Land Law 2003 to 2013

resettlement area establishment and implementation.

- Regarding application: Compensation, support and resettlement policies according to the provisions of Decree No. 22/1998/ND-CP and Circular No. 145/1998/TT-BTC apply to all cases of land recovery by the State. This is a difference from Decree No. 90/CP.

- Subjects required to compensate for damages: Land users who are allocated or leased land by the State are responsible for compensating for damages to land and property to people whose land is recovered for allocation or lease.

- Subjects entitled to compensation for damages: Must be people with land use rights, legal property owners according to the provisions of law.

- Scope of compensation for damages includes:

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Compensation for land damage for the entire area of land recovered. Compensation for damage to existing assets.

Living and production allowance for those who have to move their residence or business location.

Paying career conversion costs for people whose land is recovered.

Pay direct service costs for organizing compensation, moving, and site clearance.

Regarding the principle of compensation for land damage: When the State reclaims land, depending on each specific case, the person whose land is reclaimed will be compensated in money, housing or land. When compensation in land or housing has a difference in value, the person receiving compensation will receive or must return the difference in value measured in money.

Compensation conditions: due to many changes in the land policy of the Vietnamese State over historical periods and due to many shortcomings in land management and use, Decree No. 22/1998/ND-CP has very specific and detailed regulations on cases of compensation for damage to land and property (General Department of Land Administration, 2001).

Land price for calculating compensation for damages: Land price for calculating compensation for damages is determined based on local land price issued according to Government regulations multiplied by coefficient K to ensure that land price for compensation is suitable to the capacity.

profitability and local land use transfer prices.

Support policy: In reality, when the State reclaims land from people who are using the land stably and long-term, the consequence is that people lose their residential land and means of production, in many cases they have to move, the lives of people whose land is reclaimed face many difficulties, so it is very necessary to implement support policies to restore income and improve the living standards of those affected. Support policies stipulated in Decree No. 22/1998/ND-CP include:

Support for stabilizing production and life, vocational training costs.

Allowance for layoffs for employees of the enterprise during the period of suspension of production and business until production and business return to normal operations.

Subsidize moving expenses, support for creating accommodation for people using state-owned housing, and progress bonuses.

Support for policy subjects.

Resettlement: The resettlement policy is mentioned more fully than in previous Decrees. The State's preparation of sufficient conditions for establishing resettlement areas, including land funds, housing funds and cash funds, is part of ensuring that site clearance is carried out quickly. Establishing resettlement areas is specified in a separate chapter in Decree No. 22/1998/ND-CP, including regulations on the authority to approve the establishment of resettlement areas, mandatory conditions for having resettlement areas, principles for allocating residential land for households in resettlement areas and capital sources for building resettlement areas. In addition, there are a number of regulations on support policies for establishing resettlement areas, contributing to restoring the lives of people in the clearance area. Establishing resettlement areas demonstrates the State's innovative policy on the viewpoint and goal of taking people as the center in the process of compensation for damages to people whose land is recovered.

Implementation organization: previous documents only concerned the content of compensation for recovered land and assets attached to recovered land, Decree No. 22/1998/ND-CP has specific regulations on the organization of implementation, responsibilities of People's Committees at all levels and the City-level Compensation, Support and Resettlement Council in directing the implementation of compensation, support and resettlement.

The project's regulations include the preparation of compensation plans, determination of compensation levels or subsidies for each family, individual and organization implementing compensation according to the approved plan. These regulations have helped localities to be proactive in choosing compensation plans suitable to socio-economic conditions, land funds and local customs.

In the implementation of the 1993 Land Law, the policy of land acquisition, compensation, support and resettlement has made progress to meet the development requirements of our country. However, the mechanism of compensation, support and resettlement when the State acquired land during this period still has some disadvantages as follows:

Land prices for calculating compensation for people whose land is recovered have not been regulated according to a consistent standard. Many decisions of the People's Committees of the provinces on land prices for calculating compensation lack basis; land prices regulated by localities are mostly lower than the market price; people whose agricultural land is recovered often suffer disadvantages, while people whose non-agricultural land is recovered often benefit.

When implementing land acquisition, it is carried out according to each approved project and construction. Therefore, the Investor must work with many partners to carry out compensation, support and resettlement; in some cases, it is necessary to work with the People's Committees of all three levels: province, city, commune, work with the compensation, support and resettlement board and work with the people whose land is acquired.

During this period, land acquisition was mainly paid in cash; in many cases, resettlement for people whose land was acquired was not satisfactorily resolved; if there was any resettlement, it was not equal to the residential area that had been acquired.

