Circular No. 24/2009/TT-BXD detailing the implementation of 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 business of construction materials; management of technical infrastructure works; management of housing development and office buildings.

CIRCULAR

Detailed implementation of certain contents of Government Decree No. 23/2009/NĐ-CP dated February 27, 2009 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.

 on imposing 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.

 management of technical infrastructure works; and management of housing development and office buildings.

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 Pursuant to Government Decree No. 17/2008/NĐ-CP dated February 4, 2008 on the functions, tasks, powers, and organizational structure of the Ministry of Construction;

Pursuant to Government Decree No. 23/2009/NĐ-CP dated February 27, 2009 on imposing 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;

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 Decision No. 89/2007/QĐ-TTg dated June 18, 2007 of the Prime Minister on piloting the establishment of Construction Inspection Units at district and town levels and Construction Inspection Units at commune and ward levels in Hanoi and Ho Chi Minh City,

The Ministry of Construction hereby stipulates certain contents regarding 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 (referred to as administrative penalties in the construction sector) as follows:

Article 1. On the statute of limitations for administrative penalties against violations in construction activities

The statute of limitations for administrative penalties against violations committed by project investors and contractors participating in construction investment projects is two years from the date the project is handed over and put into use, if the project consists of only one component or building, or two years from the date the entire project is handed over and put into use, if the project consists of multiple components or buildings.

Article 2. On publicizing administrative violations on the Ministry of Construction's website and the provincial people's committee's website

1. For violations stipulated in Articles 17, 18, 22, 24, 29, and 34 of Government Decree No. 23/2009/NĐ-CP, the authority issuing the administrative penalty decision shall be responsible for sending a copy of this decision to the Ministry of Construction's website and the provincial people's committee's website (referred to as the provincial people's committee) within three days from the date of signing the administrative penalty decision. The copy may be sent via postal service, email, or fax. The issuer of the administrative penalty decision shall be responsible for the accuracy of the copy sent.

2. Within five days from the date of receipt of the administrative penalty decision, the agency responsible for managing the Ministry of Construction's website and the provincial people's committee's website shall be responsible for editing and publishing the content of the administrative penalty decision. The published content shall include: name of the organization or individual who violated; nature of the violation; form of penalty, fine amount; measures to remedy consequences (if any).

The Department of Construction shall publish the content of the administrative penalty decision on its website pursuant to the authorization of the provincial people's committee.

Article 3. On penalties for project investors violating regulations on groundbreaking ceremonies, commencement ceremonies, and completion ceremonies of construction works

A project investor violating the regulations on groundbreaking ceremonies, commencement ceremonies, and completion ceremonies of construction works as stipulated in Clause 3, Article 10 of Government Decree No. 23/2009/NĐ-CP constitutes a violation of one of the provisions of Decision No. 226/2006/QĐ-TTg dated October 10, 2006 of the Prime Minister on organizing groundbreaking ceremonies, commencement ceremonies, and completion ceremonies of construction works and Circular No. 101/2006/TT-BTC dated October 31, 2006 of the Ministry of Finance guiding the imposition of administrative penalties and compensation for losses in practicing thrift and combating waste.

Article 4. On the penalty for the project owner and contractor who violate construction regulations

1. A construction project that deviates from the contents specified in the Construction Permit as stipulated in Clause 1, Article 11 and Clause 1, Article 25 of Decree No. 23/2009/NĐ-CP is a violation of one of the items in the Construction Permit model at Appendix VI of Decree No. 12/2009/NĐ-CP dated February 12, 2009, of the Government on construction project management:

a) Changing the location of the construction project;

b) Deviating from the foundation level of the construction project;

c) Violating the red-line boundary and construction boundary;

In addition to the cases specified in points a, b, and c of Clause 1 of this Article, for residential, industrial, and individual housing projects within urban areas that deviate from the contents of the Construction Permit, they also fall under one of the following cases:

d) Deviating from the construction area (ground floor);

đ) Exceeding the height specified in the Construction Permit;

e) Constructing more floors than specified in the Construction Permit;

g) Violating urban architectural management regulations (in areas with approved urban design plans).

