Bản dịch văn bản 185/2007/ND-CP
Decree 185/2007/ND-CP
Cơ quan ban hành: Chính phủ
Ngày ban hành: 2007-12-25

DECREE Detailing and guiding the implementation of a number of articles of the construction Law regarding the handling of violations of urban construction order THE GOVERNMENT Pursuant to the December 25, 2001 Law on Organization of the Government; Pursuant to the November 26, 2003 Construction Law; At the proposal of the Minister of Construction, DECREES: Chapter I GENERAL PROVISIONS Article 1.- Scope of regulation This Decree details and guides the handling of violations of urban construction order stipulated in Clauses 1, 2, 4, 5 and 6, Article 10; Clause 5, Article 67; Article 86; Article 94; and Clause 2, Article 120 of the Construction Law. Article 2.- Subjects of application 1. Organizations and individuals engaged in building activities committing acts that violate urban construction order. 2. Cadres, public employees and servants assigned to manage urban construction order and related organizations and individuals. Article 3.- Principles of handling of violations 1. Construction works and components thereof (below referred to as construction works for short) in violation of urban construction order must be detected, stopped and handled in a prompt and thorough manner. 2. Organizations and individuals involved in building works in violation of urban construction order and organizations and individuals assigned to manage urban construction order but letting violations occur shall be handled under the provisions of this Decree and relevant laws. Article 4.- Measures for handling violations of urban construction order Acts of violation of urban construction order must be handled in one or more of the following forms: 1. Suspension of building activities. 2. Termination of building activities, application of measures of ceasing the supply of electricity and water; notifying competent agencies not to provide electricity and water services, business activities and other services for construction works in violation. 3. Enforcement of dismantlement of works in violation. 4. Forced compensation for damage caused by acts of violation. 5. Sanctioning of administrative violations in building activities. Serious violations may be handled in accordance with the penal law. 6. In addition to handling forms specified in Clauses 1, 2, 3, 4 and 5 of this Article, investors, construction contractors, designing consultancy contractors and construction supervision contractors that commit acts of violation of urban construction order will have their names publicized on the website of the Ministry of Construction and the mass media. Article 5.- Construction works in violation of urban construction order Construction works in violation of urban construction order to be handled under the provisions of this Decree include: 1. Construction works prescribed by law to have construction permits but having no construction permit. 2. Construction works built in violation of construction permits granted by competent agencies. 3. Construction works built in violation of designs already appraised and approved by competent agencies; in violation of 1/500-scale detailed construction plans already approved by competent agencies (for construction works exempted from obtaining a construction permit). 4. Construction works affecting the quality of adjacent ones or the environment and communities. Chapter II RESPONSIBILITY TO ENSURE URBAN CONSTRUCTION ORDER Article 6.- Responsibilities of investors 1. To strictly comply with the provisions of law on construction. 2. To suspend building activities, dismantle by themselves construction works in violation immediately after a written record of suspension of building activities is issued. 3. To pay all dismantlement expenses when their works are dismantled under decisions on enforcement of dismantlement. 4. To pay compensations for damage caused by their acts of violation; if causing serious consequences; to be handled in accordance with the penal law. 5. Other responsibilities prescribed by law. Article 7.- Responsibilities of construction contractors 1. To strictly comply with the provisions of law on construction. 2. To suspend building activities after a written record on suspension of building activities is issued. 3. To pay compensations for damage caused by their acts of violation. 4. Other responsibilities prescribed by law. Article 8.- Responsibilities of designing consultancy contractors and supervision consultancy contractors 1. Responsibilities of designing consultancy contractors a/ To observe the provisions of law when designing construction works; b/ Designing construction works in accordance with construction plans already approved by competent authorities. 2. Responsibilities of construction supervision consultancy contractors a/ To observe the provisions of law on construction; to refuse to supervise the building of works specified in Article 5 of this Decree; b/ To detect and request investors and construction contractors to strictly follow the designs already appraised and approved by competent authorities; c/ In the course of supervising building activities, if detecting that investors and construction contractors improperly follow the approved designs, to report such to responsible agencies for handling; If conniving with investors or construction contractors in carrying out or letting them carry out building activities at variance with construction designs, they shall be handled in accordance with the penal law. Article 9.