French colonialism; after 1953, our country abolished the colonial and feudal ownership regime; by 1954, the State divided land to farmers; in 1957, the State abolished the policy of dividing land to farmers, which disrupted the State's land fund; but by 1958, land was considered a common, collective means of production; on April 30, 1975, the State collectivized the construction of forestry farms, land was once again disrupted, land was increasingly divided.
Second, the land management system is not strong enough in both quantity and quality. In particular, the team of judges still has a number of judges with limited professional qualifications, lack of trial experience, and sometimes misunderstand the spirit of the law, leading to incorrect and inaccurate application. Some officials, for economic benefits, have even taken advantage of their time in office to deliberately violate land law policies for personal gain. In addition, some agencies representing the people have not effectively performed their supervisory duties in resolving disputes in people's complaints.
Third, the level of legal knowledge of the people is still low, the awareness of learning the law is not high, leading to the phenomenon of complaints without legal basis is quite common. In many cases, although people clearly understand the provisions of the law, they deliberately do not comply with the provisions that have been resolved in accordance with the law. Some others are provoked or taken advantage of to incite mass complaints, putting pressure on state agencies.
Another reason is the negative impact of the market economy. The market economy with its advantages has made society increasingly developed, people's lives have been significantly improved... but it has also led to a significant increase in some social evils, especially the increase in divorce.
According to the law, the land use right certificate is the common property of husband and wife, the names of both husband and wife must be recorded. However, due to customs, habits, and low level of legal knowledge of the people, the land use right certificate often only records the name of one person. This causes difficulties for
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The court in determining whether land use rights are common property or separate property of one spouse.
2.2.3.3. Some other specific causes
*On the characteristics of land use rights disputes between spouses during divorce
Land use rights are a type of property with its own characteristics. Normally, land use rights are valuable assets or provide the main income for a couple. They are often the most valuable assets in the common assets of a couple and are important to family life. The division of land use rights when a couple divorces has a significant impact on the interests of the husband, wife and other family members. Therefore, disputes over land use rights between husband and wife when divorcing are often very fierce and intense. When they still have feelings, they live in harmony and wholeheartedly with each other, without distinguishing between common property and private property, but when they divorce, a series of conflicts and disagreements arise.
In some special cases such as: land use rights are private property, but housing is the common property of husband and wife or land use rights are the common property of husband and wife but housing is the separate property of husband and wife... the Court encounters many difficulties and problems when resolving disputes.
Resolving disputes over land use rights between spouses during divorce is very complicated. The court must determine many types of relationships as well as collect, investigate, and accurately evaluate evidence, documents, etc. related to land use rights in order to come up with appropriate methods and measures for resolution.
*About the disputing parties (husband and wife)
Due to the limited understanding of the law among the people, although there are regulations: If the separate property of the husband and wife is the right to use land, when entering into the common property of the husband and wife, it must be in writing, signed by both husband and wife or must be notarized or certified. However, in real life, couples often do not comply with the provisions of the law, due to the characteristics of marital relationships that always originate from feelings, love and attachment to each other in the family; therefore, couples often voluntarily use common and separate properties, as long as the interests of the family are guaranteed. That has led to consequences when
In case of dispute, determining whether land use rights are common property or separate property of the spouses is difficult.
Determining the common property and separate property of the couple is very important, because it directly affects the life of each spouse after divorce, especially for the woman, the wife. When the marriage no longer exists, the woman's life will be disrupted, not only mentally damaged, but also unbalanced in life. Therefore, it is difficult for women to stabilize and adapt to new conditions. Many times, due to customs, habits or legal knowledge, women's rights are often violated. This is a difficulty for the judiciary in determining the rights of each party if one party takes advantage of the other party's lack of knowledge or weakness to cover up the act of violating the property of another, especially the registration of names in the land use right certificate. From there, it makes it difficult for the court to determine what is common property and what is separate property to divide fairly.