2. A construction project that deviates from the approved design or detailed construction plan at a scale of 1/500 as stipulated in Clause 3, Article 11 and Clause 3, Article 25 of Decree No. 23/2009/NĐ-CP falls under one of the following cases:

a) Changing the main load-bearing structure or facade architecture of the project;

b) Exceeding the maximum approved height;

c) Changing the initial intended use;

d) Deviating from the building density or land utilization coefficient compared to the approved design or detailed construction plan at a scale of 1/500.

3. There shall be no penalty for individual housing projects that deviate from the contents of the Construction Permit in one of the following cases:

a) Building in a different location or changing the area recorded in the permit where there is no detailed construction plan at a scale of 1/500 or approved urban design, but within the lawful land use area of the homeowner, without causing complaints, encroaching on the red-line boundary or construction boundary, and not violating point a, Clause 2, Decision No. 39/2005/QĐ-TTg dated February 28, 2005, of the Prime Minister on guiding the implementation of Article 121 of the Construction Law;

b) Changing the internal architecture of the construction project without affecting the main load-bearing structure;

c) Reducing the number of floors compared to the Construction Permit where there is no detailed construction plan at a scale of 1/500 or approved urban design.

4. The fine ranging from 300,000,000 VND to 500,000,000 VND as stipulated in Clause 4, Article 11 and Clause 4, Article 25 of Decree No. 23/2009/NĐ-CP shall be applied as follows:

a) A fine of 500,000,000 VND for construction projects that violate and require the establishment of a construction project investment plan;

b) A fine of 300,000,000 VND for individual urban housing projects and other construction projects that do not require the establishment of a construction project investment plan.

5. Handling other construction projects that violate construction order according to Clause 5, Clause 6, Clause 7 of Article 11 and Clause 5, Clause 6, Clause 7 of Article 25 of Decree No. 23/2009/NĐ-CP

a) Clause 5 of Article 11 and Clause 5 of Article 25 of Decree No. 23/2009/NĐ-CP applies to individual housing and other construction projects that do not require the establishment of a construction project investment plan and have one of the following violations: failing to provide safety barriers or providing barriers but still allowing materials to fall into surrounding areas; storing materials on sidewalks, roads, alleys, residential areas in violation of regulations.

b) When violations as stipulated in Clause 6, Clause 7 of Article 11 and Clause 6, Clause 7 of Article 25 of Decree No. 23/2009/NĐ-CP are discovered or reported by the aggrieved party, the competent authority must promptly record them in accordance with Appendix II of Decree No. 23/2009/NĐ-CP and require the project owner to immediately stop construction activities.

Immediately after the record is made, if both parties cannot reach an agreement and one party requests it, the Chairman of the People's Committee of the commune shall convene a meeting between the violator and the representative of the aggrieved party to negotiate compensation. If the first negotiation fails or the aggrieved party is absent without a valid reason seven days after the first negotiation, the Chairman of the People's Committee of the commune will organize a second negotiation. If the aggrieved party is absent without a valid reason during the negotiations, the violator may continue construction. If the second negotiation fails, the parties may file a lawsuit with the Court for resolution, and construction can continue upon receipt of a final and enforceable judgment from the Court.

In cases where the construction project poses a risk of collapse, the project owner shall support relocation expenses and temporary accommodation costs for the aggrieved party during the resolution process.

Article 5. On penalizing the project investor for not reporting to the competent authority managing construction as prescribed when an incident occurs with the construction project.

Clause 2, Article 14 of Decree No. 23/2009/NĐ-CP shall be applied in cases where an incident occurs with a construction project but the project investor does not prepare a report to send to the Construction Department at the location where the incident occurred within 24 hours after the incident occurs, as stipulated in point c, Clause 1, Article 35 of Decree No. 209/2004/NĐ-CP dated December 16, 2004 of the Government on construction quality management (referred to as Decree No. 209/2004/NĐ-CP).

Article 6. On penalizing contractors for preparing planning design documents and construction design documents not in accordance with regulations.