- Responsibilities of police offices, electricity and water service-providing agencies and other related agencies 1. Heads of commune, ward and township police offices shall coordinate with competent construction inspectorates in handling violations of urban construction order, strictly comply with requests in building suspension decisions and dismantlement enforcement decisions issued by competent authorities; if failing to comply with these requests, tolerating acts of violation or allowing works to be further built, they shall be handled according to regulations or, if causing serious consequences, be handled in accordance with the penal law. 2. Heads of enterprises and individuals providing electricity, water and other services related to construction works in violation of urban construction order shall comply strictly and on time with requests in building suspension decisions and dismantlement enforcement decisions issued by competent authorities; if failing to comply with, complying with these requests not in time or tolerating or abetting acts of violation, they shall be handled according to regulations or, if causing serious consequences, be handled in accordance with the penal law. Article 10.- Responsibilities of heads of competent agencies in charge of managing urban construction order 1. Presidents of People's Committees of communes, wards and townships (referred to as commune level for short): a/ To urge and examine the situation of urban construction order in their localities, promptly issue building suspension decisions or dismantlement enforcement decisions with respect to works in violation of urban construction order according to their competence; b/ To handle their subordinate cadres who are assigned to manage urban construction order but let violations occur; c/ To take responsibility for violations of urban construction order occurring in their localities. 2. Presidents of district-level People's Committees a/ To urge and examine commune-level People's Committee presidents in managing urban construction order in their localities, promptly issue building suspension decisions or dismantlement enforcement decisions with respect to works in violation of urban construction order according to their competence; b/ To handle commune-level People's Committee presidents and subordinate cadres who are assigned to manage urban construction order for letting violations occur; c/ To take responsibility for violations of urban construction order occurring in their localities; d/ To propose presidents of People's Committees of provinces or centrally run cities (referred to as provincial level for short) to issue necessary and realistic measures for effectively managing urban construction order. 3. Provincial-level People's Committee presidents: a/ To issue regulations and measures to handle and prevent violations of urban construction order. To make decision to sanction administrative violations falling within their competence; b/ To handle district-level People's Committee presidents and subordinate cadres assigned to manage urban construction order for letting violations occur; c/ To take responsibility for the situation of urban construction order in their provinces. 4. Persons with competence to manage urban construction order a/ Chief inspectors of provincial-level Construction Services shall supervise, urge and closely follow the situation of urban construction order in localities; recommend remedies to provincial-level Construction Service directors who shall report and propose them to provincial-level People's Committees; b/ Directors and chief inspectors of provincial-level Construction Services and district- and commune-level chief inspectors of construction (if any), district-level urban management sections (if any) and heads of other agencies assigned to manage urban construction order are responsible for the situation of urban construction violations falling within their management competence; and handle their subordinate cadres assigned to manage urban construction order for letting violations occur. Article 11.- Responsibilities of cadres, public employees and inspectors assigned to manage urban construction order 1. To examine, detect and promptly report violations of urban construction order in localities which they are assigned to manage or promptly handle those violations falling within their management competence. 2. To take responsibility for wrongdoings, direct or indirect, in performing management of urban construction order. If issuing construction permits contrary to regulations or after the time limit prescribed by law; issuing wrong decisions, issuing decisions ultra vires, failing to issue decisions or issuing decisions after the time limit prescribed in this Decree with respect to construction works in violation of urban construction order, to pay compensations for damage, and, if causing serious consequences, to be handled in accordance with the penal law. Chapter III HANDLING OF CONSTRUCTION WORKS IN VIOLATION OR URBAN CONSTRUCTION ORDER Article 12.- Handling of construction works without construction permits 1. For construction works which are required by law to have construction permits, if they are built without a construction permit, except for cases specified in Clause 2 of this Article, they are subject to the following handling measures: a/ Making a written record of suspension of building activities and request for the investor to dismantle by itself the construction work in violation of urban construction order; b/ If the investor fails to suspend building activities, terminating building activities and enforcing dismantlement of the construction work in violation of urban construction order; at the same time, applying measures of ceasing the provision of power and water services and other services related to the building of the work; banning vehicles carrying building supplies and materials and workers from entering the building site; c/ Enforcing dismantlement of the construction work if the investor fails to comply with the building suspension decision. The investor shall pay all expenses for the preparation of a dismantlement plan (if any) and dismantlement work. 2. For construction works without construction permits but eligible for the issue of a construction permit according to regulations, they are subject to the following handling measures: a/ Making a written record of suspension of building activities and request for the investor to apply for a construction permit, applicable to the following construction works: construction works in