Nghị định 35/2008/NĐ-CP của Chính phủ về xây dựng, quản lý và sử dụng nghĩa trang

DECREE

ON CONSTRUCTION, MANAGEMENT AND USE OF CEMETERIES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 26, 2003 Land Law;
Pursuant to the November 26, 2003 Construction Law;
Pursuant to the November 29, 2005 Law on Environmental Protection;
At the proposal of the Minister of Construction,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Governing scope and subjects of application

1. This Decree provides for the construction, management and use of cemeteries in the Vietnamese territory.

The construction, management and use of fallen heroes' cemeteries and national cemeteries are not governed by this Decree.

2. This Decree applies to domestic and foreign organizations and individuals involved in the construction, management and use of cemeteries in the Vietnamese territory.

3. Where a treaty which Vietnam has signed or acceded to contains provisions different from those of this Decree, the provisions of that treaty prevails.

Article 2.- Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Cemeteries are places where dead persons are classified and concentratedly interred in various forms, which are managed and constructed under plannings.

2. Fallen heroes' cemeteries are places where fallen heroes are buried, commemorated and accredited for their merits and sacrifices while performing the tasks of national defense and construction.

3. National cemeteries are places where dead high-ranking Party and State leaders, cultural figures, scientists... with great services to the country are buried, commemorated and accredited.

4. Individual graves are places where corpses or remains of individuals are interred.

5. Forms of interment include burial, cremation and others.

6. Interment means the keeping of corpses or -remains of dead persons.

7. Burial means the keeping of dead persons' corpses or remains at underground places.

8. One-time burial means a form of burying corpses indefinitely underground.

9. First burial means the burial of corpses for a given period of time before exhumation.

10. Exhumation means the transfer of dead persons' bones from the first-burial form into other interment form.

11. Second burial means the burial of bones after exhumation.

12. Cremation means the burning of dead persons' corpses or remains at high temperatures.

13. Cemetery construction activities cover elaboration of construction planning, construction investment projects, construction surveys, structural design, construction, construction supervision, cemetery construction investment project management, selection of construction contractors, and other activities related to cemetery construction.

14. Cemetery management means the realization of contents prescribed in the approved management regulations.

15. Cemetery construction planning means the organization of architectural space, functional zones and technical infrastructures in cemeteries in order to efficiently use the land and meet the requirements of landscape, environmental protection, which serves as a legal ground for investment in the construction, renovation, use and management of cemeteries.

16. Renovation and expansion of cemeteries mean the embellishment and upgrading of existing facilities in cemeteries and the construction under current standards and technical regulations in the expanded areas in order to ensure landscape and environmental requirements.

17. Cemetery closure means the disallowance of continued interment activities in the cemeteries.

18. Cemetery relocation means the removal of corpses and remains in cemeteries to new ones built under plannings.

19. Cemetery services cover organization of funerals, burial or cremation of corpses or remains; grave building, second burial, grave tending, repair, ash tending, preservation and storage at ash storehouses at requests, and provision of services of visit and commemoration.

20. Cemetery service users are living persons who have relations with persons interred in cemeteries or who come for visits or commemoration.

21. Local administrations mean People's Committees at various levels with administrative management decentralization.

Article 3.- Principles for construction, management and use of cemeteries

1. All cemeteries must be planned and constructed under plannings approved by competent authorities.

2. The interment of dead persons must be carried out in cemeteries. If it is conducted in premises of churches, pagodas or religious shrines, environmental hygiene must be ensured and approval of local administrations under decentralization by People's Committees of provinces or centrally run cities (below referred to as provincial-level People's Committees for short) is required.

3. The interment must comply with fine beliefs, customs, practices, cultural traditions and modem and civilized lifestyle.

4. The land is used for proper purposes, with efficiency and satisfaction of landscape and environmental protection requirements

Article 4.- Provision on maximum land area for an individual grave

1. The land area used for each first-burial grave or one-time burial grave must not exceed 5 m2.

2. The land area used for each second-time burial grave must not exceed 3 m2.

Article 5.- Cemetery construction regulations and standards

1. The construction of cemeteries must comply with the law on standards and technical regulations.

2. The Minister of Construction shall promulgate technical regulations on construction of cemeteries.

Article 6.- Support and investment incentives for construction of cemeteries

1. The State encourages organizations and individuals to invest in the construction of cemeteries according to law.

2. Organizations and individuals investing in cemetery construction are given by the State:

a/ Land for long-term use for cemetery construction without collection of land use levy;

b/ Supports in the construction of infrastructures outside the fences;

c/ Partial or full supports in funds for compensation and ground clearance, depending on the scale, investment form, applied technologies and environmental impacts of their projects;

d/ Investment supports and incentives as provided for by the investment law.

