Nghị định 04-CP

DECREE

OF THE GOVERNMENT ON SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS IN THE DOMAIN OF LAND MANAGEMENT AND USE

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Land Law of July 14, 1993;
Pursuant to the Ordinance on the Handling of Administrative Violations of July 6, 1995;
For the unified application of sanctions against administrative violations in the domain of land management and use;
At the proposal of the General Director of the General Land Administration,

DECREES:

Chapter I

ACTS OF ADMINISTRATIVE VIOLATION IN LAND MANAGEMENT AND USE, FORMS AND LEVELS OF SANCTION

Article 1.- Using land for wrong purposes:

1. A fine of 200,000 VND to 1,000,000 VND shall be imposed on acts of using without permission agricultural and forest land for purposes not provided for in Items 2 and 3 of this Article.

2. A fine of 1,000,000 VND to 5,000,000 VND shall be imposed on acts of using without permission first or second category agricultural land currently under rice to build up gardens, to plant perennial trees, to dig ponds or build dwelling houses.

3. A fine of 2,000,000 VND to 10,000,000 VND shall be imposed on acts of using without permission forestry land with forests thereon for other purposes.

4. A fine of 5,000,000 VND to 20,000,000 VND shall be imposed on an organization�s acts of changing without permission land of special use into residential land or using that land for business and service activities.

5. In addition to the levels of sanction prescribed in Items 1, 2, 3 and 4 of this Article, the following measures shall also be applied:

a/ Forcible restoration of the original state of land which has been changed by the administrative violation.

b/ Forcible compensation up to 1,000,000 VND for damage caused by the administrative violation.

Article 2.- Infringing upon or appropriating land:

1. A fine of 1,000,000 VND to 5,000,000 VND shall be imposed on acts of removing landmarks without permission or using a land area exceeding the permitted level as provided for in Items 2 and 3 of this Article.

2. A fine of 5,000,000 VND to 10,000,000 VND shall be imposed on acts of infringing upon or appropriating land.

3. A fine of 10,000,000 VND to 20,000,000 VND shall be imposed on acts of infringing upon or appropriating land in region I or II with historical or cultural relics thereon, the already classified places of scenic beauty, land within the corridor for the protection of dikes, power transmission lines, railways, roads and other public works.

4. The acts of infringing upon or appropriating defense and security land shall be sanctioned in accordance with the forms and levels of sanction prescribed in Article 21 of Decree No.24-CP of April 18, 1996 of the Government on sanctions against administrative violations in the field of national defense.

5. In addition to the sanctions prescribed in Items 1, 2, 3 and 4 of this Article, the following measures shall also be applied:

a/ Recovery of the infringed or appropriated land area.

b/ Forcible compensation up to 1,000,000 VND for damage caused by the administrative violation.

Article 3.- Reducing the production capacity of agricultural and forestry land:

1. A warning or fine of 200,000 VND to 500,000 VND shall be served on acts of using agricultural and forestry land, intentionally not taking anti-erosion measures, thus degenerating the land.

2. A fine of 500,000 VND to 2,000,000 VND shall be imposed on acts of removing the arable layer of land, thus reducing the arability and fertility of the land.

3. A fine of 1,000,000 VND to 5,000,000 VND shall be imposed on acts of discharging waste materials, thus polluting and reducing the arability of the land.

4. Additional sanctions: Confiscation of tools used for administrative violations.

5. Forcible restoration of the original state of the land which has been changed by the administrative violation in accordance with the provisions of Items 1, 2 and 3 of this Decree.

Article 4.- Obstructing the use of land by other persons:

1. A fine of 100,000 VND to 500,000 VND shall be imposed on acts of leaving construction materials or other objects, thus obstructing the use of land by other persons.

2. A fine of 500,000 VND to 3,000,000 VND shall be imposed on acts of discharging objects or waste, thus obstructing the use or reducing the possibility of use of land by other persons.

3. A fine of 1,000,000 VND to 5,000,000 VND shall be imposed on acts of digging, thus obstructing or causing damage to the use of land by other persons.