line with approved plannings; construction works on land with land use right and house ownership certificates and in line with construction planning; new houses built on old house foundations or renovations of existing houses in line with construction planning; and construction works on land areas eligible for the issue of a land use right certificate in accordance with the land law; b/ If the investor fails to suspend building activities, terminating building activities and forcing the investor to apply for a construction permit and, at the same time, applying measures specified at Point b, Clause 1 of this Article. If the investor fails to produce a construction permit issued by a competent agency within 60 days from the date of issuance of a building suspension decision, dismantlement of the construction work shall be enforced. c/ After obtaining a construction permit, if the work has been built inconsistently with the contents of the permit, the investor shall dismantle by itself the part built inconsistently with the contents of the permit. Only after so doing, can the investor continue building activities. If the investor fails to dismantle by itself the part built inconsistently with the contents of the permit, dismantlement shall be enforced under the provisions of Article 24 of this Decree and the investor shall pay all dismantlement expenses; d/ If the investor's application for a construction permit is rejected or the investor fails to produce a construction permit after the time limit specified at Point b, Clause 2 of this Article, the investor shall dismantle by itself the work in violation. If the investor fails to do so, dismantlement shall be enforced and the investor shall pay all dismantlement expenses. Article 13.- Handling of works built inconsistently with the contents of construction permits Works built inconsistently with the contents of construction permits issued by competent agencies shall be handled as follows: 1. Making a written record of suspension of building activities and request for dismantlement of the work's part built inconsistently with the contents of its construction permit. 2. If the investor fails to stop building activities, terminating building activities and forcing the investor to dismantle by itself the work's part built inconsistently with the contents of the construction permit; and at the same time, applying measures specified at Point b, Clause 1, Article 12 of this Decree. 3. If the investor fails to dismantle by itself the work's part built inconsistently with the contents of the construction permit, dismantlement shall be enforced. The investor shall pay all dismantlement expenses. Depending on the severity of the violation, the investor shall also pay compensations for damage caused by its act of violation. Article 14.- Handling of construction works built inconsistently with designs or 1:500 scale detailed construction plans already appraised or approved by competent authorities, for cases of construction permit exemption 1. For the following construction works in violation of urban construction order, a written record of suspension of building activities and request for dismantlement by the investor shall be made: a/ Construction works under investment projects on construction of works which have been built inconsistently with their base or technical designs already appraised or approved by competent state agencies; b/ Construction works under new urban center, industrial park or apartment building projects which have been built inconsistently with approved 1:500 scale detailed construction plans. 2. If the investor fails to stop building activities, building activities must be terminated and the investor shall be forced to dismantle by itself the work in violation; and at the same time, measures specified at Point b, Clause 1, Article 12 of this Decree shall be applied. 3. If the investor fails to dismantle by itself the work in violation, dismantlement shall be enforced. The investor shall pay all expenses for the preparation of a dismantlement plan and dismantlement work. Article 15.- Handling of construction works that affect the quality of adjacent works, the environment and communities 1. When a construction work causes sinking, cracks or leakage to or possible collapse of adjacent works, building activities must be stopped for payment of damage compensations: a/ Damage compensations shall be paid as agreed upon between the investor and the damaged party; if no such agreement can be reached, the damaged party may file its compensation claim at a court; b/ Building activities may resume only after the parties reach agreement on damage compensation. 2. If a construction work causes pollution to the surrounding environment or its supplies, materials and construction equipment obstruct public traffic, building activities must be suspended; the investor and construction contractor shall take measures for overcoming consequences; building activities may resume only after the investor and construction contractor have completely overcome consequences, paid compensations, and assured that no impact will be exerted on the surrounding environment. 3. If the investor and construction contractor fail to comply with the provisions of Clauses 1 and 2 of this Article, building activities shall be terminated and the measure specified at Point b, Clause 1, Article 12 of this Decree shall be applied until they have completely overcome consequences and paid damage compensations. Chapter IV COMPETENCE TO HANDLE VIOLATIONS OF URBAN CONSTRUCTION ORDER Article 16.- Competence of inspectors and commune-level construction management cadres 1. To make written records of suspension of building activities and request for investors to dismantle by themselves works in violation. 2. To propose commune-level People's Committee presidents to decide on termination of building activities or enforcement of dismantlement of works in violation of urban construction order falling within their competence. Article 17.