Contract for transfer of land use rights according to the provisions of Vietnamese civil law

However, land ownership rights cannot be identified with land use rights because they have differences in both content and specific meaning.

- Land ownership is the original right (existing first), while land use right is a derivative right (existing later) that appears when the state allocates land or leases land, allows the transfer of land use rights or recognizes land use rights.

- Land ownership is a complete and full right, while land use rights are not complete and full. Because, firstly , land users do not have all the powers as the State as the representative owner; secondly , not everyone who has legal land use rights has all 9 rights of a land user. The 2003 Land Law distinguishes between land users. For example, household owners and individuals using land other than leased land have the right to convert agricultural land use rights in the same commune, ward or town with other households (Article 113). Economic organizations that are leased land by the State in the form of annual land rent payment only have the right to sell, mortgage, guarantee, and contribute capital with their own assets attached to the leased land, but are not allowed to exercise the rights to transfer, mortgage, guarantee, and contribute capital with the leased land use rights (Article 111). Or only those who use land in the form of land allocation and pay land use fees and rent land in the form of paying land rent at once for the entire rental period, have been paid for many years, and the remaining paid land rental period has at least 5 years, will be allowed by law to fully enjoy the 9 above-mentioned powers.

Thus, the land use right regime is considered as a form of implementing the people's ownership of land. Accordingly, the State, as the representative of the owner, has the right to decide on all land nationwide and legally, the State has all three powers of the owner according to the law. However, the State does not directly possess and use land but through its supreme right to decide for organizations, households and individuals who have the right to use land through the forms of land allocation, land lease, recognition of stable land use or recognition of land use rights established by legal acts of transferring land use rights. Depending on the forms

different that the State stipulates for them to enjoy different rights and perform different obligations.

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From the above analysis, we see that land use rights are a specific type of rights of land users, which are derived from the people's ownership of land. This type of right arises on the basis of a specific combination of the owner's property rights with the element of state power. Therefore, the right to transfer land use rights as well as the right to receive land use rights transfer is not applicable to all subjects but is limited by state power. This is reflected in the fact that the State promulgates strict legal regulations on the form, procedures, conditions, rights and obligations of the parties involved in the land use rights transfer relationship.

In short , land use rights are the right to exploit beneficial properties from land legally through land use acts or transfer those rights to others . The process of formation, movement and development of land use rights both takes place inevitably and objectively and is closely linked and dependent on the regime of ownership rights of the entire people over land, of which the State is the representative. However, the land use rights of land users are a fairly broad category, including many different legal powers, including the right to transfer land use rights. These rights arise, change or terminate within a certain "framework". That framework is the will of the State, implemented by promulgating legal regulations that land users and state management agencies must comply with. These regulations are both stable and subject to change depending on each stage of social development. From only recognizing that land users have only 5 rights to transfer land use rights in the 1993 Land Law, the State has expanded the rights for land users to sublease and contribute capital using the value of land use rights in certain cases in the Law amending and supplementing a number of articles of the Land Law dated December 1, 1998 and these rights continue to be affirmed in the Law amending and supplementing a number of articles of the Land Law dated June 29, 2001 and especially the 2003 Land Law passed by the 11th National Assembly of the Socialist Republic of Vietnam on November 26, 2003.

In the current conditions, in order to encourage the exploitation of all land potentials, contributing to promoting the dynamism of positive factors when the State grants land use rights, the State is tending to increasingly expand the power of land users. The expansion of rights for land users demonstrates the State's deep concern for land users, is one of the conditions promoting the exploitation of land potentials in the direction of commodity production, and at the same time has the effect of promoting the increasingly strong and dynamic development of the land use rights market. However, this expansion does not mean that the State distributes or abandons the rights of the owner, no matter how much the rights are expanded, the principle that land belongs to the entire people remains firm. Land users are only allowed to exercise their powers recognized by law and must exercise those rights within the constraints, domination and control of the State, that is, they must comply with the principles, order, procedures, conditions and obligations prescribed by law. Depending on each case, certain land users are granted specific legal rights by law.

1.1.2. Concept of land use rights transfer

Land use rights is a broad concept, including many different powers. One of the basic and especially important powers of land users is the right to transfer land use rights. In a market economy, land use rights are a type of property that can be transferred, exchanged, and traded.

Transfer of land use rights is when a land user can transfer this right to another person in one of the following forms: conversion, assignment, lease, sublease, inheritance, donation of land use rights, capital contribution, mortgage and guarantee by the value of land use rights. Transfer of land use rights is when the State recognizes the legality of the act of self-adjusting the land of the current user to the new user. In other words, transfer of land use rights is when the State allows the land user to "determine" his/her legal land use rights according to the provisions of law.