4. In addition to the sanctions provided for in Items 1, 2 and 3 of this Article, the following measures shall also be applied:

a/ Forcible restoration of the original state of land which has been changed due to the administrative violation.

b/ Forcible compensation up to 1,000,000 VND for damage caused by the administrative violation.

Article 5.- Exchanging or assigning the land use right without permission:

1. A warning or a fine of 200,000 VND to 1,000,000 VND shall be imposed on acts of exchanging or assigning the lawful land use right without permission from the competent State agency.

2. In addition to the sanctions prescribed in Item 1 of this Article, the violator shall be forced to comply with the procedures prescribed by law for the re-assignment or transfer of the land use right.

Article 6.- Exchanging or assigning illegally used land without permission:

1. A fine of 5,000,000 VND to 10,000,000 VND shall be imposed on acts of exchanging or assigning without permission the land use right under dispute or without valid papers.

2. A fine of 10,000,000 VND to 20,000,000 VND shall be imposed on acts of exchanging or assigning the infringed or appropriated land.

3. In addition to the sanctions prescribed in Items 1 and 2 of this Article, the violator shall be forced to cancel his/her contract on the illegal exchange or assignment.

Article 7.- Leasing agricultural land for perennial tree planting or aquaculture in contravention of the provisions of Article 78 of the Land Law:

1. A warning or a fine of 50,000 VND to 100,000 VND shall be imposed on the household and/or individual that have the right to lease land but lease it beyond the prescribed term.

2. A fine of 200,000 VND to 500,000 VND shall be imposed on the household and/or individual who lease land but do not belong to the following categories: lonely or poor persons, families with economic difficulties due to the change to another occupation which has not brought stable livelihood or due to the lack of labor force.

3. In addition to the sanctions prescribed in Items 1 and 2 of this Article, the following measures shall also be applied:

a/ Retrieval of the money earned from the illegal land lease.

b/ Cancellation of the contract on illegal land lease.

Article 8.- Intentional failure to declare or register the use of land or declare and register it at variance with the actual category and type of land:

1. A warning or a fine of 50,000 VND to 200,000 VND shall be imposed on acts of deliberate failure to make initial declaration and registration of the land use right.

2. A warning or a fine of 100,000 VND to 500,000 VND shall be imposed on acts of deliberately not declaring and/or registering changes of the land use right.

3. A fine of 200,000 VND to 1,000,000 VND shall be imposed on acts of deliberately not declaring and/or registering the actual land category and type.

4. In addition to the sanctions prescribed in Items 1, 2 and 3 of this Article, the following measures shall also be applied:

a/ The violator shall be forced to declare and register the land use right or to make a new declaration and registration of the correct category and type of land.

b/ Forcible compensation up to 1,000,000 VND for damage caused by acts of deliberately not declaring and registering or falsely declaring and registering the land category and type.

Article 9.- Deliberate prolongation of the time limit of compensation for damage caused to the user(s) of land to be recovered so that the land might be assigned to him/herself:

1. A fine of 500,000 VND to 2,000,000 VND shall be imposed on acts of delaying, prolonging the compensation period.

2. In addition to the sanctions provided for in Item 1 of this Article, the following measures shall also be applied:

a/ Forcible full payment of compensation according to the value of the land at the time when the compensation is decided.

b/ Forcible compensation up to 1,000,000 VND for damage caused by the administrative violation.

Article 10.- Violations of regulations on the payment of the land administration fee:

1. A warning or a fine of 50,000 VND to 100,000 VND shall be served on a household or individual committing acts of delaying or prolonging the payment of the land administration fee according to the prescribed time limit.

2. A fine of 100,000 VND to 500,000 VND shall be imposed on an organization which commits acts of delaying and prolonging the payment of the land administration fee according to the prescribed time limit.

3. In addition to the sanctions provided for in Items 1 and 2 of this Article, the violator shall be forced to pay fully the prescribed land administration fee.

