Legal Structure of Tourism Real Estate Business

legal relations, acts of exercising legal rights and obligations) to regulate social relations, impacting social relations in a certain direction" 65 . Similar to this approach, author Nguyen Canh Quy also stated: "Legal adjustment is the impact of law on social relations, through a series of specific legal means so that they develop in a certain direction, in order to achieve the goals set by the State" 66 .

With the above mentioned role and purpose of the law in regulating social relations, it can be seen that the real estate market in general and the tourism real estate market in particular cannot lack the regulation of the law to orient the market to develop in an orderly, stable and healthy manner. As analyzed above, the diversity and richness of tourism real estate products but have very different characteristics, the investment and business purposes of each enterprise are also different, and it is a late-formed market but has a fast and strong development speed, so in reality, it is inevitable that there will be complicated consequences, not many previous precedents and lack of specific orientations. That shows the objective necessity and urgent need to form a comprehensive legal framework to regulate the tourism real estate market, and more specifically and directly, to regulate tourism real estate business activities in accordance with the right policies and orientations, both to respond to the needs of the market and of business investors, while ensuring healthy development and preventing risks for participants, and ensuring the effectiveness of state management of this market.

Objectively, it can be affirmed that the law regulating the real estate market in a comprehensive and general manner has been paid attention to by the State, accordingly, the tourism real estate market operating in the past time has also been implemented on the basis of that general legal system. However, to have a complete, synchronous and appropriate legal system, regulating the tourism real estate market with many special factors

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65 Pham Huu Nghi (1998), Textbook of General Theory of State and Law , National Publishing House, Hanoi, p.430. 66 Nguyen Canh Quy (2001), Perfecting the land use rights regime according to land law in Vietnam, PhD thesis in Law, Ho Chi Minh National Academy of Politics, Hanoi, p. 21.

Currently, there are still many gaps that need to be filled with many amendments to current regulations, with many new additions to reasonably and effectively adjust the tourism real estate market. The emergence of legal regulations regulating the tourism real estate market comes from the requirements of the practical tourism real estate business activities of real estate investors as well as the requirement for unified state management of real estate business in our country.

Based on the general concept of law in the Theory of State and Law as well as the content of regulations on real estate business (including tourism real estate business), according to NCS, the law on tourism real estate business is understood as follows: The law on tourism real estate business includes a synthesis of legal norms issued by the State and guaranteed by the State's coercive power to regulate social relations arising in tourism real estate business activities to protect the rights and legitimate interests of the parties, contributing to improving the effectiveness of state management of real estate business in general and tourism real estate business in particular in our country.

The law on tourism real estate business has the following basic characteristics:

Firstly, the law on tourism real estate business is a comprehensive legal field that is interdisciplinary and has a wide scope of regulation, connecting and interconnecting legal fields in the Vietnamese legal system.

Investing in tourism real estate business is a long process from the time a business starts up, begins with investment ideas, until the realization of investment ideas into specific real estate products for business in the market with many different procedures and legal requirements. Therefore, such investment activities are not only regulated by a specialized legal document but also need many documents that are closely related to each other, including general laws and specialized laws with many different institutions such as planning laws, land laws, business laws, investment laws, civil laws, real estate business laws, construction laws, credit laws, environmental laws... forming a whole that regulates the real estate market in general, including tourism real estate business activities in particular.

Second, the law on tourism real estate business includes legal regulations in the public law field and legal regulations in the private law field.

Legal regulations in the public sector include regulations on granting investment licenses for tourism real estate business, regulations on state management of tourism real estate business; regulations on handling violations of the law on tourism real estate business; regulations on principles and conditions for tourism real estate business...

Legal regulations in the private sector include regulations on types of tourism real estate business contracts; principles of concluding tourism real estate business contracts; regulations on the rights and obligations of subjects of tourism real estate business relationships; regulations on the content of types of tourism real estate business contracts including tourism real estate purchase and sale contracts, tourism real estate lease contracts, tourism real estate lease-purchase contracts, etc.

Third, the law on tourism real estate business includes many types of regulations such as legal regulations, regulations that are both legal and technical and professional.

The group of legal regulations includes regulations on scope and applicable subjects; regulations on principles and conditions for tourism real estate business; regulations on state management of tourism real estate business; regulations on rights and obligations of parties in tourism real estate business relationships...

The group of regulations that are both legal and technical, including regulations on investment in construction of tourism real estate; regulations on standards for classifying tourism real estate; regulations on management, operation, and use of tourism real estate...