- Competence of commune-level People's Committee presidents to handle violations of urban construction order 1. To decide on termination of building activities with respect to construction works in violation in localities under their management; to decide on enforcement of dismantlement of construction works in violation in localities under their management, excluding those specified in Clause 1, Article 18 of this Decree. 2. To enforce dismantlement of all construction works in violation under decisions of commune-level People's Committee presidents, district-level People's Committee presidents or chief inspectors of provincial-level Construction Services. 3. To handle their subordinate cadres assigned to manage urban construction order for letting violations occur without promptly stopping them, tolerating or covering up acts of violation. 4. To propose district-level People's Committee presidents to handle cases of violation of urban construction order which fall beyond the competence of commune-level People's Committee presidents and handle cadres assigned to manage urban construction order who are under the management of district-level People's Committee presidents. Article 18.- Competence of district-level People's Committee presidents to handle violations of urban construction order 1. To decide on enforcement of dismantlement of construction works in violation for which construction permits are granted by district-level People's Committee presidents or provincial-level Construction Services and against which commune-level People's Committees have issued a building termination decision. 2. To direct commune-level People's Committee presidents to enforce the dismantlement of construction works in violation under decisions of district-level People's Committee presidents or chief inspectors of provincial-level Construction Services. 3. To handle commune-level People's Committee presidents and their subordinate cadres assigned to manage urban construction order for letting violations occur without promptly stopping them, tolerating or covering up acts of violation. Article 19.- Competence of provincial-level People's Committee presidents to handle violations of urban construction order 1. To issue regulations and decisions to stop and remedy violations of urban construction order in their localities. 2. To issue decisions on handling district-level People's Committee presidents and their subordinate cadres assigned to manage urban construction order for letting violations occur without promptly stopping them, tolerating or covering up acts of violation. Article 20.- Competence of heads of specialized sections of district-level People's Committees in charge of urban construction management or district-level chief inspectors of construction (if any) to handle violations of urban construction order 1. To request commune-level People's Committee presidents to issue building termination decisions or dismantlement enforcement decisions with respect to works in violation falling within the latter's competence in case the latter fail to promptly issue those decisions; at the same time to propose district-level People's Committee presidents to discipline commune-level People's Committee presidents. 2. To submit to district-level People's Committee presidents for promulgation decisions on handling violations that fall beyond the competence of commune-level People's Committees; and submit to district-level People's Committee presidents for promulgation decisions on enforcement of construction works in violation according to the latter's competence. 3. To issue building termination decisions with respect to construction works in violation of urban construction order which commune-level People's Committees fail to handle in time. Article 21.- Competence of chief inspectors of provincial-level Construction Services to handle violations of urban construction order 1. To decide on building termination or dismantlement enforcement with respect to works in violation of urban construction order for which construction permits are granted by provincial-level Construction Services or district-level People's Committee presidents in case district-level People's Committee presidents fail to promptly issue those decisions. 2. To propose provincial-level People's Committee presidents to handle district-level People's Committee presidents, organizations or individuals assigned to manage urban construction that let violations occur. Chapter V ORDER OF AND PROCEDURES FOR HANDLING VIOLATIONS OF URBAN CONSTRUCTION ORDER Article 22.- Making of written records of suspension of building activities 1. Construction inspectors or commune-level cadres in charge of construction shall promptly detect acts of violation of the construction law in their communes; make written records of suspension of building activities and request for investors to comply with those records. 2. A written record of suspension of building activities must clearly state details of the violation and the handling measure, and be immediately sent to the commune-level People's Committee president for report. 3. If the investor is intentionally or unintentionally absent, the written record is still valid for compliance. 4. The format and contents of a written record of suspension of building activities are prescribed in Appendix I to this Decree (not printed herein) . Article 23.- Termination of building activities 1. Past 24 hours after a written record of suspension of building activities is made, if the investor fails to stop building activities and comply with the contents of the written record, the commune-level People's Committee president shall issue a building termination decision forcing the investor to comply with the contents of the written record of suspension of building activities. 