Article 11.- Prolonging the time limit for the observance of land recovery decisions issued by competent State agencies:

1. A fine of 500,000 VND to 3,000,000 VND shall be imposed on acts of evading or delaying the return of the land on schedule after the land recovery decision has been issued by the competent State agency.

2. In addition to the sanctions provided for in Item 1 of this Article, the following measures shall also be applied:

a/ Forcible execution of the land recovery decision.

b/ Compensation up to 1,000,000 VND for damage caused by the administrative violation.

Article 12.- Obstructing the land assignment, investigation, determination of land prices and measurement of land, elaboration of land maps, determination of administrative boundaries, landmarks for land survey, inspection, handling of complaints and denunciations and settlement of land disputes:

1. A warning or a fine of 50,000 VND to 500,000 VND shall be served on acts of failing to show up for land assignment at the request of the competent State agency.

2. A warning or a fine of 200,000 VND to 500,000 VND shall be served on acts of failing to produce or evading or delaying the showing of papers on land related to the determination of land prices, inspection, handling of complaints and denunciations, settlement of land disputes and other acts aimed at obstructing the land measurement, determination of administrative boundaries and landmarks for land survey conducted by officers from the competent State agency.

Article 13.- Removing or changing without permission, damaging administrative boundaries and landmarks for land survey:

1. A fine of 100,000 VND to 500,000 VND shall be imposed on acts of removing or changing administrative boundaries and landmarks for land survey without permission.

2. A fine of 1,000,000 VND to 5,000,000 VND shall be imposed on acts of intentionally damaging administrative boundaries and landmarks for land survey.

3. Additional sanctions: Confiscation of tools and material evidences used for the administrative violation.

4. Forcible compensation up to 1,000,000 VND for damage caused by the administrative violation as provided for in Items 1 and 2 of this Article.

Article 14.- Falsifying papers and certificates on land use:

1. A fine of 500,000 VND to 1,000,000 VND shall be imposed on acts of erasing, correcting papers, documents and certificates concerning land which are not defined in Item 2 of this Article.

2. A fine of 500,000 VND to 2,000,000 VND shall be imposed on acts of erasing, correcting documents and certificates, thus causing the land assignment, re-assignment, transfer, lease, mortgage and inheritance to differ from the stipulations of the State but not seriously enough to be examined for penal liability.

3. In addition to the sanction levels prescribed in Items 1 and 2 of this Article, the following measures shall also be applied:

a/ Forcible remaking papers, documents and certificates in accordance with their earlier contents.

b/ Recovery of the land area which has been assigned at variance with the stipulations of the State.

Chapter II

COMPETENCE, PROCEDURES, PRINCIPLES AND MEASURES FOR SANCTIONING

Article 15.- Competence of the People’s Committees of all levels to handle administrative violations:

1. Competence of the People’s Committee of commune, ward and township to handle administrative violations:

The President of the People’s Committee at commune level shall have the right:

a/ To issue a warning.

b/ To impose fines up to 200,000 VND.

c/ To order the confiscation of material evidences and tools used for the administrative violation valued up to 500,000 VND.

d/ To force the compensation up to 500,000 VND for damage caused by the administrative violation.

e/ To force the restoration of the original state of the land which has been changed by the administrative violation.

f/ To stop the activities obstructing the use of land.

2. Competence of the People�s Committee of district, town and provincial city to handle administrative violations:

The President of the People�s Committee at district level shall have the right:

a/ To issue a warning.

b/ To impose fines up to 10,000,000 VND.

c/ To order the confiscation of material evidences and tools used for the administrative violation.

d/ To force the restoration of the original state of the land which has been changed by the administrative violation, or force the dismantlement of the illegal constructions.

e/ To force the compensation up to 1,000,000 VND for damage caused by the administrative violation.

f/ To stop the activities obstructing the use of land.

g/ To order the recovery of the land in accordance with their competence prescribed in the Land Law.

3. Competence of the People’s Committee of the province and city directly under the Central Government to handle administrative violations.

