Thông tư 03/2018/TT-BXD hướng dẫn Nghị định 139/2017/NĐ-CP về xử phạt VPHC trong đầu tư xây dựng; kinh doanh bất động sản

THE MINISTRY OF CONSTRUCTION 

Circular No. 03/2018/TT-BXD dated April24, 2018of the Ministry of Construction on detailinga number of articles of Decree No. 139/2017/ND-CP dated November 27, 2017 on penalties for administrative violations against regulations on investment and construction; extraction, processing and trading of minerals used in construction, production and trading of building materials; management of infrastructural constructions; real estate business, housing development, management and operation of apartment buildings and office buildings

Pursuant to the Law onConstruction dated June 18, 2014;

Pursuant to the Law on Actions against administrative violations dated June 20, 2012;

Pursuant to the Government’s Decree No. 81/2017/ND-CP dated July 17, 2017 defining functions, tasks, powers and organizational structure of Ministry of Construction;

Pursuant to the Government’s Decree No.81/2013/ND-CPdated July 19, 2013 elaborating on a number of articles and measures for implementation of theLaw on actions against administrative violations;

Pursuant to the Government’s Decree No.97/2017/ND-CPdated August 18, 2017 on amendments to theGovernment’s Decree No.81/2013/ND-CPdated July 19, 2013 elaborating on a number of articles and measures for implementation of theLaw on actions against administrative violations;

Pursuant to provisions of Article 81 ofthe Government’s Decree No. 139/2017/ND-CP dated November 27, 2017 on penalties for administrative violations against regulations on investment and construction; extraction, processing and trading of minerals used in construction, production and trading of building materials; management of infrastructural constructions; real estate business, housing development, management and operation of apartment buildings and office buildings;

At the request oftheMinistry’sChief Inspector;

Minister of Construction issues the Circulardetailinga number of Articles of the Decree No. 139/2017/ND-CP dated November 27, 2017of the Governmenton penalties for administrative violations against regulations on investment and construction; extraction, processing and trading of minerals used in construction, production and trading of building materials; management of infrastructural constructions; real estate business, housing development, management and operation of apartment buildings and office buildings.

Article 1. Scopeof adjustment and subject of application

1.This Circular details the Article 15 and Article 79 ofthe Decree No. 139/2017/ND-CP dated November 27, 2017of the Governmenton penalties for administrative violations against regulations on investment and construction; extraction, processing and trading of minerals used in construction, production and trading of building materials; management of infrastructural constructions; real estate business, housing development, management and operation of apartment buildings and office buildings(hereinafter referred to as the “Decree No.139/2017/ND-CP”).

2.This Circular applies to authorities, organizations and individuals involved in investment and construction; authorities and officers competent to impose penalties for administrative violations; other authorities, organizations and individuals concerned.

Article 2. Application of theadditional penalty which isthesuspension of building permitunder the Clause 10 Article 15 of the Decree No. 139/2017/ND-CP

1. The additional penalty which isthesuspension of building permit prescribed in Clause 10 Article 15 of the Decree No. 139/2017/ND-CPshall be imposed as follows:

a) Suspend thebuilding permitfor 03 - 06 months if the violation prescribed inPoint aClause9of Article15is committed;

b) Suspend the building permit for 06- 09months if the violation prescribed in PointbClause 9 of Article 15 is committed;

c) Suspend the building permit for 09-12months if the violation prescribed in PointcClause 9 of Article 15 is committed.

2.The violating entity is not allowed to execute the construction work while its/his building permit is suspended.

3.Within a maximum period of 05 working days from the issuing date of the Decision on imposition of administrative penalties, including the suspension of building permit, the competent officer making such decision is obliged to send a written notification thereof or a copy of such decision to the inspectorate of the relevant provincial Department of Construction and the permit-issuing authority.

Article 3.The compensation for damage under Point c Clause 11 Article 15 of the Decree No. 139/2017/ND-CP

1.The compensation for damage will made paid under the agreement between the investor and the aggrieved party. In case the parties fail to reach an amicable settlement, the compensation for damage shall be paid in accordance with provisions of the civil regulations.

