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THE MINISTRY OF CONSTRUCTION
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 01/2005/TT-BXD
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Hanoi, January 21, 2005
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CIRCULAR
GUIDING IN DETAIL THE IMPLEMENTATION OF A NUMBER OF
ARTICLES OF THE GOVERNMENT'S DECREE NO. 126/2004/ND-CP DATED MAY 26, 2004 ON
THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN URBAN INFRASTRUCTURE
CONSTRUCTION AND MANAGEMENT AND HOUSE USE MANAGEMENT ACTIVITIES
Pursuant to the Government's
Decree No. 36/2005/ND- CP dated March 4, 2003 defining the functions, tasks,
powers and organizational structure of the Ministry of Construction;
Pursuant to the Government's Decree No. 134/2003/ND-CP dated November 14, 2004
detailing a number of articles of the 2002 Ordinance or Handling of
Administrative Violations;
Pursuant to the Government's Decree No. 126/2004/ND-CP dated May 26, 2004 on
sanctioning of administrative violations in urban infrastructure construction
and management and house use management activities (hereinafter called Decree
No. 126 for short);
In order to raise the effectiveness of the sanctioning of administrative
violations in urban infrastructure construction and management and house use
management activities, the Ministry of Construction hereby guides a number of
Articles of Decree No. 126 as follows:
1. Caution:
Caution is a principal sanctioning
form applicable to first-time violations involving many extenuating
circumstances, for example: a household which commits a violation in digging
ground for house foundation voluntarily stops such violation act and restores
the ground after persons with sanctioning competence detect such act and give a
warning; or a person who has dumped garbage, materials or discarded materials
not at the prescribed place voluntarily cleans up such place, then dumps such
things at the prescribed place after persons with sanctioning competence detect
such act and give a warning, or some other violations.
Apart from caution, in some
specific cases administrative violators may be subject to the application of
consequence-addressing measures prescribed in Clause 3, Article 5 of Decree No.
126.
2. Competence of presidents of commune-level People's
Committees to force the restoration of the original state already altered due
to administrative violations according to the provisions of Point a, Clause 3,
Article 43 of Decree No. 126.
Presidents of commune-level
People's Committees are competent to issue coercive decisions to force the
restoration of the original state, for example:
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- For acts of building works,
which damage the system of technical infrastructures, they shall force
violators to repair such infrastructures to the original state;
- For acts of expanding houses in
flooring spaces by adding more stories, enlarging balconies, or encroaching
upon common aerial spaces without permission, they shall force the
dismantlement of violating construction sections, or encroached areas in order
to restore the initial state;
- For acts of building make shift
works or houses, or erecting tents or stalls which encroach upon pavements,
streets, technical infrastructure protection corridors or other areas where
construction is prohibited, they shall force the dismantlement of violating
work sections.
- For acts of building separate
dwelling houses, unfinished construction works or makeshift houses in violation
of the construction planning, they shall force the dismantlement of such
violating work sections.
3. Conditions on capability of
organizations and individuals engaged in construction activities:
The conditions on operation
capability of organizations and professional capability of individuals engaged
in construction activities are prescribed in the Construction Law and guiding
documents.
4. Competence to confiscate
material evidences and means used in administrative violations
Persons with sanctioning
competence, when applying measures of confiscating material evidences or means
in order to prevent violations from further occurring, shall decide on
confiscation thereof according to their competence on the basis of preliminary
valuation according to market prices. If the preliminary valuation of material
evidences and means goes beyond their competence, they shall, within two
working days, have to report such to competent persons for decision.
For construction inspection
forces, persons competent to temporarily seize material evidences and means
defined in the 2002 Ordinance on Handling of Administrative Violations shall be
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5. Temporary seizure of
material evidences and means used for committing administrative violations:
When
persons with sanctioning competence have grounds to believe that if not being
temporarily seized, such material evidences and means may be used for
committing further violations or be dispersed, they shall have to issue
decisions on temporary seizure thereof, such as trucks carrying bulk materials
or discarded materials, generating dusts and making streets dirty; construction
equipment, tools, fuels, materials, etc., are used in construction of violating
works as well as other violation acts.
