Legal Forms of Establishing Land User Rights

Corresponding to the rights will come the obligations. To exercise the above powers, land users must also perform obligations such as: using the land for the right purpose, within the right boundaries, registering land use rights, performing financial obligations related to land, etc. However, the exercise of rights and obligations is only within the land use term and it is also governed by the provisions of other laws such as the 2005 Civil Code, the 2014 Law on Marriage and Family, the 2014 Housing Law, etc.

1.1.3. Legal forms to establish land user rights

In reality, land use needs are very diverse, so the State bases on each specific case to allocate land, lease land and recognize land user rights.

First: the basis for land allocation and land lease

Article 52 of the 2013 Land Law specifically stipulates that land allocation, land lease, and permission to change land use purposes must be based on the annual land use plan of the district level [45, Article 52]. This is a new point compared to the provisions of the 2003 Land Law, which is based on land use planning, land use plans or urban construction planning, rural residential area construction planning as prescribed. For the first time, the role of land use planning and land use plans is clearly shown in the Law. If previously, land allocation and land lease when there was no land use planning could be based on urban construction planning, rural residential areas planning or other planning, now the annual land use plan of the district must be approved by the provincial People's Committee.

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Emphasizing the role of land use planning and planning is necessary and a step forward of the 2013 Land Law, because land use planning is an effective measure of the State to reorganize land use, limit overlaps that cause land waste, avoid arbitrary conversion of purposes, seriously reduce agricultural and forestry land funds, prevent negative phenomena, disputes, encroachment, land destruction, disruption of the ecological environment, environmental pollution leading to losses or inhibition of production, socio-economic development and many other harmful phenomena. Moreover, land use planning also creates conditions for more reasonable land use. On the basis of land classification, arrangement and arrangement

Land use planning creates a legal framework requiring land management and use subjects to comply with the law. That allows land use to be more reasonable, economical and effective. Because when land users clearly understand the boundaries and sovereignty of land types, they can confidently invest in exploiting their land, so the efficiency of use will be higher. Point c Clause 4 Article 40 of the 2013 Land Law stipulates that:

Determine the location and area of land to be recovered to implement works and projects using land for the purposes specified in Articles 61 and 62 of this Law in the planning year for each commune-level administrative unit. For technical infrastructure projects, construction, urban and rural residential area renovation, it is necessary to simultaneously determine the location and area of land to be recovered in the vicinity to auction land use rights to implement housing, trade, service, production and business projects and to prepare an annual land use plan map at the district level [45, Article 40, Clause 4].

To ensure sufficient basis for land allocation and lease.

When allocating or leasing land, it is necessary to base on the land use needs stated in the investment project, application for land allocation, land lease, and change of land use purpose.

If the land user is a household, individual or community that wants to be allocated land or leased land by the State, first and foremost, it is necessary to have an application for land allocation or lease with confirmation from the People's Committee of the commune, ward or town regarding its needs. For projects that need approval, depending on the type, there are different agencies that assess land use needs. For example, investment projects of organizations using capital from the state budget that have been approved by competent state agencies or projects with foreign investment capital that have been granted investment licenses by competent state agencies, the agency that issues the investment licenses is also the agency that assesses land use needs. As for projects to build religious facilities, they must be approved by the People's Committee of the province or centrally run city. Land allocation and lease based on use needs helps management become transparent and land resources are used effectively.

Second: forms of establishing land user rights

During the 1992 Constitution, the 1993 Land Law also recognized the State's allocation of land to organizations and individuals for stable and long-term use through two established forms: the State allocates land and leases land to economic organizations, people's armed forces, state agencies, political and social organizations, households and individuals; the State leases land to foreign organizations and individuals. Later, the 1998 and 2001 amended Land Laws expanded the forms of land allocation. These are land allocation with land use fees, land allocation without land use fees. And the form of land lease: including land lease with annual land rent payment, land lease payment for many years where the remaining land lease term has been paid for at least 5 years, land lease with one-time land rent payment for the entire lease term. Next, the 2003 Land Law, amended and supplemented in 2009, added two more forms of establishment: one is that the State recognizes the land use rights of those who are using the land stably by granting land use right certificates; two is that the State ensures the land use as agreed upon by the parties through the transfer of land use rights. The 2013 Land Law stipulates that for the form of land lease, only two forms are established: land lease with annual land rent and land lease with one-time land rent for the entire lease term; and in addition, the form of land use right recognition.

