Circular No. 02/2014/TT-BXD provides detailed regulations and guidance on implementing certain provisions of Government Decree No. 121/2013/NĐ-CP dated October 10, 2013, concerning administrative penalties for violations in construction activities; real estate business; exploitation, production, and trading of construction materials; management of technical infrastructure works; and development of housing and office buildings.

CIRCULAR

Regulations detailing and guiding the implementation of certain provisions of Decree No. 121/2013/NĐ-CP

dated October 10, 2013, issued by the Government on administrative penalties for violations in construction activities; real estate business; exploitation, production, and trading of construction materials; management of technical infrastructure works; and management of housing development and office buildings.

construction activities; real estate business; exploitation, production, and trading of construction materials;

management of technical infrastructure works; management of housing development and constructionin

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Pursuant to Decree No. 62/2013/NĐ-CP dated June 25, 2013 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Construction;

Based on Decree No. 180/2007/NĐ-CP dated December 7, 2007, issued by the Government detailing and guiding the implementation of certain provisions of the Construction Law regarding handling violations of urban construction order.

Pursuant to Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing certain provisions and measures to implement the Law on Handling Administrative Violations;

Based on Decree No. 121/2013/NĐ-CP dated October 10, 2013, issued by the Government on administrative penalties for violations in construction activities; real estate business; exploitation, production, and trading of construction materials; management of technical infrastructure works; and management of housing development and office buildings.

At the proposal of the Inspector General of the Ministry;

The Minister of Construction issues this Circular to detail certain provisions of Decree No. 121/2013/NĐ-CP of the Government.

Article 1. On the statute of limitations for administrative penalties in construction activities as stipulated in Point a Clause 3 Article 4 of Decree No. 121/2013/NĐ-CP

1. The time point for handover and putting into use shall be determined as follows:

a) For projects using state capital, it is the date when the project owner signs the completion acceptance certificate for the project component or construction project to put into use, or the date when the project owner signs the handover certificate for the project management and user owners.

b) For projects using other capital, it is the date when the project component is put into use.

2. For projects with multiple components, the statute of limitations for administrative penalties shall be calculated separately for each component.

Article 2. On the application of measures to address consequences, including forced demolition of construction projects and parts thereof that violate regulations

1. The application of the provisions at Clause 10 Article 13, Point d Clause 8 Article 16, Point b Clause 2 Article 42, Point b Clause 4 Article 46, Point b Clause 5 Article 49, Point b Clause 4 Article 53, and Point b Clause 6 Article 55 of Decree No. 121/2013/NĐ-CP shall follow the following procedures:

a) When discovering acts of administrative violation, the authority prescribed in Article 59 of Decree No. 121/2013/NĐ-CP shall be responsible for preparing the record as follows: if the act of administrative violation is ongoing, prepare the record according to Model Record No. 01; if the act of administrative violation has ended, prepare the record according to Model Record No. 02 issued together with this Circular;

b) Within 24 hours from the time of preparing the record, if the organization or individual continues to carry out the act of administrative violation, the authority prescribed in Articles 17, 20, and 21 of Decree No. 180/2007/NĐ-CP shall be responsible for issuing a decision to suspend construction of the violating construction project according to Appendix II, Appendix III, and Appendix IV issued together with Decree No. 180/2007/NĐ-CP;

c) Within seven days from the date of the administrative violation record (except in cases of complex cases as provided for in the Law on Handling Administrative Violations), the authority responsible for imposing administrative penalties shall issue a decision on administrative penalty according to Model Decision No. 02 issued together with Decree No. 81/2013/NĐ-CP of the Government detailing certain provisions and implementing measures of the Law on Handling Administrative Violations. The authority responsible for imposing administrative penalties shall send the decision on administrative penalty to the violating organization or individual according to Article 70 of the Law on Handling Administrative Violations;

d) Upon expiration of the period specified in Article 73 of the Law on Handling Administrative Violations, if the violating organization or individual does not comply with the administrative penalty decision, the authority responsible for imposing administrative penalties shall issue a decision on compulsory enforcement of the administrative penalty decision according to Model Decision No. 06 issued together with Decree No. 81/2013/NĐ-CP, and simultaneously notify the Chairman of the People's Committee of the commune to issue a decision on compulsory demolition. Within one day from the date of receipt of the notification, the Chairman of the People's Committee of the commune shall be responsible for issuing a decision on compulsory demolition;

For construction projects within the jurisdiction of the People's Committee of the district or the Department of Construction to issue construction permits, the authority responsible for imposing administrative penalties shall submit the file to the Chairman of the People's Committee of the district for issuance of a decision on compulsory demolition. Within two days from the date of receipt of the file, the Chairman of the People's Committee of the district shall be responsible for issuing a decision on compulsory demolition.

