Land use rights are special property rights, and land use rights transfer is a special, conditional civil transaction. In fact, civil transactions related to land use rights are very common according to the principles of equality, voluntariness, and agreement, requiring adjustment by civil law. In essence, the rights to convert, transfer, lease, inherit, and mortgage land use rights are civil rights exercised mainly through contracts. Therefore, the 2005 Civil Code only regulates the contents of land use rights as a civil right, while administrative contents on land use rights management and transfer are regulated by land law.
Transfer of land use rights is of great significance to individuals, households and organizations using land. The essence of transferring land use rights is that the State allows new land users to establish land use rights that the State has allocated. However, here the State does not implement measures as when allocating or leasing land, but through land management agencies to carry out administrative procedures to recognize the legality of the behavior between users to avoid abuse in transferring land use rights illegally. At the same time, the State also creates conditions for those who are capable of working and have capital to accumulate land within the limits permitted by law to develop production and confidently invest on the land they have acquired through transferring land use rights.
Transfer of land use rights is a conditional civil transaction, the regulation of conditions for transfer of land use rights is one of the important and necessary legal bases for building the civil rights of land users. Part Five of the 2005 Civil Code clearly states the provisions on transfer of land use rights such as the provisions on the basis for establishing land use rights. Accordingly, land is under the form of state ownership, unified by the Government.
management. The land use rights of individuals, legal entities, households and other entities are established by the State allocating land, leasing land or recognizing land use rights. The land use rights of individuals, legal entities, households and other entities are also established by the transfer of land use rights by others in accordance with the provisions of the Civil Code and the land law. The form of transfer of land use rights must be implemented through a contract, made in writing, notarized and certified in accordance with the provisions of law, except in the case of inheritance of land use rights. This section also stipulates the price of land use rights transfer, the principles of land use rights transfer and the validity of land use rights transfer.
The 1993 Land Law officially identified land as a special commodity and land users have the rights to transfer it according to the provisions of law. This is a big step forward in our concept of establishing civil transactions on land in social life. The next step, the 2003 Land Law laid the first foundation for proactively building and developing the land use rights market in the real estate market in Vietnam. Along with the capital market and the labor market, the land use rights market will form an important part of the structure of the market economy in our country. Therefore, to effectively manage land, users must fully exploit the land's functions for many different purposes for their own benefit and that of the State. It is time for us to operate the land use rights market in accordance with the inherent economic regulations of the market economy. Therefore, the principled provisions in the 2003 Land Law will open up new directions in establishing synchronous markets, including the land use rights market.
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Article 61 of the 2003 Land Law stipulates that land types are commodities that land users are allowed by the State to participate in the real estate market.
In which the first thing is whether the types of land allocated and leased are protected by the State for their legal rights and interests or not? Referring to the provisions on land users' rights stipulated from Article 109 to Article 121 of the 2003 Land Law, all land users, whether domestic organizations, households, individuals, foreign organizations, individuals, or Vietnamese people residing abroad using land in Vietnam, are able to be protected to participate in the real estate market. Of course, for land allocated to residential communities for agricultural purposes without collecting land use fees or land allocated to religious establishments and non-agricultural purposes where land users do not have the prescribed rights, they are not allowed to participate in the real estate market. Along with the assets that land users legally create on leased land, that type of land is also allowed to participate in the real estate market.
The 2013 Land Law continues to improve regulations on land use rights transfer during the renovation period. The 2013 Land Law supplements regulations on land price determination, according to which the Law assigns the Government to promulgate land price frameworks every 5 years for each type of land, for each region. During the implementation of the land price framework, if the common land price on the market increases by 20% or more compared to the maximum price or decreases by 20% or more compared to the minimum price in the land price framework, the Government shall adjust the land price framework accordingly. Based on the land price framework promulgated by the Government, the provincial People's Committee shall develop and submit to the People's Council for approval the land price list before promulgation.
In addition, the 2013 Land Law clearly stipulates the principles of support when the State reclaims land: households and individuals currently using residential land, Vietnamese people residing abroad who own houses attached to land use rights in Vietnam and are eligible for compensation, when the State
In case of land recovery, compensation shall be as follows: In case there is no other residential land or house in the commune, ward or town where the land is recovered, compensation shall be made in the form of residential land or house; in case there is no need for compensation in the form of residential land or house, the State shall compensate in cash. In case there is still residential land or house in the commune, ward or town where the land is recovered, compensation shall be made in cash . For localities with conditions in terms of residential land fund, compensation in the form of residential land shall be considered.
Compared to the 2003 Land Law, the 2013 Land Law has very important new points. The Law will create all favorable conditions for people such as regulating the limit of agricultural land use; clearly regulating the rights of compensation and resettlement support. In particular, applying this new Law, the rights of land users (including individuals, organizations, and enterprises) create equality between people at home and abroad.
From the above provisions, land management in the real estate market is the most important content in proactively building and establishing market relations. Poor land management in general and management of land use rights transfer in particular will lead to the consequence of not understanding the land use rights market and transactions of users, thereby causing great losses to the state budget and creating a bad precedent in the method of exercising the rights of land users. Therefore, after the Government stipulates the time limit for localities to complete the issuance of Land Use Rights Certificates and major reforms in administrative procedures to exercise the rights of land users, people will switch to transactions in the open and transparent market. It is there that the rights and interests of users are fully protected. The State will not stand aside in real estate transactions but on the contrary, proactively regulate them with its own mechanisms, policies and management measures.
