Nghị định 26/2013/ND-CP

DECREE

ON ORGANIZATION AND OPERATION OF CONSTRUCTION INSPECTORATES

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Law on Construction dated November 26, 2003  and the Law on amendments to the Laws pertaining to fundamental investment dated June 19, 2009 Law Amending and Supplementing a Number of Articles;

Pursuant to the Law on Housing dated November 29, 2005;

Pursuant to the Law on Real estate trading dated June 29, 2006;

Pursuant to the Law on Urban Planning dated June 17, 2009;

Pursuant to the Law on Inspection dated November 15, 2010;

At the request of the Minister of Construction,

The Government promulgates the Decree on organization and operation of construction inspectorates.

Chapter I.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides the organization and operation of construction inspectorates of the State (hereinafter referred to as construction inspectorates), inspectors and inspection collaborators; responsibilities of agencies, organizations and individuals for construction inspection.

Article 2. Inspected entities

1. Agencies, organizations and individuals subject to the state management by the Ministry of Construction or Services of Construction as authorized or decentralized by the People’s Committees of provinces.

2. Vietnamese and foreign agencies, organizations and individuals operating within the territory of the Socialist Republic of Vietnam shall comply with the laws under the management of the Ministry of Construction and Services of Construction.

Chapter 2

ORGANIZATION, TASKS AND POWERS OF CONSTRUCTION INSPECTORATES

Article 3. Construction inspectorates

1. The Inspectorate of the Ministries of Construction.

2. Inspectorates of Services of Construction.

The Inspectorate of the Ministries of Construction and Inspectorates of Services of Construction have their own seals and accounts.

Article 4. Organizational structure of the Inspectorate of the Ministries of Construction

1. The Inspectorate of the Ministries of Construction consists of the chief inspector, deputy chief inspectors, inspectors, civil servants, and divided into departments.

2. The Chief Inspector of the Ministry of Construction shall be designated and dismissed by the Minister of Construction under an agreement with the Government Inspector General.

Deputy chief inspectors shall be designated and dismissed by the Minister of Construction at the request of the Chief Inspector. Deputy chief inspectors shall assist the Chief Inspector in performing tasks as assigned by the Chief Inspector.

The Minister of Construction shall decide on the establishment of departments.

Article 5. Tasks and powers of the Inspectorate of the Ministries of Construction

The Inspectorate of the Ministries of Construction has the tasks and powers defined in Article 18 of the Law on Inspection, Article 7 of the Government’s Decree No. 86/2011/ND-CP dated September 22, 2011, elaborating the implementation of the Law on Inspection, and the tasks and powers below:

1. Carry out surveys and collect information for making and submitting inspection plans to the Minister of Construction; instruct Inspectorates of Services of Construction to make inspection plans.

2. Carry out specialized inspection according to the contents prescribed in Article 11 of this Decree.

3. Request Inspectorates of Services of Construction to report the inspections under the management of  the Ministry of Construction.

4. Provide professional training in inspection for civil servants and inspectors engaged in specialized construction inspection.

5. Take charge of or join interdisciplinary inspectorates established by ministries, agencies and local governments .

6. Provide professional instructions and guidance on specialized inspection to Inspectorates of Services of Construction.

7. Receive, settle complaints and denunciations, prevent and suppress corruption.

8. Summarize and report the legislation on inspection and construction to competent authorities for complementation.

Article 6. Tasks and powers of the Chief Inspector of the Ministry of Construction

The Chief Inspector of the Ministry of Construction has the tasks and powers defined in Article 19 of the Law on Inspection and Article 8 of Decree No. 86/2011/ND-CP and the tasks and powers below:

1. Establish inspectorates according to inspection plans approved by the Minister of Construction.

2. Make decisions on unscheduled inspection when detecting signs of law violation committed by agencies, organizations or individuals or to serve the settlement of complaints and denunciations, corruption prevention, or at the request of the Minister of Construction.

3. Request the Minister of Construction to establish interdisciplinary administrative inspectorates to carry out inspections in accordance with approved inspection plans; carry out unscheduled inspection in extremely complicated cases concerning the responsibilities of multiple authorities and sectors; establish specialized inspectorates to carry out inspections in accordance with approved inspection plans; carry out unscheduled inspection in extremely complicated cases concerning the responsibilities of multiple agencies, units, authorities and sectors.

4. Request chief inspectors of Services of Construction to regularly or irregularly report on specialized inspection activities.

