(Tiểu luận) topic legal regulations on administrative violations and administrative liabilities examine practical implementation in vietnam

B GIO DC V ĐO TO TRƯỜNG ĐI HỌC KINH TẾ QUỐC DÂN VIỆN NGÂN HNG – TÀI CHÍNH ESSAY SUBJECT: FUNDAMENTAL OF LAW TOPIC: LEGAL REGULATIONS ON ADMINISTRATIVE VIOLATIONS AND ADMINISTRATIVE LIABILITIES EXAMINE PRACTICAL IMPLEMENTATION IN VIETNAM LECTURER: LLM KHANH NGUYEN TRAN STUDENTS: TRAN NGUYEN BINH NGUYEN TUAN CUONG NGUYEN THE DUONG NGUYEN THI THUY DUONG NGUYEN SY DUC CLASS: BFI 64 – FINANCIAL INVESTMENT Hanoi, December, 8, 2022 Contents I ADMINISTRATIVE VIOLATION What is the administrative violation? Principles of handling administrative violations .3 Features of administrative violations 4 Authority to sanction administrative violations .5 II ADMINISTRATIVE LIABILITIES What is administrative liability ? Characteristics of administrative liability : .6 Types of administrative penalties include: 3.1 Remedial measures caused by administrative violations: 3.2 Other administrative handling measures : Procedures for sanctioning administrative violations Subjects sanctioned for administrative violations: III EXAMINE PRACTICAL IMPLEMENTATION IN VIETNAM Positive aspects Negative aspects 10 Solutions 12 IV EXERCISES 14 Reference sources: Administrative violation link Administrative violation link Administrative liability Administrative liability Example of practical implementation in VietNam: Example of practical implementation in VietNam: Examine practical implementation in Viet Nam: Examine practical implementation in VietNam: 2 I ADMINISTRATIVE VIOLATION What is the administrative violation? An administrative violation is an act committed by an individual or organization that violates the provisions of the law on state management but is not a crime and must be sanctioned for administrative violations as prescribed by law Sanctioning administrative violations means applying punishment forms and corrective actions to people or organizations that commit administrative violations under the law on managing administrative violations Handling administrative violations is an important tool in state management activities to maintain order and discipline in the administrative management of the state This is a problem directly related to the daily lives of people, organizations, production, and the business activities of enterprises Ex 1: Ms B sells fruit on the sidewalk, where there are regulations prohibiting street vendors The sale of fruit by Ms B is an administrative violation, specifically a violation of the road traffic infrastructure Ms B's behavior will be fined according to the law Ex 2: Mr C drives a motorbike when participating in traffic but does not wear a helmet Mr C's behavior is an administrative violation in the field of road traffic and will be fined by the law Principles of handling administrative violations The principles of sanctioning administrative violations include the following: • All administrative violations must be detected in time and remedied immediately The process of dealing with administrative violations should be carried out quickly, competently, openly, and fairly by the provisions of the law • Subjects who commit administrative violations must be dealt with by competent agencies by the law • The handling of administrative violations will be based on the severity and nature of the violation, the subject of the violation, and related circumstances for aggravating, mitigating, and giving appropriate handling measures; • Administrative violations should only be sanctioned if they are legitimate violations of the law • An administrative violation is sanctioned only once If many people commit an administrative violation together, each violator will be sanctioned for that administrative violation A person who commits many administrative violations or commits administrative violations many times shall be sanctioned for each violation, except in cases of repeated administrative violations specified by the government as aggravating circumstances • Administrative violations are not handled in the following situations: unexpected events, legitimate defense, urgent situations, or administrative violators who lack administrative responsibility capacity and those who are under-age • The handling of administrative violations will include the level of fines and other administrative handling measures as prescribed by law Features of administrative violations Based on the concepts of the law on handling administrative violations mentioned above, we can draw some characteristics of administrative violations as follows: Firstly, administrative violations are acts that violate the provisions of the law on state management but are not crimes An administrative violation is expressed in the form of an action or inaction but is forced to it; in this case, the subject is not charged according to state management rules Secondly, administrative violations are guilty acts performed by subjects who have full capacity to be subject to administrative sanctions under the law The offense is a sign of the subject's will and desire to commit administrative violations Offenses in administrative violations will manifest as intentional and unintentional Thirdly, subjects who commit administrative violations will be handled according to the provisions of the law Authority to sanction administrative violations To ensure that the determination of administrative sanction authority is transparent and