CHAPTER 3
IMPROVING THE EFFECTIVENESS OF RESOLVING LAND USE RIGHTS DISPUTES WHEN COUPLES DIVORCE
The rapid integration into the market economy mechanism, creating momentum for economic development, inevitably gives rise to many negative aspects, especially in marital relations, where divorce is becoming more and more common. The key is how to properly resolve that two-way, dialectical relationship. There is an opinion that: “ In development, conflicts are common. It is necessary to properly resolve conflicts by a harmonious and scientific combination of tradition and modernity, trying to maintain the precious immutable part of traditional family values, and attaching importance to development with the negation of the variable part to suit the requirements of the revolution and the times .”
We need to clearly understand that the relationship between family members is not simply a relationship between citizens, but a relationship that originates from blood ties, formed on the basis of love and affection, in the care and sacrifice for each other among members to foster the peace and harmony of the family. These are relationships built from the sacrifice of personal interests for the benefit of the family, without comparison, jealousy, gains and losses among members, but rather shortcomings, mistakes, errors, "letting go of nine to make ten". In the family, when facing conflicts, people do not bring up the provisions of the law to argue, but apply love and affection to settle things amicably.
3.1. Recommendations on improving legal regulations
Firstly , perfecting legal documents related to common property and separate property of spouses as a basis for the court to resolve disputes easily, quickly and conveniently while still ensuring the interests of the parties is a top priority. Because the current difficulty for the court in the process of resolving disputes over land use rights of spouses during divorce is that some provisions in legal documents related to the basis for determining common property and separate property of spouses; property is the land use rights of spouses are not yet specific.
An immutable principle when the court adjudicates is that when dividing marital property, the property to be divided must be common property; if it is not common property, it will not be divided.
The land issue has always been a complicated issue since a long time ago due to the division of our country. When the State was unified, the land issue was no less complicated. Especially since the years of renovation until now. In fact, there are still too many types of documents related to land that still exist, besides, there are also issues related to civil transactions that will increase in the future. Therefore, it is necessary to promptly and appropriately reform the law to partly resolve the above situations.
Second , in resolving land use disputes when a couple divorces, courts often distinguish between two different types of land, with different ways of resolving them.
- For agricultural land for growing annual crops and aquaculture.
First of all, the court needs to determine whether or not the husband and wife have the right to jointly use the agricultural land. The husband and wife are considered to have the right to jointly use this type of land in cases where the husband and wife are actually not allowed by the State agency to divide the house, land or the value of the land use right. In these cases, if it is required to have evidence that the parents have given the land in order to recognize the husband and wife as having the right to jointly use the land, it is not consistent with the reality of life. Therefore, it is possible to agree on the following settlement:
In the case where parents give land to their children to build a house, and when the children file for divorce, the parents reclaim the land. If there is no evidence of lending, letting them use it, or any other agreement, it is necessary to determine that the parents gave the children that area of land and the right to use that area of land together with other common assets of the couple to be divided when the couple divorces.
- Regarding land granted for household expansion, due to the fact that the population is increasing rapidly, the need for land is to be granted to households with rapidly increasing population. Therefore, the State has a policy of granting land for household expansion. From previous reality, according to Article 38 of Decree No. 30/CP dated March 23, 1989, when "a family has an additional couple" and there is a need for residential land, they can be granted residential land.
In reality, there are cases where local authorities allocate land to households, but there are also cases where they specifically allocate land to a couple (for example: Couple A) and then within the family there is an agreement to let couple B use the allocated area. When couple A or couple B files for divorce, a land dispute arises.
There is no consensus on how to resolve this type of dispute. We propose the following solution:
First, if the People's Committee allocates land to a household, then within the family there is an agreement to allow the couple to have joint use rights to the allocated land. If they divorce, the land use rights are considered joint property to be divided. If there is a dispute between other people, the dispute will be rejected.