2.If an adjoining building has been collapsed or is facing collapse, the investor is obliged to suspend the execution and immediately implement measures for moving people and assets in such adjoining building to safer places. The investor is obliged to provide leased houses for the aggrieved parties and pay rental thereof. Leased houses must be convenient for travelling with appropriate area and ensured social infrastructure so that the aggrieved parties may stably live. If an aggrieved party self-rents a house (whose facilities are similar to his injured apartment), the investor is obliged to make payment for house rental and relocation costs to such aggrieved party.

3.If the investor and the aggrieved party fails to reach an amicable settlement and the case is submitted by either party to the Communal People’s Committee for settlement after the administrative violation has been officially recorded, such case will be settled as follows:

a) Within a maximum period of 05 working days from the receipt of the written complaint, the Chairperson of the Communal People’s Committee shall conduct conciliation;

b) Over the permitted period of 07 working days from the date on which the conciliation is unsuccessful or failed by default of a party, the Chairperson of the Communal People’s Committee shall conduct a pre-conciliation;

c) If either party is absent from the pre-conciliation without giving legitimate reasons, the Chairperson of the Communal People’s Committee shall decide to hire a qualified consultant with legal status to determine the amount of compensation for damage. The investor shall cover the costs of hiring consultant. After the amount of compensation has been determined, the Chairperson of the Communal People’s Committee shall request the investor to transfer such amount of money to the escrow account owned by the Communal People’s Committee. The investor shall continue executing the construction works only when the full amount of compensation as determined has been transferred to the prescribed guaranteed account;

d) If two parties fail to reach an agreement on the amount of compensation for damage, they shall agree to hire a qualified consultant with legal status to determine the amount of compensation as prescribed. In case two parties fail to reach an agreement on selection of a consultant or disagree on the amount of compensation calculated by the consultant, the Chairperson of the Communal People’s Committee shall hire another consultant to determine the amount of compensation for damage.The investor shall cover the costs of hiring consultant.Based on the results provided by the hired consultant, the Chairperson of the Communal People’s Committee shall request the investor to transferthe determinedamount ofcompensationto the escrow account owned by the Communal People’s Committee. The investor shall continue executing the construction works only when the full amount of compensation as determined has been transferred to the prescribedguaranteedaccount;

dd) Either party has the right to take the other to the Court if disagreeing on the determined amount of compensation for damage.

4.The investor that is not liable to an administrative penalty is encouraged to pay compensation for damage under provisions of Clause 3 hereof.

5.The violating entity shall continue executing the construction works only when the parties have reached an agreement and completed payment of compensation for damage or fully complied with procedures for settling the case specified in Clause 3 hereof.

Article 4. The application ofdemolition of the construction work under Point d Clause 11 Article 15 of the Decree No. 139/2017/ND-CP

1.If the competent officer finds that an organization or individual has committed the violation prescribed in Clause 2, Clause 4 or Clause 5 Article 15 of the Decree No.139/2017/ND-CP, in addition to administrative penalty, the violating entity is alsoliableto demolish the construction work or work items built inconsistently with law regulations.

2.The construction work or work items built inconsistently with law regulations must be demolished according to the approved demolition plan or solution until the bearing capacity of the remaining work item is ensured when it is put into operation.

3.The investor shall prepare, appraise, submit for approval and implement the plan or solution for demolition of the construction work or work items built inconsistently with law regulations under the provisions of Clause 2 hereof. The demolition plan or solution must ensure the safe operation of the construction work after the work items built inconsistently with law regulations have been demolished, life and health of people, safety of adjoining buildings as well as hygiene and environment.

4.If the investor is not proactive in demolishing the construction work or work items built inconsistently with law regulations, enforcement measures shall be taken. The officer competent to make decision on implementation of enforcement measures shall hire a qualified consultant to prepare a demolition plan or solution, and assign a specialized construction agency of same level to verify before granting approval for such demolition plan or solution. The investor is obliged to pay all costs of taking enforcement measures for demolishing the construction work or work items built inconsistently with law regulations, including costs of preparing, verifying, granting approval and implementing the demolition plan or solution.

