Circular No. 05/2006/TT-BTNMT guiding the implementation of certain provisions of Decree No. 182/2004/NĐ-CP dated October 29, 2004 of the Government on administrative penalties for violations in the field of land.

CIRCULAR

Guidelines for implementing certain provisions of Decree No. 182/2004/ND-CP dated October 29, 2004 of the Government on administrative penalties for violations in the field of land

Based on the Land Law dated November 26, 2003;

Pursuant to Decree No. 182/2004/ND-CP dated October 29, 2004 of the Government on administrative penalties for violations in the field of land;

Pursuant to Decree No. 91/2002/ND-CP dated November 11, 2002 of the Government on the functions, tasks, powers, and organizational structure of the Ministry of Natural Resources and Environment.

To effectively implement administrative violation handling in the field of land, the Ministry of Natural Resources and Environment provides detailed guidance on certain provisions of Decree No. 182/2004/ND-CP dated October 29, 2004 of the Government on administrative penalties for violations in the field of land (referred to collectively as Decree No. 182/2004/ND-CP) as follows:

I. VIOLATIONS OF ADMINISTRATIVE PROVISIONS SET OUT IN POINT D AND POINT I, CLAUSE 1, ARTICLE 3 OF DECREE NO. 182/2004/ND-CP

1. Converting, transferring, leasing, subleasing, inheriting, donating, mortgaging, guaranteeing, or contributing with land use rights from November 16, 2004 (the date Decree No. 182/2004/ND-CP took effect) onwards without submitting the registration dossier for conversion, transfer, lease, sublease, inheritance, donation, mortgage, guarantee, or contribution with land use rights; or without submitting the cancellation registration dossier for lease, sublease, mortgage, guarantee, or contribution with land use rights at the competent authority as prescribed by law on land.

2. Over thirty days from the date of receiving the notification to pay the land use fee, the notification, or the land lease contract regarding the deadline for paying the land lease fee issued by the competent authority, but the land user does not pay the land use fee or land lease fee without permission from the competent authority.

II. GUIDANCE ON THE CONTENTS OF CLAUSE 4, ARTICLE 7 OF DECREE NO. 182/2004/ND-CP IN CASES WHERE A FINES PENALTY IS APPLIED

1. When multiple individuals jointly commit one administrative violation that is subject to a fine, each violator shall be fined according to the same fine amount stipulated in Decree No. 182/2004/ND-CP without dividing the fine among them. The specific fine amount for each individual shall be determined according to Clause 8, Article 7 of Decree No. 182/2004/ND-CP.

2. When one individual commits multiple administrative violations, each of which is subject to a fine, they shall be fined according to the fine amount for each individual violation and must pay the total fine amount calculated as the sum of all fines for the violations.

3. When one individual commits multiple administrative violations, each of which is subject to a fine, the penalty authority shall determine the penalty authority for each individual violation, not based on the total fine amount for all violations.

III. GUIDANCE ON DETERMINING THE DEGREE OF CONSEQUENCES FOR VIOLATIONS OF ADMINISTRATIVE PROVISIONS SET OUT IN ARTICLES 8 AND 9 OF DECREE NO. 182/2004/ND-CP

1. Degrees of consequences 1, 2, 3, and 4 stipulated in Clause 1, Article 8 of Decree No. 182/2004/ND-CP are determined based on the value of the land use rights converted into money calculated by multiplying the area of land violated by the land price set by the People's Committee of the province or centrally-administered city where the land is located. The area of land violated and the land price are determined as follows:

a) The area of land violated is the area recorded in the administrative violation record; if the person committing the administrative violation appeals the area data, the appellant has the right to request the competent authority to conduct an appraisal. The appraisal cost shall be borne by the person being penalized if the appraisal result matches the area data recorded in the administrative violation record (within the permissible deviation limit according to the survey map appendix attached to this Circular).

b) The land price for determining the degree of consequence is the land price set by the People's Committee of the province or centrally-administered city where the land is located at the time the administrative violation record was established.

If at the time the administrative violation record was established, the People's Committee of the province or centrally-administered city where the land is located has not set a price for the type of land violated, then Circular No. 114/2004/TT-BTC dated November 26, 2004 of the Ministry of Finance guiding the implementation of Decree No. 188/2004/ND-CP dated November 16, 2004 of the Government on methods for determining land prices and price ranges for various types of land to determine specific land prices shall be applied; if applying these guidelines still fails to determine the specific land price, the administrative penalty authority shall issue a document requesting the Department of Finance where the land is located to provide the land price.

For unused land, the land price for determining the degree of consequence shall be determined according to Clause 2, Article 8 of Decree No. 182/2004/ND-CP.

2. The land price for determining the degree of consequence of using land for purposes other than those intended as provided in Article 9 of Decree No. 182/2004/ND-CP shall be the land price of the type of land before it was used for unintended purposes.

IV. IMPLEMENTATION OF MATTERS AFTER THE DECISION TO IMPOSE AN ADMINISTRATIVE PENALTY

1. In cases where, after the decision to impose an administrative penalty, land must be recovered according to Article 38 of the Land Law, the competent state authority shall carry out the land recovery procedures according to Article 132 of Decree No. 181/2004/ND-CP dated October 29, 2004 of the Government on the Implementation of the Land Law (collectively referred to as Decree No. 181/2004/ND-CP).

2. In cases where, after the decision to impose an administrative penalty, the issuance of a land use right certificate is considered according to Article 50 of the Land Law, the competent state authority shall carry out the issuance of the land use right certificate according to Articles 45, 135, 136, and 137 of Decree No. 181/2004/ND-CP.

V. IMPLEMENTATION

1. This Circular takes effect fifteen days after its publication in the Official Gazette.

2. Administrative violations in the field of land that have been punished or for which the competent authority has established an administrative violation record prior to the effective date of this Circular shall not apply the provisions of this Circular.

3. The People's Committees of provinces and centrally governed cities shall direct the implementation of this Circular. During the implementation process, if there are any issues regarding legal provisions, they must be promptly reported to the Ministry of Natural Resources and Environment for further resolution./.