Fourth, the law on tourism real estate business is closely related to the law on tourism. This means that tourism real estate business activities are not only subject to the regulation of real estate business law such as regulations on business conditions, regulations on business principles, regulations on prohibited acts in tourism real estate business, regulations on rights and obligations of parties in tourism real estate business relationships... but also comply with the law on tourism. These regulations include principles, rights and obligations of tourists and travel agencies;

regulations on state management of tourism, regulations on prohibited acts in the tourism sector and regulations on environmental protection in tourism activities...

Fifth, the law on tourism real estate business aims to regulate tourism real estate business activities in a formal, transparent and effective manner.

Although each legal norm belongs to a specific legal field, when they are applied to directly or indirectly regulate the real estate market in general and tourism real estate business in particular, they more or less have a unified internal relationship and organic connection with each other. There are groups of norms that only mention the conditions of the subject and type of real estate participating in the market; there are groups of norms that only focus on establishing and implementing specific transactions; There are also groups of regulations that are only concerned with regulating the procedures and processes of project creation and operation, or groups of regulations that directly regulate business activities, determine the rights and obligations of market participants, or establish ownership and use rights of real estate... However, all of these groups of legal regulations, when issued, aim at a common goal of ensuring that real estate business activities are operated quickly and conveniently, ensuring the rights and legitimate interests of the participating parties, ensuring the common interests of the state and for the common interests of the whole society on the basis of strictly complying with the legal standards set by the state.

2.3.2. Legal structure of tourism real estate business

Clearly defining the legal structure governing real estate business activities is an important issue for investors in order to specifically and fully identify the legal requirements for a tourism real estate investment project, so that on that basis, investors can properly, fully and more effectively implement them in their business process. An overview of current real estate business laws, including many co-regulating laws, along with practical activities that investors must perform and must meet the requirements of competent state agencies in the process of implementing investment projects, shows that the structure

The law regulating tourism real estate business activities includes the following main groups of regulations:

Group of regulations on principles of tourism real estate business: This is the content that the law requires tourism real estate business entities in their investment and business activities to comply with, to comply with the requirements of state management of the real estate market, to respect the rules of the market, to ensure the legality of transactions, to protect the rights of market participants, to protect the interests of the community and the common interests of society. Compliance with the principles in tourism real estate business activities also aims to ensure fairness and equality in business activities, to create conditions for professional real estate businesses with capacity and potential, prestige in the market and professional ethics in business, and to develop competition in the spirit of respect for the law.

Group of regulations on conditions for tourism real estate to be allowed to be put into business : This is an important group of regulations that investors in tourism real estate business must know and comply with in order to ensure the legality of tourism real estate products circulating on the market. For each different real estate, with different forms of real estate business, the conditions for that real estate to participate in the market are regulated differently. This aims to regulate the normal operation of real estate products, limit and prevent speculation, virtual demand stimulation, increase market transparency and better protect the rights of customers when participating in this market. Implementing this principle well also limits and prevents disputes, conflicts and disagreements arising from invalid tourism real estate transactions because those real estates do not ensure legal conditions for trading on the market. The risks that occur are often borne by customers.

Group of regulations regulating the rights and obligations of tourism real estate business entities: This is the group of regulations that real estate business investors pay the most attention to in their investment activities. Regarding the rights recognized by law or the right of investors to perform on the basis of state permission and recognition, it helps investors take full advantage of opportunities to ensure effective business activities. Including

Some basic rights such as: The right to have the State establish ownership of tourism real estate, the right to have the State provide public services during the implementation of investment projects, the right to be exempted, reduced or given other incentives during the investment process or to be protected by the State when others infringe upon their legitimate interests during the business process. In addition, investors have the right to be proactive in mobilizing capital for business investment, to decide on methods and types of business on the basis of law. In reality, the more specific and profound the entities doing business in tourism real estate understand their rights, the more effective their business activities will be.

Regarding the obligations that the law requires investors to fulfill before the State, society and investors are required to know and strictly comply with. The basic obligations include: implementing investment projects in accordance with planning and land use plans approved by competent state agencies, fulfilling financial obligations to the State during the investment process, complying with regulations on environmental protection, implementing transparency regimes, and disclosing information about real estate put into business... In addition to obligations to the State, investors must also fulfill with customers on the basis of commitments for each specific type of transaction. The basic obligations that can be seen are: commitment to ensure the product and quality of tourism real estate as the subject of the transaction, handing over tourism real estate on time as agreed; commitment to establishing ownership of tourism real estate.

