CIRCULAR No.24/2009/TT-BXD - Detailing a number of provisions of the Government’s Decree No.23/2009/ND-CP dated February 27, 2009

CIRCULAR

Detailing a number of provisions of the Government’s Decree No.23/2009/ND-CP dated February 27, 2009, on sanctioning of administrative violations in construction activities; real estate business; exploitation, production and trading of construction materials’ management of technical infrastructure facilities; and management of development of houses and offices

Pursuant to the Government’s Decree No. 17/2008/ND-CP dated February 4, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of construction;

Pursuant to the Government Decree No. 23/2009/ND-CP dated February 27, 2009, on sanctioning of administrative violations in construction activities; real estate business; exploitation, production and trading of construction materials; management of technical infrastructure facilities; and management of development of houses and offices;

Pursuant to the Governments Decree No. 180/2007/ND-CP dated December 7, 2007, detailing and guiding a number of articles of the Construction Law regarding the handling of violations of urban construction order;

Pursuant to the Prime Minister’s Decision No. 89/2007/QD-TTg dated June 18, 2007, on pilot establishment of construction inspectorates of urban districts or rural districts, and construction inspectorates of communes, wards or townships in Hanoi and Ho Chi Minh City,

The Ministry of Construction details a number of provisions on sanctioning of administrative violations in construction activities; real estate business; exploitation, production and trading of construction materials; management of technical infrastructure facilities; and management of development of houses and offices (below referred to as sanctioning of administrative violations in the domain of construction) as follows:

Article 1.

Statute of limitations for sanctioning acts of administrative violation in construction activities

The statute of limitations for sanctioning acts of administrative violation committed by investors and contractors of investment projects on construction of works is 2 years after works are handed over and put into operation, for projects involving only one construction work or work item each, or 2 years after the whole projects are handed over and put into operation, for projects involving many construction works or work items.

Article 2.

Notification of administrative violations on websites of the Ministry of Construction and People's Committees of provinces or centrally run cities

1. For violations specified in Articles 17, 18, 22, 24, 29 and 34 of Decree No. 23/2009/ND-CP, persons competent to issue sanctioning decisions shall copy and transmit copies of these decisions to websites of the Ministry of Construction and People's Committees of provinces or centrally run cities (below referred to as provincial-level People's Committees) where the sanctioning decisions are issued within 3 days from the date of signing these decisions. Sanctioning decisions may be sent by post or via email or facsimile. Sanctioning decision issuers shall take responsibility for the accuracy of sent copies.

2. Within 5 days after receiving sanctioning decisions, website administers of the Ministry of Construction and provincial-level People's Committees shall edit and post up these decisions. Details of a decision to be posted up include the name of the violator; act of violation; sanctioning form and level; and remedies (if any).

Provincial-level Construction Departments shall post up details of sanctioning decisions on their websites as authorized by provincial-level People's Committees.

Article 3.

Sanctioning of investors that violate regulations on ground-breaking, construction commencement and inauguration ceremonies of construction works

Investors that violate regulations on ground-breaking, construction commencement and inauguration ceremonies of construction works as specified in Clause 3, Article 10 of Decree No. 23/2009/ND-CP are those that violate any of provisions of the Prime Minister’s Decision No. 226/2006/QD-TTg dated October 10, 2006, on organization of ground-breaking, construction commencement and inauguration ceremonies of construction works, and the Ministry of Finance’s Circular No. 101/2006/TT-BTC dated October 31, 2006, guiding the sanctioning of administrative violations and payment of damages in thrift practice and waste combat.

Article 4.