Article 5.Application  liable to enforced demolition of the work for the building permit or the adjusted building permit underClause 12 and Clause 13 Article 15 of the Decree No. 139/2017/ND-CP

1.If the competent officer finds that an organization or individual is committingthe violation prescribed in Clause 2, Clause 4 or Clause 5 Article 15 of the Decree No. 139/2017/ND-CP, in addition to administrative penalty, the violating entity is alsosanctioned as follows:

a) The violating entity is obliged to suspend the execution of the construction work from the time when the administrative violation is recorded. The competent officer shall make a record of administrative violation using the attached Form No. 01;

b) Within a permitted period, the officer competent to record the administrative violation shall issue a decision on imposition of administrative violation. In case the officer recording the administrative violation is incompetent to impose penalty or such violation is beyond his/her competence, within a maximum period of 03 working days from the date on which such administrative violation is recorded, he/she must send the record of administrative violation and related documents (if any) to the officer competent to impose penalties for such administrative violation.The competent officer shallissue a decision on imposition ofadministrativepenaltiesusing theattached Form No. 02;

c) Within a maximum period of 60 days from the date on which the administrative violation is recorded, the violating entity is obliged to carry out procedure for applying for a new building permit or approval for changes or modifications to the existing building permit, and present the new building permit or modified one to the officer competent to impose administrative penalties;

d) Over the time limit stated in Pointcof this Clause, if theviolating entity is unableto present thenewbuilding permit or themodified one, the officer competent to impose administrative penalties shall give a notice of compulsory demolition of the construction work or work items built inconsistently with law regulations, using the attached Form No. 03. The notice shall be sent to the violating entity and the People’s Committee of commune where the construction work is located in an appropriate form, and publicly posted up at the construction site. In case the violating entity refuses to receive the notice or remove the notice posted up at the construction site, the People’s Committee of commune where the construction work is located is obliged to publicly post up such notice at its head office. Within a maximum period of 15 days from the date of sending the notice (printed on the post office stamp), the violating entity is obliged to demolish the construction work or work items built inconsistently with law regulations;

dd) Within a maximum period of 05 days from the date on which the violating entity presents the new building permit or the modified one, the officer competent to impose administrative penalties shall conduct an inspection of the existing construction work and make an inspection report certifying the conformity of the existing construction work with the new building permit or the modified one. The inspection report shall be made according to the attached Form No. 04;

e) The violating entity is allowed to continue the execution of construction work if the inspection report indicates that the existing construction work is conformable with the contents of the new building permit or the modified one. In case the inspection report states that the existing construction work is still not conformable with the new building permit or the modified one, within a maximum period of 15 days from the date on which the inspection report is made, the violating entity is obliged to demolish the construction work or work items found to be unconformable with the new building permit or the modified one.

2.The time period stated in days prescribed in Clause 1 hereof shall be calculated under the provisions of Article 147 and Article 148 of the Civil Code.

3.If a violating entity does not comply with the decision on imposition of administrative penalties or demolish the construction work or work items under the provisions of Point d and Point e Clause 1 hereof, enforcement measures will be taken in accordance with regulations of the Law on actionsagainst administrative violationsand the provisions of Clause 4 Article 4 hereof.

4.If adjustments to a construction design does not require the modification of the building permit as prescribed in Article 98 of the Law on construction, such case is not considered as the act of executing construction work inconsistently with the contents of building per as prescribed in Clause 2 and Clause 4 Article 15 of the Decree No.139/2017/ND-CP.