Regarding the form of land allocation: “Land allocation is the act of the State granting land use rights by administrative decision to subjects in need of land use” [45, Article 3, Clause 7]. There are 2 forms of land allocation:

One is land allocation without land use fees : in cases where the subjects using agricultural, forestry, aquaculture, salt-making land... use the land for public purposes, national interests, national security and defense, they do not have to pay. The State allocates land without land use fees with the aim of encouraging and supporting the subjects using the land and at the same time developing weak economic sectors.

Article 54 of the 2013 Land Law specifies the subjects that do not have to pay land use fees as follows: Households and individuals directly engaged in agricultural production, forestry, aquaculture, and salt production who are allocated agricultural land within the limit; land users

Land use for protection forests, special-use forests, production forests that are natural forests, land for building agency headquarters, land used for national defense and security purposes; land used for public purposes not for business purposes; land for cemeteries and graveyards that are not allocated by economic organizations to carry out cemetery and graveyard infrastructure investment projects to transfer land use rights associated with infrastructure; public service organizations that are not financially autonomous use land to build public works; organizations that use land to build houses for resettlement according to State projects; communities that use agricultural land; religious establishments that use non-agricultural land such as: land belonging to pagodas, churches, chapels, temples, cathedrals, Buddhist prayer halls, monasteries, religious training schools, headquarters of religious organizations, and other religious establishments permitted to operate by the State [12, Article 54].

Second: land allocation with land use fee collection : households and individuals are allocated residential land; economic organizations are allocated land to implement investment projects to build houses for sale or for sale combined with lease; Vietnamese people residing abroad and foreign-invested enterprises are allocated land to implement investment projects to build houses for sale or for sale combined with lease; economic organizations are allocated land to implement cemetery infrastructure investment projects to transfer land use rights associated with infrastructure.

For land types such as protective forest land; production forest land, the State only creates conditions and encourages within a certain limit. According to the provisions of Clause 3, Article 129, the land allocation limit for each household and individual is not more than 30 hectares for each type of protective forest land; production forest land. If exceeding that limit, the land user must pay land use fees according to regulations [45, Article 129, Clause 3].

Clause 3, Article 55 of the 2013 Land Law supplements the provision that foreign-invested enterprises are also eligible to be allocated land by the State with land use fees to implement investment projects to build houses for sale or for sale combined with lease [45, Article 55, Clause 3]. This provision creates opportunities for foreign-invested enterprises to participate in the Vietnamese economy, attract investment and create opportunities for enterprises to call for investment capital abroad.

Clause 4, Article 55 of the 2013 Land Law supplements regulations on economic organizations that are assigned land by the State to carry out cemetery and graveyard infrastructure investment projects to

Transfer of land use rights associated with infrastructure is a case of land allocation with land use fee collection [45, Article 55, Clause 4]. For non-agricultural production and business projects of domestic organizations, households and individuals, which were previously selected for land allocation with land use fee collection or land lease, now they can no longer choose land allocation with land use fee collection but only apply the form of land lease.

Regarding the form of land lease : "Land lease is the act of the State granting land use rights by contract to subjects in need of land use " [45, Article 3, Clause 8]. Current law does not regulate multi-year and one-time lease payments for domestic economic organizations, households and individuals, but only applies one-time payments to foreign organizations and individuals, and Vietnamese people residing abroad when investing in Vietnam.

The form of land lease with annual rental payment applies to the following subjects:

- Households and individuals rent land for agricultural production, forestry, aquaculture, salt production;

- Households and individuals who need to continue using agricultural land area exceeding the limit allocated before January 1, 1999, but the land use term has expired according to the provisions of Clause 2, Article 67 of this Law;

- Households and individuals using agricultural land exceeding the land allocation limit from January 1, 1999 to before the effective date of this Law, except for land area due to land use right transfer;

- Households and individuals rent land for construction of production facilities, business, mineral activities, construction materials production, and pottery making;

- Households and individuals using land to build public works for business purposes;

- Economic organizations, Vietnamese people residing abroad, foreign organizations and individuals lease land to carry out investment projects in agricultural, forestry, aquaculture, salt production; to build production and business facilities; to build public works for the purpose of

business purposes; construction of infrastructure for transfer or lease; mineral activities, production of construction materials, making pottery;

- Foreign organizations with diplomatic functions lease land to build offices [45, Article 56, Clause 1].

