Thông tư 278-TT/DC

CIRCULAR

GUIDING THE IMPLEMENTATION OF DECREE No.04-CP OF JANUARY 10, 1997 OF THE GOVERNMENT ON SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS IN THE FIELD OF LAND MANAGEMENT AND USE

Pursuant to Decree No.04-CP of January 10, 1997 of the Government on sanctions against administrative violations in the field of land management and use;
The General Department of Land Administration provides the following guidance for the implementation of the Decree:

I. ADMINISTRATIVE VIOLATIONS IN THE FIELD OF LAND MANAGEMENT AND USE, FORMS AND LEVELS OF SANCTION THEREOF:

1. Administrative violations in the field of land management and use are acts that contravene the regulations on land management and use but not seriously enough to be examined for penal liability.

2. Persons sanctioned for administrative violations in the use of land include:

a/ Land users and other persons who commit violations in the use of land as stipulated in Decree No.04-CP.

b/ Foreign organizations and individuals described in Article 29 of Decree No.04-CP.

In particular, the persons who hold positions and powers or persons who are tasked to exercise the State management over land but commit violations in land management shall be handled in accordance with provisions of Article 26 of Decree No.04-CP.

3. The forms of sanction to be imposed on violators of the regulations on land use include:

a. Warning.

b. Fines.

In addition to the two forms of administrative sanction defined in this point, additional sanctions and other administrative measures shall also be applied. If damage is caused, compensation shall have to be made.

4. If a person commits many administrative violations in the use of land, he/she shall be sanctioned for each violation. If the sanctions are imposed in the form of pecuniary fine, such fines shall be added up into a lump sum.

5. A warning shall be served to person committing minor and first-time violations involving extenuating factors and causing no damage.

Persons who commit administrative violations in the field of land management and use are liable to warning or fines, and may also be subject to additional sanctions as well as other administrative measures if Decree No.04-CP provides for sanctions and other measures applicable to the corresponding violations.

6. Fines: The fine bracket is set from the minimum level to the maximum level and shall be applied on case-by-case basis and the following principles:

a/ The minimum fine level shall be imposed when the violation involves extenuating factors such as: the land area involved in the violation is very small, the harmful impact of the violation is negligible, it is a first-time violation, the violator sincerely redeems his fault, willingly compensates for the damage, or is in difficult economic circumstances, or lacks legal knowledge, or the land can be easily restored, or the damage caused to the land value is not serious.

b/ The maximum fine level shall be imposed when the violation involves aggravating factors such as: the violator abuses his/her position and power for his/her own interests, the land area involved in the violation is large, the violation has a bad social impact, is repeated one or several times, the violator does not redeem his fault sincerely or is unwilling to compensate for the damage, the land can be hardly restored, the damage caused to the land value is serious, the violator evades the execution of the decision on administrative sanction...

c/ The average fine level shall be imposed when the violation involves no or both extenuating factors and aggravating factors mentioned in points a and b.

7. Other administrative measures: In addition to the two main forms of sanction: warning and pecuniary fine, depending on specific cases, the violation can also be subject to other measures provided for in corresponding Articles of Decree No.04-CP.

Other administrative measures shall be applied only in association with the main forms of sanction, not independently.

When other administrative measures are applied, the time limit for the execution thereof must be determined; if upon expiry of such time limit the violator fails to execute them, he/she shall be forced to execute them in accordance with Article 55 of the Ordinance on the Handling of Administrative Violations.

8. Compensations for damage caused by the administrative violations in land management and use shall be made on the principle of mutual agreement between the involved parties.

For damage valued at up to one million VND, if the involved parties fail to reach an agreement, the person competent to sanction shall determine the level of compensation, the damage valued at more than one million VND shall be settled in accordance with civil procedures.

Compensations for damage caused to public land shall be remitted to the State budget.

9. Forcible restoration of the original state of land is an administrative measure to force the violator to restore the land to its original state before the violation; if the restoration is not necessary, such measure is not required. For example: it�s not necessary to restore the original state of a pond which has already been filled, if it is recovered to be reassigned to another for construction of a dwelling house.

10. Land recovery is an administrative measure taken by the competent State agency to strip the land use right of the violator of regulations on land use so that the State can assign it to another person for use or return it to the lawful user of the land which has been encroached upon or grabbed.

11. Violations mentioned in Decree 04-CP shall be construed as follows:

a/ Acts of grabbing or appropriating land (mentioned in Article 2): Moving without authorization landmarks of public land or land belonging to other persons so as to expand one�s land area is called a land grabbing act. The refusal to return the land assigned by the State or borrowed during the construction or the illegal use of public land or land belonging to other persons is called a land appropriating act.

In addition to the main forms of sanction, the person committing an act of land grabbing or appropriating shall have the land recovered for return to the public or the owner of the grabbed or appropriated land. In special cases, recovery may not be affected. For example: reclaiming without authorization a piece of unused land for agricultural or aquacultural production, which the State has not yet planned to use for other purposes.

b/ Reducing the production capability of agricultural and forest land (mentioned in Article 3) is an act of:

- Failing to take anti-erosion measures, thus degenerating and defertilizing the land, and reducing plant productivity.

- Removing or destroying the arable layer (the surface soil layer), thus reducing the fertility and arability of the land.