3. It is encouraged to socialize investment in cemetery construction and to use modern and civilized interment forms, contributing to the change of old habits, land fund saving and environmental protection; depending on the practical situation and their capabilities, local administrations shall adopt policies to provide supports in internment costs for users of this service.

Article 7.- Social policies towards special subjects

1. When homeless persons without relatives or with relatives who have no conditions to take care of the internment die in any localities, administrations of such localities shall pay all interment costs according to local conditions.

2. When sans-relative persons living in any localities die, the administrations of such localities shall organize the interment at local cemeteries with costs taken from the deceased's property (if any) or local budget.

3. Foreigners living in Vietnam and overseas Vietnamese, who wish to be interred in Vietnam after their death, will be considered and permitted for interment at cemeteries in Vietnam.

4. For those who die of natural calamities or epidemics, local administrations of all levels shall support and organize interment for the dead, meeting safety and anti-epidemic hygiene requirements without causing environmental pollution according to the Health Ministry's regulations.

5. For graves without owners or relatives to look after, which are beyond the prescribed interment lime limits, the cemetery management units may remove them to other locations in their cemeteries or to other cemeteries under plannings.

6. The Ministry of Labor, War Invalids and Social Affairs shall assume the prime responsibility for, and coordinate with concerned ministries and branches in, elaborating regulations, social policies, order, handling procedures and competence applicable to special subjects in the interment thereof and submit them to the Prime Minister for promulgation.

Article 8.- Prohibited acts

1. Building cemeteries not under plannings or not in line with plannings approved by competent authorities.

2. Building cemeteries without permits or in contravention of permits as provided for by the construction law.

3. Building graves, gravestones or works, in cemeteries in contravention of regulations on architectural management and cemetery management

4. Destroying constructions in cemeteries.

5. Supplying untruthful information, thus harming lawful rights and interests of organizations or individuals in the provision and use of cemetery services.

6. Abusing positions or powers to seek personal benefits or illegally intervening in activities of cemetery management and use.

7. Taking advantage of the State's incentive policies to illegally conduct cemetery service business.

8. Illegally collecting charges, fees and amounts related to cemetery service activities.

9. Interring dead persons outside cemeteries constructed and managed under plannings.

10. Failing to abide by competent bodies' decisions on closure of cemeteries, relocation of cemeteries and individual graves.

Chapter II

CEMETERY PLANNING, CONSTRUCTION, RENOVATION, CLOSURE AND RELOCATION

Article 9.- Cemetery location planning

1. Cemetery location planning constitutes a content of regional construction planning schemes, urban construction general plannings and rural population area construction plannings. When approving these plannings, competent bodies shall simultaneously approve cemetery location plannings.

2. Requirements on cemetery location plannings:

a/ Being compatible with topographical, geological, hydro-geological conditions and land-fund exploitation capabilities;

b/ Being compatible with population distribution and technical infrastructure connections;

c/ Meeting immediate and long-term interment demands of planned areas;

d/ Satisfying environmental protection requirements as prescribed by law;

e/ Encouraging the planning of cemeteries in service of many localities and cemeteries with the application of civilized and modern interment forms in order to save land, construction fund and minimize the environmental pollution.

3. Contents of cemetery location plannings:

a/ Determining the service scope of cemeteries;

b/ Pinpointing the interment demands and selecting civilized interment forms suitable to natural conditions, socio-economic conditions, beliefs, fine customs and practices, culture, which ensure land-saving and limit environmental pollution;

c/ Identifying cemeteries which need to be closed, relocated or expanded for further use;

d/ Identifying locations and sizes of to-be-built cemeteries;

e/ Forecasting environmental impacts.

