On the Government Portal, a citizen in Ho Chi Minh City wondered:
In 2004, Ms. N.T. T bought a land plot with a handwritten paper without a Certificate. Now that Ms. T is completing procedures for the first Certificate, the Ward People's Committee notified her that the transfer of rights is not eligible, Clause 2, Article 65 of the 2012 Law on Handling of Administrative Violations will be applied, stipulating cases where no decision on administrative sanctions is issued, amended and supplemented in Clause 33, Article 1 of the Law amending and supplementing a number of articles of the Law on Handling of Administrative Violations in 2020.
At the same time, she said that Ms. T violated Article 17 of transferring rights, leasing, subleasing, and mortgaging land use rights without meeting the conditions according to Decree No. 123/2024/ND-CP, but due to exceeding the penalty period (which is 2 years), remedial measures will be applied.
According to Article 28 of the 2012 Law on Handling of Administrative Violations: "i) Forcing the return of illegal profits obtained from administrative violations or forcing the return of money equal to the value of exhibits and means of administrative violations that have been consumed, disposed of, or destroyed in violation of the law". And based on point c, clause 2, Article 6 of Decree No. 123/2024/ND-CP to determine illegal profits.
Ms. T asked, is the act of buying and selling handwritten papers in 2004 for land plots without Certificates, generating illegal profits or not (according to the definition of illegal profits), and is it necessary to apply remedial measures to pay illegal profits or not? Based on which legal regulations to confirm whether or not?
The Ministry of Agriculture and Environment answers this question as follows:
Because the content of her reflection is not clear whether the transfer of land use rights in 2004 had or did not have land use right documents as prescribed in Article 137 of the 2024 Land Law.
Regarding the principles of applying the law on handling administrative violations, at point d, clause 1, Article 3 of the Law on Handling of Administrative Violations 2012, amended and supplemented by a number of articles of the Law on Handling of Administrative Violations No. 67/2020/QH14 dated November 13, 2020, it is stipulated:
If many people commit the same administrative violation, each violator will be penalized for that administrative violation.
Article 65 of the Law on Handling of Administrative Violations in 2012, which has been amended and supplemented with a number of articles of the Law on Handling of Administrative Violations No. 67/2020/QH14 dated November 13, 2020, stipulates that in cases where the statute of limitations for handling administrative violations has expired or the deadline for issuing sanctioning decisions has expired, the competent person does not issue a decision to handle administrative violations but still applies the measures to remedy the consequences specified for that administrative violation.
Therefore, regarding the content you asked, the determination of whether or not there is an administrative violation; determining the violating entity; the time of termination of the violation; the statute of limitations for administrative violations; the application of remedial measures to force the payment of illegal profits or not; as well as the determination of illegal profits, it is necessary to base on the dossiers, documents and specific details of the case for competent state agencies to consider and conclude according to the provisions of law.
