Thông tư 02/2014/TT-BXD

CIRCULAR

PROVIDING GUIDANCE ON THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE DECREE NO. 121/2013/NĐ-CP DATED OCTOBER 10, 2013 BY THE GOVERNMENT ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN CONSTRUCTION ACTIVITIES; REAL ESTATE BUSINESS; DEVELOPMENT, PRODUCTION AND TRADE OF BUILDING MATERIALS; MANAGEMENT OF TECHNICAL INFRASTRUCTURE; MANAGEMENT OF HOUSING AND OFFICE DEVELOPMENT

Pursuant to the Decree No. 62/2013/NĐ-CP dated June 25, 2013 by the Government defining the functions, tasks, entitlements and organizational structure of the Ministry of Construction;

Pursuant to the Decree No. 180/2007/NĐ-CP dated December 07, 2007 by the Government providing guidance on the implementation of a number of articles in the Law on Construction in terms of penalties for the violations against the regulations on the order of urban construction;

Pursuant to the Decree No. 81/2013/NĐ-CP dated July 19, 2013 by the Government providing guidance on a number of articles and implementing measures for the Law on Actions against administrative violations;

Pursuant to the Decree No. 121/2013/NĐ-CP dated October 10, 2013 by the Government on penalties for administrative violations in construction activities; real estate business; development, production and trade of building materials; management of technical infrastructure; management of housing and office development;

At the request of the Chief Inspector of the Ministries;

The Minister of Construction promulgates the Circular providing guidance on a number of articles of the Decree No. 121/2013/NĐ-CP of the Government.

Article 1. Time limit of imposition of penalties for administrative violations in the construction activities prescribed in Point (a) Clause 3 Article 4 of the Decree No. 121/2013/NĐ-CP

1. Time of transfer and use is determined as follows:

a) Regarding the works invested from state capital, time of transference and use is the day on which the investor signs the acceptance records of the work items/works to bring them into use or the day on which the investor signs the transfer note with the manager or the owner of the works;

b) Regarding the works invested from other capital, time of transference and use is the day on which the works are put in use.

2. With regard to the project including multiple works/work items, time limit of penalties for administrative violations is determined for particular work/work item

Article 2. Enforcement of partial or total demolition of construction works in violation

1. The implementation of the regulation in Clause 10 Article 13, Point (d) Clause 8 Article 16, Point (b) Clause 2 Article 42, Point (b) Clause 4 Article 46, Point (b) Clause 5 Article 49, Point (b) Clause 4 Article 53 and Point (b) Clause 6 Article 55 of the Decree No. 121/2013/NĐ-CP in the following order:

a) When the administrative violation is discovered, any competent person specified in Article 59 of the Decree No. 121/2013/NĐ-CP is responsible for making records using the forms enclosed with this Circular: the Form No. 01 is applicable to the administrative violations in progress, the Form No. 02 is applicable to the administrative violations already finished;

b) Within 24 hours since the record is made, if the organization/individual continues committing the violation, any competent person specified in Articles 17, 20 and 21 of the Decree No. 180/2007/NĐ-CP is responsible for issuing the decision on the suspension of the construction of the violated works according to the Appendixes II, III and IV enclosed with the Decree No. 180/2007/NĐ-CP;

c) Within 07 days from the day on which the administrative violation record is made (except for the complicated circumstances according to the provisions of the Law on Actions against administrative violations), the person competent to imposing penalties for administrative violations is responsible for promulgating decision on penalties for administrative violations according to the Form No. 02 enclosed with the Decree No. 81/2013/NĐ-CP by the Government providing guidance on a number of articles and measures for the implementation of the Law on Actions against administrative violations. The person competent to imposing penalties for administrative violations shall send the decision on penalties for administrative violations to the violator according to the regulations in Article 70 of the Law on Actions against administrative violations;

c) After the deadline specified in Article 73 of the Law on Actions against administrative violations, if the violator fails to comply with the decision on penalties for administrative violations, the competent person shall issue the decision on enforcing the implementation of the decision on penalty according to the Form No. 06 enclosed with the Decree No. 81/2013/NĐ-CP and request the Presidents of People’s Committees of communes to issue the decision on enforcing the demolition. Within 01 day from the day on which the request is received, the President of People’s Committee of commune to issue the decisions on enforcing the demolition;

Regarding the construction work within the competence in issuing the license for construction of the People’s Committees of districts or the Services of Construction, the person competent to imposing penalties shall submit the request for promulgating the decisions on enforcing the demolition to the Presidents of the People’s Committees of districts. Within 02 days from the day on which the request is received, the President of People’s Committee of district shall issue the decision on enforcing the demolition.

