Thông tư 09/2001/TT-BTM của Bộ Thương mại hướng dẫn về tổ chức, nhiệm vụ, quyền hạn của lực lượng quản lý thị trường địa phương

CIRCULAR

GUIDING THE ORGANIZATION, TASKS AND POWERS OF LOCALMARKET MANAGEMENT FORCES

Pursuant to the May 10, 1997 Commercial Law;

Pursuant to the Governments Decree No. 10/CP of January 23, 1995 onthe organization, tasks and powers of the market management body;

Pursuant to the Governments Decree No. 15/CP of March 2, 1993 on thetasks, powers and State management responsibilities of the ministries andministerial-level agencies;

Pursuant to the Prime Ministers decision in Document No. 696/CP-KTTHof August 2, 2000 and the Trade Ministrys Decision No. 1211/QD-BTM of August28, 2000 on the assignment of the functions and tasks of the specialized tradeinspectorate to the market management force;

After obtaining the agreement of the Government Commission forOrganization and Personnel in Document No. 76/BTCCBCP of April 9, 2001;

The Trade Ministry hereby guides in detail the organization, tasksand powers of the local market management forces as follows:

I. GENERAL PROVISIONS

1. The market management force shall perform and exercise the functions,tasks and powers prescribed in the Governments Decree No. 10/CP of January 23,1995 on the market inspection and control, fight against law violations intrade activities, as well as the functions, tasks and powers of the specializedtrade inspectorate under the Commercial Law;

2. The market management force shall be built into a tightly organizedregular force (according to Point 7, Section III, Part Two of the PoliticalBureaus Resolution No. 12-NQ/TW of January 3, 1996), thus ensuring the unifiedmanagement and direction from the central to local levels;

3. The market management forces activities aim to establish order anddiscipline, make markets healthy and ensure that business activities on marketsare compliant with the States laws;

4.The market managementforce shall independently operate under the provisions of law, abide by law andbe answerable before law and superior agencies for its handling decisions;

5. While on official duty, market controllers shall have to strictlyperform their assigned tasks and exercise their vested powers; ensure that theinspection and handling of violations are carried out in compliance with lawand in an impartial, objective, accurate and prompt manner.

II. TASKS AND POWERS OF LOCAL MARKET MANAGEMENT FORCES

Pursuant to Article 5 of Decree No. 10/CP and Articles 250 and 257 ofthe Commercial Law, the major tasks of the local market management forces shallbe as follows:

1. Tasks and powers of the Market Management Sub-Departments

The Market Management Sub-Departments are organizations attached to theprovincial/municipal Trade Services or Services with the function of Statemanagement over trade (hereinafter referred to as provincial/municipalServices). They are tasked to inspect and control markets, fight acts oftrading in smuggled goods and banned goods, and producing and trading in fakegoods; inspect and examine the observance of the commercial legislation byorganizations and individuals engaged in activities in their provinces andcentrally-run cities. More concretely:

1.1. To direct market management teams in performing their tasks ofinspecting and controlling markets; detecting illegally imported goods, bannedgoods, fighting the production of and trading in fake goods and other illegalbusiness activities.

1.2. To direct market management teams in inspecting, detecting andhandling the violations of regulations on traders and commercial activitiesunder the Commercial Law, such as:

+ Conducting business activities without business registrationcertificates or not in line with contents inscribed in business registrationcertificates;

+ Continuing trade activities when having already been suspendedtherefrom or stripped of the right thereto;

+ Having no working offices, commercial shops or stores; having nosignboards or signboards inscribed with contents not in line with those statedin business registration certificates;

+ Setting up representative offices and/or branches without permitstherefor or letting representative offices and/or branches operate incontravention of the permits contents;

+ Trading in goods or providing commercial services, which are bannedfrom trading or provision by law;

+ Violating the regulations on business conditions for goods and/orservices subject to conditional business according to the provisions of law;

+ Violating the States regulations on observance of the price bracketsor levels or posting up of prices of goods and commercial services;

+ Failing to provide full information on properties and utility ofgoods, thus causing damage to consumers’interests;

+ Violating the regulations on goods labeling;

+ Violating the States regulations on trade promotion, advertising,exposition and presentation of goods, trade fairs and exhibitions;

+ Violating the regulations on observance of the regime of invoices andvouchers in goods trading and circulation;

+ Committing fraudulent acts or acts of deceiving consumers in goodstrading or commercial service provision;

+ Violating the States regulations on goods export and import;

+ Committing acts of illegal competition;

+ Committing other acts of violating the commercial legislation;

+ Taking acts against market controllers who are on duty.

