deterrence for violators in practice and limit the situation where fines are "no longer suitable" with the present when the socio-economic situation is increasingly changing and developing.
Currently, in Binh Duong province, on electric poles, public trees or traffic lights, there are still many advertising stickers and leaflets are distributed, causing loss of urban beauty when Binh Duong is oriented to build a smart city and affecting traffic safety. Although there are regulations on fines and remedial measures (dismantling, erasing), state management agencies find it difficult to enforce when deciding to impose fines on the above acts because the process of finding the offender and removing advertising takes a lot of time and effort of the authorities. Therefore, the author proposes to add remedial measures in Decree No. 158/2013/ND-CP (amended and supplemented by Decree 28/2017/ND-CP).
Add points d and đ to Clause 7, Article 51 of Decree No. 158/2013/ND-CP as follows: Cut off telephone connection for 6 months for the acts specified in Point a, Clause 1 of this Article (people hanging, placing, pasting, drawing advertisements for products, goods, services on electric poles, electricity poles, traffic signal poles and trees in public places) and cut off telephone connection for 12 months for Point b, Clause 2 of this Article (people having products, goods, services advertised on electric poles, electricity poles, traffic signal poles and trees in public places).
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Amend and supplement points b and c to Clause 4, Article 61 of Decree No. 158/2013/ND-CP (amended Clause 49, Article 2 of Decree No. 28/2017/ND-CP) as follows:
a) Forced removal or deletion of advertising for the acts specified in Clause 2 of this Article.
b) Cut off telephone communication for 6 months for the acts specified in Clause 1 of this Article (distributing advertising leaflets that affect aesthetics, traffic safety and social order).
c) Cut off telephone contact for 12 months for the acts specified in Clause 3 of this Article (people whose products, goods, and services are advertised on flyers that affect aesthetics, traffic safety and social order).
Only by applying such strong remedial measures can we avoid the current "sloppy" traffic situation, ensuring a clean, green urban landscape and traffic safety.
3.2.4. Proposal to improve regulations on locations, restricted areas and prohibited areas for outdoor commercial advertising
The 2012 Law on Advertising does not specifically regulate the locations, restricted areas and prohibited areas for performing advertising acts. However, Decision No. 39/2016/QD-UBND dated October 7, 2016 of the People's Committee of Binh Duong province promulgating regulations on outdoor advertising activities in Binh Duong province specifically regulates areas and locations where outdoor advertising is prohibited and restricted. This is considered a progressive point in local regulations because the Law on Advertising does not specifically regulate, but there are many locations and areas where outdoor advertising acts cannot be performed because they will affect urban aesthetics, urban safety, and even endanger people in that area. Although there are specific regulations on locations and areas where outdoor advertising acts are prohibited and restricted, the decision does not clearly regulate how to restrict them and does not have sanctions if there are violations in these restricted locations and areas. There should be more specific guidance documents on the subjects and entities that are allowed to conduct outdoor QC at restricted locations and areas as stipulated in Decision No. 39/2016/QD-UBND dated October 7, 2016, and at the same time, it is recommended to supplement regulations on administrative violations for this regulation. If it is only stated in general terms but there are no specific guidance documents and sanctions, this regulation will be very difficult to enforce and will only be a "regulation on paper". The author proposes to supplement Clause 3 to Article 6 of Decision No. 39/2016/QD-UBND dated October 7, 2016 of the People's Committee of Binh Duong province as follows:
c) Locations and restricted advertising areas specified in Clause 2 of this Article must be approved by the People's Committee of the commune, ward or town regarding the size and location of the advertisement.
At the same time, the author recommends adding sanctions for HVVP regarding locations, areas prohibited from advertising and areas restricted from advertising in Decree No. 158/2013/ND-CP into a specific law. Currently, Decree No. 158/2013/ND-CP and Decree No. 28/2017/ND-CP amending and supplementing do not have regulations on the form of sanction for HVVPHC in cases of violations regarding locations, areas prohibited from advertising and areas restricted from advertising.
3.2.5. Proposal to amend outdoor advertising planning
Regarding the outdoor QCTM planning of Binh Duong province approved from the year by Decision No. 3100/QD-UBND dated November 25, 2015 of the People's Committee of Binh Duong province, along with Decision No. 39/2016/QD-UBND dated October 7, 2016 of the People's Committee of Binh Duong province promulgating regulations on outdoor QCTM in Binh Duong province. Currently, outdoor QCTM is increasingly developing along with the development of infrastructure and socio-economy of the province and to ensure that QCTM does not affect urban aesthetics, traffic safety, power grid, political propaganda. The author proposes that the specialized agency on culture needs to summarize and evaluate over the 5-year period of implementing the outdoor QC planning in the province to adjust the planning to suit the routes, locations, areas, times and means of QC allowed to create conditions for the development of outdoor QCTM activities; The planning needs to stipulate that independent advertising boards and signs that violate road safety and power grids need to stipulate a time limit for correction or removal to ensure fairness in participating in the advertising council of the units. In addition, when amending and supplementing the outdoor advertising planning, it is necessary to separate Section III, Part III of the Planning on serving visual and political propaganda into a separate planning applicable to the Planning serving the task of political propaganda and social policies to comply with Clause 2, Article 1 of the Advertising Law 2012 "Political information and propaganda are not within the scope of this Law."