2. If the time limit for imposition of penalties for administrative violations expires as prescribed in Article 4 of the Decree No. 121/2013/NĐ-CP the violations shall be dealt with as follows:

a) The competent person shall make the record according to the Form No. 02 enclosed with this Circular and immediately send it to the Presidents of People’s Committees of communes where the violated works are located. Within 05 days (applicable to the works that do not need a demolishing plan), 12 days (applicable to the works that need a demolishing plan) from the day on which the record is made, if the investor fail to complete the demolition of the violated construction, the Presidents of People’s Committees of communes shall issue the decision on enforcing the demolition, except for the cases specified in Point (b) of this Clause;

b) With regard to the construction works within the competence in issuing the license for construction of the People’s Committees of districts or the Services of Construction, the competent person shall make a record according to the Form No. 02 enclosed with this Circular. Within 02 days from the day on which the record is made, the People’s Committees of communes where the violated works are located shall send the documents to the President of the People’s Committees of districts. Within 03 days from the day on which the documents are received, the President of People’s Committee of district shall issue the decisions on enforcing the demolition of the violated works and request the President of People’s Committee of commune to steer the implementation.

3. Within 07 days from the expiration of the time limit prescribed in Clauses 1 and 2 of this Article, if the President of People’s Committee of commune fails to issue the decision on enforcing the demolition, President of People’s Committee of district shall take charge of promulgating such document. The President of People’s Committee of commune shall incur penalties for not promulgating promptly the decision as prescribed in the Decree No. 180/2007/NĐ-CP

Within 07 days from the expiration of the time limit prescribed in Clauses 1 and 2 of this Article, if the President of People’s Committee of district fails to issue the decision on enforcing the demolition, the Chief Inspector shall take charge of promulgating such document. The President of People’s Committee of district shall incur penalties for not promulgating promptly the decision as prescribed in the Decree No. 180/2007/NĐ-CP

4. The decision on enforcing the demolition shall be conformable to the forms in Appendix V or VI enclosed with the Decree No. 180/2007/NĐ-CP

5. With regard to the violations outside the urban area, the words “urban” in the forms of decision on suspension of construction of violated works and the decision on enforcing the demolition of construction works shall be deleted.

Article 3. The handling of the construction works causing subsidence, crack and damage to adjacent works and causing collapse or risks of collapse to adjacent works prescribed in Clause 2, Clause 4 Article 13; Clause 2, Clause 5 Article 27 of the Decree No. 121/2013/NĐ-CP

1. Any organization/individual committing violations against the regulations on construction resulted in subsidence, crack and damage to adjacent works (including infrastructural works); causing collapse or risk of collapse to adjacent works shall incur the penalties for administrative violations according to the regulations in Clause 2 and 4 Article 13; Clauses 2 and 5 Article 27 of the Decree No. 121/2013/NĐ-CP and shall incur the suspension of construction to compensate for the damage as prescribed in Article 15 of the Decree No. 180/2007/NĐ-CP according to the following procedures:

a) When the administrative violation record is established, if the damaging party and the damaged party cannot enter into an agreement, the President of the People’s Committee shall preside over the negotiation on the compensation between the damaging and damaged parties. If the negotiation is unsuccessful or the damaged party is absent without good and sufficient reason, after 07 days from the date of negotiation, the President of the People’s Committee shall conduct the second negotiation. At the second negotiation, if the damaged party is absent again without good and sufficient reason, the damaging party shall transfer the amount of money in proportion to the damage to the guarantee account in the bank and may continue the construction. The President of People’s Committee of commune shall decide the amount of compensation on the basis of the request of the damaged party and the explanation of the damaging party;

b) If the second negotiation is unsuccessful, the two parties shall invite an independent organization with legal status to assess the damage as the basis for compensation. Within 07 days from the second negotiation, if the two parties fail to agree an assessor, the President of People’s Committee of commune shall decide the organization in charge of assessing, cost of assessment shall be paid by the damaging party;

c) Within 07 days from the assessment, any of the two parties may invite another organization if they do not agree with the result gave by the assessing organization provided that they pay the cost themselves.

