Mediation in land dispute resolution

specific regulations, thereby making it difficult to resolve land disputes in practice.

Although the land policies and laws of our Party and State have changed in accordance with each stage of development, there are still many inconsistent regulations. Moreover, the explanations and guidance of competent authorities are not yet complete and timely. Therefore, the conciliation of land disputes by administrative agencies and the People's Court in recent years has not been consistent and has not achieved high efficiency. There are many cases that have dragged on for many years due to conciliation, prolonged complaints and reduced people's trust in the State's policies and laws.

Therefore, systematically studying the provisions of the law on mediation in resolving land disputes, the current status of land settlement through mediation, on that basis proposing recommendations to improve the law, ensuring the rights and interests of citizens is an important work in terms of theory and practice today. With that awareness, the student has chosen the issue of " Mediation in resolving land disputes " as his master's thesis in law.

2. Research situation

Up to the time the author researched the topic "Reconciliation in resolving land disputes" , there were a number of research articles on this issue such as "Reconciliation procedures at the grassroots level for land disputes according to the provisions of the 2003 Land Law" , Dr. Nguyen Minh Hang, Inspection Magazine, No. 3/2008; "On land dispute mediation" , Pham Thai Quy, Democracy and Law Magazine, No. 11/2009; "The issue of land dispute mediation at the People's Committees of communes, wards and towns" , Nguyen Van Huong, TAND Magazine, No. 02/2012; " Reconciliation of land disputes according to Article 135 of the Land Law and some issues raised"

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out ", Mai Thi Tu Oanh, TAND Magazine, No. 21/2012, etc. However, the above research works are only individual research articles within the framework of a magazine article. Up to now, there has not been an in-depth, comprehensive research work on mediation in resolving land disputes both before filing a lawsuit at the Court and after the case has been accepted and resolved by the Court. On the basis of inheriting the research results of published scientific works on land dispute mediation considered from a legal perspective, the thesis delves into the law on land dispute mediation in terms of both theory, positive law and practical implementation.

3. Research purpose

With the topic that the author has chosen as above, the general objective of the thesis is to objectively and comprehensively assess the effectiveness of land dispute mediation in practice. Thereby perfecting land law policies, giving opinions and suggestions to improve the effectiveness of land dispute mediation, helping to reduce the burden on the prosecution agencies in the land dispute litigation process.

4. Tasks, objects and scope of research

4.1. Research tasks

The research tasks of the topic include the following main issues:

- Explain general theoretical issues on land disputes and resolve land disputes through mediation.

- Evaluate legal provisions through research and analysis of legal provisions and the current status of application of mediation provisions in resolving land disputes.

- Provide orientation and propose some solutions to contribute to perfecting the law on mediation in resolving land disputes in our country.

4.2. Research object and scope

The object and scope of the research topic are:

- Current regulations on land dispute mediation (pre-litigation and in court)

- Practical application of current regulations on mediation in resolving land disputes.

5. Research methods

To achieve the research objectives set out in the thesis; in the process of researching the thesis, the following basic research methods were used:

(i) Historical materialist scientific research methodology of Marxism-Leninism;

(ii) In addition, the thesis also uses a number of specific research methods:

- Commentary, interpretation, historical methods... are used in Chapter 1 when studying an overview of theoretical issues on land disputes and land dispute resolution, and characteristics of mediation in land dispute resolution.

- Comparative jurisprudence method, evaluation method, etc. are used in Chapter 2 when studying legal provisions and the current status of law application on mediation in resolving land disputes.

- Analytical methods, synthetic methods... are used in Chapter 3 when reviewing and learning about perfecting the law on mediation in resolving land disputes.

6. Structure of the thesis

In addition to the introduction, conclusion and list of references, the content of the thesis includes 3 chapters:

Chapter 1 : Some theoretical issues on land dispute mediation;

Chapter 2 : Contents of provisions of current Vietnamese law on land dispute mediation;

Chapter 3 : Practical application and some recommendations to improve Vietnamese law on land dispute mediation.

Chapter 1

SOME THEORETICAL ISSUES

ON LAND DISPUTE RECONCILIATION

1.1. CONCEPT AND CHARACTERISTICS OF LAND DISPUTE RECONCILIATION

1.1.1. Concept of land dispute mediation

In any society, land always plays an important role and position for people, contributing to the prosperity of each country. Along with the development of production and life, people's demand for land use is increasingly rich and diverse. Originating from the interests of social classes and based on the requirements of national construction and development, the State uses the law to regulate land relations in order to create a healthy legal environment for the exploitation and use of land reasonably and effectively.

Land use rights (LUR) of individuals, agencies and organizations are a type of property recognized and protected by law. However, in recent years, disputes over this right have arisen in life more and more frequently, diversely and complicatedly. Therefore, it is urgent to diversify appropriate legal mechanisms to resolve disputes flexibly and effectively, in accordance with the socio-economic conditions of Vietnam. One of those mechanisms is to resolve land disputes through conciliation. In order to clarify land dispute conciliation, it is also necessary to study to identify the nature and content of this concept. Officials working in the field of

To reconcile land disputes, first of all, it is necessary to research and understand to identify the types of land disputes, thereby determining the appropriate reconciliation plan.

Theoretical research results show that land disputes are a social phenomenon that occurs in any socio-economic form. In a broad sense, land disputes are manifestations of contradictions and disagreements in determining management rights, ownership rights, and land use rights, arising directly or indirectly in the field of land management and use. In a narrow sense, land disputes are disputes arising between subjects participating in land law relations regarding rights and obligations in the process of land management and use. According to the Land Law Textbook of Hanoi Law University, "Land disputes are disagreements, contradictions or conflicts in interests, rights and obligations between subjects participating in land law relations" [47, p. 455].