1. Contractors preparing planning design documents for construction projects or overall site plans for construction projects not in accordance with regulations as stipulated in Clause 3, Article 23 of Decree No. 23/2009/NĐ-CP fall under one of the following circumstances:

a) Preparing planning design documents for construction projects that are incorrect, incomplete in terms of document components, drawing contents, maps, documents, explanations in accordance with Articles 9, 17, 26 and Clause 2, Article 34 of Decree No. 08/2005/NĐ-CP dated January 24, 2005 of the Government on construction planning (referred to as Decree No. 08/2005/NĐ-CP);

b) Preparing planning design documents for construction projects not in accordance with the prescribed procedures as stipulated in Article 2 of Decree No. 08/2005/NĐ-CP.

2. Contractors preparing construction design documents not in accordance with regulations as stipulated in Clause 1, Article 24 of Decree No. 23/2009/NĐ-CP means preparing construction design documents for construction projects, construction project budgets that are incorrect, incomplete in accordance with Articles 13, 14, and 15 of Decree No. 209/2004/NĐ-CP.

Article 7. On penalizing contractors violating construction safety regulations as provided in Article 26 of Decree No. 23/2009/NĐ-CP.

1. Point b, Clause 1, Article 26 of Decree No. 23/2009/NĐ-CP stipulating "lack of protective equipment" applies to construction projects under investment construction projects.

2. For individual houses or other construction projects that do not require investment construction projects and lack protective equipment, penalties shall be imposed according to Clause 5, Article 11 and Clause 5, Article 25 of Decree No. 23/2009/NĐ-CP.

Article 8. On penalizing organizations and individuals organizing training activities that violate provisions set out in point a, Clause 5, Article 29 and Clause 1, Article 33 of Decree No. 23/2009/NĐ-CP.

Organizations and individuals organizing training and issuing Certificates of Professional Development in Construction Supervision; Certificates of Completion of Training Courses on Construction Cost Estimation; Certificates of Completion of Training Courses on Real Estate Valuation Knowledge, Real Estate Brokerage Knowledge, and Property Trading Floor Management Knowledge not in accordance with regulations fall under one of the following circumstances:

1. Conducting training not in accordance with the registered curriculum and instructors with the Ministry of Construction;

2. Not having a training regulation as prescribed;

3. Not ensuring the required number of training hours as prescribed;

4. Not implementing regulations on examination, practical work, and submission of learning outcomes;

5. Issuing certificates of completion to trainees who do not meet the prescribed conditions;

6. Not notifying the Construction Department about the training (for organizations conducting training on real estate brokerage, valuation, property trading floor management).

Article 9. On the revocation of the right to use permits, certificates, and licenses and the recovery of certificates for completed training courses

1. Revocation of the right to use Construction Permits pursuant to Articles 57, 58, and 61 of Decree No. 23/2009/NĐ-CP shall be carried out as follows:

a) The Director of the Construction Department has the authority to revoke the right to use Construction Permits issued by the Construction Department or the People's Committee at the district level when violations of construction laws are discovered.

b) The Director of the Ministry of Construction and the Chairman of the People's Committee at the provincial level have the authority to revoke Construction Permits issued by competent authorities when violations of construction laws are discovered.

c) When there is a decision to revoke the right to use Construction Permits by the authorized person, the Chairman of the People's Committee at the commune level shall be responsible for issuing a decision to halt construction work or forcibly dismantle construction projects that violate the provisions of Decree No. 180/2007/NĐ-CP.

2. Revocation of the right to use Professional Certificates for violations of regulations on conditions for construction activities and professional capacity as stipulated in Article 17 of Decree No. 23/2009/NĐ-CP shall be carried out as follows:

a) Violations of point a, Clause 1, Article 17 of Decree No. 23/2009/NĐ-CP shall result in the revocation of the right to use Professional Certificates for three years.

b) Violations of point b, Clause 1, Article 17 of Decree No. 23/2009/NĐ-CP shall not result in the revocation of the right to use Professional Certificates if it is the first offense, one year if it is the second offense, and three years if it is a subsequent offense.