Article 10.- Cemetery construction planning

1. To-be-built or-expanded cemeteries require the elaboration of cemetery construction plannings.

2. Requirements on cemetery construction plannings:

a/ Specifying locations, sizes and boundaries of cemeteries;

b/ Identifying forms of interment in cemeteries;

c/ Identifying technical specifications;

d/ Functional zones, grave zones, grave groups, grave rows, grave intervals comply with regulations and must be convenient for practice of interment rites;

e/ Having provisions on sizes, designs of graves and gravestones, as well as requirements on architecture of works in cemeteries;

f/ Technical infrastructure systems, crematories, ash storehouses (if any); service facilities and other relevant works must be planned for synchronous construction, ensuring environmental sanitation;

g/ Assessing environmental impacts.

3. Provincial-level People's Committees shall stipulate the decentralization of responsibility for elaboration, appraisal and approval of cemetery construction plannings in their respective provinces according to the law on construction planning.

Article 11.- Cemetery construction or expansion

1. The construction or expansion of cemeteries must comply with construction plannings approved by competent bodies.

2. Technical infrastructure works must be constructed synchronously.

3. The building of graves, gravestones and other works in cemeteries must comply with the construction law.

4. Sizes, designs of graves and gravestones and intervals between graves must comply with construction plannings approved by competent bodies.

Article 12.- Cemetery renovation

1. Cemeteries are renovated when they are still in line with the construction plannings but their technical infrastructure works, landscapes and environment are yet compatible with current standards and technical regulations.

2. Cemetery renovation contents:

a/ Establishing the cemetery boundaries according to approved plannings (in case of absence thereof);

b/ Planting trees around and in cemeteries;

c/ Renovating, embellishing and upgrading technical infrastructures in cemeteries;

d/ Clearly identifying Interment zones, grave zones, grave groups, grave rows in unused land areas; stipulating the grave areas, sizes and architecture.

Article 13.- Cemetery closure

1. Cemeteries must be closed when no more land is left for use, there are no conditions for expansion without causing environmental pollution, or when environmental pollution exceeds the permitted extent, which can be addressed.

2. Tasks to be performed upon cemetery closure:

a/ Deciding on and publicizing the cemetery closure by competent bodies;

b/ Addressing environmental pollution (if any) before closing the cemeteries;

c/ Renovating, embellishing technical infrastructure systems, gravestones and works in cemeteries; planting trees, lawn in and around cemeteries.

d/ Building walls or tree fences around cemeteries in urban areas or rural residential areas, which are high enough to ensure that inhabitants in surroundings of the cemeteries are not affected;

e/ For cemeteries lying by national highways, planting separation trees without affecting landscapes and traffic participants.

Article 14.- Removal of cemeteries and individual graves

1. Cemeteries and individual graves shall be removed when:

a/Causing serious environmental pollution or ugly looks, which cannot be remedied, thus affecting the living environment of communities and being not in line with construction plannings approved by competent bodies;

b/ Serving urban, industrial development projects and public facilities under plannings approved by competent bodies.

2. Tasks to be performed upon removal of cemeteries and individual graves:

a/ Notifying the removal of cemeteries and individual graves;

b/ Conducting the removal into cemeteries constructed and managed under plannings;

c/ Meeting environmental sanitation requirements in the course of removal;

d/ Implementing policies on ground clearance and compensation according to law

Article 15.- Responsibilities for renovation, closure and removal of cemeteries and individual graves

1. Provincial-level People's Committees shall direct their subordinate People's Committees, relevant agencies, organizations and individuals to conduct the renovation, closure or removal of cemeteries and individual graves in areas under their respective management.

2. For cemeteries and individual graves lying within to-be-cleared land areas, which must be removed for execution of urban, industrial development projects and public facilities, ground clearance and compensation and removal costs are included in the total investment of these projects.

Chapter III

CEMETERY MANAGEMENT AND USE

Article 16.- Identifying cemetery management units

1. People's Committees at different levels shall, according to the cemetery management decentralization by provincial-level People's Committees, identify and assign units to manage cemeteries under their respective management, which are constructed with state budget investment.

2. Organizations and individuals shall directly manage or hire others to manage cemeteries constructed with their investment.