The 1993 Land Law for the first time recognized that land users were allowed to transfer land use rights. Subsequently, the 1995 Civil Code devoted Part Five to regulating

Regulations on transfer of land use rights. The 2003 Land Law recognizes nine forms of land use rights transfer including conversion, assignment, lease, sublease, inheritance, donation of land use rights, capital contribution, mortgage and guarantee by land use rights value.

During the process of drafting the Civil Code (amended), there were some opinions that it was not necessary to include provisions on the transfer of land use rights in the Civil Code because the Land Law has specific provisions on this issue. However, after consideration, the National Assembly still retained Part Five - Provisions on land use rights in the new Civil Code - the 2005 Civil Code. Of course, the provisions on the order and procedures for transferring land use rights already included in the Land Law are not mentioned again in the Civil Code but only focus on regulating the civil legal form of transferring land use rights. That is the contracts on the transfer of land use rights.

Currently, there are two ways of looking at the connotation of the concept of land use rights transfer. According to the first way of looking at it, land use rights transfer is only carried out in the forms of conversion, transfer, donation and inheritance. According to the second way of looking at it, land use rights transfer includes all rights to convert, transfer, lease, sublease, inherit, mortgage, donate, guarantee, and contribute capital with the value of land use rights. We agree with the second way of looking at it with the explanation: conversion, transfer, donation and inheritance of land use rights are the rights to transfer complete land use rights; the remaining rights including lease, sublease, contribute capital, guarantee, and mortgage with land use rights are still considered as land use rights transfer, but this is a limited and incomplete land use rights transfer [24].

 Characteristics of land use rights transfer Land use rights transfer has the following characteristics:

Firstly , land users do not have the full right to decide and take absolute control over the land under their use rights as with other types of property under their ownership. When transferring land use rights, those participating in the transaction must comply with the provisions on conditions, content, order and procedures prescribed by law. The transfer of land use rights is bound by the duration, purpose and land use planning.

Land use. The land user must use the land for the correct purpose as determined by the State.

Second , because land always has a fixed location and cannot be moved, unlike other goods, it needs to be measured, plotted, numbered, and legally granted a land use right certificate. The transfer of land use rights is mainly carried out through the land document system. Therefore, in land transactions, cadastral records, land use right certificates, and contracts must be clear, public, and transparent.

Third , the value of land use rights when transferring land use rights depends on many factors such as the location of the land plot, the profitability of the land, the level of infrastructure completion, other economic, political and social factors. Therefore, the same area but located in different locations, even two adjacent plots of land, when transferring land use rights, the price can be very different.

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1.1.3. Transfer of land use rights is an inevitable need of the market economy.

As analyzed above, land has special value to human life. Land

Land has the property of limited area and difference in use value. The needs of each subject are different. Therefore, to have a plot of land suitable for their needs, the subjects must transfer land use rights to each other. Land use rights are a property right - a right that can be quantified in money. Transferring land use rights, therefore, is a condition that allows land use rights to become a special type of commodity circulating in the market. In our country today, the land use rights market has not only appeared but also operates very actively not only in urban areas but also in every corner of the countryside. Thus, it can be stated that: transferring land use rights is a practical need of land users clearly expressed in the market, and it is itself an objective necessity of the market economy.

To clarify the objective necessity of the existence of the land use rights market as well as the need to transfer land use rights, first of all, we need to evaluate

Land relations in general and land use rights transfer relations in particular in different economic mechanisms. As analyzed above, land relations and land use rights transfer relations have their own development history. Corresponding to each different historical period, the content of this relationship is not the same. Since 1945 up to now, our country's economy has been divided into two development stages with two different economic mechanisms: the centralized subsidy mechanism (centralized planning economy) and the socialist-oriented market economy.

The 1980 Constitution affirmed that land belongs to the entire people and is managed by the state. By this provision, the state only recognizes one unified form of ownership.

- ownership of land by the entire people. Thanks to the unified management of only this one form, the State has eliminated other forms of ownership such as collective ownership and private ownership of land, thereby ending a series of disputes over land ownership, creating a legal basis for the regulation of not recognizing the reclaim of land that has been assigned to others for use. This has also created economic, political, security and social order stability in residential areas, while helping the State to fulfill its supreme role in formulating land law policies.

