Concept and Characteristics of Land Complaint Resolution

According to the Vietnamese Dictionary: “ A complaint is a question or request to review conclusions or decisions that have been made or approved by a competent authority ” (Nguyen Nhu Y, 1999, p.904). According to the book 3450 common legal terms: “ A complaint is a request for a state agency, social organization or person in a position to resolve violations of the rights or legitimate interests of the complainant or others ” (Nguyen Ngoc Diep 2008, p.29).

Complaints are one of the basic rights of citizens as recognized in the Constitution: “ Everyone has the right to complain and denounce to competent agencies, organizations and individuals about illegal acts of agencies, organizations and individuals ” (Article 30, Constitution 2013). Complaints are considered as a human reaction to a decision or an action that the complainant believes is inconsistent with the rules and standards of community life, infringing on their legitimate rights and interests.

Specifying the right to complain of citizens, Clause 1, Article 2 of the 2011 Law on Complaints stipulates: “ Complaints are when citizens, agencies, organizations or cadres and civil servants, according to the procedures prescribed by this Law, request competent agencies, organizations and individuals to review administrative decisions and administrative acts of state administrative agencies, of competent persons in state administrative agencies or disciplinary decisions against cadres and civil servants when there is reason to believe that such decisions or acts are illegal and infringe upon their legitimate rights and interests .”

From the above viewpoints, it can be seen that a complaint is a request from an individual, agency or organization directly affected by an administrative decision or administrative action of an agency, organization or person with the authority to resolve complaints. Here, it can be understood that a complaint is a right and an action of subjects such as state agencies, organizations and individuals. Complaint resolution activities are activities of state power and can only be performed by competent persons in state administrative agencies according to the procedures prescribed by law. The right to complain of citizens appears in connection with the process of performing state management functions. When citizens exercise the right to complain, it is the process of providing competent state agencies with documents and evidence of violations of citizens' legitimate rights and interests by agencies and competent persons in state administrative agencies .

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- Concept of land complaints

Recently, the situation of citizens' complaints has become complicated, especially in the field of land management. Citizens' complaints related to land have arisen in almost all localities and have tended to increase, becoming more and more complicated. In many places, complaints related to land have become "hot spots", and mass complaints have appeared more and more. In order to legalize and promote citizens' right to complain, the 1993 Land Law recognized the value of land use rights and recognized the rights of land users, expanding the democratic rights of land users in land recovery and compensation, support and resettlement. On that basis, the 2013 Land Law continues to affirm the rights of land users. On the basis of these legal documents, a legal framework has been created for citizens' right to complain about land.

The Land Law does not provide the concept of land complaints, but from the above concept of complaints, the author believes that land complaints are when citizens - people with legal land use rights - request the state land management agency to resolve policies and regimes related to land use rights due to violations of these rights.

1.1.1.2. Characteristics of land complaints

- Characteristics of the subjects entitled to make complaints: Subjects entitled to make complaints about land are subjects having the right to use land. Land users are allocated land by the State, leased land, recognized land use rights, and receive transfers of land use rights according to the provisions of the 2013 Land Law, including: “Domestic organizations including state agencies, people's armed forces units, political organizations, socio-political organizations, economic organizations, socio-political-professional organizations, social organizations, socio-professional organizations, public service organizations and other organizations according to the provisions of the law on civil affairs (hereinafter referred to as organizations); Domestic households and individuals (hereinafter referred to as households and individuals); Residential communities including Vietnamese communities living in the same hamlet, village, hamlet, village, village, village, phum, soc, residential group

streets and similar residential areas with the same customs, practices or lineage; Religious establishments including pagodas, churches, chapels, temples, cathedrals, Buddhist prayer halls, monasteries, religious training schools, headquarters of religious organizations and other religious establishments; Foreign organizations with diplomatic functions including diplomatic missions, consular offices, other foreign representative agencies with diplomatic functions recognized by the Government of Vietnam; representative agencies of organizations under the United Nations, intergovernmental agencies or organizations, representative agencies of intergovernmental organizations; Vietnamese people residing abroad according to the provisions of the law on nationality; Foreign-invested enterprises including 100% foreign-invested enterprises, joint-venture enterprises, Vietnamese enterprises in which foreign investors purchase shares, merge, or acquire according to the provisions of the law on investment”. (Article 5, Land Law 2013)

The right to complain of land users is stipulated in Article 204 of the 2013 Land Law.