1.3. To work out programs and/or plans for market inspection and controlin each period, then report them to the provincial/municipal Services fordecision; to organize the inspection and control of the observance of thecommercial legislation by business organizations and individuals; to applypreventive measures and handle administrative violations falling under theircompetence and cases forwarded by the market management teams, and beresponsible for handling decisions.

Cases falling beyond their competence shall be reported by the directorsof the Sub-Departments to the presidents of the Peoples Committees of theprovinces and centrally-run cities or the director of the Market ManagementDepartment for handling.

1.4. To directly administer, direct, guide and inspect operations of,and observance of the regulations on market management work by, marketmanagement teams and market controllers.

1.5. To propagate and disseminate the commercial policies andlegislation; to propose the Peoples Committees of the provinces andcentrally-run cities to take measures to ensure the observance of thecommercial legislation and prevent law-breaking acts; to propose the competentagencies to amend, supplement or promulgate legal documents concerning themarket management work.

1.6. To function as standing bodies to assist the directors of theprovincial/municipal Services in organizing the operation coordination amonglocal branches and authorities in the fight against smuggling, fake goods andbanned goods production and trading and other illegal business activities thatmay take place in their localities.

1.7. To receive and settle according to their competence complaints anddenunciations about activities of inspecting and handling administrativeviolations by market management teams as well as law-breaking acts committed bymarket controllers.

1.8. To sum up the law observance situation on markets and activities ofinspecting and controlling markets in their localities and the observance ofthe prescribed reporting regime.

1.9. To manage and materialize the preferential regimes and policiestoward their employees according to the division of responsibility forpersonnel management; to organize the professional skill fostering forcontrollers; to manage finance, assets, seals and stamps assigned to themaccording to regulations; to build material foundations and ensure thenecessary working conditions for their operations and manage the local marketmanagement forces’ funds for combat illegal business acts.

2. Tasks and powers of market management teams

Market management teams are units attached to the Market ManagementSub-Departments. They shall perform the following tasks:

2.1. To detect and inspect illegally imported goods, banned goods, fakegoods production and trading; to inspect the business registration andobservance of the registered contents; to inspect the observance of regulationson traders and trade activities; to detect other acts of violating thecommercial legislation in their localities according to assignment andresponsibility division by the Market Management Sub-Departments as specifiedin Clauses 1.1 and 1.2, Point 1, Section II of this Circular.

2.2. To apply preventive measures and handle violations of thecommercial legislation according to their competence. Those cases fallingbeyond their competence shall be reported to the directors of theSub-Departments for handling.

2.3. To coordinate with the concerned agencies in the localities undertheir charge in inspecting and handling administrative violations related tovarious fields.

2.4. To propose measures for market management and prevention ofviolations of the commercial legislation in their localities, as well asamendments and supplements to trade mechanisms, policies and legislation, whichmust be amended and/or supplemented, to the Sub-Departments for the latter topropose them to the competent agencies.

2.5. To sum up the market situation in their localities and to implementthe prescribed reporting regime.

2.6. To inspect activities of controllers in observing the workingregulation and law provisions on market inspection and control.

2.7. To manage and materialize the preferential regimes and policiestoward their employees according the management responsibility delegation; tomanage finance, assets, working facilities, seals and stamps, and to archivecase dossiers according to regulations.

3. Powers and responsibilities of market controllers

Pursuant to Article 6 of Decree No. 10/CP and Articles 252 and 253 ofthe Commercial Law, when conducting inspection and control of the observance ofthe commercial legislation, the market controllers shall have the followingpowers and responsibilities:

3.1. Powers:

- To be entitled to request organizations and individuals engaged intrade business activities to supply data, documents and/or evidences and giveanswers to matters directly related to the inspection; conduct inspections upondetecting signs of violations of the commercial legislation at the places wherethe goods, material evidences and means involved in violations, books,vouchers, invoices, contracts and other relevant papers are manufactured orhidden;

- To be entitled to contact the concerned organizations and individualsto verify situation and gather data and evidences to serve the inspection work;

- To request the functional agencies to expertise material evidencesinvolved in violations in cases of necessity;

- To make written inspection records and propose handling measures;

- To be entitled to apply measures to prevent and handle administrativeviolations according to their competence and law provisions.