clear, that conflicts are avoided, and that the provisions of the current Administrative Sanctions Law are followed Initially, use legal fine levels and forms to impose sanctioning authority on administrative offenders Second, the level of the fine is specified by those who have the authority to sanction administrative violations In particular, the fine level for organizations will be two times higher than for individuals Lastly, the competent authority that imposes penalties for administrative violations in the fields of social safety, security and order, environmental protection, and road traffic with a fine not exceeding two times the amount of the violation The specific administrative penalty level will be decided by the People's Council II ADMINISTRATIVE LIABILITIES What is administrative liability ? Administrative liability is the legal responsibility of a violating organization or individual before the State Individuals and organizations commit administrative violations that infringe upon the state management order and only the State has the right to impose sanctions on those subjects Ex: Cuong was driving a motorbike and was asked by the police to stop for an alcohol test Cuong's alcohol test results exceed the prescribed level, so he will be administratively sanctioned by the law Characteristics of administrative liability : - It is a form of liability applied to individuals and organizations that commit administrative violations in the fields of state management - Competent authority that applies administrative responsibility are mainly state administrative agencies and officials or employees of such agencies - The prosecution of administrative liability is carried out based on the provisions of administrative law and according to administrative procedures Types of administrative penalties: - Warning; - Monetary fine; - Deprivation of the right to use licenses or practice certificates or suspension of operations for a definite time; - Confiscation of material evidence of administrative violations and means used to commit administrative violations; - Expulsion Document continues below Discover more Pháp luật đại from: cương Đại học Kinh tế… 999+ documents Go to course Trắc nghiệm pldc tất 50 cả[32] Pháp luật đại… 100% (77) tóm tắt nội dung 14 plđc chương 123 Pháp luật đại cương 99% (98) Đề cương pháp luật 51 14 đại cương Pháp luật đại… 98% (194) Câu hỏi ôn tập Pháp Luật đại cương Pháp luật đại cương 99% (80) ĐỀ CƯƠNG PHÁP 32 LUẬT ĐẠI CƯƠNG… Pháp luật đại… 100% (26) ĐỀ THI PLDC ĐÃcan THI In which, warning and fine are considered as the main form of fine Other penalties 01 administrative be specified as main or additional penalties in decrees sanctioning violations in the fields of state management 10 Pháp luật đại cương 98% (46) 3.1 Remedial measures caused by administrative violations: For each administrative violation, in addition to the application of a sanction, individuals or organizations that commit administrative violations may be subject to the application of one or more remedial measures in Clause 1, Article 28 of the 2012 Law on Handling of Administrative Violations These are the following measures: - Forced restoration to the original state; - Forcible dismantling of works or parts of works built without permits or constructed in contravention of permits; - Forced to take measures to overcome environmental pollution, disease spread, etc 3.2 Other administrative handling measures : Other administrative handling measures are only applied to individuals who are Vietnamese citizens who violate the law on security, social order and safety but are not serious enough to be examined for penal liability Apply these measures to educate violators' sense of law observance; educate and create conditions for violators to become honest citizens, useful to society and prevent their recidivism Other administrative handling measures include: - Education in communes, wards, towns - Put in reform school - Taken to a medical facility Procedures for sanctioning administrative violations There are two types of administrative sanctioning procedures: - Sanctioning administrative violations without making a record is applied in the case of sanctioning warnings or fines below 250,000 VND (for individuals) and 500,000 VND (for organizations) and the person with sanctioning competence shall issue a sanctioning decision on the spot without making a record - In case of being fined 250,000 VND (for individuals) or 500,000 VND (for organizations) or more, competent agencies must carry out sanctioning procedures as follows: • Make a record of administrative violations, signed by the maker and the violator If there are any victims or witnesses, they must sign the minutes If both refuse to sign, the reason must be clearly stated in the minutes • The sanctioning minutes will have copies: one for the person making the record and one for the organization or individual If the violation exceeds the record maker's sanctioning power, the record must be sent to a higher competent authority • After making a record of the violation, the competent person should identify specific circumstances that related to the incident to consider and make a decision Subjects sanctioned for administrative violations: -Persons from full 14 years old to under 16 years old will be administratively sanctioned for intentional administrative violations; persons aged full 16 years or older shall be administratively sanctioned for all administrative violations -Persons in the People's Army and People's Public Security Forces who commit administrative violations shall be handled like other citizens; In case it is necessary to apply the penalty of deprivation of the right to use licenses, practice certificates or suspension of activities related to national defense and security for a definite time, the People's Army or the People's Public Security will have the authority to sanction - Organizations are administratively sanctioned for all administrative violations - Foreign individuals and organizations commit administrative violations within the territory, contiguous zone, exclusive economic zone and continental shelf of the Socialist Republic of Vietnam; On board aircraft bearing Vietnamese nationality or seagoing ships flying the Vietnamese flag, they shall be administratively sanctioned by Vietnamese law, except in the case of an international treaty to which the Socialist Republic of Vietnam is a member III EXAMINE PRACTICAL IMPLEMENTATION IN VIETNAM Positive aspects The Ministry of Justice stated that incidents of administrative infractions have generally been identified and dealt with promptly through competence, order, and processes, ensuring the national law and order From 66% in 2014 to 95% in 2022, there has been an increase in the proportion of instances that have been sanctioned for all cases that have been discovered Most offenders consciously follow the judgments regarding the sanctions for administrative violations and are aware of their violations In recent years, the rate of compliance with punitive rulings has been relatively high (about 95%) The primary causes of cases that haven't been put into action yet are that offenders lack a stable accommodation or have the inability to pay fines The summation of agencies shows that the sanctioning of administrative violations has been promoted with exceptional effectiveness after 10 years of implementing the Law on Sanctions of Administrative Violations: administrative infractions have been timely detected and treated following the legal order and procedure; the degree of law compliance and the implementation of sanctioning decisions has been reasonably higher; the sense of law observance of people, as well as agencies and competent persons, has risen Negative aspects On the contrary, with increasingly sophisticated expedients used in social life, the administrative violation is becoming more and more complicated These violations mostly occur in areas like road traffic, social law and order, environmental protection, food safety, business, and land construction The main justification for the situation of infractions is that some people not fully grasp and are unaware of how to comply with the law The absence of steady employment for violators, the moral decay of some teenagers, the harmful effects of the market economy, or some infractions committed for financial gain are the causes of this predicament The current fund made for dealing with administrative infractions is relatively small, particularly when the condition of facilities and equipment not meet established standards Even though the fact that the management area is vast and complicated, the civil servants assigned to handle administrative infractions in local units still lack force, making difficulty for detecting and dealing with infractions The representative of the Ministry of Justice stated that the maximum fine level in the fields and the specific fine levels for basic violations are appropriate given at the time and are based on the maximum fine level specified in Article 24 of the Law on Handling of Administrative Violations However, the reality of recent applications 10 demonstrates that, in some fields, such as food safety and environmental protection, the level of the fine for each act is not proportionate to the type and severity of the consequences of the breach Ex 1: Mr Pham Hoanh Son (Hoanh Son Group) - Chairman of the board of directors of Sao Vang Rubber Company (SRC) bought nearly 6.9 million SRC shares from June 30 to July 2, 2020, but did not report this trading to the government At that time, those shares of Hoanh Son Group were estimated at about 53 billion VND And the amount that the State Securities Commission sanctioned for Hoanh Son Group was 110 million VND →According to Clause 1, Article of Decree No 156/2020/ND-CP, the State Securities Commission handled an administrative violation promptly with the right competent and order And Hoanh Son Group also immediately abided by the law However, it can be seen that the fine was not commensurate with the nature and seriousness of the violation 110 million VND compared to the profit of 53 billion VND Hoanh Son Group earned is too small Many individuals and units can take advantage of this and willingly pay small fines to reap great profits Hence, these handling measures need to be put under great scrutiny Ex 2: On August 16, 2022, the Provincial People's Committee and the Department of Agriculture and Rural Development of Kien Giang province inspected the illegal construction in the Phu Quoc marine reserve in An Thoi, Phu Quoc At May Rut island, the sea encroachment project invested by Minh Huy Phu Quoc One Member Co., Ltd (Minh Huy Phu Quoc Company) is building, including a long concrete bridge and a great number of rocks encroaching on the sea corridor as a check-in place for tourists 11 Mr Diep Nguyen Quoc, Director of Minh Huy Phu Quoc Company, admitted the illegal act of