1.2.2.2. Land Law 2003 to 2013

The 2003 Land Law has expanded the rights of land users, including the right to receive compensation when the State reclaims land. Article 4 of the Land Law clearly defines: “ Land reclamation is the act of the State issuing an administrative decision to reclaim land use rights or reclaim land assigned to organizations, People's Committees of communes, wards and towns for management according to the provisions of this Law ” and defines “ Compensation when the State reclaims land is the act of the State returning the value of land use rights for the reclaimed land area to the person whose land is reclaimed ”. However, this has not been

clearly stated about land recovery of individuals, but also did not clearly classify different subjects of land recovery because for each different subject of land recovery, the impact on the life of that household is different.

Cases of land recovery from people are also clearly stipulated in Articles 38 and 40 of the Law. Accordingly, the State recovers land for the purposes of national defense, security, national interests, public interests, and economic development. The Law also clearly explains the purpose of economic development in the case of investment in the construction of industrial parks (IPs), high-tech parks, economic zones, and large investment projects according to Government regulations. Thus, the concept of economic development is still quite vague, so provincial authorities have massively recovered agricultural land to build IPs and industrial clusters without paying attention to the efficiency of use, leading to many IPs and industrial clusters not being filled, many projects being suspended, and land being left fallow for many years.

The 2003 Land Law also stipulates compensation and resettlement for people whose land is recovered, accordingly, households that have land use right certificates or are eligible to be granted land use right certificates when their land is recovered will be compensated. At the same time, people whose land is recovered will be compensated by being allocated new land with the same purpose of use. If there is no land for compensation, they will be compensated by the value of land use rights at the time of the recovery decision. Before land recovery, projects must establish and implement resettlement projects to compensate people whose residential land is recovered and must relocate. Resettlement areas are planned for many projects and must have development conditions equal to or better than the old place of residence.

In order to specify the compensation, support and resettlement policies stipulated in the 2003 Land Law, the Government has issued many documents guiding the implementation such as: Decree 197/2004/ND-CP dated December 3, 2004; Decree 84/2007/ND-CP of the Government dated May 25, 2007 on the issuance of Land Use Right Certificates, land recovery, implementation of land use rights, procedures for compensation, support and resettlement when the State recovers land, and settlement of land-related complaints; Decree 69/2009/ND-CP dated August 13, 2009 of the Government providing additional regulations on land use planning, land prices, land recovery, compensation, support and resettlement; Decree 123/2007/ND-CP dated

July 27, 2007 of the Government amending and supplementing a number of articles of Decree No. 188/2004/ND-CP dated November 16, 2004 on methods of determining land prices and price frames for land types and many guiding circulars.

1.2.2.3. From the 2013 Land Law to present

The Land Law was passed by the 13th National Assembly at the 6th session on December 9, 2013. The Law took effect from July 1, 2014. To guide the compensation, support, and resettlement when the State reclaims land according to the provisions of the 2013 Land Law, the Government and ministries and branches have issued relevant documents: Decree No. 43/2014/ND-CP dated May 15, 2014 (effective from July 1, 2014) detailing the implementation of a number of articles of the 2013 Land Law; Decree No. 44/2014/ND-CP dated May 15, 2014 of the Government regulating land prices (effective from July 1, 2014); Decree No. 47/2014/ND-CP dated May 15, 2014 (effective from July 1, 2014) stipulates compensation, support, and resettlement when the State acquires land.

The 2013 Land Law has amended and supplemented many new regulations that are more specific and suitable than the old Law and more suitable to the requirements of compensation, support and resettlement work, specifically as follows:

* Regulations on principles of land compensation when the State recovers land: The regulations on land compensation, support and resettlement when the State recovers land in the 2003 Land Law are stipulated in 03 articles (41, 42, and 43). In reality, these principled regulations have not been fully institutionalized to implement uniformly when handling complex issues arising in the practice of land recovery, compensation, support and resettlement in localities. To overcome this limitation, the 2013 Land Law has separated the principles of land compensation and the principles of compensation for property damage and cessation of production and business when the State recovers land into 02 separate articles (74 and 88). In which, the principles of land compensation and the principles of compensation for property damage attached to land when the State recovers land are specifically stipulated so that ministries, branches, localities and land recoverers can base on them to implement uniformly.

Specifically, Article 74 of the 2013 Land Law stipulates the principles of land compensation when the State acquires land: Land users when the State acquires land, if any

If the conditions for compensation are met (as prescribed in Article 75), compensation shall be provided; compensation shall be made by allocating land with the same purpose of use as the type of land recovered. If there is no land for compensation, compensation shall be made in cash according to the specific land price of the type of land recovered as decided by the provincial People's Committee at the time of the decision to recover the land; compensation when the State recovers land must ensure democracy, objectivity, fairness, publicity, timeliness and compliance with the provisions of law. And Article 88 stipulates the principles of compensation for property damage and cessation of production and business when the State recovers land: When the State recovers land and the legal owner of the property attached to the land suffers property damage, compensation shall be provided; when the State recovers land and organizations, households, individuals, overseas Vietnamese, and foreign-invested enterprises have to stop production and business and suffer damage, compensation shall be provided.

