This principle is extremely important, which is the recognition of the right to explanation of the competent authority and the administratively handled subject in handling administrative violations in general and handling administrative violations in tourism in particular. This principle is specified in Article 61 of the Law on Handling Administrative Violations 2012.
Although in reality, although the previous law did not have any regulations, before handling administrative violations, the competent subject must still determine whether administrative violations have occurred or not to serve as a basis for handling administrative violations. However, the relationship arising from handling administrative violations is essentially a State administrative management relationship, so it is characterized by the imposition of the will of the party using State power on the party committing administrative violations, and it is very easy for the competent subject to impose its will subjectively. Therefore, clearly defining the responsibility to prove violations is to promote the responsibility of the competent subject in ensuring the practical basis of the sanctioning decisions issued later. On the other hand, this principle also demonstrates the protection of human rights through the fact that individuals and organizations have the right to prove that they have not committed administrative violations and can exercise the right to prove themselves or through a representative. This proof helps the subjects of the decision to impose a penalty or administrative action protect themselves, avoid being perceived and evaluated as incomplete, lacking objectivity, and leading to inaccurate and non-transparent handling of the case.
Sixth, for the same administrative violation, the fine for an organization is twice the fine for an individual.
Fines are a commonly applied sanction when handling administrative violations in general and handling administrative violations in the tourism sector in particular. However, like other sanctions, the purpose of sanctions is to punish and educate society in general. Therefore, the level of fines must be appropriate to the act of infringement, the nature and level of infringement of the act, and at the same time have an educational effect on the violator.
Decree 153/2013/ND-CP stipulates: Fine from 40,000,000 VND to
Maybe you are interested!
-
Evaluation of Legal Regulations on Handling Administrative Violations in the Field of Fire Prevention and Fighting -
Handling administrative violations in the field of fire prevention and fighting - Through practice in Hanoi city - 2 -
Handling administrative violations in the field of fire prevention and fighting - Through practice in Hanoi city - 17 -
Contents of Regulations on Administrative Sanctions for Violations in the Medical Field -
Law on administrative sanctions for violations in the field of outdoor commercial advertising - Practice in Binh Duong province - 9
50,000,000 VND for the act of conducting international travel business without an International Travel Business License [11]. According to this regulation, individuals who violate the law will be fined from 40,000,000 VND to 50,000,000 VND, and for legal entities who violate the law, the fine will be doubled from 80,000,000 VND to
90,000,000 VND. However, for the same administrative violation mentioned above, the level of violation of individuals and organizations is the same, but the penalty for organizations is double that of individuals.
About the form of punishment
The form of administrative sanctions in general reflects the punishment and deterrence of administrative law against individuals and organizations that violate state management rules by forcing violators to suffer adverse material or spiritual consequences. In addition, the form of sanctions also has an educational effect on individuals and organizations that are punished, contributing to raising public awareness in complying with the law and state management rules.
Forms of administrative sanctions for violations in the tourism sector include [30]:
- Main forms of punishment include: warning and fine ;
- Main or additional forms of punishment include: Temporary revocation of the right to use a license or practice certificate or temporary suspension of operations; Confiscation of administrative violation exhibits and means used to commit administrative violations (hereinafter referred to as exhibits and means of administrative violations); Expulsion.
For each administrative violation, the individual or organization committing the administrative violation shall be subject to only one main penalty for the same violation, but may be subject to one or more additional penalties. Additional penalties shall only be applied in conjunction with the main penalty.
Warning: applied to individuals and organizations committing minor, first-time administrative violations with mitigating circumstances or to all administrative violations committed by minors from 14 to under 16 years old. The form of warning penalty is decided in writing. The application of this form of penalty is carried out with simple procedures, without having to make a record of the violation.
In the case of administrative sanctions for tourism violations, this is the only case where the law stipulates the application of a warning penalty to tour guides and interpreters who do not wear badges or certificates while practicing their profession [11]. The application of a warning for this behavior is relatively reasonable because the level of violation is mild and the consequences may not be significant to society. However, in reality, the warning form is less of a deterrent and is much less effective than a fine.
Fines: is the main form of punishment most commonly applied to administrative violations. This form of punishment directly affects material interests, causing adverse consequences for violators. The level of fines represents the State's coercion against violators, reflecting the State's assessment of the nature and level of danger of the violation that violates the order of state administrative management. Therefore, this is the most effective form of punishment in preventing and combating violations of administrative laws on tourism.
The State shall prescribe the minimum and maximum fines, on which basis, based on the nature, level of violation, aggravating and mitigating circumstances, and the personal circumstances of the violator, the competent authority shall decide on the appropriate fine. In the field of tourism, Decree 158/ND-CP also prescribes the fines for each type of behavior from the minimum to the maximum level based on the consideration of the nature and level of harm of the specific violation. For example:
Violation of regulations on travel business fine from 1,000,000 VND to
50,000,000 VND
Violation of regulations on tourist guides will result in a warning or fine from
200,000 VND to 20,000,000 VND
Violations of regulations on tourist accommodation business are subject to fines from 1,000,000 VND to 30,000,000 VND.
The regulations on fines in the tourism sector as stipulated in Decree 158/2013/ND-CP and Decree 28/2017/ND-CP are consistent with the regulations on the maximum fine for the tourism sector as stipulated in Article 24 of the Law on Handling of Administrative Violations 2012, which is VND 50,000,000.
