Land use is one of the basic and especially important rights of land users recognized by our country's law: "Households and individuals assigned land by the State have the right to convert, transfer, lease, inherit, and mortgage land use rights" (Land Law 1993, Clause 4, Article 3, amended for the first time).
Regarding the form of land use rights transfer, Vietnamese law recognizes that it is carried out in one of the following nine forms: "conversion, assignment, lease, sublease, inheritance, donation of land use rights, capital contribution, mortgage and guarantee by the value of land use rights..." (Clause 1, Article 106 of the 2003 Land Law). However, there are still opinions that, when it comes to land use rights transfer transactions, in that transaction, land use rights must be transferred "completely" by the parties to each other ; therefore, land use rights transfer only includes 4 forms: Conversion; assignment; donation and inheritance. This thesis agrees with the provisions of Clause 1, Article 106 of the 2003 Land Law that the transfer of land use rights takes place in 9 forms with the argument that: The forms of conversion, transfer, donation and inheritance of land use rights are "complete " transfers of land use rights , the remaining forms are also forms of land use rights transfer, but are " limited, incomplete " transfers of land use rights.
In short, transferring land use rights is when a land user can transfer this right to another person in one of 9 forms (including: Conversion; assignment; lease; sublease; inheritance; donation; capital contribution; mortgage and guarantee by land use right value). The subjects participating in land use right transfer transactions must strictly comply with the provisions of law on conditions for land that is allowed to transfer rights, land use purposes, procedures, etc. Or in short, transferring land use rights is when the State allows land users to transfer land use rights.
Land users are entitled to "determine" their legal land use rights according to the provisions of law.
1.2.2. Characteristics of land use rights transfer
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Land is a type of property, but a special type of property, so the transfer of land use rights, in addition to the characteristics of a normal property transfer contract, a land use rights transfer contract also has the following distinct characteristics:
Firstly : When participating in a land use rights transfer transaction, the land use right holder does not have the full right to decide and take absolute ownership of the land under his/her use rights as with other ordinary assets; when transferring land use rights, the participants in the transaction must strictly comply with the provisions of law on conditions, content, order and procedures for transferring land use rights; the transferor and the transferee are both bound by the term, purpose of use and land use planning as prescribed by law.
Second : Land is a type of property that has a fixed location and cannot be moved, so unlike the transfer of rights to other types of property, before, during and after the transfer of land use rights, the land must be measured, plot records established, numbered, and land use right certificates issued. The transfer of land use rights is mainly carried out through the land document system. Thus, land use right transfer transactions require a complete, rigorous system of records and documents and strict compliance with legal regulations.
Third : In the contract of transfer of rights to common types of assets, the value of the asset transfer depends on the intrinsic factors of the transferred asset (for example: quality, design, etc.); but in the contract
When transferring land use rights, the value of land use rights when transferring rights mainly depends on factors such as the location of the land plot, the profitability of the land, the level of infrastructure completion, and other economic, political, and social factors.
1.3. CONCEPT AND CONTENT OF "VALIDITY" OF LAND USE RIGHTS TRANSFER
1.3.1. The concept of "effectiveness" of land use rights transfer
According to the Vietnamese Dictionary, effectiveness is "practical effect, as required; practical value" [31, p. 440]. Things and phenomena in the world always have a common connection with each other (as pointed out in the Marxist-Leninist doctrine), that is, any thing or phenomenon in the world has a connection, reflection, and impact on surrounding things and phenomena.
Thus, simply put, the "validity" of a thing or phenomenon in general, the "validity" of a land use rights transfer contract in particular, is the impact of the thing or phenomenon on other things or phenomena, the impact of the contract on related subjects.
