'Removing obstacles' in implementing the Law on Handling of Administrative Violations

Many difficulties and problems

According to the assessment of the People's Committee of Nghe An province, in general, the administrative violation handling work in the province has been put into order. Violations have been detected and handled promptly; the sanctioning procedures are in accordance with the law, punishing the right person, the right violation, meeting the requirements of state management.

However, in practice, there are still many difficulties and shortcomings in the handling of administrative violations. Among them, there are problems arising from the provisions of the Law on Handling of Administrative Violations. For example, Article 2 of the Law on Handling of Administrative Violations stipulates: "Administrative violations are acts of error committed by individuals or organizations, violating the provisions of the law on state management that are not crimes and must be punished according to the provisions of the law for administrative violations".

However, the Law does not have specific regulations on the "fault element" in administrative violations (intentional fault, unintentional fault), at the same time, the concepts of the level of administrative violations (not serious, less serious, serious...) are still open.

Violators pay fines at the Road and Railway Traffic Police Department (Provincial Police). Photo: Dang Cuong

In addition, Article 26 of the Law on Handling of Administrative Violations stipulates that the confiscation of exhibits and means of administrative violations is applied to "serious administrative violations due to intentional faults of individuals and organizations", causing confusion for law enforcement agencies, as they do not know which regulations to base on to determine intentional faults and the severity of administrative violations. This is one of the shortcomings that the 2020 amended Law on Handling of Administrative Violations has not yet resolved.

Or in Clause 29, Article 1, the Law amending and supplementing a number of articles of the Law on Handling of Administrative Violations stipulates: “... In case the administrative violation is not under the authority of the person making the record, the record and other documents must be transferred to the competent person to impose the penalty within 24 hours from the time of making the record, except in cases where the administrative violation record is made on an airplane, ship, or train.”.The above deadline is too short, causing difficulties in implementation, especially for localities with difficult terrain conditions; violations are detected on weekends, holidays and in areas far from the center, where infrastructure, technology and information conditions are not met.

In addition, many opinions say that Article 60 of the Law on Handling of Administrative Violations stipulates that the time limit for valuation of exhibits and means of administrative violations is a total of 4 days from the date of the temporary detention decision, which is not enough for the Valuation Council to have full members and determine the value of exhibits and means of administrative violations. Because the Valuation Council for exhibits of administrative violations is related to many agencies and units and carries out many administrative procedures, it is difficult for the competent authority to impose penalties.

Regarding the handling of administrative violations in the land sector, there are also some shortcomings that many localities are concerned about.

For example, Vinh City stated: The regulation of the minimum violation area (under or from 0.5 ha) for administrative violations by individuals in the land sector in Chapter III, Decree No. 91/2019 of the Government "on administrative sanctions in the land sector" is too large compared to the actual area of ​​land plots recognized by the State for land use rights of households and individuals in the city. Therefore, handling administrative violations according to the fine framework prescribed in this Decree for violators will sometimes not ensure fairness between cases of violations of a few dozen m²and violations over one hundred meters² according to the principles of handling administrative violations prescribed in Article 3 of the Law on Handling Administrative Violations.

Yen Thanh district authorities enforce illegal construction on forestry land. Photo: Van Truong

On the other hand, according to the provisions of Point a, Clause 3, Article 5 of Decree 91/2019, the measure of "Forcing the restoration of the original state of the land before the violation" is determined by the Provincial People's Committee based on the actual situation in the locality to prescribe the level of restoration for each type of violation. However, up to now, the Provincial People's Committee has not issued a document stipulating the level of remediation according to the provisions of Decree 91, leading to violations that require the application of the measure of "forcing the restoration of the original state of the land before the violation" without a unified handling direction and still confused. ...

