Practical Implementation of Land Use Rights in Vietnam

are allowed to operate in Vietnam. That means land users are also allowed to mortgage and guarantee the value of land use rights at foreign-invested credit institutions, foreign bank branches operating in Vietnam, and 100% foreign-owned credit institutions (National Assembly of the Socialist Republic of Vietnam (2001), Law amending and supplementing a number of articles of the Land Law, National Political Publishing House, Hanoi).

Le Xuan Ba (2003), "The formation and development of the real estate market in the renovation process in Vietnam" has presented many approaches to real estate and the real estate market. At the same time, it has presented the characteristics, roles, and inevitability of the development of the real estate market. The book also analyzed the main factors of the real estate market including supply - demand, the relationship between supply - demand and the formation of real estate prices in the market; factors affecting real estate prices. The international experiences presented were an important lesson in the development of the real estate market at that time.

If we want the market to fully function in the circulation sector, we must organize the activities of all types of markets well. Each type of market is relatively independent, restrains and promotes each other, and becomes an organic part of the national market system. Therefore, to continue the cause of innovation, our country needs to quickly establish a complete market system, including the real estate market. (Nguyen Thanh Tra, Nguyen Dinh Bong, 2005).

However, in the period of accelerating industrialization and modernization, the situation of land management and use after 3 years of implementing the revised Land Law 2001 has shown that there are still shortcomings and weaknesses. Therefore, continuing to amend the 1993 Land Law (amended and supplemented Laws 1998, 2001) is necessary and inevitable in order to remove obstacles in land management and use, ensure the stability of the law, and at the same time, promptly institutionalize the Party's guidelines, policies and guidelines on land in the new period. Land Law

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The 2003 Belt was passed by the National Assembly of the Socialist Republic of Vietnam.

The 11th National Assembly, 4th session, passed on November 26, 2003 and took effect from July 1, 2004. (National Assembly of the Socialist Republic of Vietnam (2003), Land Law, National Political Publishing House, Hanoi).

According to the article “Protecting the people’s ownership of land and the land use rights of land users” by Dinh Dung Sy (2003), “ Land use rights ” is a particularly creative concept of Vietnamese jurists. In the condition that land is owned by the people and cannot be divided, how can people exercise their rights? So that people can exploit and use land effectively, meeting the needs of production and life without losing the supreme meaning of the people, without losing the management role as the representative owner of the State? The concept of “ land use rights ” of “ land users ” is a legal creation, resolving the above-mentioned contradiction and harmonizing the interests of the nation, the State and each citizen. (Dinh Dung Sy (2003), Protecting the people’s ownership of land and the land use rights of land users: current situation and recommendations).

Regarding land use rights of households and individuals: The 2003 Land Law inherited the provisions of the 1993 Land Law and at the same time added the right to donate or give away land use rights of households and individuals using land other than leased land; did not stipulate restrictive conditions when exercising the right to transfer and added the right to inherit land use rights of agricultural land for annual crops to create favorable conditions for the exercise of land users' rights, promote the development of the real estate market and land accumulation according to the State's orientation. Specifically, the content of land use rights is as follows: "The right to convert, transfer, lease, sublease, inherit, donate land use rights; the right to mortgage, guarantee, contribute capital with land use rights; the right to be compensated when the State reclaims land" (Article 106) (National Assembly of the Socialist Republic of Vietnam (2003), Law

Land, National Political Publishing House, Hanoi).

Rights and obligations of foreign organizations and individuals using Vietnamese land: The 2003 Land Law stipulates that foreign organizations and individuals leasing land have rights corresponding to the form of annual land rent payment or one-time payment for the entire lease term. It also includes the right to invest in the construction and business of housing in Vietnam.

Through the provisions of the Land Law over each period, it can be seen that the Law is gradually introducing regulations that are more suitable to life and accept the realities of life; gradually expanding the rights of land users while still ensuring the principle that land belongs to the entire people.

