Clause 9 Article 6; Clause 1 Article 7; Clause 1 Article 8; Clause 1 Article 10; Article 14; Article 16 and Article 18 of the Government's Decree No. 96/2020/ND-CP dated August 24, 2020 (hereinafter referred to as “the Decree No. 96/2020/ND-CP”).

Article 2. Regulated entities

This Circular applies to Vietnamese and foreign organizations and individuals (hereinafter referred to as “entities”) that commit administrative violations within the territory of Vietnam; the persons who have the power to record administrative violations and persons who have the power to impose penalties for the administrative violations prescribed in the Decree No. 96/2020/ND-CP.

Chapter II

ADMINISTRATIVE VIOLATIONS AND POWER TO IMPOSE PENALTIES FOR ADMINISTRATIVE VIOLATIONS

Article 3. Violations against regulations on management and protection of national border, national border markers and border line signs specified in Point a Clause 1, Point a, Point c Clause 2 Article 5 of the Decree No. 96/2020/ND-CP

1. The phrase "làm hư hại" ("damage") mentioned in Point a Clause 1 and Point a Clause 2 Article 5 of the Decree No. 96/2020/ND-CP means changing existing conditions of a national border maker, marking pole, national border line sign, item used to mark border, flag pole, sovereignty stele on an island or basepoint, waters defense work or border work;

2. Waters defense works are a system of military works and civil defense works within maritime boundary areas, except for the border works mentioned in Clause 3 of this Article.

3. Border work refers to a work that is built to reinforce the national border and work serving the management and protection of the national border.

4. The violation in Point c Clause 2 Article 5 of the Decree No. 96/2020/ND-CP means a violation where an agreement between a competent authority of Vietnam and that of the country sharing the same border has yet to be reached but the violator deliberately builds permanent works or expands any existing work within 30 meters from the Vietnam - China land border or 100 meters from the Vietnam - Laos and Vietnam - Cambodia land borders.

Permanent work refers to a product that is built according to a design, created by human labor and with building materials and equipment installed therein, and affixed to land, which possibly includes underground and surface components, underwater and water surface components but does not include: border patrol routes; barbed wire fences; monitoring, control and blocking equipment; border gates.

Article 4. Violations against regulation on land border area specified in Point b, Point c Clause 1, Point a Clause 3, Point c, Point d, Point e Clause 5, Clause 9 Article 6 of the Decree No. 96/2020/ND-CP

1. The violations specified in Point b Clause 1 Article 6 of the Decree No. 96/2020/ND-CP include:

a) Temporarily residence or stay in land border areas or entry into land border areas by the persons specified in Clause 2 Article 5 of the Government’s Decree No. 34/2014/ND-CP, except for border residents:

Persons banned from residing in land border areas under decisions of competent agencies, persons not yet permitted to exit or persons suspended from exit;

- Persons banned from traveling outside their places of residence by proceeding agencies;

- Persons sentenced to imprisonment, against whom judgment execution decisions are yet to be issued or being put on probation or having the sentence deferred or suspended; persons kept under mandatory supervision;

- Persons subject to compulsory educational measures in communes; sent to reform schools or rehabilitation centers but permitted to defer the execution of such measure or against whom enforcement of such measure is suspended;

- Persons not mentioned in Clause 1 Article 5 of the Decree No. 34/2014/ND-CP: border residents; holders of the permit for residence in land border areas issued by a competent public security agency; officers, non-commissioned officers, defense workers and defense public employees, enlistees and soldiers of the People's Army; officers, workers, public employees and professional and technical enlistees of the People’s Public Security Force whose units are stationed in land border areas;

- A non-resident entering a land border area for a special reason specified in Point d Clause 1 Article 6 of the Circular No. 43/2015/TT-BQP such as death or illness of their parent, spouse or child, shall, in addition to identity documents, acquire a permit of the police authority of the commune where he/she resides, and concurrently report the duration of his/her stay in the border area to local border-guard post or communal police authority; in case of staying overnight or entering a border belt, such must be approved by the local border-guard post. In this case, he/she shall not incur penalties for the violation “Temporarily residing, staying or travelling in a land border area in contravention of regulations”.

b) Temporarily residing, staying or travelling in land border areas without being subject to guidance, inspection and supervision of the local border-guard posts, communal police authorities and competent forces as prescribed by law.