3.2. Responsibilities:

- To abide by laws and the working regulations and be answerable to thecompetent State agencies and law for all of their acts and decisions;

- To produce market inspection cards upon conducting the inspection. Incases where the law prescribes that the inspection and/or examination mustobtain inspection decisions of the competent authorities, such inspectiondecisions shall have to be produced together with the inspection cards;

- To strictly comply with the inspection and examination procedures, notto cause troubles, harass for bribes or impede normal trade activities andcause damage to traders’ legitimate interests;

- To report to competent agencies on the inspection and examinationresults and propose handling measures.

III. ORGANIZATION AND PAYROLL PERSONNEL OF LOCAL MARKET MANAGEMENTFORCES

1. The Market Management Sub-Departments are bodies attached to theprovincial/municipal Services

Market Management Sub-Departments shall be headed by their directors whoare deputy directors of the provincial/municipal Services and are assisted by anumber of deputies.

The appointment and dismissal of directors of the Market ManagementSub-Departments shall be proposed by directors of the provincial/municipalServices according to the criteria set by the Trade Ministry and decided by thepresidents of the Peoples Committees of the provinces and centrally-run cities.

The appointment and dismissal of deputy directors of the MarketManagement Sub-Departments shall be proposed by directors of the MarketManagement Sub-Departments according to the criteria set by the Trade Ministryand decided by directors of the provincial/municipal Services after consultingand reaching agreements with the heads of the organization and personnel boardsof the provincial/municipal administrations.

2. Organizational structure of a Market Management Sub-Departmentconsists of:

a/ Advisory sections assisting the Sub-Departments director

Basing himself/herself on the working requirements and tasks,organizational scale of market management forces and the delegation ofresponsibilities for organization and personnel in their localities..., thedirector of the Market Management Sub-Department shall work out a plan fororganization of such Sub-Departments sections and report it to the director ofthe provincial/municipal Service for decision after obtaining written consentof the head of the organization and personnel board of the provincial/municipaladministration.

The functions and tasks of sections under Sub-Departments shall bedefined by directors of the provincial/municipal Services at the proposals ofdirectors of such Market Management Sub-Departments.

b/ Market management teams under the Sub-Department:

b.1/ Basing himself/herself on market development scale in each area inthe locality and requirements of the inspection and control work, theSub-Departments director shall request the provincial/municipal Servicesdirector to propose to the president of the Peoples Committee of the provinceor centrally-run city for decision the setting up of market management teams onthe following organizational principles:

- Teams attached to the Sub-Department to handle cases occurring withinthe entire area of the province or city;

- Teams attached to the Sub-Department, which shall be stationed inurban districts, rural districts, provincial capitals or provincial towns(hereinafter referred collectively to as districts) with relatively developedmarkets where goods exchange hubs are concentrated;

- Inter-district market management teams;

- Market management teams shall not have their own assisting apparatus:depending on the organizational size of the teams, the Sub-Departmentsdirectors shall decide the appointment of full-time or part-time employeesthereto. The appointment of part-timers must not violate the organizationalregulations such as team leaders must not concurrently be accountants, cashiersor accountants must not concurrently be cashiers.

b.2/ Each team shall have a head who takes the full charge and isassisted by a number of his/her deputies.

b.3/ Market management teams shall be named according to numbers 1, 2,3...

b.4/ The appointment and/or dismissal of heads and deputy heads ofmarket management teams shall be proposed by directors of the Market ManagementSub-Departments and decided by directors of provincial/municipal Services onthe basis of criteria set by the Trade Ministry.

c/ Payrolls of the Market Management Sub-Departments are included in thetotal State management payrolls assigned by the provinces to the provincialServices.

IV. ON WORKING CONDITIONS

1.The Market ManagementSub-Departments and market management teams shall have their working offices,seals, be furnished with working facilities as provided for and allocatedoperation funding by the State budget in conformity with the market managementsoperation particularities, and be entitled to open transaction accounts at theState Treasury, in which:

+ The Sub-Departments shall be organized into budget drafting units,entitled to open transaction accounts and custody accounts at the StateTreasury and set up funds for combat against illegal business acts under theFinance Ministrys guidance;

+ Teams shall not be budget drafting units, but shall be entitled toopen accounts to receive wage and advance of expenses for their operations andsettle operation funding with the Sub-Departments.

