Inadequacies and Limitations of the Law on Land Dispute Resolution

In cases where a long-time resident determines the position for person A, but another resident determines the position for person B, it affects the reconciliation work.

Second , if within 10 days from the successful conciliation, one of the parties changes its mind and disagrees with the successful conciliation result, continuing the conciliation as prescribed in Clause 3, Article 88 of Decree No. 43/2014/ND-CP dated May 15, 2014 of the Government is unnecessary, only prolonging the time and affecting the rights of the parties.

Third, in the case of successful conciliation but one party in dispute does not comply or in the case of unsuccessful conciliation but there is no regulation on the time limit for submitting a petition to the competent authority to resolve the land dispute. Therefore, there are cases where even though there has been a record of unsuccessful conciliation for 1 year, no one has submitted a petition to the Court or the People's Committee of the competent authority, while one party has submitted a petition to determine the status of the real estate without dispute, the People's Committee at the commune level is confused, especially for land disputes where there is no regulation on the statute of limitations for filing a lawsuit, thus affecting the rights of the people. It is necessary to stipulate a time limit for the parties to submit a petition to the competent authority (State administrative agency or People's Court) to resolve the dispute.

Fourthly , the professional level of the members of the Land Dispute Mediation Council at the commune level is still low, so many mistakes occur during the mediation process, such as the Mediation Minutes do not fully and specifically state the request for dispute, making it impossible to determine whether the request has been mediated or not; mediation without conducting the steps of investigation and verification of the origin, the process of land use management and dispute investigation and finding out the cause of the dispute; in the case that one party to the dispute (usually the person requested) is absent, the Mediation Council draws up a record of failure to record the absence, but is present but cannot provide the minutes of delivery and receipt of the invitation to the absent party, leading to the making of the mediation record being invalid. There are cases where the content of the minutes records the parties' presentation as disagreeing with the mediation plan, but the result of the mediation is

The settlement and the minutes of settlement are successful but do not have enough signatures of the parties involved in the settlement, for example, the land use rights dispute between Ms. Nguyen Thi Hai and Ms. Huynh Thi My 63. This makes it difficult to implement in practice, prolonging the dispute, affecting the rights of the parties in dispute.

2.4.2. Inadequacies and limitations of the law on land dispute resolution at the district People's Committee

Firstly , limitations in collecting documents and evidence: Due to the number of land dispute cases between individuals and individuals submitted to the People's Committee of Bac Tan Uyen district, there were only 02 petitions (From 2016 to 2019); the settlement results included 01 case of withdrawal and 01 case of successful mediation, so the settlement process did not have many shortcomings. However, the settlement process encountered difficulties due to the consequences of previous land management work, missing and lost cadastral records, so there was no basis for settlement, but based on the verification results of long-term residents, many cases still gave one-sided and non-objective opinions. A typical example is the land use rights dispute between the disputing party: Ms. Nguyen Thi Chin and the disputed party: The co-heirs of Mr. Uong Van Nam, Ms. Le Thi Gai for land plot No. 950, map sheet No. 33 in Lac An commune, Bac Tan Uyen district, Binh Duong province 64 . According to the provisions of Clause 1, Article 91 of Decree No. 43/2014/ND-CP dated May 15, 2014, when resolving land disputes, it is necessary to collect documents and evidence including:

- Evidence of land origin and use process provided by the disputing parties.

go out;

- The actual land area that the disputing parties are using;

- The conformity of the current use of the disputed land plot with the planning,

Land use plan approved by competent State agency;

63 See Appendix No. 06.

64 See Appendix No. 07.

land.

- Legal regulations on land allocation, land lease, recognition of land use rights

Collecting all the above documents and evidence is the key to solving the problem.

dispute resolution. However, this case is related to land that was included in the Economic Group according to the State's policy, but the land was recovered from the people and then returned to the people without any records or management books, so when a dispute occurs, the settlement agency must verify the opinions of the community of the elderly who have lived in the locality for a long time. Furthermore, the parties to the dispute since 2003, the People's Committee of Lac An commune has conducted mediation and said that this land belongs to the commune's public land and proposed to submit to the District People's Committee to recover the land, but up to now, there has been no document sent to the District People's Committee, nor has the land been established in the commune's public land fund, but people continue to use it without having to bear any financial obligations to the State. Due to many shortcomings in land management, incomplete land records, collecting documents and evidence when resolving land disputes is difficult and time-consuming.