- Characteristics of the complainant: The complainant is a state management agency assigned to manage land. According to the provisions of Article 24, Article 25 - Land Law 2013; Article 4, Decree 43/2014/ND-CP dated May 15, 2014 of the Government on the implementation of the Land Law; Clause 3, Article 2 of Decree 01/2017/ND-CP dated January 6, 2017 of the Government amending and supplementing a number of articles of Decree 43/2014/ND-CP, the current specialized land management agencies in Vietnam include:

Firstly: The Ministry of Natural Resources and Environment is a Government agency performing the function of state management of land resources, water resources, mineral resources, environment, meteorology, hydrology, surveying and mapping nationwide and managing public services in land management and use.

Second: The Department of Natural Resources and Environment is the land management agency in provinces and centrally-run cities with the function of managing and surveying maps, and is under the professional leadership of the Ministry of Natural Resources and Environment.

Third: The Department of Natural Resources and Environment is the land management agency in districts, towns, and provincial cities with the function of state management of land and the environmental field.

Local natural resources and environment agencies include the Department of Natural Resources and Environment, the Division of Natural Resources and Environment and the Land Registration Office, which are assigned to perform a number of tasks in state management of land.

Fourth: Commune-level land officers are the ones who assist the People's Committees of communes, wards and towns in land management. Commune-level land officers are arranged by the People's Committees of districts.

- Characteristics of the subject of complaints: The subject of complaints about land is administrative decisions and administrative acts on land management. When subjects with land use rights believe that the competent agency or individual issuing the administrative decision or administrative act violates their legitimate rights and interests, they have the right to complain, request termination, revocation, cancellation of that administrative decision or administrative act and compensation for damages if any.

The events leading to land complaints often stem from the protection of the rights of individuals and organizations regarding the land use rights they are using. The subjects of land complaints are related to the following contents:

+ Complaints about recovery, compensation, resettlement support

Land acquisition is aimed at implementing socio-economic development policies. However, in reality, compensation and resettlement support for subjects whose land is acquired face many difficulties and obstacles. Many projects have not arranged resettlement areas or have not resolved resettlement and have decided to acquire residential land. In some cases, compensation is not enough to buy new housing in the resettlement area. The compensation price of land is sometimes lower than the price of the same type of land on the market, especially for agricultural land in urban areas, rural residential areas, etc. The provisions of the law on land to resolve resettlement issues are relatively complete, but localities have not implemented them well, leading to a prolonged situation of complaints.

+ Complaints about the issuance and revocation of land use right certificates

This is the most common type of complaint today. The cause of this type of land complaint partly comes from the competent land management agency: Issuing land use right certificates with errors in user names and plot diagrams.

land, area... In some cases, competent authorities refuse to issue land use right certificates without a valid reason. In many cases, the processing of documents is slow, officials and civil servants cause trouble, harassment... causing difficulties for land users. Another reason is due to suspended planning or because people do not accept even though the reason for not issuing land use right certificates is valid...

+ Complaints about administrative sanction decisions for violations of land management and use regimes

This type of complaint comes from the following causes: Some people do not have a clear understanding of the Land Law and the Law on Complaints and Denunciations, leading to violations of the law or cases of encroachment and violations of construction regulations; Some people, although relatively knowledgeable about the law, still deliberately violate it, and when discovered and punished, they stubbornly complain. In addition, there is also some responsibility of competent authorities such as: Issuing a decision to punish the wrong subject, confusing, wrong name of the user; the implementation of the penalty decision is erroneous or illegal; the decision is not based on the law; the decision is too lenient or too harsh or is irresponsible, lacking objectivity.

1.1.2. Concept and characteristics of land complaint settlement

1.1.2.1. Concept of land complaint settlement

Along with the right to complain about land of the parties, the people with related rights and obligations is the obligation to resolve land complaints of competent agencies, organizations and individuals. Doing a good job in resolving land complaints will contribute to improving the effectiveness of state management activities, protecting the legitimate rights of the parties; at the same time, it also creates social trust in the activities of state agencies.

According to the Vietnamese Dictionary, the term "resolve" is understood as "to make a problem no longer a problem" (Nguyen Nhu Y, 1999, p.301).

Clause 11, Article 2 of the 2011 Law on Complaints, when explaining the concept of complaint settlement, stipulates: " Complaint settlement is the acceptance, verification, conclusion and decision to settle complaints ."