2. The Market Management Sub-Departments shall be entitled to set upfunds for combat against illegal business acts and give rewards from therevenue source generated from the handling of violations according to theGovernments regulations.

3. Market management employees are subject to the prescribedprofessional criteria applicable to State employees, enjoy wages according tothe wage grades and table prescribed by the State for the market management;are furnished with uniform, badges, insignia and signs uniformly in the entireforce under the guidance of the Trade Ministry and the Finance Ministry. Thoseemployees qualified for inspection and control tasks shall be grantedinspection cards by the Trade Ministry (the Market Management Department) forperformance of such tasks.

V. WORKING RELATIONSHIP

The relationship between the Trade Ministry and the Peoples Committeesof all levels and local market management organizations shall be as follows:

1. The Trade Ministry shall direct, guide and uniformly manage themarket management force throughout the country in the inspecting operations,State employee criteria, professional fostering and equipment regime applicableto the market management force.

The Market Management Department shall have to assist the Trade Ministryin giving the unified branch instructions to the Market ManagementSub-Departments throughout the country on operation orientation of the marketmanagement force in each period; guidance, force consolidation, preferentialregimes and policies, State employee professional criteria (including thoseapplicable to leaders of market management sub-departments and teams),professional work of inspection and handling of violations, inspecting skilltraining and fostering; inspection of operations of market managementsub-departments and teams and market controllers; creation of necessary workingconditions (attire and uniform, fundamental weapons and supporting tools,issuance of uniform market management seals and stamps, granting and withdrawalof inspection cards, market management signs, badges and insignia) for marketmanagement forces throughout the country.

2. The Peoples Committees of the provinces or centrally-run cities shallbe answerable to the Government for the market management work in theirlocalities and manage the market management forces in their localitiesaccording to law.

- The directors of the provincial/municipal Services shall assist the presidentsof the Peoples Committees of the provinces or centrally-run cities in managing,directing and inspecting operations of the Market Management Sub-Departments interms of their operation programs and plans, organization and payrollpersonnel, and materialization of preferential regimes and policies towardtheir employees according to personnel management responsibility delegation.

- The Sub-Departments directors shall have to:

+ Assist directors of the provincial/municipal Services in directing themarket management work and assume the prime responsibility for coordinationbetween the market management force and other inspection and control forces intheir localities under the authorization of directors of theprovincial/municipal Services; devising programs and plans for coordinationwith the district Peoples Committees in supervising and creating conditions foroperations of market management teams.

+ Base themselves on the assigned payrolls to report such to directorsof the provincial/municipal Services, so that the latter request the competentauthorities to organize examinations to recruit employees; dispose forces formarket management work, fight smuggling and fake goods in their respectivelocalities;

+ Transfer team heads, team deputy heads, section heads and deputy headsand officials and employees within their Sub-Departments according torequirements of tasks, when necessary, after reporting such to directors of theprovincial/municipal Services;

+ Raise wages according to the prescribed regimes, commend, reward anddiscipline public employees of sub-departments according to the managementresponsibility delegation.

3. Heads of market management teams operating in districts orinter-district areas shall have to perform tasks prescribed at Point 2, SectionII of this Circular and other tasks assigned by the Market ManagementSub-Departments and district Peoples Committees; report and submit to thedirection by the presidents of the Peoples Committees of local districts (whereteams operate) regarding the teams inspection programs and plans and operationresults in each period.

VI. ORGANIZATION OF IMPLEMENTATION

1. Directors of the provincial/municipal Services shall base themselveson this Circular to direct directors of the Market Management Sub-Departmentsin elaborating plans for organization and payroll personnel of such MarketManagement Sub-Departments and submitting them to the presidents of the PeoplesCommittees of the provinces or centrally-run cities for decision. Theorganizational consolidation and strengthening should be quickly carried outbut must comply with the organizing principles and law provisions and must notaffect the inspection operation of the market management force.

2.This Circular takeseffect 15 days after its signing for promulgation and replaces Circular No.10/TM-QLTT of April 19, 1995 of the Trade Ministry on the functions, tasks andpowers of the local market management forces. All stipulations previouslypromulgated by the Trade Ministry which are contrary to this Circular are nowannulled.