In cases where individuals exceed their professional capacity conditions or operate incorrectly according to their Professional Certificates causing construction accidents, the right to use Professional Certificates will be revoked indefinitely.

c) Individuals who do not meet the corresponding professional capacity conditions for the type and level of construction projects but still assume positions specified in point a, Clause 2, Article 17, point b, Clause 4, Article 22, and point b, Clause 6, Article 24 of Decree No. 23/2009/NĐ-CP shall have their right to use Professional Certificates revoked for one year if it is the first offense, two years if it is the second offense, and indefinitely if it is a subsequent offense.

3. Revocation of the right to use Training Licenses pursuant to point c, Clause 6, Article 29 and Clause 3, Article 33 of Decree No. 23/2009/NĐ-CP shall be applied to one of the violations stipulated in Article 8 of this Circular as follows:

a) Organizations and individuals committing violations shall have their Training Licenses revoked for one year if it is the first offense; three years if it is the second offense; for violations stipulated in Clause 5, Article 8 of this Circular, the Training License shall be revoked indefinitely if it is the second offense.

b) The authorized person issuing the penalty decision shall also apply the measure of not recognizing the training results for training courses with violations through the form of recalling the Certificate of Continuing Education for Construction Supervision; the Certificate of Completion of Training Courses and Continuing Education in Construction Valuation; the Certificate of Completion of Training Courses and Continuing Education in Real Estate Valuation Knowledge, Real Estate Brokerage Knowledge, and Management and Operation Knowledge of Real Estate Trading Floors issued.

4. Revocation of the right to operate real estate trading floors in the Business Registration Certificate for organizations and individuals violating the regulations on real estate business operations as stipulated in Clause 3, Article 31 of Decree No. 23/2009/NĐ-CP shall be carried out as follows:

a) For violations of Clause 1, Article 31 of Decree No. 23/2009/NĐ-CP, the right to operate real estate trading floors shall not be revoked if it is the first offense; one year if it is the second offense; and indefinitely if it is a subsequent offense.

b) For violations of Clause 2, Article 31 of Decree No. 23/2009/NĐ-CP, the right to operate real estate businesses shall not be revoked if it is the first offense; for violations of point a, Clause 2, Article 31 of Decree No. 23/2009/NĐ-CP, the right to operate real estate businesses shall be revoked for three years if it is the second offense; for violations of points b and c, Clause 2, Article 31 of Decree No. 23/2009/NĐ-CP, the right to operate real estate businesses shall be revoked indefinitely if it is the second offense.

5. Revocation of the right to operate real estate trading floors in the Business Registration Certificate for organizations and individuals violating the regulations on the establishment and operation of real estate trading floors as stipulated in Article 32 of Decree No. 23/2009/NĐ-CP.

a) Violations of the regulations on the establishment and operation of real estate trading floors as stipulated in Clause 1, Article 32 of Decree No. 23/2009/NĐ-CP include one of the following situations: lacking a stable trading name and sign within twelve months from the date of issuance of the Business Registration Certificate; failing to submit notification documents to the Construction Department before commencing operations; establishing a floor without ensuring the required area; managers and operators not having a certificate of completion of management training for real estate trading floors; failing to have the required number of certified personnel, or having but lacking sufficient content in the operational rules.

b) Organizations and individuals committing violations as stipulated in point a of this clause shall not have their right to operate real estate trading floors revoked if it is the first offense; one year if it is the second offense; and three years if it is a subsequent offense.