Article 17.- Cemetery management contents

1. For closed cemeteries:

a/ Periodically tending, preserving and keeping graves, bone ashes in storehouses, maintaining works in cemeteries;

b/ Abiding by regulations on environmental sanitation in cemeteries;

c/ Compiling and archiving files on cemeteries;

d/ Providing for, directing visitors or commemorators, and managing activities in cemeteries.

2. For cemeteries currently in use:

a/ Complying with the provisions of Clause 1 of this Article;

b/ Managing land use, construction of graves, gravestones and works in cemeteries in compliance with construction plannings, cemetery management regulations approved by competent persons;

c/ Supervising the management of, or directly providing, cemetery services.

Article 18.- Compilation and archival of cemetery files

1. Contents of cemetery files:

a/ Diagrams on locations of functional zones, grave zones, grave groups, grave rows and graves; diagrams on locations of ash storage compartments in ash storehouses;

b/ AH graves in cemeteries, all ash storage compartments in ash storehouses must be numbered;

c/ Having books to chronically monitor interment activities in cemeteries, ash storage in ash storehouses and archiving basic information on persons interred, with ash storage and their relatives.

2. Cemetery management units shall compile and archive cemetery files and. at the same time, supply information to organizations and individuals at their requests in accordance with law.

Article 19.- Cemetery management costs

1. For cemeteries constructed with state budget investment, cemetery management costs are taken from cemetery service charge revenue and local budget as provided for by law.

2. For cemeteries constructed by organizations or individuals with their own investment, cemetery management costs are taken from collected cemetery service charges.

Article 20.- Cemetery service charge rates

1. Cemetery service charge rates must be accurately and fully calculated, suitable to local socio-economic conditions, and publicly notified.

2. Provincial-level People's Committee shall set charge rates of services provided by cemetery management units, for cemeteries constructed with state budget investment in their respective provinces.

3. Organizations and individuals shall set by themselves charge rates of cemetery services they provide, based on business schemes approved by provincial-level People's Committees, for cemeteries constructed with their own investment.

Article 21.- Cemetery management regulations

1. All cemeteries shall be managed according to their respective regulations.

2. Basic contents of cemetery management regulations cover:

a/ Provisions on cemetery boundaries, sizes and functional zones therein;

b/ Provisions on construction, renovation, embellishment and maintenance of construction works and graves in cemeteries;

c/ Provisions on cemetery and environmental protection;

d/ Provisions on burial and keeping of bone ashes in cemeteries;

e/ Provisions on ritual, belief and other relevant activities;

f/ Violations and sanctions;

g/ Responsibilities of cemetery management units and cemetery users.

3. Competence to approve cemetery management regulations:

a/ People's Committees at different levels shall, according to cemetery management decentralization, approve the cemetery management regulations, for cemeteries under their respective management and invested with the state budget.

b/ Organizations and individuals shall approve the regulations on management of cemeteries constructed with their own investment after reaching agreement with People's Committees under cemetery management decentralization by provincial-level People's Committees and send their promulgated regulations to the People's Committees with cemetery management decentralization for implementation management, supervision and inspection.

Article 22.- Responsibilities of cemetery management units

1. To manage cemeteries according to regulations approved by competent persons.

2. To provide cemetery services to users with the prescribed service quality.

3. To fulfill other responsibilities prescribed by law.

Article 23.- Responsibilities of cemetery service users

1. To comply with cemetery regulations and relevant legal provisions.

2. To perform the responsibilities agreed with cemetery management units.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 24.- Organization of implementation

1. Provincial-level People's Committees shall provide cemetery management decentralization for professional bodies and People's Committees of different levels under their respective management in the provinces; direct the elaboration of location plannings, cemetery construction plannings; direct the elaboration of plans on, and organize the construction, renovation, closure and relocation of cemeteries in the provinces according to the provisions of this Decree in order to step by step address environmental pollution, ugly landscapes and inefficient land use and gradually establish a habit of civilized and modern interment suitable to fine customs and practices and cultural identities of local inhabitants.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of People's Committees at different levels shall, within the ambit of their respective tasks and powers, organize the implementation of this Decree.

3. The Minister of Construction shall assume the prime responsibility for, and coordinate with relevant ministries and branches in, guiding, monitoring and inspecting the implementation of this Decree.

Article 25.- Implementation effect

This Decree takes effect 15 days after its publication in "CONG BAO."