6.
Deduction of bank accounts:
In
cases where administrative violators are imposed with pecuniary fines, have
bank accounts but refuse to execute sanctioning decisions, persons competent to
sanction administrative violations shall send decisions on forcible execution
to banks where such violators open their deposit accounts so that the banks
make deductions according to law provisions.
7.
Land with use purposes not yet changed as specified at Point b, Clause 1,
Article 6 of Decree No. 126:
Land
with use purposes not yet changed means land of categories where, according to
regulations, the use purpose change must be applied for by investors upon
construction of works thereon, as specified in Clause 1, Article 13 of the 2003
Land Law, including:
a)
Land under annual crops, including land under rice and pasture land for cattle
raising, and land for other annual crops;
b)
Land under perennial trees;
c)
Land under production forests;
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e)
Land under special-use forests;
f)
Land for aquaculture;
g)
Land for salt making;
h)
Other agricultural land as prescribed by the Government.
8.
Areas where construction is prohibited, as defined in Clause 3, Article 6 of
Decree No.126:
Building
works by investors on areas where construction is prohibited is an act of
constructing works in encroachment upon protection zones prescribed by law, including:
a)
Dike protection corridors, which are prescribed in:
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Clause 1, Article 18 of the 2000 Ordinance on Dikes;
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Article 7 of the Government's Decree No. 171/2003/ND-CP dated December 26,
2003;
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Article 25 of the 2001 Ordinance on Exploitation and Protection of Irrigation
Works;
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Article 23 of the Government's Decree No. 143/2003/ND-CP dated November 28,
2003 on exploitation and protection of irrigation works;
c)
Traffic work protection corridors:
- For
road traffic works: such corridors are defined in Clause 2, Article 42 of the
Government's Decree No. 91/CP dated August 17, 1994; Articles 13, 14, 15, 16,
17 and 18 of the Government's Decree No. 186/2004/ND-CP dated November 5, 2004.
- For
inland waterway navigation works: such corridors are defined in Articles 5, 6,
8 and 9 of the Government's Decree No. 171/1999/ND-CP dated July 12, 1999.
d) Oil
and gas work protection corridors, defined in Clauses 1 and 2, Article 3;
Article 4; Points e, f, g and i, Clause 1, Article 5 of the Government's Decree
No. 10-CP dated February 17, 1993 and Points a and b, Clause l, Article 5 of
Decree No. 47/1999/ND-CP dated July 5, 1999;
e)
Electric power work protection corridors defined in Articles 6, 8, 12 and 14 of
the Government's Decree No. 54/1999/ND-CP dated July 8, 1999;
f)
Protection zones of historical relics, defined in Article 32 of the 2001
Cultural Heritage Law;
g)
Protection corridors of security and defense works and other areas prescribed
by law.
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Violations
of regulations in Construction Standard TCXD 33.1985 (11 .21), including:
a)
Zone I - For water-holding layers which are well protected, the safety zone
must not be narrower than 30 meters. Any livestock stables and ranches must be
built 100 meters away from the zone boundaries.
b)
Zone II - For water-holding layers not protected or not well protected, the
safety zone must not be narrower than 50 meters. Any livestock stables and
ranches must be built 300 meters away from the zone boundaries.
10.
Safety protection zones of surface water sources, defined at Point b, Clause 2,
Article 26 of Decree No. 126:
The
scope of safety protection zones of surface water sources is prescribed in
Section 11 of Construction Standard TCXD 33.1985.
11.
Scope of safety protection corridors of crude water mains and clean water
pipelines defined in Article 27 of Decree
No. 126:
Violations
of regulations at Point 8.31, Section 8 of Construction Standard TCXD 33.1985
''Regulations on pipelines, pipeline networks and works on networks.''
