Circular No. 01/2005/TT-BXD provides detailed guidance on implementing certain Articles of Government Decree No. 126/2004/NĐ-CP dated May 26, 2004, concerning administrative penalties for violations in construction activities, management of urban infrastructure projects, and management and use of housing.

CIRCULAR

Detailed guidance on implementing certain provisions of Decree No. 126/2004/NĐ-CP dated May 26, 2004 of the Government on administrative penalties for violations in construction activities, management of urban infrastructure projects, and management of housing use.

Pursuant to Decree No. 36/2003/NĐ-CP dated March 4, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Construction;

Pursuant to Decree No. 134/2003/NĐ-CP dated November 14, 2003 of the Government detailing certain provisions of the Administrative Violation Handling Ordinance 2002;

Pursuant to Decree No. 126/2004/NĐ-CP dated May 26, 2004 of the Government on administrative penalties for violations in construction activities, management of urban infrastructure projects, and management of housing use (hereinafter referred to as Decree 126);

To enhance the effectiveness of administrative penalty work in construction activities, management of urban infrastructure projects, and management of housing use, the Ministry of Construction provides guidance on implementing certain provisions of Decree 126 as follows:

1. Warning Penalty:

A warning penalty is the primary form of punishment for a first-time violation with many mitigating circumstances, such as: a household that has just started digging a foundation with a violation, when the authority responsible for imposing penalties discovers it, they stop voluntarily upon being reminded and restore the site; a person who dumps waste or materials improperly, when the authority responsible for imposing penalties discovers it, they clean up voluntarily and dispose of it properly in designated areas; and other similar violations.

In addition to the warning penalty, in specific cases, the administrative violator may also be subject to remedial measures as specified in Clause 3, Article 5 of Decree 126.

2. The Chairman of the People's Committee at the commune level has the authority to issue decisions to compel restoration to the original state altered due to administrative violations according to Point a, Clause 3, Article 43 of Decree 126:

The Chairman of the People's Committee at the commune level has the authority to issue a decision to compel restoration to the original state, for example:

- For the act of filling ponds or bodies of water, compel restoration to their original state;

- For constructing projects that damage the urban infrastructure technical system, require reconstruction to its original condition;

- For acts of expanding floor area, adding floors, extending balconies, or encroaching on space, compel demolition of the violating construction, restore the incorrect area, and return to the original state;

- For the act of constructing temporary buildings, sheds, or stalls that encroach on sidewalks, streets, protective zones of urban infrastructure technical systems, or other prohibited construction areas, compel demolition of the violating construction;

- For the act of constructing individual houses, unfinished construction projects, or temporary structures that violate planning regulations, compel demolition of the violating construction.

3. Qualification Conditions for Organizations and Individuals Participating in Construction Activities:

The qualification conditions for organizations and professional qualifications for individuals participating in construction activities are stipulated in the Construction Law and guiding documents for implementing the law.

4. Authority to Confiscate Evidence and Means Used in Administrative Violations:

When the authority responsible for imposing penalties implements the measure of confiscating evidence and means to prevent further violations, based on preliminary valuation according to market prices, they can decide to confiscate within their authority; if the preliminary valuation exceeds their authority, they must temporarily detain the items and report to the authority with decision-making power within two working days.

For construction inspection forces, the authority to temporarily detain evidence and means under the Administrative Violation Handling Ordinance 2002 is Inspection Officers, Heads of Inspection Departments of Provincial Departments, and Heads of Inspection Departments of Ministries.

5. Temporary Detention of Evidence and Means Used in Administrative Violations:

When the authority responsible for imposing penalties has grounds to believe that if not temporarily detained, the evidence and means could be used for further violations or disposed of, they must issue a decision to temporarily detain such items, such as: vehicles carrying loose materials or waste causing dust and pollution on streets; construction tools, construction equipment, raw materials... when participating in the construction of violating projects and other violations.

6. Execution of Deduction from Bank Account:

In cases where the subject of administrative penalties is fined in money and has an account at a bank but refuses to comply with the penalty decision, the authority responsible for imposing administrative penalties sends the enforcement decision to the bank where the violator has an account so that the bank can deduct funds from the account in accordance with the law.

7. Land Not Converted to Another Purpose as Specified in Point b, Clause 1, Article 6 of Decree 126:

Land not converted to another purpose includes types of land as stipulated in Article 13 of the Land Law 2003, which the investor must apply to convert the land use purpose when constructing projects, specifically:

a) Annual crop land including rice fields, grasslands for livestock breeding, and other annual crop lands;

b) Perennial crop land;

c) Production forest land;

d) Protective forest land;

đ) Special-use forest land;

e) Aquaculture land;

g) Salt production land;

h) Other agricultural land as prescribed by the Government;

8. Prohibited Construction Areas as Specified in Clause 3, Article 6 of Decree 126:

Constructing projects in prohibited construction areas is the act of violating protected zones as prescribed by law, including:

a) Protective zones of dyke systems as stipulated in:

- Clause 1, Article 18 of the Dyke Regulation Ordinance 2000;

- Article 7 of Decree No. 171/2003/NĐ-CP dated December 26, 2003 of the Government;

b) Protective zones of water conservancy works as stipulated in:

- Article 25 of the Water Conservancy Works Exploitation and Protection Ordinance 2001;

- Article 23 of Decree No. 143/2003/NĐ-CP dated November 28, 2003 of the Government on the exploitation and protection of water conservancy works;

c) Protective zones of transportation works:

- For road transportation works as stipulated in: Clause 2, Article 42 of Decree No. 91/CP dated August 17, 1994 of the Government; at: Article 13; Article 14; Article 15; Article 16; Article 17 and Article 18 of Decree No. 186/2004/NĐ-CP dated November 5, 2004 of the Government