6. Revocation of the right to use Professional Certificates for real estate brokerage and valuation and the Certificate of Management and Operation of Real Estate Trading Floors pursuant to Clause 4, Article 34 of Decree No. 23/2009/NĐ-CP.

a) The act of violating the provision at point c, clause 1, Article 34 of Decree No. 23/2009/NĐ-CP shall be deprived of the right to use real estate brokerage, valuation certificates and management, operation certificates of real estate trading floors for one year if penalized for the first time; deprived of the right to use real estate brokerage, valuation certificates and management, operation certificates of real estate trading floors for two years if penalized for the second time; deprived of the right to use real estate brokerage, valuation certificates and management, operation certificates of real estate trading floors for three years if continuing to commit offenses again.

b) The act of violating the provision at point b, clause 1, Article 34 of Decree No. 23/2009/NĐ-CP shall be deprived of the right to use real estate brokerage, valuation certificates and management, operation certificates of real estate trading floors for three years if penalized for the first time; deprived of the right to use real estate brokerage, valuation certificates and management, operation certificates of real estate trading floors indefinitely if penalized for the second time.

7. Deprive the business license for construction materials according to the provision at point b, clause 3, Article 36 of Decree No. 23/2009/NĐ-CP.

a) For acts of violating the provisions at clause 1, Article 36 of Decree No. 23/2009/NĐ-CP, the right to use the business registration certificate will not be deprived if penalized for the first time; deprived of the right to use the business registration certificate for one year if committing the offense again.

b) For acts of violating the provisions at clause 2, Article 36 of Decree No. 23/2009/NĐ-CP, the right to use the business registration certificate will be deprived for one year if penalized for the first time; deprived of the right to use the business registration certificate indefinitely if committing the offense again.

Article 10. On the authority to impose administrative penalties of the Chief Inspector of Construction at the district level according to Decision No. 89/2007/QĐ-TTg.

The Chief Inspector of Construction at the district level in Hanoi City and Ho Chi Minh City has the authority to impose fines on acts of administrative violations stipulated in Decree No. 23/2009/NĐ-CP with a maximum fine amount not exceeding VND 10,000,000.

The Chief Inspector of Construction at the district level in Hanoi City and Ho Chi Minh City has the authority to apply main forms of administrative penalties, supplementary administrative penalties, and measures to remedy consequences equivalent to the authority of the Head of Public Security at the district level as provided for in clause 6, Article 1 of the Ordinance Amending and Supplementing Certain Provisions of the Ordinance on Handling Administrative Violations issued by the Standing Committee of the National Assembly No. 04/2008/UBTVQH12 dated April 2, 2008.

Article 11. On the authority to apply supplementary administrative penalties of the Chairman of the People's Committee at the district level.

In addition to the provisions of Article 60 of Decree No. 23/2009/NĐ-CP, the Chairman of the People's Committee at the district level also has the authority to apply supplementary administrative penalties such as depriving the right to use business registration licenses, construction permits, various types of permits and professional qualification certificates within the authority of the People's Committee at the district level to issue; confiscating items and means used to commit administrative violations as provided for in clause 5, Article 1 of the Ordinance Amending and Supplementing Certain Provisions of the Ordinance on Handling Administrative Violations issued by the Standing Committee of the National Assembly No. 04/2008/UBTVQH12 dated April 2, 2008.

Article 12. On the application of the system of forms for handling administrative violations as prescribed in Decree No. 180/2007/ND-CP and Decree No. 23/2009/ND-CP

1. When discovering acts of violation of urban construction order as stipulated in Decree No. 180/2007/ND-CP and acts of violation of construction order as prescribed in Article 11; Article 25; Clause 3, Article 38; Point d, Clause 4, Article 42; Point e, Clause 3, Point a, Clause 4, Article 52; Point a, Clause 2, Article 54 of Decree No. 23/2009/ND-CP, the authorized person performing official duties must promptly prepare a record according to Appendix II of Decree No. 23/2007/ND-CP.

This record serves as the basis for issuing decisions on administrative penalties according to Appendix III of Decree No. 23/2009/ND-CP and decisions to halt construction works according to Appendices II, III, and IV of Decree No. 180/2007/ND-CP. In cases where the construction order violation occurs in rural areas, the term "urban" shall be omitted from the forms.

The penalty shall be carried out according to the procedures and formalities prescribed in Decree No. 23/2009/ND-CP; the demolition process shall be carried out according to the procedures and formalities prescribed in Decree No. 180/2007/ND-CP.

