Is it legal for administrative sanctions without making violation records?

My mother is usually peddling on the sidewalk in the evening. Because it was crowded on Sunday so she went to a place where street vendors are prohibited to sell. But on that Sunday, there was an urban order management board who decided to sanction on the spot immediately for encroaching on the sidewalk with a fine of 200,000 VND without making a record. So I want to ask whether it is legal when the urban order management board fined on the spot without making a violation record? Hope your company to respond to me soon.

FDVN’s Opinions:

Thank you very much for submitting questions to FDVN Law Firm (FDVN). After studying relevant legal regulations, FDVN has some opinions for your consulting request as follows:

According to the Article 56 Law on handling administrative violations 2012, administrative sanction without record taking is regulated:

“1. Administrative sanction without record taking is applicable in cases of warning or fines of up to 250,000 VND for individuals, 500,000 VND for organizations, and the persons with sanctioning competence must make decisions of administrative sanctions on the spot.

In case administrative sanctions are detected thanks to using technical, professional equipment, means, the record must be taken.

2. Decisions of administrative sanctions on the spot must be written clearly the information of date of decisions; full name, address of violators or name, address of violating organizations; acts of violations; venues of violations; evidences and details related to the violation settlement; full name, position of persons who make sanctioning decisions; articles, clauses of applicable legal documents. In case of fines, there must be the fine levels in the decisions.”

According to the information that you provided, your mother went to a place where street vendors are prohibited to sell, and according to Article 12 Decree No. 100/2019/ND-CP regulating administrative penalties for road traffic and rail transport offenses, penalties for violations against regulations on the use of land area for road traffic is determined:

“1. A fine ranging from 100,000 VND to 200,000 VND shall be imposed upon an individual, from 200,000 VND to 400,000 VND upon an organization that commits any of the following violations:

a) Hawking on the roadway or on the sidewalk where street vendors are prohibited, except for the violations specified in Point c Clause 2, Point b Clause 5, Point e Clause 6 of this Article;”

For your mother’s acts of peddling on street sidewalks with regulations prohibiting street vendors, the fine level is up to 200,000 VND. Therefore, for this sanctioning level, as specified in Article 56 of the Law on handling of administrative violations 2012 has been cited above, the person with sanctioning competence shall issue a decision to sanction administrative violation on the spot without making a violation record is in accordance with the current law.

Above is the advisory opinion of FDVN regarding your consultation request on the basis of researching legal provisions. Hopefully, the advice of FDVN will be useful to you.

Nguyen Thi Suong - FDVN Law Firm

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