As of February 15th, 2016, traffic police officers have been allowed to requisition property of traffic participants. From February 15th, 2016, the Circular No. 01/2016/TT-BCA of the Ministry of Public Security officially took effect. Accordingly, this circular allows the traffic police to requisition property of traffic participants. However, the law is still inadequate due to the facts that only the rights of the traffic police have been added and there is no specific legal guideline for implementing the law. Now, let’s learn more about this issue in parallel with the Law on Compulsory Purchase and Requisition of Property 2008.
#1 What is Requisition of Property?
Requisition of Property means the use for a definite time by the State of property of organizations, individuals, households or population communities under administrative decisions in case of real necessity for defense or security reasons and national interest. (Clause 3, Article 2, Law on Compulsory Purchase and Requisition of Property 2008)
#2 The legal basis of traffic police’s right to requisition property of traffic participants? (What types of property may be requisitioned by the traffic police?)
As specified in Clause 6, Article 5, Circular 01/2016/TT-BCA of the Ministry of Public Security on the Rights of Police officers Performing Road Traffic Patrol and Inspection: “Entitled to requisition means of transportation; means of communication; other means and technical equipment of agencies, organizations, individuals as well as operators and users of such means and equipment according to the provisions of law.”
#3 In what circumstances do traffic police officers have the right to requisition property?
Circular 01/2016/TT-BCA does not provide for cases in which traffic police officers are entitled to requisition property. In addition, according to Article 5 of the Law on Compulsory Purchase and Requisition of Property 2008: The requisition of property may only be conducted when the State needs to use such property and no other mobilizing measures can be applied in any of the following cases:
- The country is in a state of war or emergency in defense.
- National security is likely to face a threat.
- An important national security target is likely to be encroached upon or in need of reinforced protection.
- It is necessary to ward off a danger or to remedy a catastrophe caused by a natural disaster or an epidemic which occurs in a wide area and will cause serious consequences to the people’s life, health and property and the State’s property unless it is promptly stamped out.
Thus, property requisition can only be conducted in very special circumstances.
#4 General principles of property requisition?
General principles of property requisition in accordance with Article 4 of the Law on Compulsory Purchase and Requisition of Property 2008:
- The requisition of property may only be conducted in case of real necessity for defense or security reasons and national interests.
- The requisition of property must assure lawful rights and interests of property owners and non-discrimination.
- The requisition of property shall be carried out under decisions of competent persons and comply with the conditions, order and procedures specified in the Law on Compulsory Purchase and Requisition of Property 2008.
- Persons whose property is requisitioned shall abide by competent persons’ decisions on requisition of property.
- Requisitioned property shall be managed and used economically and efficiently for proper purposes.
#5 Competence to decide on requisition of property?
The competence to issue a decision on the requisition of property is given to officials who perform the tasks of patrolling and inspecting road traffic, including officers and non-commissioned officers of the traffic police. (Circular 01/2016/TT-BCA) In addition, the Law on Compulsory Purchase and Requisition of Property 2008 stipulates that The Finance Minister, the Defense Minister, the Public Security Minister, the Transport Minister, the Agriculture and Rural Development Minister, the Health Minister, the Industry and Trade Minister, or presidents of provincial-level People’s Committees may, within the-ambit of their tasks and powers, decide on requisition of property.
An important regulation that needs to be taken into consideration is that those who have the competence to make the requisition decision are not allowed to authorize or delegate their subordinates. In other words, deputy ministers nor vice presidents of provincial-level People’s Committees have the competence to issue a decision to requisition property.
Phan Law Vietnam