Quyết định 52/2015/QĐ-TTg quản lý hoạt động thương mại biên giới với các nước có chung biên giới

THE PRIME MINISTER

Decision No.  52/2015/QD-TTg dated October 20, 2015 of the Prime Minister on the management of border trade with neighboring countries

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 17, 2003 Law on National Borders;

Pursuant to the June 14, 2005 Commercial Law;

At the proposal of the Minister of Industry and Trade,

The Prime Minister promulgates the Decision on management of border trade with neighboring countries.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of adjustment

1. This Decision prescribes the management of border trade with neighboring countries (below referred to as border trade), including:

a/ Cross-border purchase and sale of goods by traders;

b/ Purchase, sale and exchange of goods by border inhabitants;

c/ Purchase, sale and exchange of goods in border markets, border- gate markets and markets in border-gate economic zones;

d/ Trade support services in border-gate areas and border crossings.

2. Cross-border international purchase and sale of goods must comply with the 2005 Commercial Law, the 2003 Law on National Borders, and relevant legal documents, and conform to treaties which Vietnam has signed or acceded to, or international trade practices.

Article 2.Subjects of application

1. Organizations and individuals engaged in border trade.

2. Agencies and organizations managing and directing border trade.

3. Other agencies, organizations and individuals involved in border trade.

Article 3.Interpretation of terms

In this Decision, the terms below are construed as follows:

1. Neighboring country means a country bordering on the Socialist Republic of Vietnam (including the People’s Republic of China, People’s Democratic Republic of Laos and Kingdom of Cambodia).

2. Border gates, border crossings, border-gate areas, goods of border inhabitants, and cross-border travel procedures must comply with the Government’s Decree No. 112/2014/ND-CP of November 21, 2014, prescribing the management of land border gates.

3. Border markets, border-gate markets, and markets in border-gate economic zones must comply with the Government’s Decree No. 114/2009/ND-CP of December 23, 2009, amending and supplementing a number of articles of the Government’s Decree No. 02/2003/ND-CP of January 14, 2003, on market development and management.

4. Cross-border purchase and sale of goods by traders means trade in the forms defined in Clause 1, Article 27 of the 2005 Commercial Law and conducted in accordance with Chapter II of this Decision.

Article 4.Payment in border trade activities

1. Payment in border trade may be made in a freely convertible foreign currency, Vietnam dong or a currency of a neighboring country.

2. Methods of payment:

a/ Via-bank payment;

b/ Non-cash payment: clearance between exported and imported goods and services; via accounts in accordance with current regulations of Vietnam; direct payment into traders’ accounts at banks based in border-gate areas or border crossings of Vietnam;

c/ Payment in cash.

3. The State Bank of Vietnam shall provide guidance on payment in border trade.

Chapter II

CROSS-BORDER GOODS PURCHASE AND SALE BY TRADERS

Article 5.Traders purchasing and selling goods across borders

1. Vietnamese traders without direct foreign investment (below referred to as traders) may purchase and sell goods across borders. Depending on technical infrastructure in secondary border gates and border crossings, the People’s Committees of border provinces shall assume the prime responsibility for, and coordinate with the Ministry of Industry and Trade in, selecting traders that fully meet the conditions prescribed by law to purchase and sell goods via secondary border gates and border crossings.

2. Foreign-invested traders, and foreign companies and their branches in Vietnam may only purchase and sell goods across borders in the cases prescribed by Vietnamese law or treaties to which the Socialist Republic of Vietnam is a contracting party.

Article 6.Goods purchased and sold across borders by traders

1. Goods purchased and sold across borders by traders must comply with the Government’s Decree No. 187/2013/ND-CP of November 20, 2013, detailing the Commercial Law regarding international purchase and sale of goods and agency, purchase, sale, processing and transit of goods with foreign countries.

2. Goods referred to in Clause 1 of this Article may be traded via secondary border gates and border crossings in specific cases on the principle of encouraging export and controlling import in border trade. The Ministry of Industry and Trade shall provide guidance on goods purchased and sold via secondary border gates and border crossings by traders in each period after consulting the Ministry of Finance, related ministries and agencies and People’s Committees of border provinces.