3.2.6. Perfecting regulations on subjects of outdoor commercial advertising
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Currently, outdoor advertising activities are regulated by the Commercial Law.
2005 and the Law on Advertising 2012. As analyzed in Chapter 2, the shortcomings in legal regulations on regulated subjects in the field of QCTM have not been
compatibility between these two documents. Partly because the 2005 Commercial Law was issued and took effect much earlier than the 2012 Advertising Law. Each document issued at different times will have different interpretations depending on the practical situation at that time. Therefore, it is necessary to adjust the 2005 Commercial Law on the subject of commercial advertising to suit the practical situation and advertising law. According to Article 102 of the 2005 Commercial Law, "Commercial advertising is a commercial promotion activity of a trader to introduce to customers about its business activities of goods and services." Thus, according to this regulation, it seems that the subject of commercial advertising activities includes activities related to the production and trading of goods or provision of services, without specifically stating the goods and services. To unify and avoid misunderstandings about the subjects of commercial advertising activities, it is necessary to adjust Article 102 of the 2005 Commercial Law in the direction of clearly listing the subjects of commercial advertising, including products, goods and services. At the same time, although outdoor commercial advertising activities are increasingly developing and playing an extremely important role, the legal system of commercial advertising still does not have a unified concept of this activity. The author proposes a solution to add a specific concept of outdoor commercial advertising to the amended and supplemented Law on Commercial Advertising in the coming time to serve as a basis for research and development of legal regulations, including regulations on XPVPHC in the field of outdoor commercial advertising. The concept of "outdoor commercial advertising" activities can be added to Article 2 of the Law on Commercial Advertising on the interpretation of terms as follows:
“Outdoor advertising is a trade promotion activity carried out by entities including individuals and organizations through outdoor advertising means with the aim of introducing goods, services and business activities to consumers for the purpose of making a profit.”
3.3. Solutions to improve the effectiveness of administrative sanctions in the field of outdoor commercial advertising
3.3.1. Solutions to improve the effectiveness of state management of outdoor commercial advertising activities
Firstly, strengthen the direction and implementation of local outdoor QCTM planning and plans.
To strengthen the management of the implementation of the law on outdoor QCTM in accordance with the provisions of law and local planning, the People's Committee of Binh Duong province needs to direct the Department of Culture, Sports and Tourism and local agencies, unions, political organizations, and socio-political organizations in the coming time to focus on and complete well the following tasks:
- Continue to improve the law to ensure consistency with the provisions of the QC Law; National technical regulations on construction and installation of outdoor QC facilities QCVN 17:2013/BXD and legal documents guiding the implementation; other relevant legal regulations while ensuring consistency with the outdoor QC planning of Binh Duong province.
- Strengthen inspection and examination to overcome the situation of QC violating the planning approved by competent authorities, build QC points and banner hanging pole systems suitable for the planned locations.
- Strengthen inspection and punishment for the act of hanging and pasting advertising posters on electric poles, trees in public places, traffic lights, and distributing advertising leaflets. For this act, there should be specific measures such as: Directly contacting the phone numbers on the advertising posters and leaflets to impose penalties, requiring the subject to apply remedial measures to immediately remove and delete these advertising posters and summarize the illegal advertising phone numbers to propose to the competent authority for handling. Currently, many organizations in the area have been mobilized to remove and repaint these advertising posters, causing the loss of state personnel. Therefore, for this illegal advertising poster behavior, it is necessary to strictly apply the measure of forcing the removal of advertising posters to both ensure deterrence and ensure the urban beauty of the locality.
- Reasonable arrangement of human resources, restructuring of personnel to ensure sufficient number of inspectors, not to let the situation of shortage of specialized personnel. In reality, in Binh Duong province, the specialized cultural inspection force at the Department of Culture, Sports and Tourism
There are only 5 officers 42 who both manage and directly inspect and inspect specialized fields in the fields of culture, sports, tourism and QC. With a small number of staff simultaneously taking on many fields, including outdoor QCTM, it is very difficult to ensure good handling of outdoor QCTM HVVP. Therefore, according to the author, it is necessary to arrange and restructure the specialized inspection force. If necessary, the Department Director will mobilize officers to coordinate inspection and handling to protect a healthy and honest business environment, protect the rights and interests of QC recipients, and create conditions for entities participating in QCTM to compete fairly.
3.3.2. Strengthening coordination between agencies at all levels and sectors
State management of outdoor advertising activities is mainly carried out by cultural management agencies such as the Department of Culture, Sports and Tourism, and district-level Culture and Information Offices. State management in the field of outdoor advertising requires close and synchronous coordination between management agencies and specialized agencies directly implementing. Therefore, to ensure the enforcement of the law on administrative violations in the field of outdoor advertising, there must be solutions to enhance the effectiveness of this coordination.