- Discharging waste and toxic matters, thus polluting the land and reducing its arability.

c/ Exchanging or assigning the land use right without permission (mentioned in Article 5) is act of:

- Exchanging or assigning the land use right without filling procedures as prescribed by law.

- Filling the procedures but not yet obtaining permission from the competent State agency.

d/ Delaying the execution of land recovery decisions issued by the competent State agency (mentioned in Article 11) is an act of obstructing the execution of the land recovery decision issued by the competent State agency, such as: to evade the execution, not willingly dismantle the structures or architectures on the land to be recovered or obstruct the land recovery within the prescribed time limit.

II. PROCEDURES AND ORDER FOR SANCTIONING

When imposing sanctions on administrative violations, the agencies and persons competent to impose administrative sanctions against violations in land management and use as provided for in Articles 15 and 16 of Decree No.04-CP shall observe the following order:

1. Making a record of the administrative violation in land management and use:

The land administration inspector at various levels, the State specialized Inspectorate mentioned in Article 17 of Decree No.04-CP and other agencies competent to sanction, upon detecting a violation of land legislation, shall immediately make a record thereof in accordance with the form uniformly set by the General Department of Land Administration.

A copy of the record shall be handed to the violator. If the person who makes the record is not competent to sanction, the record shall be submitted to the person or agency competent to sanction.

If the violator deliberately refuses to sign the record of his/her administrative violation of land legislation, the record-making person shall have to state the reason(s) therefor (with signature(s) of a witness or witnesses) and the record shall be used as legal basis for the sanctioning decision.

2. Issuing sanctioning decision:

a/ Within 15 days after making the record of an administrative violation of land legislation, the competent person or agency shall have to issue a sanctioning decision, if the case involves complicated factors or must be submitted to the agency competent to sanction, such time limit can be prolonged but must not exceed 30 days.

b/ When imposing a sanction against a violation of land legislation, the person or agency competent to sanction (provided for in Articles 15 and 16 of Decree No.04-CP) shall base his/her/itself on the extent and nature of the violation stated in the record of the administrative violation of land legislation to issue a written sanctioning decision in accordance with the form uniformly set by the General Department of Land Administration.

c/ The sanctioning decision shall be made in 3 copies:

- One copy shall be handed to the sanctioned.

- One copy shall be handed to the State Treasury for the collection of fine (if the sanction is a fine).

- One copy shall be kept at the agency of the person issuing the sanctioning decision.

For a decision to fine two million VND or more, another copy shall be made and sent to the procuracy office of the same level.

d/ The specialized land administration inspector shall, within his/her competence, base his/herself on the extent of the violation stated in the record of the administrative violation of land legislation to issue the sanctioning decision in accordance with Clause 1, Article 16 of Decree No.04-CP.

If the fine level is beyond his/her competence, the specialized land administration inspector shall submit the sanctioning dossier comprising the record of the administrative violation of land legislation and the document proposing the applicable fine level to the level with the corresponding competence as provided for in Articles 15 and 16 of Decree No.04-CP.

3. On the right to make complaint and denunciation against the sanctioning decision:

a/ Persons who are sanctioned for their administrative violation in land management and use or their lawful representative have the right to file a complaint to the person issuing the sanctioning decision within 10 days after receiving the sanctioning decision.

b/ Within 15 days after receiving the complaint, the person against whom the complaint is made shall have to settle and reply the complainant in writing. If the complainant disagree with such settlement decision, he/she can file a complaint to the immediate higher agency of the person who has issued the sanctioning decision within 3 days after receiving the complaint settling decision. Within 20 days after receiving the complaint, the head of the immediate higher agency shall have to settle and reply to the complainant in writing and such complaint settling decision shall be final.

c/ The complaint against decisions on sanctions against administrative violations shall not cause the suspension of the execution of the sanctioning decision, except for cases of forcible dismantlement of the illegal structure.

The person who settles the complaint can issue one of the following decisions:

- Maintaining the sanctioning decision.

- Changing the form, level and/or measure of sanctioning.

- Abolishing the sanctioning decision.

d/ The person committing an administrative violation in land management and use who has filed a complaint against the person issuing sanctioning decision which has not been settled yet and who do not wish to lodge complaints to the immediate higher agency of the person issuing sanctioning decision, can lodge a complaint to the administrative court.

e/ If the person competent to impose sanction against an administrative violation in land management and use or the person in charge of State management on land is denounced for having committed acts mentioned in Article 26 of Decree No.04-CP, his/her immediate superior shall consider and solve such denunciations within 15 days, if the case is complicated such time limit can be extended but must not exceed 30 days from the date of receiving the denunciations.

4. The collection and use of fines against administrative violations in land management and use shall be carried out in accordance with Circular No.52/CSTC of September 12, 1996 of the Ministry of Finance.

Above are some main issues that need to be concretely explained and guided for the implementation of Decree No.04-CP.

The General Department of Land Administration requests the People�s Committees and the Directors of Land Administration Services of the provinces and cities directly under the Central Government to base themselves on this Circular to organize the implementation of Decree No.04-CP.

If any problem arises in the course of implementation, the localities shall have to promptly report it to the General Department of Land Administration for consideration and settlement.

This Circular takes effect from the date of its signing.