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Contract for transfer of land use rights according to the provisions of Vietnamese civil law - 2 -
Contract transfer under Vietnamese civil law - 5 -
Implementation of the law on the right to transfer, contribute capital, and mortgage land use rights of land users in Vietnam today - 10 -
Contract transfer under Vietnamese civil law - 10 -
Directions for Perfecting the Law on Land Use Rights Transfer Contracts
THESIS:
Contract for transfer of land use rights according to the provisions of Vietnamese civil law
opening
1. Urgency of the topic
Land is identified as an invaluable asset of the nation, a special means of production, a location for distributing residential areas and economic sectors, a fundamental part of the national territory, and the most important component of the living environment.
Land has such value that people always want to impact it regularly and positively to create material and spiritual values to serve their lives. The transfer of land from one user to another is an inevitable law of motion. The 1993 Land Law allowing the transfer of land use rights is an important breakthrough in regulating the rights of land users, opening a new period creating favorable conditions for land relations to operate in accordance with the market mechanism. However, along with the development of social relations that are constantly taking place in the market economy, these legal provisions have proven to be not really suitable and still have many shortcomings. The 1993 Land Law was amended and supplemented by the National Assembly in 1998 and 2001. However, these documents are still not really suitable for the need to regulate land use rights transfer relations. On November 26, 2003, the National Assembly passed the new Land Law with many new points, more progressive than the 1993 Land Law, in which the regulations on land use rights transfer also have many new points.
Transfer of land use rights is essentially the State's recognition of the legality of the act of self-adjusting land between land users to create land use rights for new entities. Transfer of land use rights under the 2003 Land Law includes conversion, transfer, lease, sublease, inheritance, mortgage, guarantee, donation, and capital contribution using land use rights. Among these forms, transfer of land use rights is the most popular and vibrant form of transaction. The Land Law determines that legal land users, without disputes, who meet the conditions prescribed by law, have the right to transfer their land use rights to others. Thanks to that, in addition to exploiting and using, legal land users can also transfer land use rights to
other people to collect an amount of money corresponding to its value, land becomes valuable assets and land use rights participate in the real estate market.
However, in recent times, the transfer of land use rights has been complicated. The situation of illegal transfer of land use rights is still quite common. This is also the reason proving the necessity to study and understand the legal nature of land use rights transfer contracts compared to other civil contracts. A full and correct understanding of the provisions on land use rights transfer contracts is urgent in practical activities when implementing the law and applying the law in the trial activities of the Court.
The above presentation is the reason for choosing the topic " Land use rights transfer contract according to the provisions of Vietnamese civil law " as the student's master's thesis.
2. Research status of the topic
In recent times, in our country, there have been a number of scientists and managers who have studied the current status of the law and the practical application of the law on the transfer of land use rights, thereby making assessments or even providing a basis for amending and supplementing regulations on the transfer of land use rights in general. Now, on that basis, the author has synthesized and inherited to systematically research, from which to analyze and make his own comments and assessments on the legal regulations on land use rights transfer contracts in our country.
From the assessment of the current status of the law on land use rights transfer and the practice of land use rights transfer relations taking place in the market economy of recent times, as well as the practice of applying the law in this field, I see that systematically researching and analyzing the provisions of land use rights transfer contracts to propose measures to improve it is very meaningful in the current situation.
3. Purpose, scope and research objects of the topic
Current law regulates many types of land use rights transfer relationships such as conversion, assignment, lease, sublease, mortgage, guarantee, donation, capital contribution, and inheritance of land use rights. The author chooses to study a type of relationship considered the most common and important - the contractual relationship of land use rights transfer.
The research purpose of the topic is to analyze and evaluate the regulations on land use right transfer contracts, on that basis, to propose directions and solutions to improve the law and mechanism for applying the law on land use right transfer contracts to contribute to improving the health of land use right transfer relationships.
To achieve the above purpose, the author has analyzed in depth the basic concepts related to the issue of transferring land use rights and analyzed the contents of land use rights transfer contracts stipulated in Vietnamese civil law.
4. Theoretical basis and research methods
The methodological basis of the thesis research is dialectical materialism and historical materialism; Ho Chi Minh's thought and the Party's guidelines on the State and land.
During the research process, the author used methods of comparison, analysis, synthesis...
5. Significance of the research results
The results of this study can be used as reference materials at law training and research institutions. Some solutions of the topic have reference value for agencies that develop and enforce laws on land use rights transfer contracts in our country.
6. Structure of the thesis
In addition to the introduction, conclusion and list of references, the content of the thesis includes 3 chapters:
Chapter 1 : Theoretical issues on transfer of land use rights and land use rights transfer contracts.