  The result of the assessment is the basis for determining the amount of compensation. If the other party does not agree with the result of the second assessment, the President of People’s Committee of commune shall decide the amount of compensation according to the average of the two assessments;

d) If the assessing organization fails to provide the result within 30 days, the President of People’s Committee of commune shall use the initial result as the basis for the compensation. The damaging party shall open a deposit account and shall transfer sufficiently the compensation according to the assessment result to such account. When the damaging party has transferred sufficient amount of money to the account, the President of People’s Committee of commune shall permit the damaging party to continue the construction.

2. If the damaged party does not agree with the amount of compensation he/she may file a lawsuit.

3. If the damaging party does not incur penalties for administrative violations, the provisions in Points (a), (b), (c), (d) and (dd) Clause 1 of this Article are applicable for handling the compensation for the damage.

4. If the construction works are at risk of collapse or causing collapse to adjacent works, the investor shall provide the damaged parties with an amount of money for temporary relocation during the handling

Article 4. Penalties for construction unconformable with design as prescribed in Point (b) Clause 3 Article 15 and Clause 7 Article 16 of the Decree No. 121/2013/NĐ-CP

1. The regulations in Point (b) Clause 3 of Article 15 are applicable to the constructions that are not subject to project planning and have to obtain a construction license.

2. The regulations in Clause 7 of Article 16 are applicable to the constructions that are subject to project planning and have to obtain a construction license.

Article 5. Penalties for administrative violations committed by the project management consulting contractor prescribed in Article 20 of the Decree No. 121/2013/NĐ-CP

1. If the investor establishes a project management board, the penalties for the investor shall be applied to the project management board within the scope of their allocated tasks.

2. If the investor hires the project management consulting contractor to manage the project (partially or wholly), the penalties for the investor shall be applied to the project management consulting contractor within the scope of the signed contract.

Article 6. Penalties for unconformable construction prescribed in Clauses 3 and 5 Article 13 of the Decree No. 121/2013/NĐ-CP

1. Unconformable construction prescribed in Clauses 3 and 5 Article 13 of the Decree No. 121/2013/NĐ-CP means the construction unconformable with any of the contents in the license for construction and the drawings certified by the licensing authority enclosed with the license for construction.

2. The construction of separate housing in any of the following cases is not considered unconformable construction:

a) The modification of the design without impact on fire safety; environment; capacity; main bearing structure or the outside architecture of the works;

b)  The reduction of floors in comparison with the license for construction applicable to the area without detailed planning in the scale of 1/500 or the approved design for urban area.

Article 7. Penalties for administrative violations prescribed in Clause 8 Article 13 of the Decree No. 121/2013/NĐ-CP

1. When the competent person has made the administrative violation record for the violations specified in Clauses 3, 5, 6 and 7 Article 13 of the Decree No. 121/2013/NĐ-CP if the violator continues the violation, the administrative violation record for the violation prescribed in Clause 8 Article 13 of the Decree No. 121/2013/NĐ-CP shall be made. Within 02 days from the day on which the record is established, it shall be sent to the competent person to issue a decision on administrative penalties.

2. A fine of VND 500,000,000 shall be imposed on the construction not subject to establishing investment project; a fine of VND 1,000,000,000 shall be imposed on the construction subject to establishing investment project.

Article 8. The valuation of part of works that is not permitted or unconformable with the permission, unconformable with the approved design, planning or urban design prescribed in Clause 9 Article 13 of the Decree No. 121/2013/NĐ-CP

1. The regulations in clause 9 Article 13 of the Decree No. 121/2013/NĐ-CP shall be applicable to only the case in which the competent person discovers the administrative violation when the violated works have been finished and brought into use.

2. The value of part of works that is not permitted or unconformable with the permission, unconformable with the approved design, planning or urban design is determined as follows:

a) With regard to the works subject to establishing economic-technical reports or investment project for the construction or other construction works other than separate housing:

- If the construction is for business, the value is determined by multiplying the violated floor area (m²) and the unit price (per square meter) according to the signed contract.