5. Penalize administrative violations in accordance with law.

6. Perform other tasks and exercise other entitlements delegated by the Minister of Construction.

Article 7. Organizational structures of Inspectorates of Services of Construction

1. An Inspectorate of the Service of Construction is composed of a chief inspector, deputy chief inspectors, inspectors and civil servants.

The chief inspector shall be designated and dismissed by the director of the Service of Construction under an agreement with the provincial chief inspector.

Deputy chief inspectors are appointed, removed from office or dismissed by the director of the Service of Construction at the request of the chief inspector.

Deputy chief inspectors shall assist the chief inspector in performing the tasks assigned by the chief inspector.

2. The Inspectorates of Services of Construction of Hanoi and Ho Chi Minh City may established inspectorates of districts.

Article 8. Tasks and powers of Inspectorates of Services of Construction

Inspectorates of Services of Construction have the tasks and powers defined in Article 24 of the Law on Inspection and Article 13 of Decree No. 86/2011/ND-CP and the tasks and powers below:

1. Carry out survey and collect information for making and submit inspection plans to directors of Services of Construction for approval.

2. Carry out specialized inspection in accordance with Article 11 of this Decree under their management.

3. Receive, settle complaints and denunciations; prevent and suppress corruption.

4. Take charge of or join interdisciplinary inspectorates established by the Services, agencies and local governments; join inspectorates established by the Inspectorate of the Ministries of Construction.

Article 9. Tasks and powers of chief inspectors of Services of Construction

Chief inspectors of Services of Construction have the tasks and powers defined in Article 25 of the Law on Inspection, Article 14 of Decree No. 86/2011/ND-CP and the tasks and powers below:

1. Establish inspectorates according to the inspection plans approved by directors of Services of Construction.

2. Make decisions on unscheduled inspection when detecting signs of law violation, or to serve the settlement of complaints/denunciations or corruption prevention, or at the request of directors of Services of Construction.

3. Request directors of Services of Construction to form inspectorates or interdisciplinary inspectorates under approved inspection plans or upon irregular request.

4. Provide instructions for officials, civil servants and inspectors of their Inspectorates in accordance with law.

Chapter 3

OPERATION OF CONSTRUCTION INSPECTORATES

Article 10. Administrative inspection

The Inspectorate of the Ministries of Construction and Inspectorates of Services of Construction shall inspect the conformity with policies and laws, the fulfillment of assigned tasks of the agencies, organizations and individuals mentioned in Clause 1, Article 2 of this Decree.

Article 11. Specialized construction inspection

1. Inspecting the implementation of legislation on planning and architecture:

a/ Regarding the elaboration, appraisal, approval and adjustment of construction master plans: regional construction master plans; urban construction master plans; master plans on building of rural residential areas; master plans on building of a new countryside; and master plans on building of industrial parks, economic zones, hi-tech parks and border checkpoints;

b/ Regarding construction planning management: announcement of construction master plans; plantation of construction limit markers and other limit markers; issuance of planning permits; provision of information on construction master plans; and construction activities under approved construction master plans;

c/ Management and use of construction planning funds within the competence of planning agencies;

d/ Conditions on qualifications of organizations and individuals engaged in construction planning designing and conditions for architecture and urban planning engineering practice; provision of training, issuance and management of architect certificates and urban planning engineer certificates.

2. Inspecting the conformity legislation on construction investment:

a/ Formulation, appraisal and approval of construction projects;

b/ Elaboration, appraisal and approval of technical designs, construction drawings, total cost estimates and cost estimates of building works;

c/ Application of construction standards and technical regulations to building works; application of foreign construction standards in Vietnam;

d/ Issuance, extension, modification, re-issuance and revocation of licenses for construction; management of construction activities according to licenses for construction;

dd/ Selection of building contractors under the Construction Law and legislation on tendering;

e/ Issuance and revocation of contractor licenses to/from foreign construction contractors operating in Vietnam;

g/ Hiring of foreign construction consultants in Vietnam;

h/ Conclusion and execution of construction contracts;

i/ Estimation and management of construction cost;

k/ Management of construction quality; pre-acceptance inspection, hand-over, warranty and maintenance of building works; payment and finalization of building works within the competence of inspectorates;

l/ Provision of professional training; issuance and management of certificates and practice certificates in accordance with law;

m/ Establishment and operation of laboratories specialized in construction.

3. Inspecting the implementation of the law on urban development, covering:

a/ Implementation of approved urban development master plans and plans;

b/ Observance of laws in the upgrading of urban areas;

c/ Investment in construction of urban areas.

