Land use rights are the rights to exploit the useful properties of land for the purpose of economic and social development, improving the material and spiritual life of the people... The State does not directly use all the land but allocates a part to organizations, households and individuals for use. In addition to the rights of occupation and use, those who are legally assigned to use land also have the following rights: the right to convert, transfer, lease, sublease, inherit, donate land use rights, the right to mortgage, guarantee, contribute capital with land use rights, and be compensated for damages when the State reclaims land.
The State's right to use land is not restricted because it comes from the highest interests of the entire people. The land use rights of organizations, households and individuals are specifically regulated in terms of time, space and purpose. The law allows the State to cancel land use rights in certain areas in some cases. The right to possess land is linked to the right to use land. Possession without use is a violation of the law.
The right to dispose of land is the right to decide the legal fate of land. The State exercises this power through deciding the purpose of land use, land allocation and land recovery.
The 2003 Land Law stipulates: "The State grants land use rights to land users through the form of land allocation, land lease, and recognition of land use rights for those who are using the land stably; and regulates the rights and obligations of land users" [24].
Households and individuals assigned land by the State have the right to convert, transfer, inherit, donate, sublease land use rights, mortgage, guarantee, and contribute capital using land use rights.
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Perspectives on Improving the Quality of Law Application in Resolving Land Use Rights Disputes at the People's Court -
Improving the quality of law enforcement in resolving land use disputes at the People's Court in our country today - 1 -
Advantages of Ensuring Quality in Applying Law in Resolving Land Use Disputes at People's Courts -
Solutions to Improve the Quality of Law Enforcement in Resolving Land Use Disputes at People's Courts -
Applying the law in resolving land use disputes at the People's Court - 9
The above rights shall only be exercised within the land allocation period and for the correct purpose of use of the allocated land according to the provisions of the Land Law and other provisions of law.
Land use right certificates are issued to land users according to a unified form nationwide for all types of land. In case there is property attached to the land,
The property is recorded on the land use right certificate. The property owner must register the property ownership according to the provisions of the law on real estate registration, the land use right certificate is issued by the Ministry of Natural Resources and Environment and is granted for each plot of land. The land use right certificate is the most important legal basis to determine who is the legal land user and is the basis for them to exercise the above rights. When there is a dispute at the People's Court, they must present this paper to prove that they have sufficient legal conditions to exercise the rights. This is also a condition to determine the authority to resolve disputes over land use rights according to the provisions of the 1993 Land Law [21].
The conversion, transfer, donation, sublease, inheritance, mortgage, guarantee, and capital contribution using land use rights are completely different from the conversion, transfer, lease, inheritance, and mortgage of other assets. Regarding land, users are only allowed to exercise the above rights; especially, they must not infringe upon the State's ownership rights. The State strictly regulates the conditions for legal land users to carry out such transactions. The Court must comprehensively consider the provisions of the Civil Code and legal documents on land to determine the legal value of each type of transaction related to land use rights.
* Problems arising from changes in the provisions of civil law and land law:
Land law in our country has gone through different stages of development and transformation. In each historical period, the State has built a system of corresponding legal documents. Civil transactions related to land use rights arise on the basis of that law. In reality, in our country, there exist intertwined transitional relationships. Many types of civil transactions that arose in the previous period correspond to civil transaction relationships in this period, but were implemented and disputes arose in the later period, where new legal documents replaced the legal documents at the time of the transaction. Therefore, it is very complicated to apply legal documents to resolve disputes.
The above transitional nature must be respected by the People's Court to resolve disputes arising in the process of resolving civil disputes related to
Land use rights for which such transactions are concluded in accordance with the provisions of legal documents prior to the time of dispute, specifically:
- Contracts under the old law - disputes and lawsuits at the time of new law - which legal documents to apply to resolve disputes is a complicated issue that must be given attention and handled properly.
- Land relations have many participants. In the conditions of our country's economy developing according to the market mechanism, there are many participants in civil and commercial relations. Land use rights are the subject of civil transactions, so the subjects of transactions related to land use rights are also expanded; they can include: organizations, households, individuals, which can be Vietnamese or Vietnamese residing abroad, foreign organizations and individuals investing in Vietnam.
In Vietnam, land prices (land use rights value) include many different types of prices. We do not consider land as a commodity, so we do not set land prices but only determine the value of land use rights. With the awareness of price management, the State regulates the price framework for land types and forces land users to base on the land price framework set by the State when transferring land use rights. But in reality, most land use rights transfer contracts determine land prices according to market prices. The existence of many types of land use rights transfer prices in our country has not been clearly regulated in legal documents as to which type of price applies to which legal relationships, so it affects the determination of the validity of related transactions.