- For inland waterway transportation works as stipulated in: Article 5; Article 6; Article 8; Article 9 of Decree No. 171/1999/NĐ-CP dated July 12, 1999 of the Government;

d) The protected buffer zone for oil and gas facilities is defined in Clause 1, Clause 2 Article 3; Article 4; Point d, Point e, Point g, Point i Clause 1 Article 5 Decree No. 10/CP dated February 17, 1993 of the Government and at Point a, Point b Clause 1 Article 5 Decree No. 47/1999/NĐ-CP dated July 5, 1999 of the Government;

đ) The protected buffer zone for electrical facilities is stipulated in Article 6; Article 8; Article 12; Article 14 Decree No. 54/1999/NĐ-CP dated July 8, 1999 of the Government;

e) The protected area for historical relics is provided for in Article 32 Law on Cultural Heritage 2001;

g) The protected buffer zones for national defense and security facilities and other areas as prescribed by law;

9. The safe area around underground water wells as specified in Clause 1 Article 25 Decree No. 126;

Violations of the provisions in TCXD 33.1985 (11.21) include:

a) Zone I - For well-developed aquifers, the safe area must not be less than 30 meters; additionally, when constructing livestock pens, it must be at least 100 meters from the boundary.

b) Zone II - For unconserved or poorly conserved aquifers, the safe area must not be less than 50 meters; additionally, when constructing livestock pens, it must be at least 300 meters from the boundary.

10. The protected area for surface water sources as specified in Point b Clause 2 Article 26 Decree No. 126;

The scope of protection for surface water sources is defined in Item 11 of TCXD 33.1985.

11. The protected buffer zone for raw water pipelines and clean water transmission pipelines as specified in Article 27 Decree No. 126;

Violations of the provisions in Point 8.31 Item 8 TCXD 33.1985 "Provisions on pipelines, pipeline networks, and structures on the network";

12. Using residential buildings contrary to their designated purpose, affecting public order and safety as specified in Clause 1 Article 38 Decree No. 126:

This refers to the actions of the owner of the private property or allowing others to use the apartment for purposes contrary to current regulations on the management and use of residential buildings, such as:

a) Using residential buildings for purposes other than living, such as production, business, offices, and other non-residential uses;

b) Using apartments for businesses involving flammable and explosive materials (welding, gas, explosives, and other dangerous industries); operating noisy services (karaoke, nightclubs, motorcycle repair shops, car repair shops, and other activities causing excessive noise); violating public order (not construction site management); speaking or using equipment that causes excessive noise affecting the lives of residents in the building and other behaviors affecting public order and safety in the building;

13. Causing pollution in residential buildings as specified in Clause 1 Article 38 Decree No. 126:

This includes acts of discharging feces, garbage, wastewater, toxic substances; causing seepage and leakage; raising livestock and poultry in common areas; raising livestock and poultry in private areas that affect the living environment of other households and public areas; operating businesses that cause environmental pollution (slaughterhouses, car washing, and other polluting services).

14. Common property in residential buildings as specified in Point a Clause 2 Article 38 Decree No. 126:

This includes the area of the residential building, including:

a) The space and load-bearing structure, shared technical equipment within the residential building (columns, walls, floors, roofs, terraces, corridors, staircases, elevators, escape routes, waste chutes, technical cabinets, parking spaces; electricity, water, gas, communication, broadcasting, television, drainage, septic tanks, lightning rods, fire-fighting systems...);

b) The external infrastructure technical structure attached to the residential building;

c) Other areas not belonging to private ownership as prescribed by law.

15. Procedure for administrative penalties against construction projects in violation:

a) Violating parts of construction projects must be detected promptly;

b) A Violation Administrative Record must be established, which suspends the illegal construction activity;

c) An Administrative Penalty Decision must be issued immediately. In the Administrative Penalty Decision, it must clearly state the mandatory measures that the violator must take to restore the original condition, such as demolishing extended areas, construction components, expanded areas, encroached areas, and specify the deadline for remedying the consequences.

d) If the violator does not voluntarily comply with the deadline stated in the Administrative Penalty Decision, coercive enforcement will be carried out. All costs incurred from the coercive enforcement shall be borne by the violator.

16. Attached forms:

Eight forms related to Violation Administrative Records, Administrative Penalty Decisions, Reports (attached) are promulgated pursuant to this Circular.

17. Handling administrative violations during the transitional period:

a) For cases where there are already Administrative Penalty Decisions or Demolition Decisions under Decree No. 48/CP dated May 5, 1997 of the Government, which remain valid but have not been executed by the violator, they should continue to be implemented according to those decisions;

b) For administrative violations in construction activities, infrastructure management in urban areas, and housing management before the effective date of Decree No. 126/2004/NĐ-CP that were not discovered or penalized, if they are discovered later, they will be penalized according to the provisions of Decree No. 126/2004/NĐ-CP.

18. Responsibilities for implementation:

This Circular shall take effect fifteen days after its publication in the Official Gazette.

b) Regarding the authority to impose administrative penalties of the Construction Special Inspectorate of Hanoi City.

This is implemented according to Decision No. 100/2002/QĐ-TTg dated July 24, 2002 of the Prime Minister on the establishment of the Construction Special Inspectorate in Hanoi for trial operation and current laws.

c) Ministers, Heads of ministerial-level agencies, heads of agencies under the Government, Chairmen of People's Committees of provinces and centrally-administered cities are responsible for implementing this Circular.

d) During the implementation process, any difficulties or obstacles should be reported to the Ministry of Construction by provincial and centrally-administered city People's Committees and Construction Departments./.