respond fully and promptly. This is also a cause affecting the quality of the Court's work in resolving disputes over land use rights.
Table 2.1. Data on acceptance and resolution of cases of the People's Court of Binh Tan District, Ho Chi Minh City from 2012 to 2016.
Year
Type of case
2012 | 2013 | 2014 | 2015 | 2016 | ||||||
Acceptance | Handle | Acceptance | Handle | Acceptance | Handle | Acceptance | Handle | Acceptance | Handle | |
Criminal | 488 | 488 | 486 | 486 | 466 | 466 | 429 | 429 | 388 | 388 |
Civil | 830 | 779 | 984 | 885 | 732 | 672 | 610 | 556 | 703 | 665 |
Marriage and family | 1,089 | 1,061 | 1,234 | 1,186 | 1,310 | 1,258 | 1,349 | 1,299 | 1,609 | 1,561 |
Commercial business | 162 | 151 | 247 | 240 | 173 | 157 | 148 | 144 | 160 | 151 |
Labor | 112 | 102 | 80 | 77 | 60 | 60 | 371 | 366 | 193 | 191 |
Administration | 38 | 35 | 36 | 36 | 17 | 17 | 25 | 24 | 19 | 19 |
Total | 2,719 | 2,616 | 3,067 | 2,910 | 2,758 | 2,630 | 2,932 | 2,818 | 3,072 | 2,975 |
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Source: People's Court of Binh Tan District
Fourth, according to the Civil Procedure Code, evidence must be truthful, honest, objective and accurate. In resolving disputes over land use rights and disputes over land use rights contracts, documents related to the origin of the land use process are important evidence. However, due to objective and subjective conditions, the issuance of land use right certificates and house ownership rights attached to land has not been completed nationwide. Many plots of land that people have used since their ancestors left for their descendants to use for decades have not yet been issued any documents on property ownership and land use rights.
Fifth, the legal awareness and legal consciousness of the subjects participating in the transfer contract relationship are also the causes leading to the emergence of disputes. The manifestation of this cause is due to limited understanding of the law and the awareness of not complying with the law when participating in the land use rights transfer contract. It can be said that this cause has greatly affected the content of the contract, leading to frequent disputes related to land use rights transfer contracts .
Sixth, the issuance of certificates to the wrong subjects often occurs (common property of a household is issued to an individual, common property of a couple but only the husband is the owner, etc.), complicated administrative procedures and unclear regulations on the time of transaction registration, difficulty in determining the effective time of the contract are obstacles for people when transferring land use rights and for the Court when resolving disputes if they arise.
Seventh, the management of land records on the origin of creation, data on documents on land plots from the old regime and from time to time since the land reform through different periods and land policies have changed a lot, especially on agricultural land... so the granting of land use right certificates for many land plots has been and is facing many difficulties and because it has been taking so long, the land has been transferred to many different users, some of whom have died...
Eighth, the operation of the land use rights registration office, which is determined to be the focal point for the state to exercise its management rights over land and this agency is allowed to provide public services to people when they need to learn about the land plot they intend to participate in a transaction, but in reality, the operation of this agency is not effective because the land use rights registration and statistics system is not unified and accurate, and does not have complete information.
Ninth, not strictly and legally handling tax evasion and administrative handling of fake transactions aimed at circumventing legal regulations, other acts violating land laws...
Tenth, the regulations on contract forms in the Civil Code and the Land Law are not suitable, the procedures are still cumbersome. And the psychology and awareness of the people are not familiar with the procedures for transferring land use rights.
Chapter 2 Conclusion
In chapter 2, through analyzing the data on accepted cases, the data on canceled cases regarding civil disputes and land use rights transfer contract disputes, the author clarified the current situation of resolving land use rights transfer contracts in Binh Tan district in the five years from 2011-2016.
Through analyzing the current status of law application on land use right transfer contracts from the practice of adjudication at the People's Court of Binh Tan District, the author has pointed out common difficulties when applying Vietnamese law in the process of resolving disputes over land use right transfer contracts including 6 specific cases by generalizing and analyzing some specific cases. From there, the causes of difficulties when applying Vietnamese law in the process of resolving disputes over land use right transfer contracts are found.
Chapter 3
DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW AND IMPROVE THE EFFECTIVENESS OF RESOLVING DISPUTES ABOUT LAND USE RIGHTS TRANSFER CONTRACTS IN COURT
3.1 Directions for perfecting the law on land use rights transfer contracts
3.1.1 Thoroughly grasp and promptly institutionalize the Party's guidelines and policies on building and perfecting land policies and laws in the current period.
After nearly 10 years of implementing the Resolution of the 7th Conference of the 9th Party Central Committee on continuing to innovate land policies and laws in the period of accelerating industrialization and modernization of the country, we have achieved many positive results, contributing to the effective exploitation and promotion of land resources to serve the goals of socio-economic development, ensuring national defense, security, social stability, national food security, environmental protection, etc. The effectiveness of state management of land has been gradually enhanced; land policies and laws have been increasingly improved; land users' rights have been expanded and guaranteed by the State; the real estate market, including land use rights, has been formed and developed rapidly. These results affirm that the guiding viewpoints and orientations of land policies and laws identified in the 7th Resolution of the 9th Party Central Committee are basically correct and consistent with the characteristics and socio-economic development situation of the country.