- Develop regulations on the coordination process, actively implement coordination work between specialized agencies and other relevant agencies in the field of outdoor QCTM. In particular, the authority to impose administrative sanctions in the field of outdoor QCTM is currently assigned to many specific agencies such as: People's Committees at all levels; Inspection agencies, People's Police, Border Guards, Coast Guards, Customs, Market Management and Inspectorate 43. Therefore, in the work of imposing administrative sanctions for administrative violations in outdoor QCTM, there must be coordination between agencies, ensuring
ensure consistent and unified penalty mechanisms and procedures.
- Strengthen post-inspection work of advisory agencies, coordinate with agencies and branches to propose to the People's Committee regulations and policies to improve law-making and measures to effectively implement the law on administrative violations in the field of outdoor advertising.
42 The author collected actual data at the Department of Culture, Sports and Tourism of Binh Duong province.
43 Chapter 4 Decree No. 158/2013/ND-CP (amended and supplemented by Decree No. 28/2017/ND-CP) of the Government regulating administrative penalties in the fields of culture, sports, tourism and advertising.
- Implement synchronous coordination in management between the Department of Culture, Sports and Tourism and the People's Committees at district and commune levels, develop plans, decentralize and coordinate the implementation of inspection and handling functions in the field of outdoor advertising in each specific area. Good coordination and clear division of inspection and handling authority will contribute to gradually rectifying the advertising activities in order, in accordance with legal regulations, ensuring aesthetics and social order.
3.3.3. Strengthen training and development of specialized staff in handling violations of commercial advertising laws.
Currently, the acts of administrative violations in the field of outdoor QCTM are increasingly developing strongly, transforming into many different forms. The issue of sanctioning violations in this field is a complex issue, requiring officials to have in-depth knowledge not only of law but also of economics when conducting sanctions. Economic analysis plays an important and indispensable role when applied in the process of administrative sanctions in the field of outdoor QCTM in specific cases. In order to build a team of officials and experts, the People's Committee of Binh Duong province needs to regularly improve the capacity, professional qualifications and experience of officials.
Improving the skills, expertise, and professionalism of officials, civil servants, and public servants in the implementation and application of the law on handling administrative violations 44 , this is an urgent requirement of agencies to meet current practical requirements, because the human factor determines everything. In addition, the personnel situation is increasingly reducing the number of officials, so officials must be multi-talented, one person must do many tasks and the operating costs at specialized agencies in our country today still have many problems that require efforts.
solution. The current human resources are both lacking and redundant while the training of a team of professional staff with knowledge of the law and handling of administrative violations in the field of outdoor QCTM has not yet received attention or investment. Administrative violations handling is a field of work with a wide scope of regulation related to many industries, the legal system is increasingly perfect, more and more stringent, the punishment of violators not only affects their rights and interests, but through punishment, the purpose is to deter, educate,
44 Report No. 09/BC-BTP dated January 8, 2018 of the Ministry of Justice summarizing the implementation of the Law on handling of administrative violations.
create fairness in the QC and the core issue is to change their awareness so that they do not violate again. To do this, the person performing the public service must have knowledge, skills, responsibility, professional and creative working attitude and reality has proven that the same case can be resolved very well for one officer but difficult for another officer. Therefore, it is necessary to provide in-depth training to improve the professional qualifications of officers and civil servants with the authority to handle administrative violations in the field of outdoor QCTM. The training content needs to be in-depth in handling administrative violations, focusing on regulations on administrative sanctions, handling measures, and remedial measures for each administrative violation and each subject; To foster skills, behavioral culture, and situation handling for cadres and civil servants directly performing duties to uniformly and synchronously apply legal regulations, contributing to the good implementation of socialist legal principles, and effectively resolving situations that arise during the performance of duties.
3.3.4. Improve the dissemination of legal regulations on outdoor commercial advertising
The work of disseminating and educating about the law plays a very important role and is always identified as a regular and continuous task of authorized state agencies to bring the Party's guidelines and policies and the State's laws into life, contributing to raising awareness and sense of law observance of all people, maintaining political security, social order and safety, creating conditions to promote socio-economic development as stated in Article 3 of the Law on Dissemination and Education of the Law: "Dissemination and education of the law is the responsibility of the entire political system, in which the State plays a core role."; Directive No. 19/CT-UBND dated October 12, 2017 on strengthening the dissemination of legal education in Binh Duong province also clearly stated that " continue to improve the quality and effectiveness of legal dissemination and education, contributing to raising awareness and respect for the law of officials and people , the Provincial People's Committee requests Heads of departments, branches, sectors, unions, Chairmen of People's Committees of districts, towns and cities based on their assigned functions, tasks and responsibilities to pay attention to directing and organizing the serious and comprehensive implementation of the dissemination work".