The President of the People’s Committee at provincial level shall have the right:

a/ To issue a warning.

b/ To impose fines up to 20,000,000 VND.

c/ To apply all forms of additional sanctions and other measures provided for in this Decree and order the recovery of the land in accordance with their competence prescribed in the Land Law.

Article 16.- Competence of the specialized State Inspectorate for Land Administration to sanction administrative violations:

1. The specialized Land Administration inspector on duty shall have the right:

a/ To issue a warning.

b/ To impose fines up to 200,000 VND.

c/ To order the confiscation of material evidences and tools used for the administrative violation valued up to 500,000 VND.

d/ To apply measures provided for in Points a, b, Item 3, Article 11 of the Ordinance on the Handling of Administrative Violations.

2. The Chief Inspector of the provincial/municipal Land Administration Service shall have the right:

a/ To issue a warning.

b/ To impose fines up to 10,000,000 VND.

c/ To apply other handling measures in accordance with the provisions of Items 2 and 3, Article 11 of the Ordinance on the Handling of Administrative Violations.

3. The Chief Inspector of the General Land Administration shall have the right:

a/ To issue a warning.

b/ To impose fines up to 20,000,000 VND.

c/ To apply additional sanctions and other measures provided for in Items 2 and 3, Article 11 of the Ordinance on the Handling of Administrative Violations.

Article 17.- The persons competent to sanction administrative violations from the specialized State inspectorates in the domain of culture and information, environmental protection, dikes, irrigation works, construction, forest patrol, army inspectors and People’s Police officers shall have the right to sanction administrative violations in the use of land within the ambit of their State managerial functions.

Article 18.- The statutes of limitations for the sanctioning of administrative violations in the domain of land management and use is two years; upon the expiry of such time limit, if the violation has not been sanctioned, the measures prescribed in Point a, Item 3, Article 11 of the Ordinance on the Handling of Administrative Violations shall apply.

Article 19.- Authorization to handle administrative violations:

In cases where the people competent to sanction administrative violations stipulated in Items 1, 2 and 3, Article 15 and Items 2 and 3, Article 16 of this Decree are absent or with their authorization, their deputies shall have the right to order the sanctions in accordance with their competence.

Article 20.- Application of the forms of sanction:

1. The main sanction shall be applied independently; in addition, additional sanctions and other measures may also be applied to acts subject thereto as prescribed in this Decree.

2. The additional sanctions and other measures shall be applied only in conjunction with the main sanction.

Article 21.- Warnings:

1. Warnings shall be applied to minor and first-time administrative violations with extenuating factors provided for in Article 12 of the Ordinance on the Handling of Administrative Violations, and such violations are liable to warnings under provisions of law.

2. A decision on the sanction by warning must be made in writing. If necessary, the competent sanctioning agency shall send the sanctioning decision to the local authority, agency or organization where the offender resides or works.

Article 22.- Fines:

1. When imposing a fine, the competent sanctioning person shall have to comply with the provisions of Articles 46, 47, 48 and 49 of the Ordinance on the Handling of Administrative Violations.

2. When a fine is imposed, the concrete amount of the fine for a violation shall be the average in the fine bracket set for that violation; in case of a violation with extenuating factors, the fine may be lower but must not be lower than the minimum level in the fine bracket; in case of a violation with aggravating factors, the fine may be higher than the average but must not exceed the maximum level in the fine bracket.

The extenuating and aggravating factors shall be applied in accordance with the provisions of Articles 7 and 8 of the Ordinance on the Handling of Administrative Violations.

Article 23.- Recovery of land:

The land shall be recovered only when there is a written decision from the competent authority as prescribed in Article 23 of the Land Law. A decision on the recovery of land must be sent to the sanctioned individual or organization together with the sanctioning decision and must be notified to the People�s Committee of the commune, ward or township where lies the land.

Article 24.- Execution of decisions on administrative sanction:

1. The sanctioned organization and/or individual shall have to immediately execute the sanctioning decision within 5 days after receiving them; the sanctioned organizations shall have to determine the fault of the person or persons who directly committed the administrative violation while on duty so as to examine their disciplinary material or civil liability in accordance with the provisions of law.