According to Clause 26, Article 4 of the 2009 amended Land Law, land disputes are understood as "disputes over the rights and obligations of land users, between two or more parties in land relations" [27]. In civil proceedings, land disputes are understood as disputes related to land use rights, including: Disputes over who owns land use rights; disputes over contracts for conversion, transfer, lease, sublease of land use rights; inheritance of land use rights; mortgage or guarantee, capital contribution with the value of land use rights. In the scope of this thesis, land dispute mediation is understood as the mediation of disputes related to land use rights.

Regarding the nature of reconciliation, according to the Vietnamese Dictionary, reconciliation is "persuading the parties to agree to end the conflict or disagreement in a satisfactory manner" [54, p. 430]. This concept refers to the action and purpose of reconciliation but has not yet stated factors such as the nature, content and subject of reconciliation.

In Rothenberg's Legal Dictionary, conciliation is an act of compromise between parties after a dispute, each party giving in a little [57, p. 410].

Black's Law Dictionary defines conciliation as intervention; mediation; the act of a third party mediating between two disputing parties to persuade them to settle or dispute [56, p. 152]. Rothenberg's definition has stated the nature of conciliation but has not stated the act and role of the third party in conciliation. This has been corrected in Black's Law Dictionary.

From the above analysis, it can be seen that conciliation has three elements: first , there must be a dispute between the two parties; second , there must be a consensus of will between the parties to resolve the dispute through concessions from each party; third , in the conciliation process, there must be the participation of a neutral third party to provide advice and at the same time recognize the successful conciliation procedure between the parties in the dispute. If there is no participation of a third party, this process is not called conciliation but negotiation between the parties.

Thus, land dispute mediation is a legal measure to resolve disputes related to land use rights, in which an independent third party plays an intermediary role in helping the disputing parties find appropriate solutions to resolve disputes over rights and interests related to land use rights and negotiate with each other to resolve their rights .

1.1.2. Characteristics of land dispute mediation

It can be said that land disputes are a special form of civil disputes, because the subject of the dispute is land use rights. Therefore, in addition to the common characteristics of civil dispute mediation, land dispute mediation also has its own characteristics such as the subject of the dispute is closely linked to land use rights, so mediation must often be conducted by the facility or the Court where the disputed property is located; the subject of the dispute can undergo many changes over time with different legal policies, so the content of the dispute is often complicated, requiring the mediator to have a firm grasp of the origin, land use process and land law policies in each period.

history.

- Mediation is conducted at the location where the disputed land is located.

Land disputes are always associated with land use rights, so mediation is often necessary.

must be conducted at the location of the disputed property. Normally, the conciliation team, local authorities or the Court where the land dispute occurs will be in the best position to learn about the origin, history and current legal and practical status of the disputed property. Therefore, these entities will have the best conditions to conduct conciliation effectively.

- Land dispute mediation must be conducted by entities that understand land law, have a firm grasp of the origin, land use process and causes of disputes between the parties.

Land disputes are often disputes over valuable assets, the right to use may have been transferred through many subjects, have complex origins, so the level of dispute is often fierce, therefore, the intermediary subject conducting mediation must be knowledgeable about Land Law and related branches of law, have a firm grasp of the origin, land use process and causes of disputes between the parties.

- The subject conducting land dispute mediation can be a mediation team, the People's Committee (PC) or the Court.

Land disputes can be related to clans and people in the same locality, so for effective mediation, depending on the case, mediation can be given to the community, local authorities or judicial agencies. The important issue is to establish a mechanism for converting the results of grassroots mediation, local authorities and judicial decisions made by the Court with compulsory enforcement value.

When a land dispute occurs, the first method of resolution that the parties must use is self-reconciliation , also known as negotiation. In essence, this is

The parties to a dispute meet, discuss, and reach an agreement with each other to reach a common voice, eliminate disagreements and conflicts of interest in order to resolve the matter satisfactorily. The special feature of this form is that there is no participation of a third party, so it is only internal. The State also does not intervene at this stage, therefore, self-reconciliation is only successful when the parties have goodwill, sympathy, and respect for each other. This is a form to promote the tradition of solidarity, the spirit of mutual love, build a cultural lifestyle in residential areas, ensure that other forms of dispute resolution are effective and reduce the burden on competent authorities, then self-reconciliation is a measure that is always encouraged by the State. If the parties cannot reach an agreement, the resolution of the land dispute can be carried out through mediation at the grassroots mediation team.

Mediation at the grassroots mediation team is essentially a form of mediation by community representatives, in which the mediator guides, helps, and persuades the disputing parties to reach an agreement, voluntarily resolve disputes with each other in order to promote good feelings and ethics in the family and community. This form of mediation at the grassroots level is carried out through the activities of the mediation team or with the participation of other social organizations and is facilitated and encouraged by the State to ensure the maximum promotion of the advantages and effectiveness of this activity.

Mediation by the People's Committee of the commune, ward or town : In case the disputing parties cannot reconcile themselves, they can request the People's Committee of the commune, ward or town to mediate. This is a form of mediation carried out by the local government to quickly resolve disagreements among the people about land in residential areas directly managed by the local government. However, the result of this successful mediation is not valid as a judgment of the judicial authority.

Land dispute mediation in litigation : This is a mediation method at the People's Court, conducted by the judicial agency. Special features of the method