Sanctioning of investors and contractors that violate regulations on construction order

1. Works are considered constructed in contravention of construction licenses as specified in Clause 1, Article 11 and Clause 1, Article 25 of Decree No. 23/2009/ND-CP are those built in violation of any of construction license contents provided in Appendix VI to the Government's Decree No. 12/2009/ND-CP dated February 12, 2009, on management of investment projects on work construction, in the following cases:

a/ Change of construction sites;

b/ Inconsistency between permitted and actual construction work ground levels;

c/ Violation of red-line and construction site boundary markers;

In addition to the cases specified at Points a, b and c, Clause 1 of this Article, civil works, industrial works and individual houses in urban areas are also considered constructed in contravention of construction licenses if they fall into any of the following cases:

d/ The actual construction area is inconsistent with the permitted one (the ground floor);

e/ The actual work height exceeds that specified in the construction license;

f/ The constructed work has more stones than permitted in the construction license;

g/ Violation of regulations on management of urban architecture (for areas with approved urban designs).

2. Works are considered constructed in contravention of evaluated and approved designs or approved construction detailed plans of a 1:500 scale as specified in Clause 3, Article 11 and Clause 3, Article 25 of Decree No. 23/2009/ND-CP if they fall into any of the following cases:

a/ Their main force-bearing structures or elevation architectures change;

b/ Their height exceeds the approved maximum height;

c/ Their approved initial use purposes are changed;

d/ Their construction density and land use coefficient are inconsistent with those indicated in evaluated and approved designs or approved construction detailed plans of a 1:500 scale.

3. No sanction shall be imposed for individual houses constructed in contravention of construction licenses and falling in into any of the following cases:

a/ They are constructed on ground sites or areas different from those indicated in their construction licenses, for localities without approved detailed construction plans of a 1:500 scale or urban designs, but within land plots under their owners' lawful ownership, and their construction faces no complaint or lawsuit and neither encroaches upon red-line or construction site boundary markers nor violates Point a, Clause 2, Article 3 of the Prime Minister's Decision No. 39/2005/QD-TTg dated February 28, 2005, guiding Article 121 of the Construction Law;

b/ Their interior architecture changes without affecting their main force-bearing structures;

c/ The number of their stories is smaller than that indicated in their construction licenses, for localities without approved detailed construction plans of a 1:500 scale or urban designs.

4. A fine of between VND 300,000,000 and 500,000,000 specified in Clause 4, Article 11 and Clause 4, Article 25 of Decree No. 23/2009/ND-CP shall be imposed as follows:

a/ A fine of VND 500,000,000 shall be imposed for violating construction works which are subject to formulation of investment projects on work construction;

b/ A fine of VND 300,000,000 shall be imposed for violating construction works which are individual houses in urban areas and other works not subject to formulation of investment projects on work construction:

5. Handling of other works constructed in violation of construction order as specified in Clauses 5, 6 and 7, Article 11 and Clauses 5, 6 and 7, Article 25 of Decree No. 23/2009/ND-CP.

a/ Clause 5, Article 11 and Clause 5, Article 25 of Decree No. 23/2009/ND-CP applies to individual houses and other construction works not subject to formulation of investment projects on work construction, in which any of the following acts of violation is committed: failing to cover or fence construction sites or dropping construction materials from covered or fenced construction sites into surrounding areas; storing construction materials on pavements, roadbeds, alleys and in residential quarters in contravention of regulations.

b/ When detecting acts of violation specified in Clauses 6 and 7, Article 11 and Clauses 6 and 7, Article 25 of Decree No. 2312009/ND-CP, or receiving complaints or lawsuits of damaged parties, competent persons shall promptly make written records of violations according to the form provided in Appendix n to Decree No. 23/2009/ND-CP, requesting investors to immediately stop the construction.

Right after such a written record is made, if the two involved parties cannot reach an agreement and a party makes a written request, the chairperson of the commune-level People's Committee shall invite the investor of the violating work and the damaged party's representative for negotiation on damages. Seven days after the unsuccessful first negotiation or the damaged party's absence without any plausible reason, the chairperson of the commune-level People's Committee shall organize the second negotiation. In case the damaged party is absent from negotiations without any plausible reason, the investor may continue construction. In case the second negotiation is also unsuccessful, the involved parties may institute a lawsuit at court for handling, and the construction may be resumed under an effective court judgment or ruling.