Resolving land complaints is essentially the work of individuals, competent agencies, at the local level, and entities with the authority to resolve land complaints, including: Chairman of the People's Committee at the commune level, Chairman of the People's Committee at the district level, Director of the Department of Natural Resources and Environment, Chairman of the People's Committee at the provincial level, carrying out necessary activities to clarify whether complaints about administrative decisions related to the rights of land subjects and related decisions arising when allocating and recovering land are correct or not? Specifically, determining whether decisions on granting, recovering, compensating, supporting resettlement... of state administrative agencies, competent persons in state administrative agencies have infringed upon the legitimate rights and interests of the complainant? What are the nature, extent, and consequences of those illegal acts? From there, draw conclusions on each related issue, as a basis for making decisions to resolve land complaints. In the process of resolving land complaints, the agency or person with the authority to resolve complaints, on the one hand, uses the documents and evidence received from the complainant, and on the other hand, can organize verification and collect additional information and documents as a basis for concluding and making a decision to resolve the complaint accurately. From there, it concludes that the content of the land complaint is correct, partially correct or completely incorrect. On that basis, it makes a decision to resolve the complaint in the direction of maintaining, amending, canceling or requesting to amend, partially cancel the decision or act being complained about or forcing the termination of the implementation of the decision or act being complained about; at the same time, it decides on the responsibility to compensate for damages and remedy the consequences caused by the illegal decision or act.

Land complaint settlement activities are conducted on the basis of and in accordance with legal provisions, first of all the law on complaint settlement, and also in accordance with legal provisions in each relevant field, such as the Land Law...

From the above analysis, we can propose the concept of resolving land complaints as follows : Resolving land complaints is the process by which competent authorities base

Based on the law on complaint settlement and other relevant laws, conduct verification activities, collect documents and evidence to conclude issues related to the content of land complaints, and on that basis issue a decision to settle land complaints.

1.1.2.2. Characteristics of land complaint settlement

Resolving land complaints, specifically resolving complaints about compensation and resettlement support; Complaints about the issuance and revocation of land use right certificates; Complaints about decisions on administrative sanctions for violations of land management and use regimes, are essentially resolving conflicts of interest between state agencies and people complaining about land when they believe that decisions and actions of state administrative agencies and competent persons of state agencies infringe upon their legitimate rights and interests. Resolving land complaints is one of the activities to ensure the rule of law in state management, in the land sector, to protect the legitimate rights and interests of individuals, agencies and organizations, to protect the interests of the state and society, to protect order and discipline, legal order, and to handle violations of the law in state management of land. In handling complaints, state administrative agencies not only consider the legality but also the reasonableness of administrative decisions, because in state management of land, many problems often arise that the law has not yet regulated. Considering the reasonableness of administrative decisions and administrative acts is also an important factor to ensure fairness in society.

Land complaint settlement has the following basic characteristics:

- Firstly , resolving land complaints only occurs when the State issues or revokes land use right certificates; issues administrative sanctions for violations of land management and use regimes against land users when they find that they are not satisfied, their rights and interests are violated, then land complaints arise and are resolved by competent authorities.

- Second , resolving land complaints is an activity of state power. Complaint resolution activities are carried out by entities with state power,

The State has the authority to carry out (Chairman of People's Committees at all levels, Heads at all levels, sectors...). The settlement of complaints does not come from the unilateral will of the State as in handling administrative violations or other cases, but is only applied when there is a request from individuals or organizations making complaints, that is, when these individuals or organizations believe that the decisions or administrative actions of state agencies or civil servants are illegal, infringing upon their legitimate rights and interests. The settlement of complaints is not only the authority but also the responsibility of state administrative agencies towards the complainants in ensuring their legitimate rights and interests in state administrative management in the field of land. The decision to settle complaints is an administrative decision that subjects must strictly implement when it comes into legal effect. In necessary cases, the decision to settle complaints is guaranteed to be implemented through coercion by state power. If there is a violation, depending on the severity, it can be handled by administrative measures or prosecuted criminally.

- Third , resolving land complaints is an activity that must comply with strict forms and procedures prescribed by law. Resolving complaints in general, and resolving land complaints in particular, is a special activity carried out by competent persons and must comply with strict forms and procedures prescribed by law and must be public and democratic (from the stage of receiving, conducting inspection, verification, issuing settlement decisions and organizing the implementation of settlement decisions). In the process of building a rule of law state and managing society by law today, regulating and publicizing the above issues is extremely necessary. These regulations will contribute to creating transparency in state administrative management activities, which is also the basis for competent agencies to perform their functions and tasks in state management; at the same time, it is also the basis for society to exercise the right to supervise the law enforcement process of state agencies.

- Fourth , resolving land complaints is an individual and specific activity. Complaint resolution is carried out and effective for each subject, each specific situation and is only legally valid for the identified subject stated in the document.

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