On 11 November 2009 the Government issued Decree No. 105/2009/ND-CP on the sanctioning of administrative violations in the land domain ("Decree 105").
Administrative violations in the land domain apply in the case of intentional or unintentional acts committed by land users, related organisations and individuals, and organisations providing land-related services that violate the provisions of land legislation but not to the extent of being violations under criminal law provisions.
Decree 105 applies to both domestic and foreign individuals, Vietnamese persons permanently residing overseas, domestic and foreign bodies and organisations, family households and religious establishments that commit acts of administrative violation in the use of the land or in the provision of land-related services.
State officials and employees who violates the legislation on land management while performing official duties shall be disciplined pursuant to legal provisions governing State officials and employees and Decree No. 181/2004/ND-CP dated 29 October 2004 on implementation of the Land Law.
The statute of limitations for sanctioning administrative violations in the land domain is two years, counting from the date the administrative violations are committed.
Decree 105 also prescribes forms of sanctioning and remedial measures. Principal forms of sanctioning comprise warnings and fines. Additional forms of sanctioning include confiscation of the means used to commit the administrative violations, revocation of practice licenses and certificates, and a prohibition on professional practice in land use planning consultancy. In addition, remedial measures may be applied, to compel violators to restore the original state of land prior to the violation. In cases where the statute of limitations has expired, but the act of administrative violation has not yet been sanctioned, the competent body may not sanction such administrative violation but may apply remedial measures.
The extent of the consequence for an administrative violation is determined based on the "use right" value of the target land area as set by the People’s Committee of the province or city where such land is located. The range of consequences is divided into four levels with the lowest, level one, covering land use rights valued below VND 30 million for agricultural land, or below VND 150 million for non-agricultural land, and the highest, level four, applicable to land use rights valued at VND 200 million or more for agricultural land, or VND 1 billion or more for non-agricultural land.
The acts of using land for incorrect purposes; encroaching and appropriating land; destroying land; and receiving a transfer of land use rights without meeting conditions all may be subject to the maximum fine of VND 500 million.
Presidents of People’s Committees of all levels and specialised land inspectorates are the competent bodies to sanction administrative violations.
Decree 105 also prescribes the procedures for sanctioning administrative violations and the execution of decisions on sanctioning of administrative violations in the land domain.
Decree 105 will take effect from 1 January 2010 and replaces Decree No. 182/2004/ND-CP dated 29 October 2004 on sanctioning of administrative violations in the land domain.
For inquiries related to this Client Alert, please contact:
Dao Nguyen (email@example.com)
Thinh Dan (firstname.lastname@example.org)