For a construction work in danger of collapse, its investor shall provide the damaged party with financial supports for removal and rent of a temporary lodging during the handling of the case.

Article 5.

Sanctioning of investors that fail to report on work incidents to competent construction management authorities under regulations

Clause 2, Article 14 of Decree No. 23/2009/ND-CP applies to cases in which investors fall to report on incidents occurring at construction works to provincial-level Construction Departments in localities where these works are located within 24 hours after the incident occurrence under Point c, Clause 1, Article 35 of Decree No. 209/2004/ND-CP dated December 16, 2004, on quality management of construction works (below referred to as Decree No. 209/2004/ND-CP).

Article 6.

Sanctioning of contractors making construction plan dossiers and construction design dossiers in contravention of regulations

1. Contractors making construction plan or general construction site dossiers in contravention of regulations as specified in Clause 3, Article 23 of Decree No. 23/2009/ND-CP are those falling into either of the following cases:

a/ They make construction plan dossiers containing improper or insufficient documents, drawings, maps and written explanations under Articles 9, 17 and 26 and Clause 2, Article 34 of the Government's Decree No. 08/2005/ND-CP dated January 24, 2005, on construction planning (below referred to as Decree No. 08/2005/ND-CP);

b/ They make construction plan dossiers not according to the order specified in Article 2 of Decree No. 08/2005/ND-CP.

2. Contractors making construction design dossiers in contravention of regulations as specified in Clause 1, Article 24 of Decree No, 23/2009/ND-CP are those making improper or insufficient dossiers of construction work designs or work construction cost estimates under Articles 13, 14 and 15 of Decree No. 209/2004/ND-CP.

Article 7.

Sanctioning of work construction contractors that violate regulations on safety in construction activities as specified in Article 26 of Decree No. 23/2009/ND-CP

1. Point b, Clause 1, Article 26 of Decree No. 23/2009/ND-CP which specifies the violation of "failing to put up construction site covers" applies to construction works under investment projects.

2. Contractors of individual houses or other construction works not subject to formulation of investment projects on construction works without construction site covers shall be handled under Clause 5, Article 11 and Clause 5, Article 25 of Decree No. 23/2009/ND-CP.

Article 8.

Sanctioning of organizations and individuals that organize training and commit acts of violation specified at Point a, Clause 5 Article 29, and Clause 1, Article 33 of Decree No. 23/2009/ND-CP

Organizations and individuals that organize training in work construction supervision, construction price appraisal skills, real estate price appraisal and brokerage knowledge or knowledge of management and administration of real estate trading floors and grant certificates of training in contravention of regulations are those falling into any of the following cases:

1. They provide training without training materials or lecturers already registered with the Ministry of Construction;

2. There is no training regulation as required;

3. The number of teaching periods is insufficient;

4. Regulations on examination, practice and writing of graduation papers are not strictly complied with;

5. Unqualified learners are still granted certificates of training;

6. They fail to report the training to provincial-level Construction Departments (for organizations providing training in real estate brokerage, price appraisal, and management and administration of real estate trading floors).

Article 9.

Deprivation of the right to use licenses, certificates or practice certificates, and revocation of certificates of training

1. Deprivation of the right to use construction licenses under Articles 57, 58 and 61 of Decree No. 23/2009/ND-CP shall be conducted as follows:

a/ Chief inspectors of provincial-level Construction Departments may deprive of the right to use construction licenses granted by provincial-level Construction Departments or district-level People's Committees upon detecting that the construction licensing violates the construction law.

b/ The Chief Inspector of the Ministry of Construction and chairpersons of provincial-level People's Committees may deprive of the right to use construction licenses granted by competent agencies upon detecting that the construction licensing violates the construction law.

c/ After receiving competent persons' decisions on deprivation of the right to use construction licenses, chairpersons of commune-level People's Committees shall issue decisions to stop the construction or coerce the dismantlement of violating construction works under Decree No. 180/2007/ND-CP.