Article 7.Types of land border gates via which traders may purchase and sell goods

1. Cross-border purchase and sale of goods by traders may be conducted via all types of land border gates and border crossings in accordance with the Government’s Decree No. 112/2014/ND-CP of November 21, 2014, prescribing the management of land border gates.

2. Secondary border gates and border crossings referred to in Clause 1 of this Article may be used for cross-border purchase and sale of goods by traders when meeting the following conditions:

a/ Having customs, border guard and quarantine forces operating on a regular basis;

b/ Having technical infrastructure serving state management work, including working offices of functional forces, inspection, control and supervision areas; storehouses and storing yards for goods gathering; roads; equipment, facilities and other necessary conditions.

Article 8.Quarantine, food safety examination, quality control of goods purchased and sold across borders by traders

Goods purchased and sold across borders by traders must comply with the law on health quarantine; animal and plant quarantine; aquatic product quarantine; quality control; and food safety examination.

Article 9.Forms of agreement in cross-border purchase and sale of goods by traders

Cross-border purchase and sale of goods by traders shall be conducted on the basis of agreement between Vietnamese traders and traders or individuals of neighboring countries in the following forms:

1. Written contract.

2. In case no written contracts are made, traders purchasing and selling goods across borders shall make a list of goods purchased and sold across borders. This list shall be signed and sealed by the Vietnamese trader and is as legally valid as contract. The trader shall take responsibility before law for the authenticity of the list.

The Ministry of Industry and Trade shall provide guidance on the list of goods purchased and sold across borders to be made by traders, which must contain the name of trader or individual, name of goods, unit price, quantity and other necessary details, to facilitate uniform declaration, monitoring and management.

Article 10.Tax, charge and fee policies

1. Traders purchasing and selling goods across borders shall fulfill all tax-related obligations according to the current law on goods purchased and sold across borders, and are entitled to incentives according to current law and treaties which Vietnam has signed or acceded to.

2. Goods exported in the form of cross-border purchase and sale by traders under this Decision are entitled to value-added tax refund in accordance with current law.

3. Charges and fees in cross-border purchase and sale of goods by traders must comply with current law.

Chapter III

GOODS PURCHASE, SALE AND EXCHANGE BY BORDER INHABITANTS

Article 11.Subjects of cross-border purchase, sale and exchange of goods by border inhabitants

1. Border inhabitants being Vietnamese citizens and citizens of neighboring countries who have a book of permanent residence in border areas.

2. Persons possessing permits of Public Security Departments of border provinces for residence in border areas.

Article 12.Border gates and border crossings for purchase, sale and exchange of goods by border inhabitants

Purchase, sale and exchange of goods by border inhabitants may be conducted via border gates and border crossings under the Government’s Decree No. 112/2014/ND-CP of November 21, 2014, prescribing the management of land border gates.

Article 13.Goods purchased, sold and exchanged by border inhabitants

1. Goods purchased, sold and exchanged by border inhabitants must comply with Clause 8, Article 3 of the Government’s Decree No. 112/2014/ND-CP of November 21, 2014, prescribing the management of land border gates.

2. The Ministry of Industry and Trade shall promulgate a list of goods allowed for purchase, sale and exchange by border inhabitants for implementing policies concerning purchase, sale and exchange of goods by border inhabitants prescribed in this Decision.

Article 14.Tax on goods purchased, sold and exchanged by border inhabitants

1. The subjects defined in Article 11 of this Decision are entitled to exemption from import duty and other taxes (if any) for purchased, sold or exchanged goods valued at no more than VND 2,000,000 (two million)/person/day/time, for 4 times at most a month, for goods on the Ministry of Industry and Trade-promulgated list of goods allowed for purchase, sale and exchange by border inhabitants.

2. The value of goods in excess of the limit prescribed in Clause 1 of this Article shall be taxed in accordance with current law.

3. The Ministry of Finance shall guide the tax exemption for goods purchased, sold and exchanged by border inhabitants, and procedures for collection of tax on the value of goods in excess of the prescribed limit.