However, state management of land still has many limitations, especially in land use planning, land valuation, compensation, site clearance, support and resettlement, and administrative procedures on land. The interests of the State and people whose land is recovered have not been adequately guaranteed; the source
Land resources have not been fully exploited to become an important internal force serving socio-economic development; land use in many places is still wasteful and inefficient; corruption and negativity in this field are still large; the real estate market develops unstably and unhealthy; "underground" transactions are still quite common; the situation of complaints, denunciations and disputes about land is still complicated.
Inheriting the achievements, the Party's political documents in the current period continue to identify perfecting and innovating land law as one of the key tasks in the process of perfecting the market economy institution. In Resolution No. 19/NQ-TW dated October 31, 2012 of the 11th Party Central Committee on continuing to innovate land policies and laws in the period of comprehensively promoting the renovation process, creating a foundation for our country to basically become a modern industrialized country by 2020, it pointed out the limitations, weaknesses and causes of those limitations and weaknesses in land policies and laws, and continued to affirm that "In the coming time, to meet the requirements of comprehensively promoting the country's renovation process, on the basis of inheriting the orientations on land policies and laws stated in the Resolution of the 7th Conference of the 9th Party Central Committee, it is necessary to continue to innovate and perfect land policies and laws".
The guiding viewpoints in the above documents are the fundamental principles for the process of perfecting land law policies in our country in the coming time. That is also the basic orientation for the process of perfecting the law on land use rights transactions. Therefore, perfecting the law on land use rights transfer contracts in the current period must thoroughly and thoroughly grasp the Party's viewpoints and policies on perfecting land law.
Land law books, specifically the directions given in the important documents mentioned above.
3.1.2 Synchronizing civil law with land law and other branches of law
Perfecting the law on land use right contracts requires basic policies and guidelines to build a system of legal regulations. Transactions related to land use right contracts are all related to land. Currently, the provisions of the Civil Code, Land Law, Housing Law and other branches of law are overlapping, duplicated, and contradictory, causing difficulties in applying and implementing the law. Specifically, Article 188 of the 2013 Land Law stipulates that “The conversion, transfer, lease, sublease, inheritance, donation, mortgage of land use rights, and capital contribution using land use rights must be registered at the land registration agency and take effect from the time of registration in the land registry” while Article 122 of the 2014 Housing Law stipulates that “In case of sale, donation, exchange, capital contribution, mortgage of housing, transfer of commercial housing purchase and sale contracts, the contract must be notarized and authenticated, except for the case specified in Clause 2 of this Article. For transactions specified in this Clause, the effective time of the contract is the time of notarization and authentication of the contract”. Thus, there is a contradiction between the provisions of the 2013 Land Law and the 2014 Housing Law on the effective date of the transfer contract. If the subject of the transfer is the right to use land and the property attached to the land is a house, which law will be implemented in this case? Therefore, it is necessary to synchronously develop civil law with land law and other branches of law so that the law can be implemented in practice without contradiction, so that the law can be put into practice.
3.1.3 Perfecting the legal basis for healthy and sustainable development of the real estate market
Land use rights are special property rights. When the demand for land use increases, the value of land use rights also increases and vice versa. Users have the right to convert, donate, transfer, lease, sublease, mortgage, guarantee, inherit, and contribute capital using land use rights. In particular, land transfer is a form of transaction that was formed very early. Along with the development of socio-economy, this form of transaction has changed a lot. Currently, land transfer has become a vibrant and popular form of transaction in civil and commercial exchanges in most countries in the world. In Vietnam, due to the characteristics of the regime of public ownership of land, organizations and individuals only have the right to use land. The establishment of land use rights in Vietnam has created a unique feature in transactions on land use rights. The State builds a legal framework for the establishment and operation of the land use rights transfer market in the direction of openness and transparency. However, practical implementation shows that regulations on land use rights transfer still have contradictions and shortcomings.
Along with the promulgation of the 2013 Constitution, the 2013 Land Law was also amended to comply with the requirements of the basic law. According to the provisions of the 2013 Land Law, when a subject is granted land use rights by the State, those with land use rights are allowed to transfer land use rights. It can be said that land is an inseparable element from real estate, the land use rights market cannot be separated from the real estate market. The real estate market includes many areas such as the housing market, the industrial real estate market, the agricultural real estate market, the technical infrastructure market, social infrastructure and public works; the support service market with many different business forms such as buying and selling, transferring, leasing, construction - business -
Land use rights transfer market has its own characteristics in each field and each form of real estate business.
With the above characteristics of the real estate market, in order to promote the development of land use rights transfer activities, it is necessary to perfect the legal framework on land use rights transfer.
Completing the law on land use right transfer contracts must first ensure that it contributes to creating a complete legal environment for the real estate market to develop healthily, ensuring the publicity and transparency of land use right transfer transactions in the real estate market so that land use rights become commodities, easily converting real estate into investment, which is also the basis for carrying out other real estate transactions in the market smoothly. In addition, the law on land use right transfer contracts needs to be completed in a synchronous and unified direction with other legal contents of the real estate market, especially the legal regulations for other types of real estate (housing, construction works and other assets attached to land), which is the basis for completing the law for the real estate market in a comprehensive, unified and appropriate manner.
3.1.4 Perfecting the law on land use rights transfer contracts associated with the implementation of socio-economic policies
Perfecting the law on land use rights transactions in general and land use rights transfer contracts in particular is not only related to purely economic relations but also has a close connection and profound influence on other socio-economic policies of the country.
In addition to market factors, land is an important internal resource serving the country's socio-economic development. Major policies on national defense and security and socio-economics are all affected by legal regulations on land use rights transactions, especially: housing policies, development policies.