2. Deprivation of the right to use practice certificates for acts of violation of regulations on construction activity and practice capability conditions specified in Article 17 of Decree No. 23/2009/ND-CP shall be conducted as follows:

a/ Acts of violation specified at Point a, Clause 1, Article 17 of Decree No. 23/2009/ND-CP are subject to deprivation of the right to use practice certificates for 3 years;

b/ Acts of violation specified at Point b, Clause 1, Article 17 of Decree No. 23/2009/ND-CP are not subject to deprivation of the right to use practice certificates in case of first-time sanctioning, are subject to deprivation of this right for one year in case of second-time sanctioning, or for 3 years in case of relapse into violation;

Individuals who conduct activities beyond their practice capability conditions or at variance with their practice certificates, thus causing work incidents, shall be deprived of the right to use their practice certificates for an indefinite time.

c/ Persons who fail to meet construction activity capability conditions corresponding to work types or grades but still hold posts specified at Point a, Clause 2, Article 17; Point b, Clause 4, Article 22; and Point b, Clause 6, Article 24 of Decree No. 23/2009/ND-CP, shall be deprived of the right to use their practice certificates for one year in case of first-time sanctioning, for 2 years in case of second-time sanctioning, or for an indefinite time in case of relapse into violation.

3. Deprivation of the right to use training licenses for acts of violation specified at Point c, Clause 6, Article 29 and Clause 3, Article 33 of Decree No. 23/2009/ND-CP shall be imposed for any of acts of violation specified in Article 8 of this Circular as follows:

a/ Violators shall be deprived of their training licenses for one year in case of first-time sanctioning, or for 3 years in case of second-time sanctioning. Acts of violation specified in Clause 5, Article 8 of this Circular are subject to deprivation of training licenses for an indefinite time in case of second-time sanctioning.

b/ Persons competent to issue sanctioning decisions may also apply the measure of non-recognition of training results, for training courses involving violations, in the form of forcible revocation of granted certificates of training in work construction supervision skills or certificates of training or retraining in construction price appraisal or knowledge of real estate price appraisal or brokerage, management and administration of real estate trading floors.

4. Deprivation of the right to provide real estate trading floor services in business registration certificates, for violators of regulations on real estate business, under Clause 3, Article 31 of Decree No. 23/2009/ND-CP shall be conducted as follows:

a/ Acts of violation specified in Clause 1, Article 31 of Decree No. 23/2009/ND-CP are not subject to deprivation of the right to provide real estate trading floor services in case of first-time sanctioning; are subject to deprivation of this right for one year in case of second-time sanctioning, or for an indefinite time in case of relapse into violation;

b/ Acts of violation specified in Clause 2, Article 31 of Decree No. 23/2009/ND-CP are not subject to deprivation of the right to conduct real estate business in case of first-time sanctioning; acts of violation specified at Point a, Clause 2, Article 31 of Decree No. 23/2009/ND-CP are subject to deprivation of this right for 3 years in case of second-time sanctioning; acts of violation specified at Points b and c, Clause 2, Article 31 of Decree No. 23/2009/ND-CP are subject to deprivation of this right for an indefinite time in case of second-time sanctioning.

5. Deprivation of the right to provide real estate trading floor services in business registration certificates, for violators of regulations on establishment and operation of real estate trading floors, under Article 32 of Decree No. 23/2009/ND-CP shall be conducted as follows:

a/ Violations of regulations on establishment and operation of real estate trading floors as specified in Clause 1, Article 32 of Decree No. 23/2009/ND-CP include the following acts: failing to have permanent transaction names and signboards for 12 months after obtaining business registration certificates; failing to send dossiers of notification to provincial-level Construction Departments in localities where real estate trading floors are planned to be established before operation commencement; establishing real estate trading floors on insufficient areas under regulations; managers or administrators of real estate trading floors have no certificates of training management of real estate trading floors under regulations; having insufficient persons possessing certificates under regulations; having no operation regulation or inadequate operation regulations.

b/ Organizations and individuals committing any violation specified at Point a of this Clause are not subject to deprivation of the right to provide real estate trading floor services in case of first-time sanctioning; shall be deprived of this right for one year in case of second-time sanctioning, or for 3 years in case of relapse into violation.