2. Within 5 days after receiving the sanctioning decision, if the sanctioned organization and/or individual fails to execute it, the decision issuing agency shall apply coercive measures in accordance with the provisions of Article 55 of the Ordinance on the Handling of Administrative Violations.

Agencies, organizations or lawful representatives of the sanctioned person(s) shall have to carry out request of the agency or person that has issued the sanctioning decision and comply with the provisions of Article 24 of this Decree.

The local People�s Committee shall organize the use of coercive measures, the People�s Police force, when requested, shall have to coordinate with and support the agency issuing the sanctioning decision in forcing the execution of the decision.

Article 25.- Forcible execution of decisions on administrative sanction:

1. If the organization and/or individual that are administratively sanctioned in the domain of land management and use do not voluntarily execute the decision, they shall be forced to do by the following measures:

a/ Having part of their wage, incomes or bank deposits deducted.

b/ Having their properties with equivalent value inventoried for auction.

c/ Subject to other coercive measures for the execution of the sanctioning decision.

2. The person competent to order the sanction shall have the right to issue the decision on coercive measures. The People’s Police, when requested, shall have the responsibility to coordinate in the execution of coercive decisions.

3. In the coercive execution of a decision on the recovery of land issued by the competent level, the local People�s Committee shall have to organize the coercion and the People�s Police shall have the responsibility to coordinate and support the enforcement of such coercion.

4. The organization and/or individual that is forced to carry out the decision shall have to bear all costs for the application of the coercive measures.

Article 26.-

1. If the person or persons competent to sanction an administrative violation, in their own interests or for personal motives, violate the regulations on administrative sanctions; if a person not competent to sanction an administrative violation, orders the sanction without permission, they shall, depending on the nature and extent of their violations, be disciplined or examined for penal liability; if the decision causes material damage to the State, such organization and/or individual shall have to make compensations.

2. Any person who abuses his/her position and power or overuses his/her competence to assign, lease or recover land, allow the transfer of the land use right and alter the land use purposes in contravention of the provisions of law, cover up other people’s violations of the land legislation, issue unlawful handling decisions or commit other acts doing harm to the land resources and legitimate rights of the land users, shall, depending on the extent of his/her violation, be disciplined or examined for penal liability.

3. Any person who commits acts of administrative violation in the domain of land management and use, shall not only be subject to administrative sanction, but shall also have to pay compensation for damage caused to the victim, if any. The compensations shall comply with the provisions of Article 17 of the Ordinance on the Handling of Administrative Violations.

Article 27.- The sanctioned organization and/or individual shall have the right to protest against decisions on administrative sanctions and denounce acts of abusing power or disregarding the law of the State by person or persons competent to sanction administrative violations in the domain of land management and use in accordance with the provisions of Articles 87 and 88 of the Ordinance on the Handling of Administrative Violations and in compliance with the provisions of the Ordinance on Procedures for the Settlement of Administrative Lawsuits.

Article 28.- The organizations and/or individuals having competence to sanction administrative violations in the domain of land management and use, shall be rewarded in accordance with the common provisions of the State if they make meritorious achievements.

Chapter III

IMPLEMENTATION PROVISIONS

Article 29.- Foreign organizations and/or individuals committing acts of administrative violation in the domain of land management and use on the territory of the Socialist Republic of Vietnam, shall be sanctioned in accordance with the provisions of this Decree, except otherwise provided for by international treaties which Vietnam has signed or acceded to.

Article 30.- This Decree takes effect from the date of its signing; the earlier provisions which are contrary to this Decree are now annulled.

Article 31.- The General Director of the General Land Administration shall have to provide guidance for the implementation of this Decree.

Article 32.- The Ministers, the Heads of the ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People’s Committees of the provinces and cities directly under the Central Government shall, according to their functions, tasks and powers, have to direct the implementation of this Decree.