One-time land lease payment only applies to the following subjects:

- Vietnamese people residing abroad, foreign organizations and individuals renting land to carry out investment projects in agricultural, forestry, aquaculture, salt production; to build production and business facilities; to build public works for business purposes; to build infrastructure for transfer or lease; to conduct mineral activities, produce construction materials, make pottery; to build houses for sale or lease;

- Foreign organizations with diplomatic functions lease land to build offices [45, Article 56, Clause 2].

Clause 1, Article 56 of the 2013 Land Law adds a provision that domestic economic organizations, households and individuals also have the right to choose to rent land and pay land rent annually or pay land rent once for the entire lease term [45, Article 56, Clause 1]. Previously, the 2003 Land Law stipulated that domestic economic organizations, households and individuals were only allowed to rent land and pay land rent annually and could not choose to rent land and pay land rent once for the entire lease term. This provision has caused difficulties for some domestic enterprises with good financial capacity. Specifically: Land rent is only stable for five years, although the price fluctuation does not exceed 20%, it still brings certain disadvantages when enterprises with sufficient financial capacity to rent land and pay land rent once for the entire lease term are not allowed to choose. The above change has opened up many options for domestic enterprises, in accordance with the diversity of business models.

Regarding recognition of land use rights : "The State grants land use rights to people who are using land stably without the origin of land allocation or land lease by the State through the issuance of the first Certificate of land use rights, house ownership rights and other assets attached to land for a specified land plot" [45, Article 3, Clause 9] .

The State only recognizes land use rights for qualified entities, within the scope of subjects prescribed by the State. The conditions for the State to recognize land use rights are also the conditions for the State to issue land use right certificates.

1.2. Concept and characteristics of rights and obligations of land users who are husband and wife

1.2.1. Concept of rights and obligations of land users who are husband and wife

When studying the concept of rights and obligations of land users as husband and wife, first of all, as a legal subject in general, we need to understand rights and obligations in general.

Subjective rights are understood as the way of behaving that the law allows the subject to conduct. In other words, subjective rights are the ability of the subject to behave in a certain way permitted by law. Saying it is an ability means that the subject can choose between behaving in the way that it is allowed to do or not to do so.

Subject obligation is conceived as: a way of behaving that the State requires a subject to carry out in order to respond to the exercise of the rights of another subject. Legal obligation itself is not an act but only the necessity to behave in such a way.

Rights and obligations are two inseparable aspects of a subject when participating in a legal relationship, whether it is a unilateral or bilateral relationship. Subjects are protected by the State to enjoy their rights but at the same time must also fulfill their responsibilities to meet the rights of other subjects.

Rights and obligations in land relations are a type of legal rights and obligations, so they also have this characteristic. When a subject participates in a land use relationship, they are granted by law the rights of land users such as the right to enjoy benefits and profits on land, the right to transfer land use rights, etc. But at the same time, the law also requires them to perform certain obligations in order not to harm the rights and interests of the State or affect the rights of other land users.

In the scope of this topic, we only study land use rights as property of spouses in Vietnam during the legal marriage period.

Marriage is an event that gives rise to a family, reflecting the cohabitation of a couple and their children (if any). As a necessity of living together, husband and wife establish property relations to meet the needs of the family's existence and development. These are common relations in society and are directly regulated by the law on marriage and family. The property regime of husband and wife is determined based on two bases: The written agreement of the husband and wife before registering the marriage (property regime by agreement) and according to the provisions of the law (statutory property regime).

The property regime of spouses is essentially the ownership regime of spouses. Husband and wife, as citizens, are both subjects of marital and family relations and subjects of civil relations when exercising their ownership rights and participating in civil transactions. The property regime of spouses has the following characteristics:

Firstly, in terms of the subjects of ownership relations in this property regime, the parties must have a legal marriage relationship as husband and wife. Therefore, to become the subjects of this ownership relationship, the subjects, in addition to having full legal capacity in civil legal relations, are also required to comply with the marriage conditions prescribed in the law on marriage and family.

Second, based on the important position and role of the family in the existence and development of society, the state, through law, regulates the property regime of spouses with the first and main purpose of ensuring the interests of the family, including the personal interests of the husband and wife. The provisions of law on the property regime of spouses are the basis for creating conditions for spouses to proactively exercise their rights and obligations regarding the property of spouses.

Third, the basis for establishing and terminating this property regime depends on the emergence and termination of the marital relationship, or in other words, the property regime of spouses usually only exists during the marriage.

Property regimes recognized by law, whether by agreement or by contract

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