Second , Article 61 of the 2013 Land Law stipulates: “ The time for performing dispute resolution procedures under the authority of the Chairman of the District People's Committee is no more than 45 days. For mountainous communes, islands, remote areas, and areas with difficult socio-economic conditions, the time for performing each type of procedure is increased by 15 days and the time for settlement does not include the time for performing financial obligations of land users, the time for considering and handling cases of land use that violate the law, and the time for requesting appraisal ”. However, the determination of the time for performing financial obligations of land users, the time for considering and handling cases of land use that violate the law, and the time for requesting appraisal is calculated from which time to which time. Is it calculated from the time of the decision to request appraisal to the time of the appraisal conclusion or from the time of the request to the time of the result? In addition, when resolving land disputes, all cases must conduct on-site measurement and appraisal of disputed assets, this time is often quite long but is not regulated to deduct the time limit. Also in

In the case of land use rights dispute between the disputing party: Ms. Nguyen Thi Chin and the disputed party: The co-heirs of Mr. Uong Van Nam and Ms. Le Thi Gai, during the dispute resolution process, the resolving agency must conduct a survey of the disputed land area to determine the land plot, location, and land area. This period is actually quite long, but compared with the provisions of Article 61 of the 2013 Land Law, the time waiting for the survey results is not deducted. In this case, the disputing party submitted a dispute petition to the District People's Committee on May 28, 2019, but it was not until September 24, 2019 that the Bac Tan Uyen District People's Committee issued a Decision recognizing the agreement of the parties (Resolution time is 04 months). Therefore, by the time of resolution, the District People's Committee had resolved this case beyond the deadline. Therefore, in practice, there are inadequacies in the regulations on the time limit for deduction, specifically on whether the time waiting for the results of the measurement of disputed land can be deducted or not.

Third , the collection of documents and evidence as a basis for resolving land disputes belongs to the dispute resolution agency, so the dispute resolution process is still "closed", there are no regulations on public disclosure of documents and evidence to the disputing parties, so when issuing a decision to resolve the dispute, it is still imperative.

Fourthly , current law does not yet have regulations for cases where the subject issues a legally effective dispute resolution decision but later discovers that the resolution is in violation or cases where the decision is legally effective but cannot be enforced, how should it be handled? Does the superior agency have the right to review and resolve the case again or can it only be resolved when there is a complaint from the disputing parties?

Fifth , the 2013 Land Law and its guiding documents do not provide guidance on how the competent authority will handle the case in which the person filing the dispute withdraws the petition during the settlement process, whether to issue a decision to suspend the dispute settlement or not, and the consequences of suspending the settlement.

How is the decision made, and whether the person who withdraws the application has the right to re-file a dispute? This is a legal shortcoming that causes confusion in the practical application of the law.

Sixth , the apparatus and staff working on land dispute resolution have not been completed. The District Department of Natural Resources and Environment has the function and duty to advise the District People's Committee on land management in the locality and the work of resolving land disputes is only one of the tasks of the department. Meanwhile, the Department of Natural Resources and Environment has not been assigned legal experts, only specialized in land management, so it has not met the task of resolving disputes.

2.4.3. Inadequacies and limitations of the law on resolving land disputes at the district-level People's Court

Firstly , in the process of resolving land disputes, many people with related rights and obligations reside in many places, so the People's Court of Bac Tan Uyen district must conduct judicial entrustment to another Court according to the provisions of Article 105 of the 2015 Civil Procedure Code. " The time limit for implementing the entrustment is 01 month from the date of receiving the entrustment decision and notifying the results in writing to the Court that issued the entrustment decision; in case the entrustment cannot be implemented, a written notice must be given and the reasons must be clearly stated to the Court that issued the entrustment decision " 65 . However, in reality, the Courts have not implemented the entrustment effectively, in many cases the implementation is delayed or not implemented, typically the case of inheritance dispute between the plaintiff Mr. Huynh Van Men and the defendant Mr. Huynh Van Len has temporarily suspended the settlement of the case since November 15, 2019 to wait for the results of the entrustment response of the People's Court of Vinh Cuu District, Dong Nai Province, but so far there has been no result. The implementation of judicial entrustment in reality still has many limitations but there have been no solutions, leading to the prolonged settlement of the case.