4. Inspecting the conformity with legislation on management, the use of technical infrastructure works, including water supply and drainage, sewage treatment; ordinary solid wastes, urban lighting and greenery; cemeteries; urban underground works and other technical infrastructure works under the management of  the Ministry of Construction.

5. Inspecting the conformity with legislation on housing development, management and use, real estate business and management and use of public office buildings under the management of  the Ministry of Construction.

6. Inspecting the conformity with legislation on the law on exploitation of minerals for use as, or production of, construction materials; trading in construction materials subject to conditional business in accordance with law.

7. Inspecting the conformity with legislation on settlement of complaints and denunciations, prevention and suppression of corruption within competence of inspectorates.

8. Inspecting the conformity with other laws on the fields under the management of  the Ministry of Construction.

Article 12. Approving inspection plans

1. The Chief Inspector of the Ministry of Construction shall submit inspection plans to the Minister of Construction for approval by the 15^th of November every year.

The Minister of Construction shall consider approving the inspection plans by the 25^th of November every year.

2. Based on the orientations of the Inspectorate of the Ministries of Construction and provincial Inspectorates, chief inspectors of Services of Construction shall submit inspection plans to directors of Services of Construction for approval by the 5^th of December every year.

Directors of Services of Construction shall consider approving inspection plans by the 15^th of December every year.

Inspection plans must be sent to the Inspectorate of the Ministries of Construction by the 25^th December 25 every year.

3. Adjustment to the approved inspection plans of the Ministry of Construction must be reported to the Minister; adjustments to the approved inspection plans of Services of Construction must be reported to directors of Services of Construction.

Article 13. Handling of conflicts in inspection

1. In case the inspection plan of a Service of Construction conflicts with the inspection plan of Ministry of Construction, the latter shall prevail.

2. The Chief Inspector of the Ministry of Construction shall cooperate with provincial chief inspectors in resolving conflicts between the construction inspectorates and other local inspectorates.

Article 14. The power to make decisions on inspection

The Chief Inspector of the Ministry of Construction and chief inspectors of Services of Construction shall make decisions on administrative inspection and specialized inspection. When necessary, the Minister of Construction and directors of Services of Construction shall make decisions on inspection in accordance with Clause 3, Article 6, and Clause 3, Article 9 of this Decree.

Article 15. Inspection duration

1. A specialized inspection or an administrative inspection carried out by the Inspectorate of the Ministry of Construction shall last for no more than 45 days and may be prolonged in complicated cases, but must not exceed 70 days.

2. A specialized inspection or an administrative inspection carried out by a Inspectorate of the Service of Construction shall last for no more than 30 days and may be prolonged in complicated cases or in highlands bordering areas, islands, remote areas, but must not exceed 45 days.

3. Makers of decisions on inspection  may prolong the inspection duration in accordance with Clause 1 or 2 of this Article.

Article 16. Procedure for construction inspection

1. The inspections carried out the Inspectorate of the Ministries of Construction and Inspectorates of Services of Construction shall comply with the Law on Inspection, Decree No. 86/2011/ ND-CP and the Government’s Decree No. 07/2012/ND-CP dated February 9, 2012, defining the agencies assigned to carry out specialized inspections.

2. Operation of independent inspectors shall comply with Decree No. 07/2012/ND-CP.

Article 17. Tasks and powers of chiefs of the inspectorates

1. During the inspection, the head of an inspectorate has the tasks and powers below:

a/ Instruct members of the inspectorate to comply with the inspection decision;

b/ Request the inspection decision makers to take measures within their competence as defined in Article 55 of the Law on Inspection;

c/ Request inspected entities to present business licenses, business registration certificates or practice certificates; provide information and documents, and make written reports and explanations about issues related to the inspections;

d/ Make written records on the violations committed by inspected entities;

dd/ Check the assets of the inspected entities which are related to the inspection;

e/ Request agencies, organizations and individuals that provide information and documents related to the inspection if they have;

g/ Impound illegal money, items and licenses if necessary, in order to stop the violation or to be used as evidence;

h/ Seal up documents of inspected entities when having grounds to believe that a law violation is committed;

i/ Stop or request competent persons to stop the acts that might cause serious damage to the interests of the State, the lawful rights and interests of other agencies, organizations or individuals;

k/ Request competent persons to suspend the decisions on disciplinary actions, reassignment, or retirement of cooperators with state inspectorates or agencies assigned to carry out specialized inspection or inspected entities if such decisions are considered obstructing the inspection;

l/ Request credit institutions to block the accounts of inspected entities to serve the inspection when having grounds to believe that inspected entities disperse their assets;

m/ Penalized administrative violations in accordance with the legislation on penalizing administrative violations;

n/ Report the inspection results to the maker of the decision on inspection, and take responsibility before law for the accuracy and truthfulness of such reports.