2.2. Quality of law enforcement in resolving land use disputes at the People's Court
The report of the Chief Justice of the Supreme People's Court on the work of the Courts at the 9th session of the 11th National Assembly assessed the results of the performance of the Courts' tasks as follows:
In the settlement of civil cases, the 2004 Civil Procedure Code has many new and stricter provisions on procedural matters, especially the provisions on the obligation to provide evidence, appraisal, and asset valuation.
property. Meanwhile, many state agencies and litigants are not familiar with and have not yet implemented these new regulations well, so the construction of records and the resolution of cases have encountered many difficulties, significantly affecting the effectiveness of the Courts' operations. However, to ensure the completion of their tasks, the Courts have persistently explained and guided litigants, agencies and organizations to properly implement the provisions of the law on the obligation to provide evidence and documents related to the case. In the process of resolving the case, the Courts have clarified the disputed relationships, actively verified and collected evidence, and in necessary cases, strengthened coordination with relevant agencies, grasped and properly implemented the provisions of the Civil Code, the Civil Procedure Code and related legal documents to properly resolve the case, and at the same time persistently mediated between the litigants on the basis of the law, so the rate of mediation in resolving civil cases is quite high [42].
In reality, although the number of civil cases to be handled is very large, complicated and increasing rapidly, the Courts face many difficulties in collecting evidence and building case files, the Courts have mastered the provisions of civil procedure law, done a good job of guiding and explaining the law so that people understand their rights and obligations, actively verify and collect evidence in necessary cases and strengthen coordination with relevant agencies, so most civil cases and matters are resolved within the time limit prescribed by law, gradually overcoming the situation of backlog and overdue cases.
However, the reality of resolving land use dispute cases in people's courts shows that the quality of law enforcement has the following advantages and limitations.
2.2.1. Advantages of ensuring the quality of law enforcement in resolving land use disputes at the People's Court
The application of law in resolving land use disputes at the People's Court in our country in recent times has achieved great achievements in protecting the rights and interests of citizens in all areas of social life. In recent years, although the number of civil cases that the Courts have to handle has increased,
However, by mastering and properly implementing the provisions of the law, especially the Civil Procedure Code, the Civil Code, the Labor Code, the Bankruptcy Law, etc. and the legal documents guiding the implementation of these laws, the Courts have continuously improved the quality of case file construction, clarified the requests of the litigants in the case, strengthened coordination with relevant agencies, and well implemented the motto of persistently conciliating in accordance with the law in the process of resolving civil cases, helping to resolve cases quickly and thoroughly, contributing to resolving conflicts among the people, maintaining and strengthening solidarity in each family and community. The overall successful conciliation rate in the entire Court sector reached 40%, in which many Courts had a conciliation rate of up to 50-60% of the total number of resolved cases. Most of these types of cases were resolved to meet and exceed the set trial targets. The settlement of civil cases in general is carried out in accordance with the provisions of law, basically ensuring the legitimate rights and interests of the parties.
The application of law and the approach to resolving disputes over land use rights have been consistent among the Courts. The development of laws and guidance on the application of laws have also achieved encouraging results, contributing to the completion of the legal system, creating a basis for the law to be increasingly improved, effectively serving professional work. Draft laws have been carefully prepared, timely, on schedule, ensuring quality. The issuance of joint Circulars and Resolutions of the Council of Judges has contributed to removing obstacles in the process of law application, thereby improving the quality of adjudication work for the adjudication work of the People's Court sector in general and the settlement of land use rights disputes in particular.
Compared with the criteria for assessing the quality of adjudication, the advantages of the Court sector in recent years have created good impressions in social life. Model trials with public democratic debates and convincing "reasonable and reasonable" verdicts have entered people's lives, creating trust in socialist justice, in reason and social fairness. The adjudication work of judges has gradually been recognized by society as a noble and honorable profession. The People's Court in our country is truly a trusted address for the masses in protecting their legitimate rights and interests according to the provisions of law.
The practice of applying the law in resolving land use disputes at the People's Court in recent times has shown that the team of Judges has increasingly developed in quantity and quality, gradually meeting the requirements and tasks in each revolutionary stage. The study of records, consideration and evaluation of evidence, organization of court sessions, selection and correct application of legal norms and issuance of legal judgments and decisions have been increasingly improved to meet the tasks in the new situation. With the advantages achieved in adjudication work in recent times, the People's Court sector of our country has all the necessary conditions to increasingly better perform the functions and tasks assigned by the Constitution and the law, deserving to become the central agency of judicial activities in building a socialist rule of law state of the people, by the people and for the people. Through adjudication, the People's Court educates the law to litigants and others.
2.2.2. Limitations in ensuring the quality of law enforcement when resolving land use disputes at the People's Court
First, limitations in ensuring the quality of law enforcement on
litigation
- Not fully applying the provisions of the Civil Procedure Code to determine
authenticity of the evidence presented by the parties during the course of resolving the case.