2. The violation in Point c Clause 1 Article 6 of the Decree No. 96/2020/ND-CP means a violation where an entity fails to notify, declare or register the temporary residence or stay in the land border area to/with a competent authority or person or where an entity knows that a person is not permitted to travel, temporarily reside or stay in the land border area, but still screens, harbors, assists or enables such person to travel, temporarily reside or stay in the land border area.

3. The violation in Point b Clause 2 Article 6 of the Decree No. 96/2020/ND-CP means a violation where a border resident of one Party uses prescribed documents to enter or exit the border area of the other Party but travels beyond a commune, district or equivalent administrative division adjacent to the border of the two countries. To be specific:

a) Regarding Vietnam - China border, he/she uses his/her border area exit and entry laissez-passer and travels beyond a district;

b) Regarding Vietnam - Laos border, he/she uses the document specified in Point b Clause 4 of this Article and travels beyond a commune (for Vietnam) and a mountain village (for Laos);

c) Regarding Vietnam - Cambodia border, he/she uses his/her ID card or Citizen ID card and travels beyond a commune.

4. Border entry/exit documents for border residents specified in Point a Clause 3 Article 6 and Point c Clause 5 Article 6 of the Decree No. 96/2020/ND-CP include:

a) Regarding Vietnam - China border: Border area exit and entry laissez-passer;

b) Regarding Vietnam - Laos border: a document agreed upon by the two parties (specified in Point d Clause 1 Article 23 of the Agreement on Vietnam - China Land Border and Land Border Checkpoint Management Regulations between the Government of the Socialist Republic of Vietnam and the Government of the People's Republic of China dated March 16, 2016);

c) Regarding Vietnam - Cambodia border: ID card or Citizen ID card.

5. The border entry/exit documents for border residents specified in Point c Clause 5 Article 6 of the Decree No. 96/2020/ND-CP include:

a) Regarding Vietnam - China border: Passport; visa; international travel document; laissez-passer; entry and exit laissez-passer; border area entry and exit laissez-passer; ABTC; temporary resident card; permanent residence card; visa exemption certificate;

b) Regarding Vietnam - Laos border: Passport; visa; international travel document; laissez-passer; border laissez-passer; ABTC; temporary resident card; permanent residence card; visa exemption certificate;

b) Regarding Vietnam - Cambodia border: Passport; visa; international travel document; laissez-passer; border laissez-passer; ABTC; temporary resident card; permanent residence card; visa exemption certificate.

6. Border entry/exit documents specified in Point d Clause 5 Article 6 of the Decree No. 96/2020/ND-CP include the documents specified in Clauses 4 and 5 of this Article.

7. The violation in Point a Clause 9 Article 6 of the Decree No. 96/2020/ND-CP means a violation where a border resident of the country sharing the same border enters Vietnam through the border or a Vietnamese citizen enters the country sharing the same border through the border to bury corpses, bones or carcasses or relocate graves within the border belt.

8. The firing of guns specified in Point b Clause 9 Article 6 of the Decree No. 96/2020/ND-CP means an act of firing the following types of guns:

a) Hunting guns specified in Clause 3 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears, including firearms and air guns;

a) Guns on the list of sporting weapons specified in Clause 5 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears, including air rifles, rifles using exploding bullets, air handguns, handguns using exploding bullets, sporting guns using paintballs and skeet guns;

c) Guns on the list of weapons with properties and effects similar to hunting guns, cold weapons and sporting weapons which are manufactured in non-industrial and industrial manners but fail to comply with technical standards and designs of legal manufacturers and cause harm to human lives and health and structures similar to military weapons, hunting guns, cold weapons and sporting weapons as specified in Clause 6 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears.