65 Clause 3 Article 105 of the 2015 Civil Procedure Code.

Second , according to the provisions of Clause 3, Article 26 of the 2015 Civil Procedure Code, the Court has the authority to resolve disputes over civil contracts without distinction from the authority to resolve disputes over contracts with the subject being land use rights. Therefore, in practice, there is confusion when accepting and resolving disputes over transactions with the subject being land use rights such as deposit contract disputes, land use right transfer contract disputes, land use right donation contract disputes, etc. in determining whether the Court with the authority to resolve is the Court where the defendant resides (as for civil contracts in general) or the Court where the real estate is located (disputes with the subject being real estate). This leads to many cases where, when people file a lawsuit, the Courts have different understandings, leading to the transfer of files back and forth, affecting the rights of the people. Faced with the confusion of the People's Courts in localities, on December 6, 2019, the Supreme People's Court issued Official Letter No. 493/TANDTC on the exchange of professional matters on determining the jurisdiction to resolve the case. Accordingly, the Supreme People's Court has given its opinion on determining disputes over transactions of land users when exercising the right to convert, transfer, lease, sublease, inherit, donate, mortgage, and contribute capital to land use rights, the jurisdiction to resolve the dispute belongs to the Court where the real estate is located. However, this is only an internal document, only for professional guidance and not a legal document, so in practice, there is still a situation where the Courts "kick back and forth" a case, such as the case of the lawsuit for a dispute over a land use rights lease contract of GFS Vietnam 66 Company Limited .

Third , according to the provisions of Article 39 of the 2015 Civil Procedure Code, when determining the jurisdiction of the Court to resolve disputes according to territory, priority is given to determining the jurisdiction according to the defendant's place of residence. In cases where there are many legal relationships in the same case, the competent Court is determined according to the dispute relationship.

66 The Phong, 2020. Binh Duong: "Dizzy" because the Court continuously transfers lawsuits .

< https://dantri.com.vn/ban-doc/binh-duong-chong-mat-vi-toa-lien-tiep-chuyen-don-khoi-kien- 20200515074303623.htm >, posted on May 18, 2020, [accessed on May 23, 2020].

Specifically, for cases requesting the division of common property of spouses, which is land use rights, the jurisdiction is determined based on the defendant's place of residence, not the place where the land is located, or in cases of inheritance division of land use rights, the jurisdiction is determined based on the defendant's place of residence. Meanwhile, according to the provisions of Clause 24, Article 3 of the 2013 Land Law, "Land disputes are disputes over the rights and obligations of land users in determining who has the right to use the land", as analyzed in the concept of land disputes in Chapter 1, land disputes are disputes to determine who has the right to use the land, including disputes over inheritance of property, which is land use rights, and disputes over the division of common property of spouses. Therefore, when determining the jurisdiction of the Court according to the territory, it must be determined at the place where the real estate is located, regardless of what the main dispute is. In other words, territorial jurisdiction at the location of the real estate must be applied first. This is the point of inconsistency in determining the Court with jurisdiction to resolve land disputes under the 2015 Civil Procedure Code and the 2013 Land Law.

Fourth , in the process of resolving land disputes, on-site examination, appraisal and valuation of assets are essential in determining the location, proximity, plot number, plot number, assets on the disputed land and the value of the disputed land because land disputes are a special type of dispute, the subject of the dispute is a special type of property, valuable and has undergone many changes along with land law policies. Therefore, the claimant must pay the advance costs according to the provisions of Articles 156 and 164 of the 2015 Civil Procedure Code. If the obligation is not fulfilled, the Court shall issue a decision to suspend the settlement of the case in the case that "the plaintiff fails to pay the advance costs for property valuation and other litigation costs according to the provisions of this Code. In case the defendant has a counterclaim, the person with related rights and obligations has an independent claim and does not pay the advance payment for property valuation costs and other litigation costs as prescribed by this Code, the Court shall suspend the settlement of the defendant's counterclaim.