2. In cases where the act of administrative violation has exceeded the statute of limitations for administrative penalties as stipulated in Article 4 of Decree No. 121/2013/NĐ-CP, the following actions shall be taken:

a) The authority shall prepare the record according to Model Record No. 02 issued together with this Circular and immediately transfer it to the Chairman of the People's Committee of the commune where the violating construction project is located. Within five days (for projects not requiring a demolition plan) or twelve days (for projects requiring a demolition plan) from the date of preparation of the record, if the project owner fails to complete the demolition of the violating construction project, the Chairman of the People's Committee of the commune shall issue a decision on compulsory demolition, except in cases stipulated in Point b of this Clause;

b) For construction projects within the jurisdiction of the People's Committee of the district or the Department of Construction to issue construction permits, the authority shall prepare the record according to Model Record No. 02 issued together with this Circular. Within two days from the date of preparation of the record, the People's Committee of the commune where the violating construction project is located shall transfer the file to the Chairman of the People's Committee of the district. Within three days from the date of receipt of the file, the Chairman of the People's Committee of the district shall be responsible for issuing a decision on compulsory demolition of the violating construction project and transferring it to the Chairman of the People's Committee of the commune for implementation.

3. Within seven days from the expiration of the periods specified in Clauses 1 and 2 of this Article, if the Chairman of the People's Committee of the commune fails to issue a decision on compulsory demolition, the Chairman of the People's Committee of the district shall be responsible for issuing a decision on compulsory demolition. The Chairman of the People's Committee of the commune shall be subject to handling under Decree No. 180/2007/NĐ-CP for failing to issue a timely decision.

Within seven days from the expiration of the period specified in Clause 1 and Clause 2 of this Article, if the Chairman of the People's Committee at the district level does not issue a decision on forced demolition, the Director of the Construction Department's Inspectorate shall issue such a decision. The Chairman of the People's Committee at the district level must be subject to handling for failing to issue a timely decision as prescribed in Decree No. 180/2007/NĐ-CP.

4. The decision on forced demolition shall be established according to the model set out in Appendix V or Appendix VI issued together with Decree No. 180/2007/NĐ-CP.

5. For violations in areas outside urban zones, the phrase "urban" shall be omitted in the templates of decisions to suspend construction works and decisions on forced demolition of illegal construction works.

Article 3. Regarding the handling of construction works causing subsidence, cracking, damage to adjacent works, posing a risk of collapse or causing collapse of adjacent works as stipulated in Clause 2 and Clause 4 of Article 13; Clause 2 and Clause 5 of Article 27 of Decree No. 121/2013/NĐ-CP.

1. Organizations and individuals who organize construction work in violation of construction regulations causing subsidence, cracking, damage to adjacent works (including technical infrastructure works); posing a risk of collapse or causing collapse of adjacent works shall be administratively sanctioned according to the provisions of Clause 2 and Clause 4 of Article 13; Clause 2 and Clause 5 of Article 27 of Decree No. 121/2013/NĐ-CP, and simultaneously be ordered to stop construction to compensate for damages according to the provisions of Article 15 of Decree No. 180/2007/NĐ-CP, following the procedures and formalities as follows:

a) After the administrative violation record is established, if the violator and the damaged party cannot reach an agreement on their own and one party requests it, the Chairman of the People's Committee at the commune level shall chair the negotiation on the compensation amount between the violator and the damaged party. If the initial negotiation fails within seven days from the first negotiation date or the damaged party is absent from the first negotiation without a valid reason, the Chairman of the People's Committee at the commune level shall organize a second negotiation. If the damaged party continues to be absent without a valid reason during the second negotiation, the violator may continue construction after transferring an equivalent amount of money to the guarantee account at the bank. The Chairman of the People's Committee at the commune level shall determine the guarantee amount based on the request of the damaged party, taking into consideration the proposal and explanation of the violator;

b) In case the second negotiation fails, both parties agree to invite an independent organization with legal personality to assess the extent of damage as the basis for compensation. If the two parties fail to agree on inviting an organization for assessment within seven days, the Chairman of the People's Committee at the commune level shall decide to invite an organization for assessment, with costs borne by the violator;

c) Within seven days, if one of the parties disagrees with the assessment result provided by the assessing organization, that party has the right to invite another organization and bear the costs themselves. This assessment result serves as the basis for determining the compensation amount. If the other party does not agree with the second assessment result, the Chairman of the People's Committee at the commune level shall determine the compensation amount based on the average of the first and second assessment results;

and bear the costs themselves. This assessment result serves as the basis for determining the compensation amount. If the other party does not agree with the second assessment result, the Chairman of the People's Committee at the commune level shall determine the compensation amount based on the average of the first and second assessment results;

d) If the assessing organization does not provide the assessment result within thirty days, the Chairman of the People's Committee at the commune level shall use the initial assessment result as the basis for determining compensation. The party causing damage shall be responsible for opening a deposit account at a bank and transferring the full compensation amount according to the assessment result into that account. Once the party causing damage has transferred the full amount into the bank account, the Chairman of the People's Committee at the commune level shall decide to allow the continuation of construction of the project.

