What are penalties for illegal construction works with unidentified owners in Vietnam?
What are the principles for sanctioning administrative violations of illegal construction?
Pursuant to Clause 1 Article 3 of the Law on Handling Administrative Violations 2012 of Vietnam on principles for handling administrative violations:
- Principles for sanctioning administrative violations include:
+ All administrative violations must be detected and stopped in time and handled strictly and clearly, all consequences caused by administrative violations must be overcome strictly according to law provisions;
+ The sanction of administrative violations must be conducted fast, with publicity, objective and proper competence, ensure fairness, in accordance to law provisions.
+ The sanction of administrative violations must be based on the nature, seriousness, consequences of the violations, the subjects of violations and the extenuating as well as aggravating circumstances;
+ Imposing administrative penalties only when there is any administrative violation prescribed by laws. An administrative violation shall be sanctioned only once.
If multiple persons commit an administrative violation, each of them shall be sanctioned for such violation.
If a person commits multiple administrative violations or commits administrative violation(s) in multiple times, he/she shall be sanctioned for each violation, except when the act of committing administrative violation(s) is regulated as an aggravating circumstance by the Government of Vietnam (amended by Clause 2 Article 1 of Amendments and Supplements to Certain Articles of Law on Handling of Administrative Violations 2020 of Vietnam);
+ The persons competent to sanction are responsible for proving administrative violations. Sanctioned individuals or organizations can self-prove or be proved by their legal representatives that they do not commit acts of administrative violations;
+ For the same act of administrative violations, the fine levels for organizations are equal to 02 times compared with the fine levels for individuals.
- Principles for application of administrative handling measures include:
+ Individuals shall be subject to the application of other administrative handling measures only if they belong to one of the subjects prescribed in Articles 90, 92, 94 and 96 of this Law;
+ The application of administrative handling measures must be carried out as regulated in point b, clause 1 of this Article;
+ Decision on the time limits for application of administrative handling measures must be based on the nature, level, consequences of the violations, the personal identity of the violators and the extenuating as well as aggravating circumstances;
+ The persons competent to application of administrative handling measures are responsible for proving administrative violations. Individuals subject to the administrative handling measures can self-prove or through their legal representatives to be proved that they do not commit acts of administrative violation.
Thus, illegal construction is an administrative violation, so the administrative violation handling principles will be applied to illegal construction and the principles are specified as above.
Sanctioning administrative violations for illegal construction works with unidentified owners in Vietnam
Does handling administrative violations include wrecking of illegal constructions?
Pursuant to Article 30 of the Law on Handling Administrative Violations 2012 of Vietnam and Point a Clause 73 Article 1 Amendments and Supplements to Certain Articles of Law on Handling of Administrative Violations 2020 of Vietnam stipulating forcible wrecking of works, parts of works constructed without building permits or not proper with building permits:
“Article 30. Forcible wrecking of works, parts of works constructed without building permits or not proper with building permits Individuals, organizations committing administrative violations must wreck works, parts of works constructed without building permits or not proper with building permits; in case individuals, organizations committing administrative violations do not voluntarily carry out their duties, they shall be coerced to carry out their duties.”
Thus, wrecking of illegal constructions is a remedy for consequences for acts of the law violations. Therefore, handling administrative violations includes wrecking of illegal constructions.
What are the sanctions of administrative violations for illegal works but failing to identify the work owner?
Pursuant to Point b Clause 1, 2 Article 65 of the Law on Handling Administrative Violations 2012 of Vietnam (amended Clause 33 Article 1 Amendments and Supplements to Certain Articles of Law on Handling of Administrative Violations 2020 of Vietnam):
“Article 65. Cases without decisions on administrative sanctions 1. There are no decisions on sanctioning administrative violations in the following cases:
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b) Failing to identify the objects of administrative violations;
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2. As for administrative violations specified at points a, b, c and d of clause 1 of this Article, though competent persons do not issue administrative sanction decisions, they have to issue decisions to confiscate material evidence and means used for commission of administrative violations in the event that such material evidence and/or means used for commission of administrative violations are classified as those banned from storage or circulation, or those subject to a penalty imposed in a form of confiscation and remedial or relief measures prescribed by laws.
Each decision must clearly state the reasons for not issuing sanction decisions; exhibits and means used for commission of administrative violations which are confiscated; remedial or relief measures to be applied, responsibilities and duration of implementation of such measures.
Confiscation or forfeiture of exhibits and means used for commission of administrative violations, and implementation of remedial or relief measures, shall not be deemed as being subject to administrative sanctions.”
Moreover, Clause 4 Article 85 of the Law on Handling Administrative Violations 2012 of Vietnam also stipulates:
“Article 85. Implementation of remedial measures
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4. If fail to define subject of administrative violation as prescribed in clause 2 Article 65 of this Law or individual is die, lost or organizations is dissolved, bankrupt and having no organization receiving transfer of rights and obligations as prescribed in Article 75 of this Law, agencies where person having competence of sanction and handling dossier of administrative violation must organize implementation of remedial measures specified in clause 1, Article 28 of this Law.
Expenses for implementation of remedial measures which agency of person having competence for sanction issue decision for implementation are taken from reserve budget source allocated to that agency.”
Thus, according to the above regulations, in this case, there will be no decision to sanction administrative violations, but a decision will be taken to apply remedial measures such as forcible wrecking of works, parts of works constructed without building permits specified at Point b Clause 1 Article 28 of the Law on Handling Administrative Violations 2012 of Vietnam.
Thư Viện Pháp Luật