Chapter 2 : Legal status of land use rights transfer contracts under Vietnamese civil law and practical application.
Chapter 3 : Directions, solutions to improve and mechanisms for applying the law on land use rights transfer contracts.
Chapter 1
Theoretical issues
on transfer of land use rights and land use rights transfer contracts
1.1. Concept of land use rights and land use rights transfer
1.1.1. Concept of land use rights
When it comes to land ownership, we see that as the representative of the owner, the state has full rights to possess, use and dispose of land. Among those powers, the right to use is the most practical, directly bringing benefits to the owner. However, the state is not the direct subject of land use but indirectly uses it through organizations and individuals in society by allocating land, leasing land and recognizing land use rights for direct land users.
Indeed, the right to use land, we must first understand that this is a natural right . When people possess land, they will perform land use acts, specifically exploiting the land's usability without regard to its form of ownership. Through land use acts, people can satisfy their needs as well as create wealth for society. For example:
+ In the fields of agricultural, forestry and aquaculture production, land is considered the most important and indispensable means of production. Thanks to the implementation of land use rights, land users have directly exploited the benefits from land. Without land, human labor cannot produce rice to serve daily essential needs. When determining the relationship between labor and land, C. Marx said: "Labor is the basic factor of the production process but is not the only factor that creates material wealth - Labor must combine with the object of labor to produce material wealth" [19].
+ In life, land is the shelter of humans. Thanks to land and through land use, directly or indirectly, humans can survive, such as
travel, play, work, rest. Without land there is no human life.
+ Through land use behavior in the fields of management, economics, politics, society, security, and defense, humans create material and spiritual values to promote the common development of humanity.
In addition, land use rights are considered a legal power , this power is recognized and protected by law. Here we analyze land use rights in depth from a political-legal perspective.
As we know, since the 1980 Constitution was born, land has been owned by the entire people, the State is both the representative of the owner and the manager of the land. However, in the period from 1980 to 1987, in reality, our State has not yet fully established its ownership rights to land, especially land under the ownership and use of organizations and individual households. The affirmation and declaration of the ownership regime of the entire people over land during this period was only a reform in legal documents. People who are using the land feel "sudden" because they are not the owners of the land plot, but they seem to have lost nothing because they still have the right to exploit and use the land that is no longer theirs. However, we can see that during this period, the rights and obligations of land users were not properly taken care of, the law only focused on the interests of the State and did not have a solution for the rights of the land users who were the previous owners. This situation is also one of the reasons why land users did not actively exploit the full potential of land, creating an agricultural economic crisis in our country in the early 1980s.
On December 29, 1987, the National Assembly passed the Land Law consisting of 6 chapters and 57 articles. This was the first step in establishing the relationship between the State as the representative of land ownership and land users. The Law specifically and systematically stipulates the obligations and rights of land users. With these provisions, the institution of land use rights was formed, it was built on the basis of land owned by the entire people, land use rights are recognized by the State as a form of expression.
of the owner, of which the State is the representative. The State allocates land, records the right to use land for organizations, households, and individuals to exploit the utility and enjoy the benefits and profits from the land. In fact, the 1987 Land Law initially created a legal basis to promote the people's ownership of land, establishing a certain stability in land use. However, due to the impact of the market mechanism, the need to use land is becoming increasingly urgent, while the State does not pay attention to the economic factors of land and strictly prohibits the purchase, sale, and transfer of land in any form, creating an obstacle to the movement and transfer of land use rights, hindering the economic development of the country. In that situation, the 1992 Constitution and the 1993 Land Law were born, marking an important historical milestone in regulating the rights of land users. On the one hand, the law continued to affirm that land belongs to the entire people and is uniformly managed by the State, recognizing and protecting the legitimate land use rights of land users. On the other hand, the law really paid attention to the rights of land users, which is to recognize that legal land users have the right to transfer land use rights, including the rights to transfer, convert, lease, inherit, and mortgage land use rights. However, the exercise of these rights is not completely free but must comply with the conditions set by the State. Thus, during this period, the land use rights of land users have been expanded. It can be said that the State has "given" to land users "the right to determine the legal fate of the land plot used within a certain framework", thanks to which land users, in addition to having the right to exploit and use their land, can also proactively transfer the land use rights to others when there is no need or condition to use the land. This is the biggest breakthrough of the 1993 Land Law, creating the premise for the formation and development of the land use rights market, allowing land users to maximize the economic efficiency brought about by land. From there, along with the law recognizing that land has a value equal to the State's allocation of land with land use fees, land use rights have been considered as a property right, which can be valued in money, thanks to which land users can put their land use rights into civil transactions.
The 1993 Land Law affirms that land users have the right to transfer land use rights and now the 2003 Land Law officially recognizes the transfer of land use rights.