- If the construction is not for business, the value is determined by multiplying the violated floor area (m²) and the unit price (per square meter) according to the approved estimate.

b) Regarding the separate housing, the value is determined by the sum of the two products, the product of the violated area (m²) and the unit price (per square meter) at the time of violation and the product of the violated floor area (m²) and the unit price (per square meter) of land that is annually issued by the People’s Committee of provinces, in which the value of land is determined as follows:

- The value of Floor 1 (or ground floor) is equal to 100% of the product of the price of 1 m² of land and the violated area (m²).

- The value of Floor 2 or higher is equal to 50% of the product of the price of 1 m² of land on floor 1 and the violated area (m²).

3. The person competent to imposing penalties for administrative violations shall decide and take legal responsibilities for determining the construction area that is not permitted or unconformable with the permission, unconformable with the approved design, planning or urban design

Article 9. The application of additional penalties - the suspension of the license for construction – prescribed in Clause 8 Article 13 of the Decree No. 121/2013/NĐ-CP

1. The additional penalties prescribed in Clause 8 Article 13 of the Decree No. 121/2013/NĐ-CP shall be carried as follows:

a) A suspension of the license for construction for 3 to 6 months shall be imposed on the violations prescribed in clause 3 Article 13 of the Decree No. 121/2013/NĐ-CP;

b) A suspension of the license for construction for 6 to 12 months shall be imposed on the violations prescribed in clause 5 Article 13 of the Decree No. 121/2013/NĐ-CP;

2. The decision on penalties for administrative violations including the additional penalties shall be sent to the chief of neighborhood or the hamlet leader to announce to the local resident and shall be sent to the People’s Committees of communes and the licensing authority.

Article 10. The application of the form of the decision on penalties for administrative violations

1. With regard to the administrative violations specified in the Decree No. 121/2013/NĐ-CP by the Government for which the remedial measures do not include the demolition of the violated construction works or the violated construction parts, the administrative violation record shall be established according to the Form No. 01 enclosed with the Decree No. 81/2013/NĐ-CP

2. The other forms in penalties for administrative violations shall be used according to the regulations in the Decree No. 81/2013/NĐ-CP

Article 11. The transitional provisions prescribed in Article 70 of the Decree No. 121/2013/NĐ-CP

1. The effect of the Decree No. 121/2013/NĐ-CP shall not affect the decision on administrative penalties or enforced demolition imposed upon an administrative violation before the effective date of the Decree as long as the time limit for implementation of such decision has not expired, except for the case in Clause 3 of this Article.

2. Regarding the administrative violations committed before the effective date of the Decree No. 121/2013/NĐ-CP and discovered afterwards, or discovered before the effective date of Decree No. 121/2013/NĐ-CP without any decision on penalty imposition, regulations of Decree No. 121/2013/NĐ-CP shall apply if they are more advantageous to the violator, provided the time limit for penalty imposition has not expired.

3. Regarding the construction that is prohibited or unconformable with the permission, unconformable with the approved design, planning or urban design and failing to implement the decision on penalties for administrative violations, decision on enforcing the demolition according to the regulation in the Decree No. 23/2009/NĐ-CP if the construction is considered not exceeding the construction boundary and not affecting the adjacent works without dispute and the works are located on land with legal right to enjoyment and with the license for construction, the person competent to imposing administrative violations shall consider and decide to:

a) Cancel the decision on enforcing the demolition;

b) Issue the decision on additionally applying remedial measures for collecting the illegal benefits obtained equal to 40% of value of the prohibited or unconformable construction of separate housing and equal to 50% of value of construction prohibited or unconformable with the approved design, planning or urban design for the works under construction investment project or works with only requirement for formulation of economic-technical reports of works construction.

Regarding the cases subject to having license for construction, the licensing authority shall modify or issue the license for construction when the investor has complied with the decision on penalties for administrative violations, the decision on applying the additional remedial measures. The decision on applying the additional remedial measures shall be conformable to the Form No. 01 enclosed with this Circular.

Article 12. Implementation

1. This Circular comes into effect from April 02, 2014 and takes the place of the Circular No. 24/2009/TT-BXD dated July 22, 2009 by the Minister of Construction.

2. The Ministries, ministerial-level agencies, People’s Committees at all levels and relevant organizations/individuals are responsible for implementing this Circular. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Construction for consideration and solution./.