Article 15.Management of re-purchase and transportation of goods purchased, sold and exchanged by border inhabitants

1. Goods within the limit which are resold by border inhabitants rather than being used for their life and production shall be taxed in accordance with current law.

2. Traders may re-purchase and transport goods purchased, sold and exchanged by border inhabitants in border markets, border-gate markets and markets within border-gate economic zones.

3. Traders that re-purchase goods purchased, sold and exchanged by border inhabitants shall make a list of re-purchased goods.

4. Re-purchased goods, which are purchased, sold and exchanged by border inhabitants, are subject to import duty and other taxes (if any) under regulations, and quarantine, food safety examination, and quality control under Article 8 of this Decision.

5. The Ministry of Finance shall guide procedures for collection of tax on quantities of goods which are resold by border inhabitants rather than being used directly for their life and production.

Article 16.Quarantine, food safety examination, and quality control in the purchase, sale and exchange of goods by border inhabitants

1. Health quarantine: Goods purchased, sold and exchanged by border inhabitants are not subject to health quarantine. When the Ministry of Health announces threats of infectious epidemics and when epidemics break out, these goods shall be physically inspected and medically treated.

2. Quarantine of animals, plants and aquatic products: Goods subject to quarantine of animals, plants or aquatic products announced by the Ministry of Agriculture and Rural Development in each period shall be quarantined in accordance with current law.

3. Quality and food safety examination and control: Goods purchased, sold and exchanged by border inhabitants are not subject to quality and food safety examination and control.

Chapter IV

TRADING ACTIVITIES IN MARKET BORDERS, BORDER- GATE MARKETS AND MARKETS IN BORDER-GATE ECONOMIC ZONES

Article 17.Conditions for doing business in border markets, border-gate markets and markets in border-gate economic zones

Doing business in border markets, border-gate markets and markets in economic border gates must satisfy the conditions prescribed in the Government’s Decree No. 02/2003/ND-CP of January 14, 2003, on market development and management, and Decree No. 114/2009/ND-CP of December 23, 2009, amending and supplementing a number of articles of the Government’s Decree No. 02/2003/ND-CP, and relevant legal documents.

Article 18.Subjects of purchase, sale and exchange of goods in border markets, border-gate markets and markets in economic border gates

1. Traders that are business individuals bearing Vietnamese citizenship and possessing a book of permanent residence in border areas.

2. Traders that are Vietnamese enterprises and business households established and registered in accordance with the law on business registration.

3. Traders that are business individuals bearing the citizenship of a neighboring country and possessing any of the following valid papers: border identity card, border laissez passer, or passport or another entry and exit paper issued in accordance with the law of the neighboring country.

4. Traders that are enterprises or business households of a neighboring country that possess a business registration certificate granted in accordance with the law of the neighboring country.

Article 19.Goods allowed for purchase, sale and exchange in border markets, border-gate markets and markets in economic border gates

1. Goods allowed for purchase, sale and exchange in border markets, border-gate markets and markets in economic border gates must be those permitted under current law for circulation on the Vietnamese market.

2. Goods purchased, sold and exchanged across borders for being traded in border markets, border-gate markets and markets in economic border gates must comply with the provisions of this Decision.

Article 20.Quarantine of goods purchased, sold and exchanged in border markets, border-gate markets and markets in economic border gates

1. Goods purchased, sold and exchanged in border markets, border- gate markets and markets in economic border gates and subject to quarantine (health quarantine or animal, plant and aquatic product quarantine) shall be quarantined according to the procedures prescribed by the Ministry of Health (for those subject to health quarantine) or by the Ministry of Agriculture and Rural Development (for those subject to animal, plant and aquatic product quarantine).

2. Goods imported from a neighboring country into a market or exported from a market to a neighboring country must go through quarantine procedures at the quarantine agency based in the border gate or border crossing through which the goods are imported or exported.

Article 21.Tax and customs regulations applicable to goods purchased, sold and exchanged in border markets, border-gate markets and markets in economic border gates

1. Traders doing business in border markets, border-gate markets and markets in economic border gates shall comply with Vietnam’s current laws on value-added tax, enterprise income tax, license tax, excise tax and other taxes (if any).

