If there are both aggravating and extenuating circumstances, what is determination of administrative penalties in Vietnam?

If there are both aggravating and extenuating circumstances, what is determination of administrative penalties in Vietnam?

According to Clause 4, Article 23 of the Law on Handling of Administrative Violations 2012 as amended by Article 1 of the Law on Handling of Administrative Violations, the revised 2020 provides for fines in sanctioning of administrative violations as follows:

4. The specific penalty amount for an act of administrative violation is the average of amounts within the fine bracket imposed for that act; if there is any extenuating circumstance, the penalty amount may be reduced but not lower than the minimum limit of the fine bracket; if there is any aggravating circumstance, the penalty amount may be increased, but not exceeding the maximum limit of the fine bracket.

The Government shall elaborate on this clause.

In addition, according to Clause 1, Article 9 of Decree 118/2021/ND-CP stipulating imposition of fines; fixed-term suspension of practising licenses or certificates; fixed-term suspension of operation; confiscation of exhibits and means of administrative violations and remedial measures as follows:

1. The determination of a fine on a particular administrative violation in case there are numerous aggravating and extenuating circumstances shall be applied according to the following principles:

a) Upon determination of fines for violators that involve both aggravating and extenuating circumstances, each extenuating circumstance may cancel out an aggravating circumstance;

b) A specific fine on an administrative violation is the average amount of the penalty frame prescribed for such violation. In case there are at least 02 extenuating circumstances, the minimum amount of the penalty frame shall be imposed; if there are at least 02 aggravating circumstances, the maximum amount of the penalty frame shall be applied.

According to this Article, in the case of an administrative violation with many aggravating and extenuating circumstances, the principle that one extenuating circumstance will be deducted from one aggravating circumstance and if there are 02 or more extenuating circumstances. Then the minimum amount of the penalty frame applies; if there are 02 or more aggravating circumstances, the maximum amount of the penalty frame shall apply in Vietnam.

So, your administrative penalty when there are many aggravating and extenuating circumstances will be determined according to the above-mentioned principles in Vietnam.

What are regulations on determination of fixed-term suspension of operation for an administrative violation in case there are numerous aggravating and extenuating circumstances in Vietnam?

According to Clause 7, Article 9 of Decree 118/2021/ND-CP stipulating imposition of fines; fixed-term suspension of practising licenses or certificates; fixed-term suspension of operation; confiscation of exhibits and means of administrative violations and remedial measures as follows:

7. The determination of specific time limit of fixed-term suspension of a practising license or certificate and fixed-term suspension of operation for an administrative violation in case there are numerous aggravating and extenuating circumstances shall be applied according to the following principles:

a) Upon the determination of time limit of fixed-term suspension of a practising license or certificate and fixed-term suspension of operation for the administrative violation of the violator having both aggravating and extenuating circumstances, each extenuating circumstance involved shall be equivalent to an aggravating circumstance deduced;

b) The specific time limit of suspension of a practising license or certificate or suspension of operation for an administrative violation is the average duration of deprivation or supension time frame prescribed for such violation. In case there are at least 02 extenuating circumstances, the minimum duration of the deprivation or suspension time frame shall be applied; if there are at least 02 aggravating circumstances, the maximum duration of the deprivation or suspension time frame shall be applied.

So, when you are suspended from business activities for a definite time due to administrative violations in Vietnam, the suspension time is determined on the basis of each extenuating circumstance involved shall be equivalent to an aggravating circumstance deduced and there are at least 02 extenuating circumstances, the minimum duration of the deprivation or suspension time frame shall be applied; if there are at least 02 aggravating circumstances, the maximum duration of the deprivation or suspension time frame shall be applied.

What are regulations on issuing offence notices in some specific cases in Vietnam?

Pursuant to Clause 1, Article 12 of Decree 118/2021/ND-CP on issuing offence notices as follows:

1. Issuing and transferring offence notices:

a) A competent person who is on duty must issue an offence notice when he/she detects the violation.

For an act showing signs of an administrative violation that is not under his/her power to issue an offence notice of administrative violation or not in his/her management fields and areas, he/she must make a record of working to record the case and immediately transfer it to a person with power to issue an offence notice;

b) For a case that its exhibits or means must be expertised, verified, inspected or another necessary case, a competent person who is on duty may make a record of working to record the case.

The working record prescribed in points a and b of this clause is one of the bases for issuing the offence notice;

c) If any administrative violation is detected by professional technical equipment, the location where the offence notice is issued shall comply with regulations specified in clause 2 Article 58 of the Law on Handling of Administrative Violations;

d) The transfer of the results achieved from professional technical equipment to persons with power to impose administrative penalties in order to issue offence notices and decisions on imposition of administrative penalties shall comply with the Government's regulations on the list, management and use of professional technical equipment, collection and use of data collected from technical equipment provided by individuals or organizations for the purpose of detecting administrative violations.

The above is the law on issuing offence notices of administrative violations in Vietnam.

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