Temporary revocation of license or practice certificate or temporary suspension of operations
For each administrative violation, depending on the nature and severity of the violation, the violating individual or organization may also be subject to the penalty of having its license or practice certificate revoked for a period of time or having its operations suspended for a period of time [28]. This may be the main penalty, but it may also be an additional penalty to support the main penalty, applied together with the main penalty.
Temporary revocation of the right to use a license or practice certificate is a form of punishment applied to individuals and organizations that seriously violate the activities stated in the license or practice certificate (from 01 month to 24 months, from the effective date of the penalty decision). For example, revocation of the right to use an international travel business license from 12 months to 24 months for the act of allowing another organization or individual to use the legal status, name, and international travel business license to conduct travel business activities. In this case, temporary revocation of the right to use an international travel business license is considered the main form of punishment. However, this form can also be an additional form of punishment, for example, in the case where a tour guide allows others to use the tour guide card or tour guide certificate, in addition to the fine, the additional form of punishment is also applied, which is revocation of the right to use the tour guide card from 6 months to 12 months.
Temporary suspension of operations is a form of sanction applied to individuals and organizations that commit administrative violations in the following cases [28]:
- Partially suspending activities that cause serious consequences or are likely to cause serious consequences to human life, health, or the environment of production, business, or service establishments that, according to law, must have a license;
- Suspend part or all of production, business, service or other activities that do not require a license according to law and that cause serious consequences or are likely to cause serious consequences to human life, health, the environment and social order and safety.
Confiscation of administrative violation exhibits and means used to commit administrative violations
Similar to the form of temporary revocation of the right to use a license, a certificate of practice or temporary suspension of operations, the form of penalty is confiscation of administrative violation evidence and means used to commit an administrative violation. This can be the main penalty but can also be an additional penalty to support the main penalty, applied together with the main penalty.
In administrative sanctions for tourism violations, this form is prescribed as an additional form of punishment in cases where tour guides use tour guide cards or tour guide certificates of others [11].
On the authority to impose penalties
The authority to sanction administrative violations is understood as the scope of state power assigned to individuals and organizations to apply administrative sanctions. The authority to sanction administrative violations in the tourism sector has four groups of entities with the authority to sanction, namely:
Group 1, authority of Chairman of People's Committee at all levels
- The Chairman of the People's Committee at the commune level has the right to:
Warning;
Fine up to 5,000,000 VND;
Confiscation of exhibits and means of administrative violation with value not exceeding the above fine.
- The Chairman of the District People's Committee has the right to:
Warning;
Fine up to 25,000,000 VND
Revoke the right to use a license or practice certificate for a limited period of time or suspend operations for a limited period of time;
Confiscation of exhibits and means of administrative violation with value not exceeding the above fine.
- The Chairman of the Provincial People's Committee has the right to:
Warning;
Fine up to 50,000,000 VND
Revoke the right to use a license or practice certificate for a limited period of time or suspend operations for a limited period of time;
Confiscation of exhibits and means of administrative violations;
Second group, the authority of specialized inspection agencies
- Inspectors of culture, sports and tourism have the right to:
Warning;
Fine up to 500,000 VND;
Confiscation of exhibits and means of administrative violation with value not exceeding the above amount of money
- The Chief Inspector of the Department of Culture, Sports and Tourism has the right to:
Warning;
Fine up to 25,000,000 VND
Revoke the right to use a license or practice certificate for a limited period of time or suspend operations for a limited period of time;
Confiscation of exhibits and means of administrative violation with a value not exceeding the fine prescribed above.
- The Chief Inspector of the Ministry of Culture, Sports and Tourism has the right to:
Warning;
Fine up to 50,000,000 VND
Revoke the right to use a license or practice certificate for a limited period of time or suspend operations for a limited period of time;
Confiscation of exhibits and means of administrative violations;
- The Head of the specialized inspection team of the Ministry of Culture, Sports and Tourism has the right to:
Warning;
Fines up to 35,000,000 VND Revoke the right to use a license or practice certificate for a limited period or suspend operations for a limited period;
Confiscate exhibits and means of administrative violation with a value not exceeding the fine level specified in Point b of this Clause;
- Head of the specialized inspection team of the Department of Culture, Sports and Tourism has the authority to:
Warning;
Fine up to 25,000,000 VND;
Revoke the right to use a license or practice certificate for a limited period of time or suspend operations for a limited period of time;
Confiscation of exhibits and means of administrative violation with value not exceeding the prescribed fine level
Third group, the authority of the People's Public Security
- People's Public Security officers on duty have the right to:
Warning;
Fine up to 500,000 VND.
- Station chiefs and team leaders have the right to:
Warning;
Fine up to 1,500,000 VND.
- The Chief of Commune Police, Chief of Police Station, and Chief of Police Station have the right to:
Warning;
Fine up to 2,500,000 VND;
Confiscation of exhibits and means of administrative violation with value not exceeding the above fine.
- District-level and equivalent police chiefs have the right to : Issue warnings;
Fine up to 10,000,000 VND
Revoke the right to use a license or practice certificate for a limited period of time or suspend operations for a limited period of time;
Confiscation of exhibits and means of administrative violation with value not exceeding the fine prescribed above.
- The Director of Provincial Police and the Director of the Fire Prevention and Fighting Police Department have the right to:
Warning;
Fine up to 25,000,000 VND
Revoke the right to use a license or practice certificate for a limited period of time or suspend operations for a limited period of time;
Confiscation of exhibits and means of administrative violations;
- The Director has the right to : Issue warnings;
Fine up to 50,000,000 VND;
Confiscation of exhibits and means of administrative violations;