2. The Ministry of Finance shall guide customs procedures for the cross-border purchase and sale of goods by traders in border markets, border-gate markets and markets in economic border gates.

Chapter V

TRADE SUPPORT SERVICES IN BORDER GATES AND BORDER CROSSINGS

Article 22.Trade support services in border gates and border crossings

1. Service of supporting the clearance of administrative procedures as prescribed by relevant specialized laws.

2. Service of goods storage, forwarding, transportation and preservation.

3. Service of goods processing, packaging and packing.

4. Service of goods loading and unloading, labor, interpretation, cleaning and security.

5. Service of supporting the enhancement of accessibility to and entry into markets of neighboring countries.

6. Service of technical infrastructure, including road, working office, showroom, product display, surveillance camera, electronic scale station, electricity and water, waste collection and disposal, fire alarm and prevention and fighting.

7. Other support services as prescribed by current law.

Article 23.Management of trade support services in border gates and border crossings

1. The management of trade support services in international and main border gates must comply with the Prime Minister’s Decision No. 45/2013/QD-TTg of July 25, 2013, promulgating the Regulation on management of activities in land border gates.

2. The management of trade support services in secondary border gates and border crossings must comply with regulations of the Ministry of Industry and Trade.

3. Vietnamese traders without foreign direct investment shall provide trade support services in border gates and border crossings in accordance with current law.

Chapter VI

ENTRY AND EXIT OF PERSONS AND VEHICLES IN BORDER TRADE ACTIVITIES

Article 24.Entry and exit of Vietnamese persons and vehicles

1. The owners of goods or their authorized persons, owners and drivers of vehicles carrying goods, and attendants working on vehicles and vessels must possess one of the following valid papers: passport, identity card, border laissez passer (crew list or crewmember book for vessels) or other papers for cross-border travel as prescribed by Vietnamese law.

Particularly for drivers of vehicles, in addition to the papers specified above, they must possess a driving license as required for their vehicles.

2. Owners and drivers of vehicles carrying goods into border areas shall produce or submit papers as prescribed by current law.

3. Vehicles carrying goods and their drivers and traders of Vietnam may go through border gates and border crossings prescribed in this Decision to enter and leave border markets, border-gate markets and markets in border-gate economic zones of neighboring countries and shall be subject to inspection and control by specialized management forces in border gates and border crossings; for persons and vehicles going into the mainland of a neighboring country, entry and exit procedures shall be carried out in accordance with current laws of Vietnam and this neighboring country.

4. The management of Vietnam’s vehicles going across borders for goods delivery and receipt within border gates or border crossings and returning on the same day and of vehicles of individuals and organizations in border areas frequently going across borders must comply with law.

5. Persons and vehicles prescribed in this Article that wish to enter goods transshipment areas prescribed in transportation agreements between the Governments of Vietnam and neighboring countries for goods delivery and receipt shall comply with these agreements, protocols and other agreement documents signed between Vietnam and neighboring countries concerning entry, exit and transportation of goods.

Article 25.Entry and exit of persons and vehicles of neighboring countries

1. Citizens of neighboring countries who are owners of goods or their authorized persons, owners and drivers of vehicles, and attendants working on vehicles of neighboring countries may accompany their vehicles carrying goods via border gates and border crossings prescribed in this Decision to goods delivery and receipt points with their passports, crew books, identity cards or border laissez passers granted by competent authorities of neighboring countries or with other cross- border travel permits as prescribed by Vietnam’s current law.

2. Vehicles carrying goods of neighboring countries may go through border gates and border crossings prescribed in this Decision to goods delivery and receipt points designated by competent Vietnamese agencies in border areas.

3. Vehicles and citizens of neighboring countries who are drivers of vehicles carrying goods and traders of neighboring countries shall, when entering and leaving border markets, border-gate markets and markets in border-gate economic zones of Vietnam to transport goods, be subject to inspection and control by specialized state management agencies based in border gates and border crossings; when wishing to leave border markets, border-gate markets or markets in border-gate economic zones to go into Vietnam’s mainland, enter and exit procedures shall be carried out for these persons and vehicles in accordance with Vietnam’s current law.