A contract in general, a contract for transferring land use rights in particular, after being established, of course (more or less) it will have an impact, be "effective" on the related subjects without having to wait to consider whether it meets certain criteria or not. However, unlike contracts for transferring ownership of assets that are a specific object (classified as a contract of material value), the parties involved in the transaction can bring the assets to give directly to each other, so the law does not require this type of contract to comply with a number of strict criteria (on the form of the contract, on the subject, on the order, implementation procedures, etc.) to recognize it as valid; for contracts for transferring land use rights (classified as a contract of material value), because land is a type of property that cannot be moved, land use rights are a property right, so when a person wants to bring his land use rights to a certain piece of land to participate in a transaction to transfer land use rights
land, they must present that they have been recognized by a competent state agency as having the right to use that land and during the process of signing and performing the contract, they must also comply with the strict criteria set forth by law, then the law will recognize this land use rights transfer contract as valid. Thus, a land use rights transfer contract that fully meets the criteria prescribed by law is recognized by law as "valid" , then its "validity" here must be understood as "absolute validity, complete validity" and of course, a land use rights transfer contract after being established, even if it does not meet the criteria prescribed by law, is still "valid" and still creates obligations for the relevant entities, its "validity" here is understood as "non-absolute validity, incomplete validity" .
Current reality in our country shows that, due to misunderstanding the nature of the concept of "validity of land use rights transfer" and due to mechanical application of the provisions of Article 692 of the 2005 Civil Code: " The transfer of land use rights is effective from the time of registration of land use rights according to the provisions of the law on land ", when resolving disputes related to determining the validity of a land use rights transfer contract, the Court often makes a "generalized" judgment , considering all land use rights transfer contracts that have not yet reached the final stage of registration at the Land Use Rights Registration Office to be invalid and the consequence of an invalid contract is to force the parties to return to each other what they have received. Obviously, the above judgment has seriously damaged the interests of one of the related entities, especially seriously affecting the interests of a bona fide third party. Therefore, in our opinion, in order not to affect the rights of any entity related to the "validity" of a land use rights transfer contract, our country's law needs to fully regulate both the "full validity" and "incomplete validity" of a land use rights transfer contract after it is established.
1.3.2. The "effectiveness" of the transfer of land use rights
A land use rights transfer contract, once established, can be in the case of "absolute validity, full validity" or the case of "non-absolute validity, incomplete validity" . The two factors (1) "Conditions for the validity of a land use rights transfer contract" (2) "Time of validity of a land use rights transfer contract" that the law stipulates are only valid as standards to consider whether a certain land use rights transfer contract, once established, has "absolute validity, full validity" .
Ultimately, the "effectiveness" of a land use rights transfer contract is the impact of that contract on the relevant entities. Or in other words, the "effectiveness" of a land use rights transfer contract is the "Scope and extent" of the impact of that contract on the relevant entities, which is demonstrated through the creation of specific obligations for each entity.
The term "validity" of a contract in general, and the validity of the transfer of land use rights in particular, is frequently mentioned by Vietnamese lawyers today, but when asked what it is and what its content is, most of them only talk about the conditions for the validity of the contract and the conditions for the validity of the contract. The 1995 Civil Code and especially the 2005 Civil Code have devoted a whole fifth part consisting of chapters (from XXVI to XXXIII) to stipulate relevant regulations to determine the "validity" of the transfer of land use rights. However, the provisions in the Code only stop at stipulating two contents: "conditions for the validity of a land use rights transfer contract" and "the time of the validity of a land use rights transfer contract" without any regulations or regulations but they are not complete or not accurate about the content of "scope and extent" of the influence of a land use rights transfer contract on related entities.
Thus, the issue of "validity" of a contract in general, the "validity" of the transfer of land use rights in particular, is a big and new issue both in theory and in the legal institutions of our country. Therefore, we do not dare to give a complete concept of the content of the issue of "validity" of the transfer of land use rights. Studying the legal regulations of some countries in the world and relating to some existing regulations in Vietnamese law on the "validity" of the transfer of land use rights, we see that this issue is expressed in 3 groups of institutions as follows:
(1) Obligations of the beneficiary; (2) Interpretation of the contract in case of dispute;
(3) Relative validity of the contract (for third parties).
In summary , when considering the "validity" of the transfer of land use rights, the contents that need to be considered are: "Conditions for the validity of the contract"; "Time of validity of the contract" and "scope and extent" of the impact of that contract on related entities. To determine the "scope and extent" of the impact of that contract on related entities, it is necessary to consider 3 groups of regulations in the provisions of each country's law, which are (1) Obligations of the beneficiary; (2) Interpretation of the contract in case of dispute; (3) Relative validity of the contract (for third parties).