Article 6. Application of the transitional provisions of Article 79 of the Decree No. 139/2017/ND-CP

1.In addition to the imposition of administrative penalties, illegal benefits, which are obtained from the acts of executing the construction work inconsistently with the building permit; executing the construction work without having a building permit as prescribed by law; executing the construction work inconsistently with the approved construction design, the approved construction planning or the approved urban design in case of building permit exemption, must be transferred to state budget under the provisions of Clause 9 Article 13of the Decree No. 121/2013/ND-CPprovided that all of the following conditions are met:

a) The act of violation has been committed within the period from January 04, 2018 to January 15, 2018 but discovered by a competent officer after January 15, 2018 or before January 15, 2018 with the availability of either of the following documents: The record of administrative violation, the decision on imposition of administrative penalties, the decision on enforcement of remedial measures or the decision on enforcement of additional remedial measures;

b) There is not violation against regulations on construction elevations;

c) The existing construction work does not affect any adjoining buildings;

d) There is no dispute;

dd) The construction work is located on the land area with legal use right;

e) The constructionworkisfound to be conformable with the construction planning approved by a competent authority.

2.As of January 15, 2018, organizations and individuals that build single-detached houses and commit the violation prescribed in Clause 1 hereof are not required to transfer illegal benefits prescribed in Clause 9 Article 13of the Decree No. 121/2013/ND-CPto state budget.

3.The amount of illegal benefits obtained by the violating entity from the violation prescribed in Clause 1 hereof shall be determined as follows:

a) If the construction work is built to serve business purposes: The amount of illegal benefits equals total floor area (m2) built inconsistently with law regulations multiplied by the product of theunit priceper square meter, which is specified in the signed sales and transfer contract and not lower than the investment rate of the construction work at the same grade and of the same type, and 50%;

b) If the construction work isbuiltto servenon-business purposes: The amount of illegal benefits equals total floor area (m2) built inconsistently with law regulations multiplied bythe product ofthebuilding costper square meter, which isspecified in theapproved construction cost estimate andnot lower than the investment rate of the construction work at the same grade and of the same type, and50%;

c) In case of unavailability of the signed sales and transfer contract or approved cost estimate, the amount of illegal benefits equals total floor area (m2) built inconsistently with law regulations multiplied by the product of the investment rate of the construction work at the same grade and of the same typeand 50%;

d) The officer competent to impose administrative penalties shall apply the investment rate announced at the time of issuing the decision on imposition of administrative penalties and assume responsibility to determine the amount of illegal benefits payable by the violating entity as per the provisions of Point a, Point b or Point c hereof.

4.Violations that meet the conditions in Point a, Point b, Point c, Point d and Point dd but Point e Clause 1 hereof shall be handled as follows:

a) If a competent officer discovered an administrative violation before January 15, 2018, has recorded such administrative violation and issued a decision on imposition of administrative penalties, including the enforced transfer of illegal benefits, but the violating entity fails to pay the fine (if any) and the illegal benefits as prescribed by January 15, 2018, the competent officer imposing such administrative penalties shall decide to demolish the construction work or work items built inconsistently with law regulations under the provisions of Point d Clause 11 Article 15 of the Decree No.139/2017/ND-CP;

b) Violations discovered on or after January 15, 2018 shall be sanctioned under the provisions of Article 15 of the Decree No.139/2017/ND-CP. If the fine for an administrative violation prescribed in Article 15 of the Decree No.139/2017/ND-CPis higher than the one laid down in the Decree No.121/2013/ND-CPfor the same violation, the latter shall be applied with enforcing the demolition of the construction work or work items built inconsistently with law regulations under the provisions of Point d Clause 11 Article 15 of the Decree No.139/2017/ND-CP. If theprescriptive periodfor handling an administrative violation ends, only the decision on enforced demolition of construction work or work items built inconsistently with law regulations is made.

Article 7. Implementationprovisions

1.This Circular takes effect on June 12, 2018 and supersedes the Circular No.02/2014/TT-BXDdated February 12, 2014 by the Minister of Construction providing guidance on the implementation of a number of articles of the Decree No.121/2013/ND-CP dated October 10, 2013 by the Government on penalties for administrative violations in construction activities; real estate business; development, production and trade of building materials; management of technical infrastructure; management of housing and office development.

2.Ministries,ministerial-level agencies,People’s Committeesat all levels and relevant organizations and individuals shall implement this Circular.Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Construction for consideration./.

For the Minister

The Deputy Minister

Le Quang Hung