6. Deprivation of the right to use real estate broker or price appraiser practice certificates or real estate trading floor manager or administrator certificates under Clause 4, Article 34 of Decree No. 23/2009/ND-CP shall be conducted as follows:

a/ Acts of violation specified at Point c, Clause 1, Article 34 of Decree No. 23/2009/ND-CP are subject to deprivation of the right to use real estate broker or price appraiser practice certificates or real estate trading floor manager or administrator certificates for one year in case of first-time sanctioning; for 2 years in case of second-time sanctioning; or for 3 years in case of relapse into violation.

b/ Acts of violation specified at Point b, Clause 1, Article 34 of Decree No. 23/2009/ND-CP are subject to deprivation of the right to use real estate broker or price appraiser practice certificates or real estate trading floor manager or administrator certificates for 3 years in case of first-time sanctioning; or for an indefinite time in case of second-time sanctioning.

7. Deprivation of construction material trading licenses under Point b, Clause 3, Article 36 of Decree No. 23/2009/ND-CP shall be conducted as follows:

a/ Acts of violation specified in Clause 1, Article 36 of Decree No. 23/2009/ND-CP are not subject to deprivation of the right to use business registration certificates in case of first-time sanctioning; or for one year in case of relapse into violation.

b/ Acts of violation specified in Clause 2, Article 36 of Decree No. 23/2009/ND-CP are subject to deprivation of the right to use business registration certificates for one year in case of first-time sanctioning; or for an indefinite time in case of relapse into violation.

Article 10.

District-level construction chief inspectors' competence to sanction administrative violations under Decision No. 89/2007/QD-TTg

District-level construction chief inspectors in Hanoi and Ho Chi Minh City may impose fines of up to VND 10,000,000 for acts of administrative violation specified in Decree No. 23/2009/ND-CP.

District-level construction chief inspectors in Hanoi and Ho Chi Minh City may impose principal sanctions, additional sanctions and apply remedies like district-level police chiefs under Clause 6, Article 1 of the National Assembly Standing Committee's Ordinance No. 04/2008/UBTVQH12 Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations of April 2, 2008.

Article 11.

District-level People’s Committee chairpersons’ competence to apply additional sanctions

Apart from the provisions of Article 60 of Decree No. 23/2009/ND-CP, district-level People’s Committee chairpersons may also impose additional sanctions of deprivation of the right to use business registration certificates, construction licenses, other practice licenses and certificates granted by district-level People's Committees; confiscation of material evidence and means used for committing administrative violations under Clause 5, Article 1 of the National Assembly Standing Committee's Ordinance No. 04/2008/UBTVQH12 Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations of April 2, 2008.

Article 12.

Use of forms for handling of administrative violations specified in Decree No. 180/2007/ND-CP and Decree No. 23/2009/ND-CP

1. Upon detecting acts of violation of urban construction order specified in Decree No. 180/2007/ND-CP, and acts of violation of construction order specified in Articles 11 and 25; Clause 3, Article 38; Point d, Clause 4, Article 42; Point f, Clause 3, and Point a, Clause 4, Article 52; and Point a, Clause 2, Article 54, of Decree No. 23/2009/ND-CP, competent persons on duty shall promptly make written records of violations according to the form provided in Appendix II to Decree No. 23/2007/ND-CP.

Such a record serves as a basis for issuance of administrative violation sanctioning decisions according to the form provided in Appendix III to Decree No. 23/2007/ND-CP and decisions to suspend the construction of works according to the forms provided in Appendices II, III and IV to Decree No. 180/2007/ND-CP. For acts of violation of construction order in rural areas, the word "urban" shall be deleted from the forms of record.

The sanctioning shall be conducted according to the order and procedures specified in Decree No. 23/2009/ND-CP; the dismantlement shall be conducted according to the order and procedures specified in Decree No. 180/2009/ND-CP.