Chapter 2
STATUS OF LAW ON TRANSFER OF LAND USE RIGHTS AND ASSESSMENT OF IMPACT
SELF-INTERESTED TRANSACTIONS IN THE PRACTICE OF LAW APPLICATION
2.1. CONDITIONS FOR TRANSFER OF LAND USE RIGHTS ACCORDING TO CURRENT VIETNAMESE LAND LAW
2.1.1. Regulations on procedures for establishing land use rights Article 688 of the 2005 Civil Code stipulates the bases for establishing
Land use rights include:
1. Land is state-owned and uniformly managed by the Government.
2. Land use rights of individuals, legal entities, households and other entities are established by the State's allocation of land, land lease or recognition of land use rights.
3. The land use rights of individuals, legal entities, households and other entities are also established by the transfer of land use rights by others in accordance with the provisions of this Code and the law on land [28].
In principle, only those with legal land use rights are allowed to execute land use right transfer contracts in accordance with the provisions of law. Therefore, in addition to Clause 1, Article 688 of the 2005 Civil Code, which stipulates the basis for establishing land use rights, which has been recognized in the spirit of the 2013 Constitution, Clauses 2 and 3 of Article 688 of the 2005 Civil Code stipulate the basis for establishing legal land use rights. Subjects with land use rights based on the provisions of Clauses 2 and 3 above are protected by law when exercising their land user rights.
First basis , land users are assigned land by the State or
Land lease. This basis comes from the will of the owner's representative to put the land into use in order to exploit material benefits from the land. The legal basis of this basis is the decision of the competent state agency to allocate or lease land.
Land allocation is the common legal basis for the formation of land users' rights, which is recorded in all Land Laws from 1987 to the 2013 Land Law. After a period of subsidy abolition, shifting from a centrally planned economy to a socialist-oriented market economy, the basis of "State land lease" was officially recorded in legal documents, starting from the 1993 Land Law.
The second basis is that the land user receives the legal transfer of land use rights according to the provisions of law. This basis comes from legal civil and economic transactions related to land use rights. This basis is recognized starting from the Law amending and supplementing a number of articles of the Land Law in 1998. Land transfer is considered legal when all conditions prescribed by law are met.
The third basis is the State's recognition of land use rights. This basis is officially recognized in the 2013 Land Law. In which, the recognition of land use rights is the State's first issuance of a Land Use Right Certificate to a stable land user. The regulation is derived from the complicated land use reality in our country at the present stage and to create a basis for land management in the future. The State can issue land use right certificates according to the current status of use in accordance with the provisions of law.
Land use is actually carried out by organizations, households, individuals, and communities. During the process of land use, there may be changes in land users, areas, and land types. Therefore, registration of land use rights
Land is a measure of the State to monitor the situation of land use and its regular fluctuations.
Land use rights registration is the obligation and responsibility of each land user and the state agency in charge of land management.
Land use right registration is divided into two types: initial registration when a land use right certificate has not been granted and change registration when the land user has been granted a land use right certificate and needs to update new information.
Initial land use right registration is carried out when the land user has not been granted a Land Use Right Certificate or the land user is subject to a judgment or decision of the People's Court, a judgment enforcement decision of the judgment enforcement agency, or a land dispute resolution decision of a competent state agency that has been enforced.
Register changes when the user has been granted a Land Use Right Certificate but there are changes in the process of exercising rights or changes in the following cases:
- Land users are entitled to exercise the right to convert, transfer, inherit, donate, sublease land use rights, mortgage, guarantee, and contribute capital using land use rights according to the provisions of law.
- Land use rights recipient
- Land users who have a Land Use Rights Certificate are permitted by a competent state agency to change the name, change the land use purpose, change the land use term or change the land plot boundary.
Up to now, the bases for establishing land use rights have been uniformly regulated. The 2003 Land Law, amended and supplemented in 2009, is currently the Law.
Land Law 2013, Clause 2 and Clause 3, Article 688 of the 2005 Civil Code stipulates that the basis for establishing land use rights of individuals, legal entities, and households is established by the State allocating land, leasing land, recognizing land use rights, or by being transferred land use rights by others.
2.1.2. Regulations on granting land use right certificates Land use right certificates are legal documents confirming the relationship between land use rights and ownership of land.
legal relationship between the State and land users. In fact, land users own many different types of documents, some have documents issued by the State but many people only have documents handed over during real estate transactions, land documents from the old regime. Therefore, to ensure that transactions have sufficient legal basis, our State is very interested in the work of implementing the issuance of Land Use Right Certificates to land users and that work has been carried out since 1989. Up to now, the issuance of Land Use Right Certificates to households and individuals using agricultural land has been basically completed. However, with non-agricultural land, localities still face many difficulties in the process of implementing this content.
The value of the Land Use Rights Certificate is shown in the following aspects:
- Land use right certificate is an important guarantee of the State for land users (Clause 16, Article 3, Land Law 2013);
- Being granted a Certificate of land use rights, house ownership rights and other assets attached to land is a common right of land users (Clause 1, Article 166 of the 2013 Land Law);
- This is a type of document that enables users to exercise their rights and benefits according to the provisions of law;
- Land use right certificate is a necessary condition for the State to have a basis to compensate for damages to land users whose land has been allocated and recovered by the State according to the provisions of Article 75 of the 2013 Land Law.