2. If the damaged party does not agree with the compensation amount, they have the right to initiate litigation at the Court.

3. In cases where the party causing damage is not subject to administrative sanctions, the provisions of Points a, b, c, d, and đ of Clause 1 of this Article shall still apply to resolve the compensation matter.

4. In cases where construction works pose a risk of collapse or cause collapse of adjacent works, the Project Owner shall be responsible for providing financial support for relocation and temporary accommodation for the damaged party during the resolution process.

Article 4. On the penalty for the act of constructing contrary to the design as stipulated in Point b Clause 3 Article 15 and Clause 7 Article 16 of Decree No. 121/2013/NĐ-CP

1. The act stipulated in Point b Clause 3 Article 15 applies to construction of projects that do not require establishment of investment project plans and fall under cases where construction permit application procedures must be carried out.

2. The act stipulated in Clause 7 Article 16 applies to construction of projects that require establishment of investment project plans and fall under cases where construction permit application procedures must be carried out.

Article 5. On administrative penalties against consulting contractors managing investment construction projects as stipulated in Article 20 of Decree No. 121/2013/NĐ-CP

1. In cases where the investor establishes a project management board, the provisions on penalizing the investor shall be applied to penalize the project management board within the scope of its assigned tasks.

2. In cases where the investor hires a consulting contractor to manage part or all of the project, the provisions on penalizing the investor shall be applied to penalize the consulting contractor within the scope of the signed contract contents.

Article 6. On the penalty for the act of constructing contrary to the permit as stipulated in Clause 3, Clause 5 Article 13 of Decree No. 121/2013/NĐ-CP

1. The act of constructing contrary to the permit as stipulated in Clause 3, Clause 5 Article 13 of Decree No. 121/2013/NĐ-CP is understood as constructing contrary to one of the contents of the construction permit and the design drawings attached with the construction permit issued by the competent authority.

2. Construction of individual houses falling under any of the following cases shall not be considered as constructing contrary to the permit:

a) Changing the interior design of the building without affecting fire prevention and firefighting; environment; usage function; main load-bearing structure or exterior architecture of the building;

b) Reducing the number of floors compared to the construction permit for areas that have not yet been detailed in the construction planning at a scale of 1/500 or urban design approved.

Article 7. On administrative penalties for the act stipulated in Clause 8 Article 13 of Decree No. 121/2013/NĐ-CP

1. After the authorized person has recorded the administrative violation against the act stipulated in Clause 3, Clause 5, Clause 6, Clause 7 Article 13 of Decree No. 121/2013/NĐ-CP, if the organization or individual continues to commit the violation, an administrative violation record shall be made against such organization or individual for the act stipulated in Clause 8 Article 13 of Decree No. 121/2013/NĐ-CP. Within two days from the date of recording, the record must be transferred to the authorized person to issue the administrative penalty decision.

2. A fine of VND 500,000,000 shall be applied for constructing projects that do not require establishment of investment project plans; a fine of VND 1,000,000,000 shall be applied for constructing projects that require establishment of investment project plans.

Article 8. On determining the value of the construction built contrary to the permit, without permit, contrary to the approved design, contrary to the planning or contrary to the approved urban design as stipulated in Clause 9 Article 13 of Decree No. 121/2013/NĐ-CP

1. Clause 9 Article 13 of Decree No. 121/2013/NĐ-CP shall only apply when the authorized person discovers the administrative violation and the violation has ended, the construction project has been completed and put into use.

2. The value of the construction built contrary to the permit, without permit, contrary to the approved design, contrary to the planning or contrary to the approved urban design shall be determined as follows:

a) For projects requiring preparation of economic-technical reports for construction projects, preparation of investment project plans or other construction projects except individual houses:

- In case of constructing for business purposes, it is calculated by multiplying the square meters of the constructed floor area in violation with the price per square meter according to the signed contract.