Although it has been noted in previous experience review conferences, up to now, in some case files, the documents and evidence presented by the litigants are only photocopies, while these documents and evidence are very important and decisive in resolving the case, such as: loan papers, certificates of outstanding debts, wills, land use rights transfer contracts, etc., but these photocopies do not have confirmation from the competent authority that they are true copies of the original... No confirmation signature (compared with the original of the Judge receiving the document) or the person receiving the document signed but did not clearly state the title, full name, did not make a record of the receipt of the document, etc., making it difficult to review and evaluate the evidence and determine the way to handle the case and not ensuring compliance with the provisions of law.
- There are cases where documents and evidence are clearly altered or erased, and the litigant requests the Court to conduct an appraisal and agrees to pay the appraisal fee, but the Court does not allow the appraisal to be conducted. This leads to the litigant appealing the judgment after the appeal trial and continuing to request an appraisal, so the judgment has been protested. In cases where the litigant requests an appraisal and has been explained by the Court but still does not pay the appraisal fee, the Court must make a record to keep in the file.
- There are some cases where the plaintiff or defendant has died during the litigation process and they have an heir to their litigation rights and obligations, but the Court still determines that the deceased person is the plaintiff or defendant, which is incorrect. In this case, it is necessary to clearly state that the plaintiff: Nguyen Van A has died and Nguyen Van X is the heir to his litigation rights and obligations.
Incorrect application of the provisions of the law on procedures for resolving civil cases and the law on procedures for resolving administrative cases, the Administrative Court of First Instance accepted the case of a dispute over land use rights but was annulled by the Administrative Court of Appeal and transferred the case to the Civil Court for trial. After the Civil Court tried the case at first instance, the Court of Appeal annulled the judgment and transferred the case to the Administrative Court for trial, causing the case to be transferred back and forth from the Civil Court to the Administrative Court and vice versa, prolonging the settlement, causing difficulties for the parties.
Due to not carefully studying the case files, there are some cases where the Court of Appeal has overlooked people with related rights and obligations during the trial. On the contrary, there are also some cases where the Court of Appeal has overturned the first instance judgment on the grounds that it is necessary to include people with related rights and obligations in the proceedings while these people have no rights and obligations related to the case, such as the case of a dispute over a sales contract between the plaintiff, Ms. Neang Neng, and the defendant, Mr. Pham Huy Hoang.
Mr. Nguyen Cong Thanh is the person who takes care of the house and land for Mr. Chau Soc and Mrs. Neang Neng. Mr. Thanh sold the above house and land to Mrs. Luong Thi Be. Mr. Chau Soc and Mrs. Neang Neng sued to demand that Mrs. Be return the house. In the decision to recognize the successful reconciliation (no number) dated October 26, 1982 of the People's Court of the district
T has decided to recognize the agreement of both parties. This decision has been implemented. After receiving the house and land, on November 18, 1982, Mr. Chau Soc wrote a paper to sell the house and land to Mr. Pham Huy Hoang for 40,000 VND. Mr. Hoang has used the house and land since 1982 until now and has been granted a certificate of land use rights. On February 27, 2003, Ms. Neang Neng filed a lawsuit to cancel the "paper of land transfer and house sale...". The People's Court of A province (judgment No. 367/DSPT dated September 14, 2004) annulled the first instance judgment on the grounds that it was wrong to include Mr. Thanh and Ms. Be in the proceedings, because the relationship between Mr. Chau Soc and Mr. Thanh and Ms. Be had been resolved in the successful conciliation decision. Mr. Thanh and Ms. Be are no longer involved in the real estate contract dispute case, so the Court of Appeal annulled the first instance judgment and requested the Court of First Instance to include Mr. Thanh and Ms. Be in the proceedings, which is incorrect.
Thus, determining who has rights and obligations related to a civil case must be based on Clause 4, Article 56 of the Civil Procedure Code to decide. Although the person with rights and obligations related to the case is not the petitioner, the plaintiff, or the defendant, when resolving the civil case, they will be the person entitled to rights or must perform civil obligations according to the Court's decision. Therefore, in this case, the Court must include them in the proceedings.
The application of the law in resolving civil disputes over privately owned housing established before July 1, 1991, in which overseas Vietnamese participate, is facing many problems and there are many different views on the application of the law. We will give an example case.
According to the lawsuit and Mr. Chien's statement, the origin of the land and house No. 280/109 Bui Huu Nghia, Ward 2, Binh Thanh District, Ho Chi Minh City was built by Mr. Ngo Van Nho and Mrs. Nguyen Thi Canh in 1954. Mr. Nho and Mrs. Canh had an only child, Mr. Ngo Van Chien. On March 25, 1984, Mr. Nho died without leaving a will. On December 20, 2001, Mrs. Canh signed a paper transferring the above land and house to Mr. Van and Mrs. Loan. On May 3, 2002, Mrs. Canh was granted a paper transferring the land use rights. On September 5, 2002, Mrs. Canh signed a contract to donate the above land and house to Mr. Van and Mrs. Loan. On June 2, 2003, Mr. Chien, the only child of Mr. Nho and Mrs. Canh, is currently residing in