However, during this period, the law strictly prohibited all acts of buying and selling land, occupying land, and collecting rent in any form. In other words, after the 1980 Constitution was born, the issue of land socialization was implemented absolutely. Land use was "framed" in the relationship of land allocation and land recovery between land users and the State. All economic relations in general were operated according to plans that had been prepared for state agencies to carry out. Economic efficiency in general was not considered important. Land, labor, and other means of production were not considered commodities. They also participated in production and business regulations, but not according to the objective needs of the market but according to the subjective will of the planners. Therefore, land and the above-mentioned means of production and means of labor had no exchange value. Land relations in the centralized planning management mechanism are basically evaluated from two perspectives: In terms of land management, the State manages land according to the administrative command mechanism, the request mechanism is the main one. In terms of land use, land is considered the common property of the whole country, not considered as ordinary property.

allowed to be traded. Land users are not allowed to transfer land use rights to others when they no longer need to use them. Therefore, it has not stimulated and liberated production capacity for workers. As a result, farmers are not keen on sticking with the land they are using. Land, therefore, is not renovated and fertilized in time, has become wild or much less fertile. The use is also haphazard, wasteful, and ineffective. Land users have the right to not have real ownership of the land, and economic efficiency in land use is not respected. Land is considered public property, a gift from God, how it is used is not important.

When the economy was transformed into a socialist-oriented market mechanism, economic relations were operated according to the regulation of market rules. In this economic mechanism, land was valued as people often say "every inch of land is gold", land relations must also operate according to the market mechanism. The beginning of the period of innovation in land management and use was the mechanism of land allocation to households and cooperative members for use in agricultural production (abbreviated as Contract 10) according to Resolution 10 of the Politburo of the Central Executive Committee of the Party on April 5, 1988, which gradually "untied" and liberated production capacity for farmers. This new contract mechanism has brought about enormous efficiency, profoundly changing the face of rural areas and agriculture in our country. Farmers are excited, secure, and have a long-term attachment to the land. In 1992, the new Constitution was promulgated. The 1992 Constitution continues to affirm that the State develops a multi-sector commodity economy according to the market mechanism under the State's management in a socialist orientation. The purpose of the State's economic policy is to make the people rich and the country strong, increasingly better meeting the material and spiritual needs of the people on the basis of liberating all production capacity and promoting the potential of all economic sectors. In the field of land, the State unifies the management of all land to ensure its proper and effective use. The State allocates land to organizations and individuals for stable and long-term use. Organizations and individuals are responsible for protecting, enriching, and exploiting land reasonably, using land economically, and are allowed to transfer the right to use land allocated by the State in accordance with the provisions of law. Next, to strongly promote the achievements brought about by the 10-contract mechanism and to concretize the spirit of the 1992 Constitution, the 1993 Land Law was promulgated.

promulgated. The most outstanding point of this legal document is the official recognition of the stable and long-term land use rights of households and individuals and the right to transfer land use rights within the term of use. This provision demonstrates the conformity between the provisions of the law and the practical operation of land transfer relations in general and land use rights transfer in particular in the market economy. The recognition of land users having the right to transfer land use rights is the recognition of an objective reality, the recognition of a natural right of land users. It was formed for the operation of economic relations in the market economy, which strongly and directly affects the need for land use rights in civil exchanges through the act of transferring land use rights. Whether the law recognizes it or not, in one way or another, legally or illegally, this right is still formed, exists and develops as an objective reality in accordance with the laws of motion of the market economy. In other words, the transfer of land use rights is an inevitable law of motion of the market economy. It was not until the 1993 Land Law that the State officially recognized the rights of land users, including the right to transfer. Thus, it was not until 1993 that the State's land management regulations were in harmony with the market mechanism. After more than 10 years of innovation, economic efficiency has clearly changed. The direction of land relations is to constantly improve the efficiency of land use, increase income and profit. Land users seek ways to use land more effectively. The State's economy is thus improved and developed. It can be analyzed in a number of areas such as agriculture, for example. The agricultural sector is encouraged to develop in the direction of producing goods to serve the common needs of society and for export. Thanks to this correct policy, farmers have gone from having to earn a living from day to day, and the State has to import, to becoming the third largest rice exporter in the world. Other types of agricultural products such as coffee, cashew nuts, pepper, fruits of all kinds, and seafood of all kinds have flooded the market, not only meeting the diverse needs of the people but also exporting large quantities abroad. This success is largely due to the correct policy of the State allocating land to families and individuals for long-term stable use. People are enthusiastic, devoting their efforts to their fields. This has brought about great economic values. Improving the lives of families and society. The production process

Contract for transfer of land use rights according to the provisions of Vietnamese civil law - 2

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