2. Chiefs of the inspectorates may append the inspectorates’ seals on their signatures when issuing documents on the measures for performing inspection tasks within their competence.

3. If the measures defined in Points g, h, i, k and 1, Clause 1 of this Article are considered unnecessary, chiefs of the inspectorates shall immediately cancel or request the cancellation of such measures.

4. When performing the tasks and exercising the powers defined in Clauses 1 and 2 of this Article, chiefs of the inspectorates shall take responsibility before inspection decision makers and law for their acts and decisions.

Article 18. Implementation of inspection conclusions

1. The Minister of Construction or the director of the Service of Construction shall provide guidance on the implementation of inspection conclusions within 15 days from the day on which the conclusion is signed or received.

2. The head of the state agency at the same level with the agency that makes the decision on inspection, the head of inspected non-business units and  representative of inspected enterprise shall issue decisions to take actions against the persons that commit violations stated in the conclusion in accordance with legislation on official and civil servants or legislation on labor.

3. Agencies, organizations and individuals that are responsible for penalizing violations in Clause 2 of this Article shall be responsible for failing to responsively take actions.

Article 19. Re-inspection

1. The Chief Inspector of the Ministry of Construction shall decide the re-inspection of cases solved by Presidents of the People’s Committees of provinces, which are under the management of the Ministry of Construction, when detecting signs of law violation at the request Minister of Construction.

2. A re-inspection decision covers all details specified in Clause 1, Article 52 of the Law on Inspection. Within 3 working days from the day on which the re-inspection decision is signed, the re-inspection decision maker shall send such decision to the person who has signed inspection conclusion and the re-inspected entity.

3. Re-inspection grounds, statute of limitations, re-inspection duration, tasks and powers of makers of re-inspection decisions, heads and members of inspectorates, reports on re-inspection results and re-inspection conclusions shall comply with the Law on Inspection, the Decree No. 86/2011/ND-CP and the Decree No. 07/2012/ND-CP.

4. Re-inspection conclusions of the Chief Inspector of the Ministry of Construction must be sent to the Minister of Construction and the Government Inspectorate.

Article 20. Summarization of and reports on construction inspection

1. The Chief Inspector of the Ministry of Construction shall summarize and report to the Minister of Construction and the Government Inspector General on inspection, settlement of complaints and denunciations, and prevention and combat of corruption within the scope of his/her responsibilities.

2. Chief inspectors of Services of Construction shall send report to directors of Services of Construction, the Chief Inspector of the Ministry of Construction and provincial chief inspectors on inspection, settlement of complaints and denunciations, and prevention and combat of corruption within their competence.

Chapter 4.

CONSTRUCTION INSPECTORS AND INSPECTION COLLABORATORS

Article 21. Construction inspectors

1. Construction inspectors are civil servants of the Inspectorate of the Ministries of Construction or Inspectorates of Services of Construction, who are appointed to inspection ranks to perform inspection tasks and other tasks assigned by the Chief Inspector of the Ministry of Construction or chief inspectors of Services of Construction.

2. Construction inspectors have the following tasks and powers:

a/ To perform tasks and exercise powers in accordance with the inspection and construction laws; to take responsibility before the Chief Inspector of the Ministry of Construction or chief inspectors of Services of Construction and before law for their assigned tasks;

b/ To sanction administrative violations or propose competent persons to sanction administrative violations in accordance with law.

Article 22. Uniforms, badges and signboards of construction inspectors

1. The Minister of Construction shall provide for uniforms and rank badges of construction inspectors under agreements with the Government Inspector General.

2. Construction inspectors shall preserve and use inspector’s cards, signboards, and rank badges on duty. Other organizations and individuals are prohibited from using inspector’s cards and uniforms, badges, and signboards which are confusingly similar to those of construction inspectors; construction inspectors are prohibited from using inspector’s cards, badges and signboards for personal purposes. Inspectors who use inspector’s cards, badges and signboards to commit violations shall face disciplinary actions or criminal prosecution, depending on the nature and severity of their violations.