The 2013 Land Law institutionalized the provisions of the Constitution on land use rights: “Land users are allowed to transfer land use rights and exercise rights and obligations as prescribed by law. Land use rights are protected by law”. The Law devotes Chapter XI to regulating the rights and obligations of land users, specifically regulating the rights and obligations of each land user in accordance with the forms of land allocation, land lease, recognition of land use rights and stipulating the conditions when land users exercise their rights. Land users have general rights such as: being granted a Certificate of land use rights, house ownership rights and other assets attached to land; enjoying the fruits of labor and investment results on land; enjoying benefits from State works serving the protection and improvement of agricultural land; being guided and assisted by the State in improving and enriching agricultural land; being protected by the State when others infringe upon their legitimate rights and interests in land; be compensated when the State reclaims land; have the right to complain, denounce, and sue about violations of their legitimate land use rights and other violations of land laws.

Land users are entitled to exercise the rights of conversion and transfer.

transfer, lease, sublease, inherit, donate, mortgage, contribute capital for land use rights depending on each type of land and origin of land use. (National Assembly of the Socialist Republic of Vietnam)

Socialist Republic of Vietnam (2013), Land Law, National Political Publishing House, Hanoi).

1.3.2. Practice of land use rights implementation in Vietnam

The State allocates land to organizations, households and individuals for use. During the period from 1990 to 2000, the State granted land use rights in the form of land allocation without land use fee collection, land allocation with land use fee collection, land lease with land use fee collection, land lease to about 13 million households and individuals (including 60,000 households engaged in farm economy), about 20,000 cooperatives, 5,000 state-owned enterprises; 70,000 companies and private enterprises; 4,000 foreign organizations and individuals. The demand for land use for socio-economic development goals was met, the State allocated land funds for use purposes and reduced unused land areas. The total land area allocated and leased by the State by December 2003 was 25,160,119 ha, accounting for 76.40% of the total natural area of the country. By December 2003, the whole country had basically completed the issuance of 41.6 million first-time land use right certificates with a total area of 22.9 million ha, reaching 94.8% of the land area in use that needed to be granted. (Government Office (2014), Notice No. 204/TB-VPCP on the Conclusion of Deputy Prime Minister Hoang Trung Hai at the meeting to assess the issuance of land use right certificates, house ownership rights and other assets attached to land on May 6, 2014).

investment capacity on land, investment not on schedule, land use for the wrong purpose;

The situation of “suspended” planning is quite common; the progress of granting land use right certificates is very slow, greatly affecting real estate transactions as well as the implementation of land use rights; land recovery and site clearance to allocate land to investors still face many difficulties and bottlenecks; land allocation and leasing are still heavily dependent on the “ask-give” mechanism; the implementation of land use right auctions is currently only in the initial trial phase, there is a huge difference between the land price decided by the State and the actual transfer price, thereby creating conditions for land speculation and illegal real estate business; actual land prices tend to increase inconsistently with economic laws, causing economic and social instability.

The increasingly improved regulations on land allocation and land lease have promoted the development of the land use rights market, contributing to effective land use, promoting the development of agriculture, industry, transportation, construction and services. However, besides the positive aspects, land allocation and land lease still have limitations: lack of overall planning, serious imbalance in supply and demand of land for non-agricultural production; many projects are allocated land but do not use it, use land ineffectively, are unable to invest on land, invest behind schedule, use land for the wrong purpose; the situation of "suspended" planning is quite common; the progress of granting land use rights certificates is very slow, greatly affecting real estate transactions as well as the implementation of land use rights; land recovery and site clearance to allocate land to investors still face many difficulties and bottlenecks; Land allocation and leasing are still heavily based on the “ask-give” mechanism; the implementation of land use right auctions is only in the initial trial phase; there is a huge difference between the land price decided by the State and the actual transfer price, thereby creating conditions for land speculation and illegal real estate business; the actual land price tends to increase inconsistently with economic laws, causing economic and social instability. (Dao Trung Chinh 2007, “Some issues on land use rights in the real estate market”, Journal of Natural Resources and Environment).

Land use rights include: conversion, transfer, lease - sublease, inheritance, mortgage, guarantee, capital contribution, donation. The provisions of the Land Law gradually expand the rights of land users, which has the effect of strongly promoting the land use rights market.