Article 5. Violations against regulation on land border checkpoint management specified in Clause 1 Article 7 and against regulations on management and protection of border works, signs in border areas, land border checkpoint and port checkpoint areas specified Clause 1 Article 10 of the Decree No. 96/2020/ND-CP

1. The violations specified in Clause 1 Article 7 of the Decree No. 96/2020/ND-CP include:

a) Exit from or entry into a land border checkpoint area by the persons who are not:

Outbound and inbound passengers;

Cadres, soldiers, employees, public employees and public officials of specialized regulatory bodies and related regulatory bodies whose headquarters or offices are located within the border checkpoint area;

Employees of agencies and organizations, and individuals involved in service provision and trading within the border checkpoint area;

Operators of and persons working on vehicles intended for transporting exported and imported goods and outbound and inbound passengers;

Owners of and persons trading in imports and exports who exit and enter the border checkpoint area to follow procedures for import and export of goods;

Persons working with specialized regulatory bodies and related regulatory bodies whose headquarters or offices are located within the border checkpoint area;

Persons coming for medical examination and treatment (if a medical location is available within the border checkpoint area);

Persons exiting or entering the border checkpoint area for the purpose of visit, welcoming or seeing off guests or other purposes when permitted and being subject to inspection, control, supervision and guidance of the checkpoint border-guard post.

b) Temporary residence or stay in a land border checkpoint area by the persons who are not:

Cadres, soldiers, employees and public officials of specialized regulatory bodies and related regulatory bodies whose headquarters or offices are located within the border checkpoint area;

Employees of agencies and organizations, and individuals involved in service provision and trading within the border checkpoint area;

Vietnamese and foreign nationals staying in the border checkpoint area for the reason that they have yet to complete the entry or exit procedures for people, vehicles and goods or persons staying in the border checkpoint area for other plausible reasons and having registered their temporary residence and being subject to the management, inspection and supervision by the checkpoint border-guard station.

c) Operating vehicles entering, leaving or within the land border checkpoint area, except:

Vehicles intended for transporting exported and imported goods and outbound and inbound passengers; vehicles intended for transporting and loading goods in warehouses and yards within the border checkpoint area;

Vehicles being exported or imported goods;

Vehicles intended for transporting cadres, soldiers, employees and public officials to work at the border checkpoint or private vehicles of these persons;

Vietnamese or foreign vehicles staying in the border checkpoint area for the reason that they have yet to complete the entry or exit procedures for vehicles and goods, having their stay registered and being subject to the management, inspection and supervision by the checkpoint border-guard station.

2. The violation in Clause 1 Article 10 of the Decree No. 96/2020/ND-CP means a violation where ink, paint or other materials are used to write, draw or apply on or a trick is used to erase or hide words, images, symbols or information on signs or another violation that affects the conveying of information from signs erected in a border area or border checkpoint area (except for the violations specified in Clauses 2, 3, 4 and 7 Article 10 of Decree No. 96/2020/ND-CP).

Article 6. Violations against regulations on management of activities of persons and vehicles within sea border areas specified in Point b, Point c Clause 1 Article 8 of the Decree No. 96/2020/ND-CP

1. The violation specified in Point b Clause 1 Article 8 of the Decree No. 96/2020/ND-CP includes:

a) Residence or temporary residence after expiration of the prescribed time limit by foreign nationals working, studying or conducting investment and business activities in an economic zone that is within a sea border area or has part of its boundary lying within a sea border area;

b) Temporarily residing, staying or travelling within a sea border area without being subject to the inspection and supervision by the Border Guard and competent authorities.

2. The violation in Point c Clause 1 Article 8 of the Decree No. 96/2020/ND-CP means a violation where an entity fails to notify, declare or register the temporary residence or stay in a sea border area to/with a competent authority or person or where an entity knows that a person is not permitted to travel, temporarily reside or stay in the land border area, but still screens, harbors, assists or enables such person to travel, reside or stay in the sea border area.