4. Vehicles of neighboring countries entering border gates or border crossings of Vietnam for goods delivery and receipt and returning on the same day, and vehicles of individuals and organizations in border areas frequently going across borders on the same day shall not be subject to filling in customs declaration forms and submission of vehicles’ documents but shall be subject to inspection and control by functional agencies based in border gates and production of papers to the customs office for supervision, inspection and management.

5. The management of vehicles of neighboring countries entering Vietnam’s border gates and border crossings for goods delivery and receipt within these border gates and border crossings and returning on the same day, and of vehicles of individuals and organizations in border areas frequently going across borders must comply with law.

6. Persons and vehicles of neighboring countries that wish to go outside border gates and border crossings for goods delivery and receipt shall comply with the agreements, protocols and other agreement documents signed between Vietnam and neighboring countries concerning entry, exit and transportation of goods.

Chapter VII

BORDER TRADE STEERING COMMITTEES

Article 26. TheBorder Trade Steering Committees

1. The Central Border Trade Steering Committee shall have the Minister of Industry and Trade as chairperson and a Deputy Minister of Industry and Trade in charge of border trade as the standing vice chairperson. Its members include deputy ministers or directors general of general departments of the Ministry of Foreign Affairs, Ministry of National Defense, Ministry of Finance, Ministry of Planning and Investment, Ministry of Transport, Ministry of Agriculture and Rural Development, Ministry of Health, Ministry of Public Security, Ministry of Culture, Sports and Tourism, and State Bank of Vietnam.

2. Members of the Central Border Trade Steering Committee shall work on a part-time basis. The Committee may use the seal of the Ministry of Industry and Trade for its transactions. The chairperson of the Committee shall issue the operation regulation of the Committee; and define the membership and tasks of its standing agency.

3. The chairperson of the Central Border Trade Steering Committee shall guide the People’s Committees of border provinces in strengthening provincial Border Trade Steering Committees, each having a leader of the provincial People’s Committee as head, the director of the provincial Industry and Trade Department as standing deputy head, and leaders of related provincial departments and sectors as members.

Article 27.Tasks and powers of the Central Border Trade Steering Committee

1. To assist the Prime Minister in directing and coordinating ministries, sectors and localities in managing border trade; to monitor, examine and urge ministries, sectors and People’s Committees of border provinces in performing the assigned functions and tasks related to border trade; and settle affairs related to many ministries, sectors and localities in the management of border trade.

2. To review and evaluate border trading activities of ministries, sectors and localities; to report and propose to the Prime Minister policies, measures, programs and plans to enhance the effectiveness of border trade.

3. To assist the Prime Minister in directing and handling activities at border gates and border crossings under the Prime Minister’s Decision No. 45/2013/QD-TTg of July 25, 2013, and this Decision; to direct provincial People’s Committees in managing trade support services in border gates and border crossings.

4. To organize forms of emulation and commendation according to its competence; to propose the Prime Minister to commend and reward organizations and individuals that record achievements in border trading activities in accordance with law.

5. To perform other tasks and exercise other powers according to directions of the Prime Minister.

Article 28.Funding for activities of Border Trade Steering Committees

Activities of the Central Border Trade Steering Committee and provincial Border Trade Steering Committees shall be funded by the state budget in accordance with the law on the state budget.

Chapter VIII

IMPLEMENTATION ORGANIZATION

Article 29.Responsibilities of the Ministry of Industry and Trade

1. To assume the prime responsibility for, and coordinate with related ministries and sectors and People’s Committees of border provinces in, guiding and organizing the implementation of this Decision.

2. To assume the prime responsibility for, and coordinate with related ministries and sectors in, advising the Prime Minister in managing and handling in a timely and flexible manner border trading activities.

3. To assume the prime responsibility for, and coordinate with related ministries and sectors and People’s Committees of border provinces in, directing, guiding, examining and supervising the management of border trade.