The contents of the issue of "the validity of the transfer of land use rights" are expressed in the laws of a number of states as follows:
1.3.2.1. The issue of "conditions for the validity of land use rights transfer contracts"
A land use rights transfer contract is a formal contract, so the laws of each State set out criteria and mandatory conditions that a land use rights transfer contract must meet in order to be recognized by law as having " absolute validity and full validity" , specifically:
* Conditions for the validity of a land use rights transfer contract according to current Vietnamese law (2005 Civil Code):
" Participants in the transaction have civil act capacity; the purpose and content of the transaction do not violate the prohibitions of law or social morality; participants in the transaction act completely voluntarily; the form of civil transaction is a condition for the validity of the transaction in cases where the law so provides" (Article 122). The form of the contract "must be made in writing, notarized or certified in accordance with the provisions of law" (Clause 2, Article 689). The content of the contract must show "the names and addresses of the parties; the rights and obligations of the parties; the type, class of land, area, location, number, boundary and status of the land; the time of land transfer..." (Article 694). Conditions on subjects: only certain types of subjects with needs and direct use are allowed to participate in land use right transfer transactions for special types of land such as agricultural land and forest land (Clause 2, Article 113 of the 2003 Land Law and Article 102 of Decree 181/2004/ND-CP dated October 29, 2004 of the Government guiding the implementation of the 2003 Land Law).
* Conditions for the validity of a land use rights transfer contract according to the laws of feudal states in our country's history: "Those who make a will or deed without having the village chief write it for them and witness it shall be punished with 80 lashes... Such wills or deed are invalid. If they know how to read and write it themselves, it is acceptable" (Article 366 of the National Dynasty Penal Code). Or before establishing a contract, the parties must agree with each other on the content of the contract, the parties must not force or deceive each other while transferring land and implementing the contract, if violated, the contract is invalid: "Anyone who bullies others into buying land must be demoted to twenty-four and given back the purchase price" (Article 355 of the National Dynasty Penal Code). The seller of land is only allowed to sell his own land. If he "stolen land from another person, he will be punished with exile. If he sells 10 acres or more, he will be punished with exile. He will have to pay the buyer the purchase price and pay another half to the landowner and the buyer. The land must be returned to the owner. If the buyer knows and still buys it, he will be punished with 80 lashes and lose the purchase price" (Article 382 of the National Dynasty) .
Penal Code). If one steals another person's land, falsely claims another person's land as one's own and donates it to a superior, one will be punished by being whipped or punished by imprisonment; the stolen land, the money from the stolen sale, and the profits obtained must be returned to the real owner (Article 4 - Dao mai dien trach, equivalent to Article 87 of Hoang Viet Law or Gia Long Code).
* Conditions for the validity of a land use rights transfer contract according to the law of the French Republic: "A contract is only valid when it satisfies the following four main conditions: The contracting parties are completely voluntary; the contracting parties have the capacity to enter into a contract; the subject of the contract must be determined; the basis of the contract must be legal" (Article 1108 of the French Civil Code).
* Conditions for the validity of a land use rights transfer contract according to the laws of the Islamic Republic of Iran: "For the validity of a transaction, the following conditions are necessary: 1. The will and mutual consent of the parties to the contract; 2. The capacity of the parties; 3. There must be a definite issue forming the subject of the contract; 4. The cause of the transaction must be legal" (Article 190 of the Civil Code of the Islamic Republic of Iran).
"A contract becomes complete only by the real will of the contracting party, and this real will must be associated with some elements proving such will" (Article 191 of the Iranian Civil Code). It can be seen that the Iranian Civil Code uses the phrase "real will" which is a very expensive word because with the concise use of words, it has expressed the basic principle of obligations arising from the contract, which is freedom of will. The contract is voluntarily entered into by the parties, therefore, only the real will of the parties expressed in the contract, has the value to force the parties to perform, all cases when the contract is entered into by deception, coercion, and duress are not binding on the beneficiary. It is not based on the signing of a written contract to affirm that this is the real will of the contracting party, but proving by other grounds that it is the real will of that contracting party.