2. Upon detecting acts of administrative violation other than acts of violation of construction order, competent person promptly make written records according to the form provided in Appendix I to Decree No. 23/2009/ND-CP. The sanctioning shall be conducted according to the order and procedures specified in Decree No. 23/2009/ND-CP.

3. For an organization or individual that commits more than one act of violation, including an act of violation of construction order, a competent person shall make a common written record according to the form provided in Appendix II to Decree No. 23/2009/ND-CP.

4. In case acts of administrative violation are detected through inspection or examination, the inspecting or examining agency shall make written records according to the form provided in Decree No. 23/2009/ND-CP and transfer them to persons competent to issue sanctioning decisions under regulations, except cases on which the Prime Minister’s opinion is required.

5. Representatives of violators indicated in record forms are those assigned by violators to perform tasks at construction works where violations occur.

Article 13.

Organization of forces participating in enforcement of administrative violation handling decisions

1. For Hanoi and Ho Chi Minh City, commune-level People's Committee chairperson are competent to organize and direct commune-level police chiefs in forbidding the transportation of materials, supplies and workers into sites of violating construction works under Clause 4, Article 9 of Decision No. 89/2007/QD-TTg, and organizing the forcible dismantlement of violating construction works under Clause 4, Article 10 of Decision No. 89/2007/QD-TTg;

2. For other provinces and centrally run cities, commune-level People's Committee chairpersons shall organize and mobilize security forces under their competence to enforce decisions on forcible dismantlement of construction works which violate construction order under Decree No. 180/2007/ND-CP.

Article 14.

Settlement of complaints and denunciations about decisions on forcible dismantlement of works violating construction order

1. Organizations and individuals that commit acts of violation of construction order are subject to a fine as an administrative sanction and to the measure of dismantlement of violating construction works under Decree No. 180/2007/ND-CP and Decree No. 23/2009/ND-CP.

2. Organizations and individuals that lodge complaints or denunciations about competent agencies’ decisions on forcible dismantlement of violating works shall still abide by administrative sanctioning decisions. These competent agencies shall suspend the enforcement of decisions on forcible dismantlement in order to settle these complaints or denunciations according to the order and procedures and within the time limit prescribed by the law on settlement of complaints and denunciations.

3. During the suspension of decisions on forcible dismantlement of violating works, decisions on suspension of construction of violating works continue to be effective. If violators continue construction during the suspension of decisions on forcible dismantlement of works, agencies issuing these decisions may immediately organize the enforcement of these decisions.

Article 15.

Handling of works violating construction order which were not yet completely handled before the effective date of Decree No. 23/2009/ND-CP

1. For violating construction works located in areas planned for stable residential quarters but constructed in contravention of construction licenses in the number of stories and construction areas without affecting adjacent works, investors may continue constructing them without having to make adjustments on the condition that when implementing approved detailed construction plans of a 1:500 scale, investors shall themselves dismantle without any compensation construction items constructed in contravention of construction licenses.

2. For violating construction works not located in areas planned for residential quarters and construction planning for these areas has not yet been immediately implemented, investors shall commit to dismantling by themselves these works without any compensation as soon as such construction planning is implemented.

3. Violating construction works located in areas planned for stable residential quarters which encroach upon spaces, land areas, construction site or red-line boundary markers shall be dismantled.

Upon handling, it is necessary to examine each specific case and clarify the responsibility of each organization or individual that fails to handle the violation thoroughly.

Article 16.

Organization of implementation

This Circular takes effect on September 9, 2009, and replaces the Ministry of construction’s Circular No. 01/2005/TT-BXD dated January 31, 2005, detailing a number of articles of the Government’s Decree No. 126/2004/ND-CP, on sanctioning administrative violations in construction and management of urban infrastructure facilities and management of use of houses.

Problems arising in the course of implementation of this Circular shall be promptly reported to the Ministry of Construction for consideration and settlement.