PENALTIES IN CASE OF BORROWING CONSTRUCTION PRACTICE CERTIFICATES

I am conducting in construction activities. Due to lack of practicing certificate, I borrowed one from my friend to organize construction activities. I want to know if checked by the state management agency, how am I sanctioned for administrative violations?

FDVN's Opinions:

It is stipulated in Cause 1, and 3 of Article 148 of the Law on Construction 2014 amended and supplemented by the Law on amending and supplementing a number of articles of the Law on Construction 2020 that:

"Article 148. General provisions on capability condition of organizations and individuals engaged in construction activities

1. Individuals conducting construction activities must have diplomas and training certificates relevant to their construction jobs granted by lawful training institutions.

...

3. Holders of titles and individuals independently practicing construction activities who are required to possess practice certificates include labor safety supervisor; project manager, individual personally participating in project management; construction planning design manager; construction survey manager; construction design or design verification manager; site chief commander; construction supervisor; construction appraiser; and construction valuator. Practice certificates shall be classified into class I, class II and class III."

Thus, if you conduct construction activities, you must obtain the appropriate training diplomas and certificates granted by legal training institutions.

If you conduct independent construction activities, you must obtain a practice certificate as prescribed, including labor safety supervisor; project manager, individual personally participating in project management; construction planning design manager; construction survey manager; construction design or design verification manager; site chief commander; construction supervisor; construction appraiser; and construction valuator.

If you do not obtain a certificate as prescribed above, borrow one from another person to conduct the activities and are discovered by state agencies, you will be sanctioned for administrative violations according to the provisions of Points a and b, Clause 1, Article 23 of the Decree No. 139/2017/ND-CP as follows:

"Article 23. Violations against regulations on eligibility requirements
1. A fine ranging from VND 10,000,000 to VND 20,000,000 shall be imposed on persons carrying out construction works for one of the following violations:
a) Failure to satisfy qualification requirements for carrying out construction job, or carrying out construction job inconsistently with the practicing certificate, or failure to possess a practicing certificate or using an expired practicing certificate;
b) Borrowing, lending or leasing practicing certificate for carrying out construction activities;"

Besides, you may face an additional sanction as prescribed in Point a, Clause 4 of Article 23 as follows: "Suspend the practicing certificate for 06 - 12 months if the violation prescribed in Point a or Point b Clause 1 of this Article is committed;" and are forced to apply remedial measures as per Point a, Clause 5 of Article 23 as follows: "Enforced report to issuing authority to revoke or nullify practicing certificate if the violation prescribed in Point b Clause 1 of this Article is committed;"

Thus, the act of borrowing the construction practice certificates to organize construction activities will be subject to a fine of from VND 10,000,000 to VND 20,000,000. In addition, you are also subject to remedial measures to notify the practicing certificate issuer to revoke or declare cancellation of the practicing certificate that you have borrowed. In addition, the person who lent you the practice certificate will be subject to an additional penalty of deprivation of the right to use the practicing certificate from 06 months to 12 months.

Hoang Thuy Quynh - FDVN Law Firm

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