- In case of constructing for non-business purposes, it is calculated by multiplying the square meters of the constructed floor area in violation with the price per square meter according to the approved budget estimate.

b) For individual houses, it is calculated by multiplying the square meters of the constructed area in violation with the construction price per square meter at the time of violation plus the square meters of the land constructed in violation multiplied by the annual land price per square meter issued by the Provincial People's Committee, wherein the land value is determined according to the following principle:

- Ground floor (or ground level) is calculated by multiplying 100% of the land price per square meter at that location with the square meters of the land constructed in violation.

- From the second floor upwards, it is calculated by multiplying 50% of the land price per square meter at the ground floor with the square meters of the land constructed in violation.

3. The authorized person issuing administrative penalties decides and bears responsibility under the law for determining the value of the construction built contrary to the permit, without permit, contrary to the approved design, contrary to the planning or contrary to the approved urban design.

Article 9. On the application of supplementary administrative penalty forms stipulated in Clause 8, Article 13 of Decree No. 121/2013/NĐ-CP regarding revocation of construction permit usage rights

1. The supplementary administrative penalty form stipulated in Clause 8, Article 13 of Decree No. 121/2013/NĐ-CP shall be applied as follows:

Decree No. 121/2013/NĐ-CP shall be implemented as follows:

a) Revoking the right to use the Construction Permit for a period of from three months to six months for the acts prescribed in Clause 3, Article 13 of Decree No. 121/2013/NĐ-CP;

b) Revoking the right to use the Construction Permit for a period of from six months to twelve months for the acts prescribed in Clause 5, Article 13 of Decree No. 121/2013/NĐ-CP.

2. Administrative penalty decisions that apply supplementary penalties must be sent to the Head of the People's Group or Village Chief to inform the local residents, and at the same time sent to the People's Committee of the commune and the agency issuing the construction permit.

Article 10. On the application of administrative penalty forms

1. For administrative violations prescribed in Decree No. 121/2013/NĐ-CP of the Government where the measure to eliminate the consequences is not demolition of the construction works or parts thereof, the administrative violation record shall be made according to Model Record No. 01 issued together with Decree No. 81/2013/NĐ-CP.

2. Other forms in administrative penalties shall be applied according to the provisions of Decree No. 81/2013/NĐ-CP.

Article 11. On the application of transitional provisions stipulated in Article 70 of Decree No. 121/2013/NĐ-CP

1. For administrative violations discovered, recorded in the administrative violation record, and subject to administrative penalty decisions, compulsory demolition decisions before the effective date of Decree No. 121/2013/NĐ-CP but have not been executed and are still within the execution period until the effective date of this Decree, they shall continue to be executed except for cases provided for in Clause 3 of this Article.

2. For administrative violations occurring before the effective date of Decree No. 121/2013/NĐ-CP but discovered after the effective date of this Decree (within the statute of limitations for administrative violations) or discovered earlier but without issuance of administrative penalty decisions and still within the decision-making period, if applying Decree No. 121/2013/NĐ-CP benefits the organization or individual committing the violation, then Decree No. 121/2013/NĐ-CP shall be applied.

3. For unauthorized construction, construction not in accordance with approved designs, urban planning, or design, if administrative penalty decisions, compulsory demolition decisions have been issued according to Decree No. 23/2009/NĐ-CP but not yet implemented, and upon examination it is found that the construction does not violate building boundaries, does not affect neighboring structures, there is no dispute, and is built on legally owned land within the permitted land use plan, the competent authority for administrative penalties shall consider and decide:

a) To revoke the compulsory demolition decision;

b) To issue a decision to supplement measures to eliminate the consequences by recovering illegal gains equal to 40% of the value of the unauthorized construction for single-family houses and 50% of the value of the unauthorized construction, non-compliant design, or urban planning for construction projects or construction requiring only economic-technical reports.

In cases where a construction permit is required, the construction permit issuing agency shall adjust or issue a construction permit after the investor has fully complied with the administrative penalty decision and the decision to supplement measures to eliminate the consequences. The decision to supplement measures to eliminate the consequences shall be made according to Model Decision No. 01 issued together with this Circular.

Article 12. Implementation Provisions

1. This Circular takes effect from April 2, 2014, replacing Circular No. 24/2009/TT-BXD dated July 22, 2009, of the Minister of Construction detailing certain contents of Decree No. 23/2009/NĐ-CP dated February 27, 2009, of the Government on administrative penalties for violations in construction activities; real estate business; exploitation, production, and trading of construction materials; management of technical infrastructure works; management of housing development and office buildings.

2. Ministries, agencies equivalent to ministries, people's committees at all levels, organizations, and individuals concerned are responsible for implementing this Circular. Any difficulties encountered during implementation should be promptly reported to the Ministry of Construction for consideration and resolution./.