2. When discovering other administrative violations that are not acts of violation of construction order, the authorized person must promptly prepare a record according to Appendix I of Decree No. 23/2009/ND-CP. The penalty shall be carried out according to the procedures and formalities prescribed in Decree No. 23/2009/ND-CP.

3. Organizations and individuals with multiple violations including acts of violation of construction order shall have their records prepared jointly according to the form prescribed in Appendix II of Decree No. 23/2009/ND-CP.

4. In cases where inspections discover administrative violations, the inspection agency shall prepare records according to the form prescribed in Decree No. 23/2009/ND-CP and transfer them to the authorized person to issue penalty decisions according to regulations, except in cases where there is an opinion from the Prime Minister.

5. The representative of the organization or individual violating the rules recorded in the forms is the person designated by the organization or individual to perform tasks at the site where the violation occurred.

Article 13. On organizing forces to participate in implementing decisions to handle administrative violations

1. For Hanoi City and Ho Chi Minh City, the Chairman of the People's Committee at the commune level has the authority to organize and direct the Head of the Police Station at the commune level to implement the prohibition of transporting materials and workers into construction sites in violation of regulations as stipulated in Clause 4, Article 9 of Decision No. 89/2007/QD-TTg and to organize the implementation of forced demolition of construction sites in violation of regulations as stipulated in Clause 4, Article 10 of Decision No. 89/2007/QD-TTg;

2. For other provinces and centrally-administered cities, the Chairman of the People's Committee at the commune level is responsible for organizing and mobilizing police forces under his/her jurisdiction to implement decisions on forced demolition against cases of violation of construction order as prescribed in Decree No. 180/2007/ND-CP.

Article 14. On resolving complaints and denunciations regarding decisions on forced demolition of construction sites in violation of construction order

1. Organizations and individuals who violate construction order must be subject to administrative penalties in the form of fines and the application of measures to demolish construction sites in violation of regulations as prescribed in Decree No. 180/2007/ND-CP and Decree No. 23/2009/ND-CP.

2. In cases where organizations and individuals have complaints or denunciations regarding decisions on forced demolition of construction sites in violation of regulations issued by the competent authority, they must still comply with the decision on administrative penalties, while the competent authority temporarily suspends the execution of the decision on forced demolition to resolve complaints and denunciations according to the procedures, formalities, and deadlines prescribed by laws on complaint resolution.

3. During the period when the decision on forced demolition of construction sites in violation of regulations is temporarily suspended, the decision to halt construction of such sites remains effective. If organizations and individuals continue construction during this suspension period, the authority issuing the decision on forced demolition may immediately implement the decision on forced demolition of construction sites in violation of regulations.

Article 15. On Handling Construction Works Violating Urban Planning Order That Have Been Penalized Before the Effective Date of Decree No. 23/2009/NĐ-CP But Not Yet Fully Resolved

1. If the construction work violating urban planning is located within a stable residential area's master plan but has exceeded the permitted number of floors or construction area without affecting neighboring works, the investor may retain the construction work on condition that when implementing the detailed planning at a scale of 1/500, the investor must demolish the unauthorized parts themselves without compensation.

2. If the construction work violating urban planning is not within a residential area's master plan, but the planning for this area has not been implemented immediately, the investor must commit to self-demolishing the work without compensation upon implementation of the planning for this area.

3. If the construction work violating urban planning is within a stable residential area's master plan but encroaches on space, land, building boundary, or red-line road, it must be resolutely demolished.

When handling, each specific construction work must be examined, and the responsibility of each organization or individual causing the violation and not fully resolved must be clarified.

Article 16. Implementation Organization

This Circular takes effect from September 9, 2009, and replaces Circular No. 01/2005/TT-BXD dated January 31, 2005, issued by the Ministry of Construction guiding detailed implementation of certain provisions of Government Decree No. 126/2004/NĐ-CP on administrative penalties for violations in construction activities, management of urban infrastructure projects, and management and use of buildings.

Any difficulties arising during implementation should be promptly reported to the Ministry of Construction for consideration and resolution./.