* Specify and clarify the conditions for land compensation when the State reclaims land for national defense and security purposes; socio-economic development for national and public interests for each type of subject whose land is reclaimed by the State. The 2013 Land Law adds 02 cases of land compensation when the State reclaims land (Article 75), specifically:

- Supplement compensation for cases of land use with one-time land rent payment for the entire lease term to ensure equality between land users in the form of land lease with one-time land rent payment for the entire lease term and those who are allocated land with land use fees (with the same financial obligations).

- Supplement compensation for cases where religious establishments and residential communities are using land that is not allocated or leased by the State and have a certificate or are eligible to be granted a certificate of land use rights, house ownership rights and other assets attached to land according to the provisions of the 2013 Land Law but have not been granted (the 2003 Land Law does not yet stipulate compensation and land support for land used by religious establishments for agricultural production, forestry production, non-industrial production and business, as a charity facility, not allocated by the State but originating from legal transfer, donation or land reclamation before July 1, 2004, causing difficulties in implementation in many localities).

* Institutionalize the compensation mechanism and policy for land and remaining land investment costs through detailed regulations for each type of land, including: agricultural land, residential land, non-industrial land other than residential land and for each type of land user (from Article 77 to Article 81). According to the provisions of the 2013 Land Law, determining the compensation level for people whose land is recovered for land with a limited use term is not only based on the type of land and the land user, but also on the remaining land use term of the land user for that land.

* Specific regulations on compensation for remaining land investment costs, for some cases where land compensation is not granted (Article 76). According to Clause 13, Article 3 of the 2013 Land Law, remaining land investment costs include site clearance costs and other directly related costs with evidence of having been invested in land that has not yet been recovered by the time the State reclaims the land.

Cases that are compensated for investment costs in remaining land when the State recovers land include: Land allocated by the State without collecting land use fees, except for agricultural land allocated by the State to households and individuals as prescribed in Clause 1, Article 54; land allocated by the State to organizations subject to land use fees but exempted from land use fees; land leased by the State annually, land leased with one-time land rent payment for the entire lease term but exempted from land rent, except for households and individuals using leased land due to implementation of policies for people with revolutionary contributions; agricultural land belonging to the public land fund of communes, wards and towns; land contracted for agricultural production, forestry, aquaculture and salt production.

* Supplementing regulations on compensation, support and resettlement for special projects Article 87 of the 2013 Land Law stipulates in the following direction:

- Supplementing the case of land recovery in areas with environmental pollution that threaten human life, land at risk of landslides, subsidence, or affected by other natural disasters that threaten human life, the people whose land is recovered will be compensated, supported, and resettled to stabilize their lives and production according to Government regulations.

- For investment projects whose investment policy is decided by the National Assembly, the Prime Minister

In case the Prime Minister approves an investment project that requires the relocation of an entire community, affecting the entire life, socio-economy, and cultural traditions of the community, or the recovery projects involve many provinces and centrally run cities, the Prime Minister shall decide on the policy framework for compensation, support, and resettlement.

- For projects using loans from international and foreign organizations for which the Vietnamese Government has committed to a policy framework for compensation, support and resettlement, implementation shall follow that policy framework.

* Regarding support policies, the 2013 Land Law adds a number of provisions compared to the 2003 Land Law:

- Regulations on principles of support when the State recovers land : When the State recovers land, in addition to being compensated according to the provisions of this Law, land users shall also be considered for support by the State; the support must ensure objectivity, fairness, timeliness, publicity and compliance with the provisions of law. (Clause 1, Article 83)

- Regulations on support for training, career conversion and job search for households and individuals directly engaged in agricultural production when the State reclaims agricultural land without agricultural land for compensation. Specifically: Households and individuals directly engaged in agricultural production, when the State reclaims agricultural land for compensation, in addition to receiving monetary compensation, will also receive support for training, career conversion and job search; in cases where people receiving support for training, career conversion and job search are of working age and have a need for vocational training, they will be admitted to vocational training facilities; receive advice and support in job search, and preferential credit loans to develop production and business" (Clause 1, Article 84)

- Regulations on support for training, career conversion and job search for households and individuals using residential land in combination with service business, when the State reclaims residential land and has to relocate. Specifically: For households and individuals using residential land in combination with service business, whose main source of income is from service business, when the State reclaims land and has to relocate, they are entitled to preferential credit loans to develop production and business; in case the person whose land is recovered is still of working age, they are entitled to support for training, career conversion and job search (Clause 2, Article 84).

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