Group of regulations on legal form and validity of tourism real estate business transactions

The legal form and validity of the transaction are the specific manifestations of the commitments and agreements of the subjects participating in the transaction of tourism real estate taking place on the market through documents and papers and recognized by competent state agencies and binding on the legal rights and obligations of the parties. For real estate transactions in general and tourism real estate in particular, most of the laws of countries in the world, of which Vietnam is no exception, stipulate that the form of the transaction is a written contract; the validity of the contract is regulated differently in each country. Accordingly, there are countries that stipulate that notarization is a mandatory condition.

For a transaction to be valid, some countries have quite open regulations: only need to show commitment, agreement on the basis of free will for the transaction to be valid. In Vietnam, the law also regulates in an open direction, for tourism real estate transactions, whether or not to notarize is the choice of the subjects participating in the transaction. Written contracts on tourism real estate transactions can be implemented according to the model contract that real estate business investors register to use with the competent state agency, or the contract is drafted by both parties based on the agreements and commitments of the parties. In fact, many model contracts on tourism real estate transactions are also prepared by real estate business investors according to the investor's intentions based on the provisions of the law.

Research on a broader scope of the form of tourism real estate transactions shows that in countries around the world, the form of expression of contracts for real estate transactions can be on paper, by email and in other diverse and modern forms of expression through digital technology. However, in Vietnam up to now, contracts for real estate transactions are all expressed on paper. World experience shows that, to save costs, shorten time and increase transaction opportunities, some countries have diversified the forms of contracts in transactions. Typically, in 2017, Belarus became the first country in the world to legalize "smart contracts" 67 ; Or in the US, since 2018, the US Senate has announced that many states use smart contracts such as: Arizona 68 , Nevada 69 , Tennessee 70 , and Wyoming 71 and in April 2020, the Iowa House of Representatives passed a law recognizing smart contracts in its state 72. Or in Singapore, smart contracts are accepted as a legal form that exists alongside basic, traditional contracts in real estate transactions if

67 https://www.belarus.by/en/press-center/news/lukashenko-signs-decree-to-develop-digital-economy_i_71780.html , accessed January 2, 2022.

68 "Arizona HB2417 - 2017 - Fifty-third Legislature 1st Regular" . LegiScan, accessed January 2, 2022.

69 Hyman Gayle M, Digesti, Matthew P New Nevada legislation recognizing blockchain and smart contract terminologies August 2017, Nevada Lawyer, accessed January 2, 2022.

70 Tom, Daniel (September 22, 2020). "Smart Contract Bill Tennessee" (PDF), accessed January 2, 2022.

71 Wyoming, Legislature (February 26, 2019). "Wyoming - Smart Contract" , accessed January 2, 2022.

72 "Iowa House approves bills to facilitate broadband, cryptocurrency" . www.thegazette.com. Retrieved 2021- 04-15, accessed January 2, 2022.

If there are full proposals and acceptance of proposals, creating a binding legal relationship between the parties in the transaction, they will have legal effect. 73 NCS thinks that in the coming time, with the development of the fourth industrial revolution and the sublimation of digital technology, it is necessary to diversify the legal forms of tourism real estate transactions.

Group of regulations on handling violations in tourism real estate business activities:

This is a group of necessary regulations to maintain order and discipline in real estate business activities. This group of regulations also has a preventive effect on business investors, avoiding violations so as not to put themselves in a situation where they are handled by the State. This group of regulations also sets out the responsibility for state management agencies for the real estate market in general and the tourism real estate market in particular to regularly conduct inspections, checks, and supervision of business activities for tourism real estate business investors with the aim of firstly preventing from afar, orienting business activities of entities to comply with the law, respecting the law, and then sending a message to investors to know that if they do not comply with the law in business activities, they will be handled through specific legal forms.

Within the scope of this thesis, with the limitation of capacity and the main purpose of the thesis is to study the law regulating the business activities of tourism real estate enterprises, the researcher only focuses on studying the issue of handling violations as a state management activity for tourism real estate business activities to contribute to improving the legality in business activities, ensuring order and discipline in business activities and preventing risks for customers. Therefore, the researcher does not study the dispute resolution activities for real estate business activities because this is an extremely broad content, with a complex nature, so it is necessary to study in another specialized content with in-depth nature.

73 https://singaporelegaladvice.com/law-articles/smart-contracts-singapore-benefits-risks/ , accessed 2/1/2022.

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