Similarly, Dien Chau district stated: Clause 2, Article 208 of the 2013 Land Law stipulates that the Chairman of the People's Committee at the commune level is responsible for detecting, applying measures to prevent and promptly handle the construction of works on encroached land, occupied land, land used for the wrong purpose in the locality and forcing violators to restore the land to its condition before the violation..However, there is no specific guidance document on the preventive measures that the Chairman of the People's Committee at the commune level can apply. Meanwhile, according to Clause 1, Article 38, Decree 91/2019/ND-CP of the Government regulating the sanctioning of administrative violations in the field of land, the Chairman of the People's Committee at the commune level only has the authority to "force the restoration of the original state before the violation"; does not have the authority to apply other measures such as "force the return of illegal profits obtained from administrative violations"; "force the return of encroached and occupied land"; "force land registration" ... causing many confusion for the establishments.

Supplementing and perfecting the provisions of the law

In order to improve the state management of law enforcement on handling administrative violations, in 2022, Nghe An Department of Justice chaired the conference "Exchange, evaluate, remove difficulties, obstacles, and shortcomings; improve the effectiveness of law enforcement on handling administrative violations in the province" with the participation of a number of departments, branches and localities. Thereby, proposing solutions and recommendations to improve legal regulations to improve the effectiveness of law enforcement on handling administrative violations in the province.

From the implementation practice, Vinh city recommends that competent authorities consider supplementing regulations on the concepts of fault factors in administrative violations stipulated in Article 2 of the Law on Handling of Administrative Violations (includingintentional and unintentional errors),level of behavior (asless serious, serious, very serious…) so that the competent authorities have a basis for determination. Issue a document guiding the application of mitigating circumstances in Article 9 of the Law on Handling of Administrative Violations in a quantitative and specific manner, avoiding the "fear of being wrong" mentality when applying the law enforcement officers or the situation where each place applies a different style, lacking consistency. Amend and supplement the regulations on the minimum violation area for administrative violations of individuals in the land sector in Chapter III, Decree No. 91/2019 in the direction of gradual reduction to suit the actual land use situation in localities and ensure the principle of handling administrative violations according to the law.

Dien Chau district recommends promoting decentralization and delegation of power to the commune level, and having a mechanism to ensure the organization and implementation of administrative violation handling at the commune level.

Conference "Exchange, evaluate, remove difficulties, obstacles, and shortcomings; improve the effectiveness of law enforcement on handling administrative violations in the province". Photo: CSCC

In addition, on the basis of looking directly at the subjective limitations. That is, some departments, branches and localities have not paid attention to the work of disseminating and popularizing legal regulations on handling administrative violations; the coordination between branches and functional agencies in handling administrative violations is sometimes not tight, there is still a situation of mutual responsibilities; a number of civil servants still have a mentality of dependence, lack of initiative and "fear", fear of responsibility in advising on handling administrative violations, especially in the fields of land and construction...

Some opinions suggested that the Provincial People's Committee and provincial specialized departments and branches should strengthen training and in-depth training on skills and expertise in handling administrative violations, especially in the fields of environment, construction, and land for relevant subjects in order to promptly guide and resolve difficulties and problems in the process of handling violations. In addition, strengthen supervision of the leadership and direction of heads of agencies and units to improve the quality and efficiency of handling administrative violations.

On the side of the Department of Justice, it said that it will continue to advise the Provincial People's Committee to direct the development of a coordination regulation according to levels, sectors and fields in the area in handling administrative violations to ensure the principles of timeliness, speed and compliance with the provisions of law. At the same time, it will advise the Provincial People's Committee to develop a database system software to manage the handling of administrative violations and the data on handling administrative violations to ensure accuracy and efficiency.

In addition, Nghe An province also proposed the Ministry of Justice to advise on the construction and completion of the national database on handling administrative violations according to the provisions of Article 17 of the Law on Handling Administrative Violations and Decree No. 20 of the Government regulating the National Database on Handling Administrative Violations. At the same time, there are specific solutions to remove difficulties and obstacles; improve the quality and efficiency of handling administrative violations.