Article 7. Administrative violations against regulations on fisheries committed within sea border areas, administrative violations against regulations on forestry, environmental protection and construction committed within border areas and checkpoint areas specified in Article 14 of the Decree No. 96/2020/ND-CP

1. The administrative violations against regulations on fisheries committed within sea border areas for which the penalties are imposed by the Border Guard as specified in Clause 1 Article 14 of the Decree No. 96/2020/ND-CP include: The administrative violations mentioned in Clause 4 Article 54 (Power to impose penalties of the Border Guard), Article 17 (Violations against eligibility requirements for aquaculture), Article 18 (Violations against regulations on import and export of live aquatic animals and plants), Article 20 (Serious violations against regulations on commercial fishing), Article 22 (Violations against regulations on fishing quotas), Article 31 (Violations against regulations on building and modification of fishing vessels), Article 32 (Violations against regulations on import of fishing vessels (except fishing vessels donated by foreign governments, organizations or individuals)), Article 34 (Violations against regulations on surveying of fishing vessels), Article 39 (Violations against regulations on fishing ports and sheltered anchorages), Article 40 (Violations against regulations on fishing port management) and Article 42 (Violations against regulations on import, temporary import, re-export and transit of fishery products from illegal, unreported and unregulated (IUU) fishing; export and import of fishery products) of the Government's Decree No. 42/2019/ND-CP dated May 16, 2019 providing for penalties for administrative violations against regulations on fisheries (hereinafter referred to as “the Decree No. 42/2019/ND-CP); the power to impose penalties, penalties, fines and remedial measures shall comply with the Law on Penalties for Administrative Violations, Decree No. 42/2019/ND-CP, Decree No. 96/2020/ND-CP and other relevant regulations of law.

2. The administrative violations against regulations on fisheries committed within sea border areas for which the penalties are imposed by the Coast Guard as specified in Clause 1 Article 14 of the Decree No. 96/2020/ND-CP include: The administrative violations mentioned in Clause 5 Article 54 (Power to impose penalties of the Coast Guard), Article 17 (Violations against eligibility requirements for aquaculture), Article 18 (Violations against regulations on import and export of live aquatic animals and plants), Article 20 (Serious violations against regulations on commercial fishing), Article 22 (Violations against regulations on fishing quotas), Article 31 (Violations against regulations on building and modification of fishing vessels), Article 32 (Violations against regulations on import of fishing vessels (except fishing vessels donated by foreign governments, organizations or individuals)), Article 34 (Violations against regulations on surveying of fishing vessels), Article 39 (Violations against regulations on fishing ports and sheltered anchorages), Article 40 (Violations against regulations on fishing port management) and Article 42 (Violations against regulations on import, temporary import, re-export and transit of fishery products from illegal, unreported and unregulated (IUU) fishing; export and import of fishery products) of the Decree No. 42/2019/ND-CP; the power to impose penalties, penalties, fines and remedial measures shall comply with the Law on Penalties for Administrative Violations, Decree No. 42/2019/ND-CP, Decree No. 96/2020/ND-CP and other relevant regulations of law.

3. Penalties for the violations specified in Clause 2 Article 14 of the Decree No. 96/2020/ND-CP shall be imposed as follows:

a) Regarding the violation where a Vietnamese resident crosses the border to enter the territory of the country sharing the same border or the third country to harvest forest, destroy forest, hunt, catch, kill or impark forest animals, store, transport, trade or process forest products against the law, if the host country has yet to impose any penalty for such violation and the violation is not liable to criminal prosecution, such resident shall incur a penalty as prescribed in Article 13 (Illegal extraction of forests), Article 20 (Forest destruction), Article 21 (Violations against regulations on forest animal protection), Article 22 (Illegal transport of forest products) and Article 23 (Illegal storage, trading in and processing of forest products) of the Government’s Decree No. 35/2019/ND-CP dated April 25, 2019 providing for penalties for administrative violations against regulations on forestry).

b) If the violation where forest products originating from outside of Vietnam's border are transported, stored, traded and processed against the law within the border area is not liable to criminal prosecution, the violator shall incur a penalty as prescribed in Article 22 (Illegal transport of forest products) and Article 23 (Illegal storage, trading in and processing of forest products) of the Government’s Decree No. 35/2019/ND-CP dated April 25, 2019 providing for penalties for administrative violations against regulations on forestry.