4. To cooperate, exchange opinions and reach agreement with competent authorities of neighboring countries on the coordination mechanism in managing border trade.

5. To assume the prime responsibility for, and coordinate with related ministries and sectors and People’s Committees of border provinces in, regulating the purchase and sale of goods by traders in secondary border gates and border crossings in cases of goods

congestion in border gates and border crossings, environmental pollution, natural disasters, epidemics and other necessary cases.

6. To assume the prime responsibility for, and coordinate with related ministries and sectors and People’s Committees of border provinces in, designating secondary border gates and border crossings permitted for cross-border purchase and sale of goods.

7. To summarize and report on border trading activities on a regular or irregular basis to competent authorities.

Article 30.Responsibilities of related ministries and sectors

1. The Ministry of National Defense shall assume the prime responsibility for, and coordinate with other related ministries and sectors and People’s Committees of border provinces in, managing border gates and border crossings within its assigned functions and tasks.

2. The Ministry of Finance shall assume the prime responsibility for, and coordinate with other related ministries and sectors and People’s Committees of border provinces in, guiding the implementation of tax, charge and fee policies; and customs procedures for vehicles on entry and exit, and imported and exported goods in border trade; inspection and supervision procedures for the re-purchase and transportation of goods purchased, sold and exchanged by border inhabitants.

3. The Ministry of Health shall assume the prime responsibility for, and coordinate with other related ministries and sectors and People’s Committees of border provinces in, managing and guiding the border health quarantine and food safety examination in border trade.

4. The Ministry of Agriculture and Rural Development shall assume the prime responsibility for, and coordinate with other related ministries and sectors and People’s Committees of border provinces in, managing and guiding the quarantine of animals, plants and aquatic products in border trade.

5. The Ministry of Science and Technology shall assume the prime responsibility for, and coordinate with other related ministries and sectors and People’s Committees of border provinces in, managing and guiding the quality inspection of goods in border trade.

6. The Ministry of Transport shall assume the prime responsibility for, and coordinate with other related ministries and sectors and People’s Committees of border provinces in, facilitating the development of transport infrastructure to serve border trade; and guide the implementation of regulations concerning vehicles on entry and exit across borders.

7. The State Bank of Vietnam shall assume the prime responsibility for, and coordinate with related ministries and sectors and People’s Committees of border provinces in, managing and guiding payment in border trade.

8. The Ministry of Public Security shall assume the prime responsibility for, and coordinate with other related ministries and sectors and People’s Committees of border provinces in, managing the residence, entry and exit of persons in border trading activities.

9. Related ministries and sectors shall coordinate with the Ministry of Industry and Trade in uniformly guiding and directing the management of border trading activities under their respective management.

10. Related ministries and sectors shall appoint members to the Central Border Trade Steering Committee under this Decision to implement the inter-sectoral coordination mechanism in managing and directing border trading activities.

Article 31.Responsibilities of provincial-level People’s Committees

1. To manage and direct border trading activities in their localities.

2. To implement directions on border trading activities in their provinces provided by the Ministry of Industry and Trade, the Central Border Trade Steering Committee and related ministries and sectors.

3. To direct provincial Border Trade Steering Committees in implementing the inter-sectoral coordination mechanism in managing and directing border trading activities in their provinces.

Article 32. Implementation effect

1. This Decision takes effect on January 01, 2016.

2. This Decision replaces the Prime Minister’s Decision No. 254/2006/QD-TTg of November 7, 2006, on management of border trade with neighboring countries, and Decision No. 139/2009/QD-TTg of December 23, 2009, amending and supplementing a number of articles of Decision No. 254/2006/QD-TTg.

3. In the course of implementation, if the documents referred to in this Decision are amended, supplemented or replaced, new documents shall be applied.

4. When it is necessary to flexibly direct border trading activities in conformity with socio-economic conditions of each locality and in each period, the Prime Minister shall consider and decide on the regulation of cross-border purchase and sale of goods by traders and border inhabitants at the proposal of the Ministry of Industry and Trade.

5. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall implement this Decision.-

The Prime Minister

Nguyen Tan Dung