2. Within 24 hours from the time the commune-level People's Committee president issues a building termination decision with respect to a work, concerned agencies shall organize its enforcement as follows: a/ The commune-level People's Committee president shall organize a force to ban vehicles carrying supplies, materials and workers from entering the building site of the construction work in violation of urban construction order; b/ Persons competent to sign contracts on power and water supply services and related services shall stop providing these services for the construction works in violation. 3. If the investor is intentionally or unintentionally absent, the decision on suspension of building activities is still valid for compliance. 4. The format and contents of a building termination decision are prescribed in Appendix II to this Decree (not printed herein) . For building termination decisions issued by district-level chief inspectors of construction or chief inspectors of provincial-level Construction Services, they shall be made according to the forms in Appendices III and IV to this Decree (not printed herein) . Article 24.- Enforcement of dismantlement of works in violation 1. Commune-level People's Committees shall issue dismantlement enforcement decisions and organize dismantlement work: a/ After 03 days (including holidays) from the date of issuance of a building termination decision, for construction works for which a dismantlement plan is not required; b/ After 10 days (including holidays) from the date of issuance of a building termination decision, for construction works for which a dismantlement plan is required and investors fail to comply with the contents of the written record of suspension of building activities. 2. Investors shall pay all expenses for making dismantlement plans and organizing dismantlement work. 3. For construction works in violation for which construction permits are granted by district-level People's Committees or provincial-level Construction Services, within 24 hours after the commune-level People's Committee issues a building termination decision, the commune-level People's Committee shall send a dossier to the district-level People's Committee president. Within three days after receiving the dossier, the district-level People's Committee president shall issue a dismantlement enforcement decision. The commune-level People's Committee president shall organize dismantlement work. 4. For cases of termination of building activities in which the investor is required to apply for a construction permit under Clause 2, Article 12 of this Decree, the time limit for issuing a dismantlement enforcement decision complies with Clause 2, Article 12 of this Decree. The commune-level People's Committee shall issue a dismantlement enforcement decision and organize dismantlement work. The investor shall pay all expenses for dismantlement work. 5. If the investor is intentionally or unintentionally absent, the enforcement dismantlement decision is still valid for compliance. 6. The format and contents of a dismantlement enforcement decision are prescribed in Appendix V to this Decree (not printed herein) . For dismantlement enforcement decisions issued by chief inspectors of provincial-level Construction Services, they shall be made according to the form in Appendix VI to this Decree (not printed herein) . Article 25.- Plans for dismantlement of works in violation of urban construction order 1. Dismantlement of works must be planned in order to ensure safety in the course of dismantlement. For construction works with dismantlement plans subject to approval, dismantlement plans must be made by investors; if having no conditions for making a dismantlement plan, the investor shall hire a qualified consultancy organization to make that plan. In case of enforcement of dismantlement, the person competent to issue dismantlement enforcement decisions shall designate a consultancy organization to make a dismantlement plan while the investor shall pay all expenses for the making of the dismantlement plan. 2. Contents of a dismantlement plan A dismantlement plan must state dismantlement measures and processes, equipment and machines used for dismantlement, measures to ensure safety for human life and property, security and order, environmental sanitation; order and timing, and dismantlement expenses. A dismantlement plan must be approved by the specialized section of the district-level People's Committee, except for cases specified in Clause 3 of this Article. 3. Cases in which the dismantlement plan is not subject to approval: a/ Temporary construction works; b/ Construction works' parts and construction works of 3 meters high at most from the ground level; c/ Construction works' foundations built of bricks or stones or concrete foundations not connected to adjacent works. 4. Dismantlement organizations must be capable as required by law. For cases for which a dismantlement plan is not required, dismantlement work must ensure safety for humans and property and environmental sanitation. Chapter VI IMPLEMENTATION PROVISIONS Article 26.- Propaganda and dissemination of the Decree for implementation Provincial-level People's Committees shall: 1. Organize propaganda and dissemination of this Decree for the people to know and comply with. 2. Direct, and coordinate with radio stations, television stations and central and local press agencies in, reporting and commending organizations' and individuals' merits in detecting acts of violation of urban construction order and, at the same time, publicizing names of investors, construction contractors, designing consultancy contractors and construction supervision contractors who commit violations of urban construction order and handling measures. 3. Send documents to agencies that manage organizations or individuals violating urban construction order, requesting the agencies' heads to take handling measures in accordance with law. Article 27.- Implementation effect This Decree takes effect 15 days after its publication in "CONG BAO." The Ministry of Construction shall supervise the implementation of this Decree. Article 28.- Implementation responsibility Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and presidents of People's Committees of provinces and centrally run cities shall implement this Decree.