building on the reef and undertook to dismantle facilities, returning the status quo for the reserve → According to Decree 16/2022/ND-CP on handling administrative violations in construction, both the People's Committee of Kien Giang province and Minh Huy Phu Quoc company have promptly fulfilled their legal responsibilities However, administrative handling measures in environment-construction for Minh Huy Phu Quoc company are not strict enough and commensurate with the seriousness of cases Specifically, Minh Huy Phu Quoc company has been handled for administrative violations many times regarding its tourism projects In addition, the company's remedial work has not been effective because the island is small and located far from the concentrated population, which makes difficulties for bringing workers and equipment to dismantle This has seriously affected the landscape, the ecosystem as well as the tourism potential of the reserve Solutions • For the state government: The state government plays a key role in handling, remediating, and minimizing administrative violations across the country To that, the state first needs to strengthen the building and perfecting a complete legal system, which serves as the basis for all social activities Not only that but they also need to step up and strengthen the propaganda and dissemination of the law on handling administrative violations to all people to raise 12 awareness and a sense of law compliance and prevent and limit administrative violations At the same time, the government must always organize professional training courses on handling administrative violations for cadres, civil servants and public employees who are in charge of managing administrative violations Leading authorities in areas across the country need to strengthen inspection, examination, and supervision of law enforcement by sectors and areas of management The State also has to develop good judicial support forces in quantity, quality, and evenly distributed to promptly support, advise and propagate law dissemination contributes to raising people's awareness and sense of law observance and helps people use the law to protect their legitimate rights and interests • For citizens: A civilized and progressive society can only progress when the legal system is complete, scientific, and feasible, and people understand and obey the law, and know how to use the law to protect their legitimate rights and interests Law enforcement across the country, to be effective, requires the coordination of both the leading government and the people Therefore, all Vietnamese people must have a high sense of seriousness, efficiency, clarity, and civility in the implementation and observance of the law and civic responsibility Besides, each individual himself needs to practice and cultivate morality, personality, cultural lifestyle, and civilized behavior; they need to improve their qualifications and participate in learning and sharing legal knowledge Specifically, people need to 13 actively participate in the prevention and control of negatives, social evils, illegal acts, and social ethics; actively study, and improve professional knowledge and life skills IV EXERCISES According to the Law on Handling of Administrative Violations, An act of administrative violation a) Be sanctioned only once b) Can be penalized more than once c) Both A and B are correct d) Both A and B are wrong For the same act of administrative violation, what? a) The fine for the organization is equal to the fine for the individual b) The fine level for organizations is equal to 02 times the fine level for c) The fine level for organizations is times the fine level for individuals d) The fine level for organizations is times the fine level for individuals individuals What is administrative liability? a) Administrative liability is the legal responsibility of a violating organization or individual before the State b) Administrative liability is the legal responsibility of a violating organization or individual before the organization c) Administrative liability is the legal responsibility of a violating organization or individual before the community Which of the following is not a form of handling administrative violators a) Warning penalty b) Monetary fine c) Death How many types of administrative sanctioning procedures? 14 a) b) c) d) What is the administrative responsibility of the organization when committing administrative violations? a) Not be administratively sanctioned for all administrative violations b) Be administratively sanctioned for all administrative violations c) only responsible for major administrative violations caused by them caused by them In recent years, the rate of compliance with punitive rulings has been about… a) 95% b) 65% c) 20% d) 5% Administrative violations mostly occur in areas like… a) Traffic b) Social law and order c) Food safety d) A, B, and C are correct The state government plays a key role in handling, remediating, and minimizing administrative violations in the country a) FALSE b) TRUE 10 To handle and decrease administrative violations, the state must… a) Develop judicial support forces in quantity, quality, and only distribute them in big cities 15 b) Terminate inspection, examination, and supervision of law enforcement c) Strengthen the building and perfecting of a complete legal system d) Organize professional training courses on handling administrative by sectors and areas of management violations for kids 16