12.
Use of condominiums in contravention of regulations on condominium use
purposes, thus causing order disturbance and insecurity, defined in Clause 1,
Article 38 of Decree No. 126:
This
means act committed by condominium apartment owners using or letting other
persons to use their condominium apartments for purposes in contravention of
current regulations on management of use of condominiums, for example:
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b)
Using condominium apartments for conducting business lines or trades involving
or trading in fire- and/or explosion-prone commodities (welding, gas, explosive
materials and other dangerous business lines or trades); providing services
which cause noises in excess of the prescribed level (Karaoke bars, dancing
halls, motorbike and automobile garages and other service activities causing
noises in excess of the permitted level); disturbing the public order (not in
the domain of construction order management); talking or using equipment
causing noises which may affect the daily life of households living in
condominiums and other acts affecting order and security of condominiums;
13. Causing pollution of
condominiums, defined in Clause 1, Article 38 of Decree No. 126:
This means act of discharging
excrement, garbage, wastewater or hazardous matters; causing water penetration
and leakage; keeping
cattle or poultry within areas
under common ownership; keeping cattle or poultry in areas under private
ownership thus affecting living environment of other households and public
places; providing services which cause environmental pollution (cattle
slaughterhouses, car washing and other polluting services).
14. Condominium sections under
joint ownership defined at Point a, Clause 2, Article 38 of Decree No. 126:
These mean areas of condominiums,
including:
a) Spaces and force-bearing
structures, technical facilities and equipment for common use in condominiums
(pillar frames, walls, floors, roofs, terraces, corridors, stairways,
elevators, emergency exits, garbage discharge enclosures, technical boxes, car
parks; electricity, water and gas supply, information, communications, radio
and television, water drains, septic tanks, lightning rods, fire-
fighting devices, etc.);
b) External technical
infrastructure systems attached to such condominiums.
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15.
Administrative violation-sanctioning order applicable to violating construction
works:
a)
Parts of violating construction works must be promptly detected;
b) To
make written records of administrative violations, ordering the stoppage of
construction violation acts;
c) To
issue sanctioning decisions immediately. Such sanctioning decisions must
clearly state measures to force violating organizations or individuals to
restore the original state, for example: dismantlement of illegally expanded
sections, construction work items, expanded or encroached areas, and
concurrently set time limits for addressing the consequences.
d)
Past the time limits inscribed in sanctioning decisions, if violating
organizations or individuals still fail to execute such decisions, to coerce
them to do so. All expenses for coercion must be borne by violating
organizations or individuals.
16.
Enclosed forms:
Promulgated
together with this Circular are 8 set forms of written records of
administrative violations, sanctioning decisions and (enclosed) reports.
17.
Handling of administrative violations in transitional period:
a)
Regarding cases for which sanctioning decisions or work dismantlement decisions
have already been issued under the Government's Decree No. 48/CP dated May 5,
1997 and are still valid, but violators fail to execute them, the violators
shall still have to abide by such decisions;
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18. Implementation provisions:
a) This Circular takes effect 15
days after its publication in the Official Gazette.
b) Regarding the sanctioning
competence of construction specialized inspectorate of Hanoi city.
Such competence shall comply with
the Prime Minister's Decision No. 100/2002/QD-TTg dated July 24, 2002
permitting the experimental setting up of construction specialized inspectorate
in Hanoi and with current legal documents.
c) The ministers, the heads of the
ministerial-level agencies, the heads of the Government-attached agencies and
the presidents of the People's Committees of the provinces and centrally-run
cities shall have to implement this Circular.
d) Any problems arising in
the course of implementation should be reported by the provincial/municipal
People's Committees and Construction Services to the Ministry of Construction.
FOR THE MINISTER OF CONSTRUCTION
VICE MINISTER
Dinh Tien Dung
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