Regarding the transfer of land use rights: Land use rights transfer has really met the needs of the majority of people when they have a need for agricultural land, residential land and land for production and business. Land users are more proactive in investing and using land, while also increasing revenue for the State budget. During the implementation process, there are still some problems such as the transfer of agricultural land use rights is only carried out conditionally, which does not support the process of transforming the labor structure in rural areas, many households transfer land use rights without registering with competent state agencies, and the transfer procedures are too complicated.

Article 500. Contract on land use rights. A contract on land use rights is an agreement between the parties, according to which the land user converts, transfers, leases, sub-leases, donates, mortgages, contributes capital to the land use rights or exercises other rights as prescribed by the Land Law to the other party; the other party exercises the rights and obligations under the contract with the land user. (Law No. 91/2015/QH13 dated November 24, 2015, Civil Code).

Regarding the inheritance of land use rights: Inheritance of land use rights occurs frequently, however, most of them are not declared or registered with state agencies. Through some investigation results, it is shown that most people believe that inheritance of land use rights is an internal family matter according to the tradition of "father to son", when it comes to dividing the inheritance, brothers and sisters agree with each other and have relatives witness, there is no need to declare to state agencies, so there have been many disputes between people who inherit land use rights.

The 2013 Constitution clearly stipulates that everyone has the right to private property and the right to inheritance protected by law (National Assembly of the Socialist Republic of Vietnam (2013), Constitution, National Political Publishing House, Hanoi).

Regarding the situation of donating land use rights: supplementing regulations on the right to donate land use rights of households and individuals to suit the reality of land use. Currently in our country, when children grow up and get married, parents often give them a part of land for them to build a house or use for production purposes. This is a common land use situation that must be regulated by law to ensure the rights and legitimate interests of the person who is gifted land use rights.

Exercise the rights of land users at the Land Use Rights Registration Office as prescribed in Joint Circular No. 05/2010/TTLT-BTNMT-BNV guiding the functions, tasks, powers and organization of the Land Use Rights Registration Office. Regulations on the establishment of Land Use Rights Registration Offices at all levels (Ministry of Natural Resources and Environment, Ministry of Home Affairs (2010), Joint Circular No. 05/2010/TTLT-BTNMT-BNV guiding the functions, tasks, powers and organization of the Land Use Rights Registration Office).

On April 4, 2015, the Ministry of Natural Resources and Environment, the Ministry of Home Affairs, and the Ministry of Finance issued Joint Circular No. 15/2015/TTLT-BTNMT-BNV-BTC, guiding the functions, tasks, powers, organizational structure and operating mechanism of the Land Registration Office under the Department of Natural Resources and Environment.

Also according to the Circular, the Provincial People's Committee is responsible for deciding to establish a Land Registration Office on the basis of merging the Land Use Right Registration Office under the Department of Natural Resources and Environment and the existing Land Use Right Registration Offices under the Department of Natural Resources and Environment in the locality.

* The shortcomings of the implementation of land use rights in Vietnam:

Although the implementation of land use rights has been regulated by law, the regulations are still strict, not open, or the legal documents providing guidance on implementation are not consistent, including the registration and declaration procedures, the specialized agencies and service agencies do not have a plan due to weak capacity, and at the same time, although there are many regulations on land prices, there are still shortcomings and limitations in determining land value for transfer; conversion; lease; sublease or capital contribution with land use rights. Due to the above-mentioned shortcomings, informal land use rights transfer activities still occur in many places, negatively affecting the newly operating real estate market, negatively affecting land management and use, causing waste for the State and the people (Nguyen Dinh Bong and authors, 2007).

The work of registering the implementation of land use rights currently still has some limitations and difficulties because there are many gaps between the implementation of rights and the registration of those rights due to administrative procedures, policy regulations or subjective factors controlled by humans.

Chapter 2

OBJECTS, CONTENT AND METHODS OF RESEARCH

2.1. Research object and scope

2.1.1. Research object

The research object of the topic is the activities of implementing the rights to transfer, inherit, and donate land use rights of households and individuals in Van Don district, Quang Ninh province.

2.1.2. Scope of research

Spatial scope: In 11 communes and 01 town of Van Don district, Quang Ninh province

Time range: From 2015 to 2017

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