4. If the penalties for illegal cross-border trading, exchange, transport or storage of substances harmful to human, animal and plant health, environment, social order and safety within the border area; spoiling public hygiene or causing environmental pollution, thereby adversely affecting landscape of the border area are imposed as prescribed in Clause 3 Article 14 of the Decree No. 96/2020/ND-CP, the power to impose penalties, penalties, fines and remedial measures shall comply with the Law on Penalties for Administrative Violations, Decree No. 155/2016/ND-CP, Decree No. 96/2020/ND-CP and relevant regulations of law.

5. Regarding the violations against regulations on construction surveying, formulation and adjustment of the construction planning; construction of works and construction order committed within border areas and border checkpoint areas specified in the Decree No. 96/2020/ND-CP, the Border Guard has the power to impose penalties as prescribed in Article 8 (Violations against regulations on construction surveying), Article 9 (Violations against regulations on construction planning), Article 10 (Violations against regulations on adjustment of construction planning), Article 14 (Violations against regulations on commencement of construction works), Article 15 (Violations against regulations on construction order), Article 16 (Violations against regulations on execution of construction works) and Article 26 (Violations against regulations on construction surveying) of the Decree No. 139/2017/ND-CP (amended by the Decree No. 21/2020/ND-CP); the power to impose penalties, penalties, fines and remedial measures shall comply with the Law on Penalties for Administrative Violations, Decree No. 139/2017/ND-CP, Decree No. 21/2020/ND-CP, Decree No. 96/2020/ND-CP and relevant regulations of law.

Article 8. Titles that have the power to impose penalties of the Border Guard as specified in Clause 1 Article 16 and of the Coast Guard as specified in Clause 1 Article 18 of the Decree No. 96/2020/ND-CP

1. The power to impose penalties of the Border Guard

a) The Border Guard soldiers specified in Clause 1 Article 16 of the Decree No. 96/2020/ND-CP are officers and non-commissioned officers who do not hold any position;

b) Border Guard enlistees and soldiers do not have the power to impose penalties for administrative violations as prescribed in Clause 1 Article 16 of the Decree No. 96/2020/ND-CP.

2. The power to impose penalties of the Coast Guard

Police officers are the Vietnam Coast Guard officers who are appointed as prescribed in the Circular No. 177/2019/TT-BQP dated November 30, 2019 of the Minister of National Defense; perform their tasks and exercise their power to impose penalties for administrative violations in accordance with regulations of the Law on Penalties for Administrative Violations; collect, analyze, assess, predict and advise on issues concerning sea and island security, safety, sovereignty, crime and violations against law; prevent, discover and fight crime in accordance with regulations of law on criminal and criminal procedures.

Chapter III

IMPLEMENTATION

Article 9. Effect

1. This Circular comes into force from February 16, 2021 and supersedes the Circular No. 47/2015/TT-BQP dated June 18, 2015 of the Minister of National Defense.

2. If any of the documents referred to in this Circular is amended or superseded, the newer one shall apply.

Article 10. Responsibility for implementation

1. The Border Guard High Command, Vietnam Coast Guard Command, and immediate supervisors of the persons who have the power to impose penalties for administrative violations against regulations on national border protection and management shall organize the implementation of and implement this Circular and inspect the imposition of penalties for administrative violations against regulations on national border protection and management by inferior authorities.

2. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of National Defense (through the Border Guard High Command) for consideration and resolution./.

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