Article 23. Construction inspection collaborators

1. Construction inspection collaborators are civil servants, public employees or professionals who are summoned by the Inspectorate of the Ministries of Construction or Inspectorates of Services of Construction to join inspectorates. Construction inspection collaborators are persons outside the payrolls of state inspectorates.

2. Construction inspection collaborators must have good ethical qualities and sense of responsibility, be incorruptible, honest, impartial and objective.

The Chief Inspector shall summon construction inspection collaborators based on the requirements of each inspectorate. Inspection collaborators shall be dismissed when the inspectorate completes the inspection, or the inspection collaborators fail to meet requirements under regulations.

3. Construction inspection collaborators have the tasks, powers and responsibilities defined by law.

Chapter 5.

RESPONSIBILITIES OF AGENCIES, ORGANIZATIONS AND INDIVIDUALS FOR CONSTRUCTION INSPECTION

Article 24. Responsibilities of the Minister of Construction

1. Lead and provide guidance on inspection under the management by the Ministry of Construction.

2. Approve annual inspection plans of the Ministry of Construction.

3. Responsively process inspection conclusions and recommendations.

4. Consolidate the organization, allocate funds to ensure adequate infrastructure, uniforms and other conditions for the operation of the Inspectorate of the Ministries of Construction.

5. Promulgate specific regulations on uniforms, vehicles and technical equipment of construction inspectorates.

6. Discharge other responsibilities in accordance with law.

Article 25. Responsibilities of Presidents of the People’s Committees of provinces

1. Direct Services of Construction to take charge and coordinate with provincial-level Home Affairs Departments in, elaborating schemes on consolidation of the organizational apparatus and operation of Inspectorates of Services of Construction.

2. To organize and direct the consolidation of the organizational apparatus and payroll, building of physical and technical foundations and provision of uniforms and operating funds to Inspectorates of Services of Construction at the request of directors of Services of Construction.

3. To promulgate a Regulation on coordination among Inspectorates of Services of Construction and district- and commune-level People’s Committees in managing construction activities in localities.

Article 26. Responsibilities of directors of Services of Construction

1. Direct the inspection under the management of Services of Construction.

2. Take charge and coordinate with Services of Home Affairs, in elaborating schemes on consolidation of the organizational apparatus and operation of Inspectorates of Services of Construction, then submit them to Presidents of the People’s Committees of provinces for approval.

3. Discharge the responsibilities defined in Clauses 2, 3, 4 and 6, Article 24 of this Decree that are within the competence of Services of Construction.

Article 27. Responsibility for cooperation between construction inspection agencies and other organizations

1. Responsibilities for cooperation among construction inspection agencies :

a/ The Inspectorate of the Ministries of Construction shall provide professional instructions on specialized inspection to Inspectorates of Services of Construction;

b/ Inspectorates of Services of Construction shall cooperate and appoint officials to join the inspectorates established by the Chief Inspector of the Ministry of Construction or Minister of Construction on request.

2. Responsibilities of authorities in the construction sector:

Authorities in the construction sector shall responsively, adequately and accurately provide information and documents at the request of construction inspection agencies to serve the inspection; assist the Minister of Construction in considering penalizing violations detected during the inspections.

3. Responsibilities of other agencies and organizations

a/ Services of Home Affairs Departments shall cooperate with Services of Construction in elaborating schemes on consolidation of the organizational apparatus and operation of Inspectorates of Services of Construction;

b/ Public security agencies at all levels shall cooperate in processing recommendations sent by construction inspection agencies and give written replies; cooperate with construction inspection agencies and construction management forces in performing their functions and tasks.

4. Responsibilities and rights of inspected agencies, organizations and individuals and related agencies, organizations and individuals comply with Article 10 of the Law on Inspection.

Chapter 6.

IMPLEMENTATION PROVISIONS

Article 28. Effect

1. This Decree takes effect on May 15, 2013, and supersedes the Government’s Decree No. 46/2005/ND-CP dated April 6, 2005, on the organization and operation of construction inspectorates.

2. The Prime Minister’s Decision No. 89/2007/ QD-TTg dated June 18, 2007, on the experimental establishment of construction inspectorates of districts, wards, and communes in Hanoi and Ho Chi Minh City is revoked.

Article 29. Responsibility for implementation

1. The Minister of Construction shall provide guidance on this Decree.

2. Ministers, Heads of ministerial agencies, Heads of Governmental agencies, Presidents of the People’s Committees of provinces, relevant organizations and individuals are responsible for the implementation of this Decree.