Second, if the land is specifically assigned to couple A, then couple A will give that land to couple B, and on the decision to allocate that land, couple A is the legal user. After couple A gives that land to couple B, they stay on their parents' land, so couple B has the right to jointly use the assigned land. When a dispute arises, resolve the case in the direction stated above. Because couple A has a previous agreement between them and their parents, their parents are responsible for ensuring residential land for them. If the couple divorces, the parents are responsible for creating conditions for residential land (in kind or in value) equivalent to about half of the area previously granted to them. (If B increases the value of the land, A will compensate B with an equivalent value)
3.2. Recommendations on the organization of settlement of land use rights disputes when spouses divorce
Firstly , nationwide, the current administrative organizational structure includes 678 district-level people's courts, 63 provincial-level people's courts and the Supreme People's Court. If based on jurisdiction, the people's court system can be divided into 741 courts of first instance; 66 courts of appeal; 69 courts with the authority to hear final appeals and retrials [7, 59-71]. The number seems large, but the structure and organization are considered unreasonable.
Another difficulty is that people's courts are established according to administrative boundaries, so they are spread out and have difficulty performing their functions and tasks, especially district courts in mountainous provinces and remote areas. The Supreme People's Court focuses more on adjudication work than on summarizing trial experience and guiding the unified application of the law. Provincial people's courts, although lower-level, have the role of both first instance, appeal and final judgment courts; therefore, the workload on provincial people's courts is very large. As for district people's courts, the number of courts is large and spread out, with too many cases in some places and too few in others.
On June 2, 2005, the Politburo issued Resolution No. 49/NQ-TW on the Judicial Reform Strategy to 2020. The strategy sets out the overall goal of: " Building a clean, strong, democratic, strict, justice-protecting, gradually modernized judiciary serving the people and the Socialist Republic of Vietnam; judicial activities, with a focus on trial activities, are conducted effectively and efficiently ."
It is a fact that there is no unified model in the world. However, the model of court organization according to jurisdiction, not depending on the administrative unit, according to which the establishment and determination of the number of courts at each level is based on the division of the judicial area of each court not coinciding with the administrative unit at the same level is common. Author Nguyen Quan gave the following comment of Mr. Dang Quang Phuong: " For our country, power is centralized and unified, with specific division of labor and tasks in the implementation of three powers: legislative, executive and judicial; therefore, the study of the court organization model must ensure this principle " [23].
At the “High-level policy workshop on legal and judicial reform” held in Ba Ria – Vung Tau from February 4 to 5, 2009, Mr. Dang Quang Phuong said that the court sector is perfecting the organization and operation of the people's court in the direction of organizing the court system according to jurisdiction, not depending on administrative units, including: regional first instance courts organized in one or more
a number of district-level administrative units; the appellate court has the main task of hearing appeals and first-instance trials of a number of cases; the high court is organized by region with the task of hearing appeals; the Supreme People's Court has the task of summarizing trial experience, guiding the unified application of law, developing precedents and hearing appeals and retrials. The establishment of specialized courts must be based on the trial practice of each court level and each region.
Second , capacity building includes: providing knowledge and basic concepts of divorce, land disputes, etc.; launching legal education campaigns; training officials to work in conciliation and conflict resolution between couples when they divorce. The experience of the United Nations Working Group on Land Administration in Eastern Europe illustrates that great progress can be achieved in a short period of time if officials are trained in technical skills, social, legal and economic knowledge.
In addition, to improve the quality of court trials, it is also necessary to improve the moral and ideological qualities of the staff, especially the court sector. It is necessary to pay attention to the salary policy and allowance regime of trial officers so that they can work with peace of mind. Only then can work efficiency meet the needs of the people today.
Third , the leaders of the court sector also recognize that the court staff in general is still lacking in quantity and weak in qualifications and professional capacity. Recently, there have been cases of court staff violating public discipline and moral qualities, and in some cases, even violating the law and having to be prosecuted. In 2009, courts at all levels resolved 100% of complaints against officials, transferred 7 cases to the investigation agency for consideration, and warned and dismissed 45 cases...[40].
Through the above actual figures, we can see that it is necessary to further promote the training and development of cadres in both professional qualifications and professional ethics to keep up with the country's international integration process, especially the issue of fostering foreign language skills, computer skills and international legal knowledge.