Are businesses sanctioned for administrative violations due to the impact of the Covid-19 pandemic?

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Officers of the Mong Cai border gate Customs Branch (Quang Ninh Customs Department) inspect imported goods. Photo: Q.Hung

According to the representative of the Legal Department under the General Department of Customs, since the outbreak of Covid-19 pandemic, the import and export activities have been seriously affected. Accordingly, the question posed to the import and export of goods during the pandemic that leads to a law violation is whether there is an administrative penalty or not?'

The representative of the Legal Department said, cases not being administratively sanctioned as prescribed in Article 11 of the Law on handling of administrative violations include: emergency circumstances; legitimate defense; unexpected events and force majeure event; the person who commits the illegal acts does not have administrative liability capacity; the person who commits illegal acts are not old enough to be administratively sanctioned.

Article 2 of the Law on handling of administrative violations explains a number of cases not being administratively sanctioned in emergency circumstances; legitimate self-defense; unexpected events;force majeure events and persons without administrative liability capacity.

Article 5 of Government’s Decree 127/2013 / ND-CP dated October 15, 2013 on sanctioning administrative violations and enforcing the implementation of administrative decisions in the field of customs (amended and supplemented in Decree 45/2016 / ND-CP dated May 26, 2016) stipulates cases of not being sanctioned for administrative violations in the field of customs. Accordingly, there is a reference to the cases of not being administratively sanctioned specified in Article 11 of the Law on handling of administrative violations.

However, during the Covid-19 pandemic, the import-export activities were affected, causing problems in the local customs units regarding the above provisions. Some local customs units questioned whether Covid-19is considered a force majeure event to considernot sanctioning an administrative violation.

Regarding this question, the representative of the Legal Department said that Clause 14, Article 2 of the Law on handling of administrative violations stipulates that “Force majeure is an event that happens objectively without being foreseen and cannot overcome although all necessary measures in permissible ability have been applied”. With this provision, in order to be considered foran administrative violation due to a force majeure event, three conditions must be fully met: it occurs objectively; it cannot beforeseen and it cannot be overcome although all necessary measures of permissible ability have been applied.

Considering the actual situation, the Covid-19 pandemic can be considered a force majeure that cannot be foreseen. However, to determine whether the Covid-19 pandemic is a force majeure to be considered not being sanctioned administratively, the individual or organization must prove that they have taken all necessary measures in their permissible ability but have not prevented violations, the representative of the Legal Department added.

Recently, Hoan Cau Long An Company Limited and VietnamSolar Joint Stock Company have also proposed to the General Department of Customs in a document to answer questions on sanctioning administration violations for multiple imports of goods. These companies proposed that to partly remove difficulties during the Covid-19 pandemic and reduce financial pressure for companies in the investment phase and encourage investors to projects in extremely difficult areas, the Customs authority should not sanction administrative violations for declarations related to the companies’ shipments.

In this regard, the General Department of Customs said that cases not being sanctioned for administrative violations due to the Covid-19 pandemic are detailed in Clause 14, Article 2 and Clause 4 of Article 11 of the Law on handling administrative violations and specific documents. Accordingly, the individual and organization must prove that they committed illegal acts due to force majeure and have taken all necessary measures in their permissible ability but failed to prevent violations.

Earlier, to answer questions of provincial and municipal customs departments on whether there is a sanction for administrative violations due to the Covid-19 pandemic or not, on June 3, 2020, the General Department of Customs issued a Document No. 3569/TCHQ-PC to guide the non-sanctioning of administrative violations in the field of customs due to the Covid-19 pandemic.

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Accordingly, the General Department of Customs requested provincial and municipal customs departments that the consideration not to sanction administrative violations due to the Covid-19 pandemic must comply with provisions in Article 2 and Article 11 of the Law on handling of administrative violations and Article 5 of Decree No. 127/2013/ND-CP and specific documents. Particularly, the individual and organization are required to prove that they have applied all necessary measures in permissible ability but failed to prevent violations.