Requirements for Adjustment of the Law on Tourism Real Estate Business

2.3.3. Requirements for adjustment of the law on tourism real estate business

The law on tourism real estate business is a part of the law on real estate business. Therefore, the requirements of the law regulating real estate business are also the requirements of the law regulating tourism real estate business activities. Specifically:

Firstly, the adjustment of the law on tourism real estate business activities must not hinder real estate investors; it must meet the requirements of this type of real estate business.

Tourism real estate business is a specific form of real estate business, and as a business, regardless of the field, it requires that the regulations of the law must not hinder, obstruct or stagnate the investment, production and business activities of enterprises. Because "the market is a battlefield", it means that investment, production and business activities are currently facing fierce competition from domestic and foreign competitors in the context of economic globalization. Therefore, the adjustment of the law must not cause difficulties, obstacles or stagnate production and business activities. On the contrary, the law must play a constructive role, accompanying enterprises to overcome difficulties, overcome challenges, and fluctuations brought about by the market.

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Second, the adjustment of the law on tourism real estate business activities not only meets the requirements of business activities such as profit requirements, economic efficiency requirements, business competition requirements, etc., but also has to meet the requirements of tourism business with specific features such as: requirements on environmental protection in tourism activities, requirements on promoting cultural values, traditional history, customs, practices and preserving the original state of relics, history, culture, scenic spots; requirements on satisfying the needs, tastes, and preferences of domestic and foreign tourists, etc.

Third, the adjustment of the law on tourism real estate business both ensures freedom of business and protects the legitimate rights and interests of the State and society in the real estate sector.

The right to freedom of business is a fundamental human right, a fundamental right of citizens recognized in the 2013 Constitution: "Everyone has the right to freedom of business in industries that are not prohibited by law" (Article 33). To exercise this right of citizens, the State has legal solutions to ensure such as institutionalizing the right to freedom of business in each industry, profession, and business field through regulations on business conditions, granting business licenses, rights and obligations of business entities, etc. Accordingly, legal regulations must not cause obstacles or unnecessary interference in the investment and business activities of tourism real estate enterprises. Legal regulations recognize and protect the legitimate rights and interests of business entities; create initiative and flexibility for investors in the business process, gradually limiting the intervention by strict administrative tools, which are major barriers for enterprises and also the cause of corruption.

In addition to ensuring the right to freedom of business, the law must focus on protecting the legitimate rights and interests of the State and society in the field of tourism real estate business. Accordingly, the law has provisions prohibiting tourism real estate business activities that cause damage to the interests of the State and society; stipulates that organizations and individuals doing tourism real estate business are obliged to pay taxes, fees, and charges to the state budget or stipulates that tourism real estate business is not allowed in defense and security areas...

Fourth, the regulation of the law on tourism real estate business must respect and comply with the objective laws of the market economy.

In a market economy, tourism real estate business activities are vibrant, fast, and sharp, but no less fierce and competitive. This activity is not only subject to the regulation of policies and laws, but also affected by the objective laws of the market economy and other factors. The objective laws of the market economy are completely beyond the subjective will of people in general and lawmakers in particular. If tourism real estate business activities are to be managed by the State, the laws in this field must come into effect and have a positive effect in regulating the behavior of business entities.

This is only possible when legal adjustments are consistent with practical requirements and with the objective laws of the market economy.

Fifth, the adjustment of the law on tourism real estate business must prevent; promptly detect violations and strictly handle violations of the law by entities in tourism real estate business activities.

Tourism real estate business is a complex, difficult activity and is subject to fierce competition as well as the impact of many objective and subjective factors in the context of building a socialist-oriented market economy and international integration in our country. Therefore, to have revenue and profit, investors in tourism real estate business must be intelligent, decisive, quick to grasp business opportunities, very good and creative in calculating and determining economic efficiency; have experience, solid business skills... To regulate the behavior of these tourism real estate investors in accordance with the "orbit" of State management requires lawmakers to identify and anticipate situations to prevent, promptly detect tricks and strictly handle violations of the law by these entities in tourism real estate business activities.

CONCLUSION OF CHAPTER 2

Tourism real estate products following the world trend are no longer strange but are becoming more and more popular and occupy a significant market share in the real estate market in our country. The increasingly vibrant tourism real estate business has created an urgent need to perfect the law on tourism real estate business.

From a theoretical perspective, the law on tourism real estate business is understood to include a synthesis of legal norms issued by the State and ensure the implementation of adjustments to social relations on tourism real estate business to protect the legitimate rights and interests of the parties; ensure effective state management of tourism real estate business and contribute to the development of the real estate market in a transparent, smooth and healthy direction.

In order for the tourism real estate market to develop effectively, following the direction and trajectory of the State, in accordance with the laws of the market, it is required that the legal system for tourism real estate business must become a unified entity with a reasonable structure including groups of basic and indispensable regulations regulating the principles of tourism real estate business, groups of regulations on conditions for tourism real estate to be allowed to be put into business, on the rights and obligations of business entities, on the legal form and validity of tourism real estate business transactions, as well as on handling violations in tourism real estate business activities to ensure safe and effective business activities. Thereby, meeting the requirements of state management of the tourism real estate market and ensuring a balance of interests between investors, customers and the interests of the State and society.

CHAPTER 3

STATUS OF LAW AND PRACTICE OF LAW ENFORCEMENT ON TOURIST REAL ESTATE BUSINESS

3.1. Current status of law and law enforcement practices on principles of tourism real estate business

3.1.1. Current legal status on principles of tourism real estate business

Current laws do not have any provisions on exceptional principles for tourism real estate business activities, but only stipulate general principles for all real estate business entities in general, which investors in tourism real estate business must also comply with. The specific principles are:

Principle 1: Equality before the law, freedom of agreement on the basis of respecting the rights and legitimate interests of the parties through the contract, not contrary to the provisions of law 74

This is a principle set forth in both the 2015 Civil Code and the 2014 Law on Real Estate Business to require tourism real estate business entities to implement. Equality before the law is understood as real estate business entities in general and tourism real estate business entities in particular enjoy the same rights and have the same obligations according to the law when participating in business. The law does not have any discrimination, prejudice or any favoritism towards real estate business entities regardless of whether the entity is large or small, domestic or foreign investor. Accordingly, equality is expressed in both aspects:

(1) Equality among entities investing in tourism real estate. Accordingly, regardless of whether the entity is a domestic entity or an entity with foreign elements; regardless of the entity's legal status: joint stock company, limited liability company, private enterprise, partnership; regardless of whether the entity has legal status or not, when carrying out tourism real estate investment and business activities, they are all equal in enjoying the same rights and bearing the same obligations towards the state.

74 Clause 1 Article 4 of the 2014 Law on Real Estate Business and Article 3 of the 2015 Civil Code.

water in the process of implementing investment projects, operating projects, as well as conducting business activities.

(2) The subjects participating in establishing and implementing transactions on the market must be equal and respect each other's rights and obligations. In essence, tourism real estate business is a civil transaction between the subject investing in tourism real estate business and the organization or individual receiving the transfer, purchase, lease, or hire-purchase of real estate, so this business activity must comply with the general principle of civil transactions, which is freedom of agreement on the basis of respecting the rights and legitimate interests of the parties through the contract, not contrary to the provisions of the Civil Code and the law on real estate business. Accordingly, the parties in the contract must agree equally and express the will and aspirations of each party, without any party having the right to force or impose any party to accept, to perform, or to submit in order to satisfy the interests of the other party or a third party. Along with that, on the basis of that goodwill agreement, the subjects must together consciously implement and comply with the agreements and commitments that they have set forth and recorded in the contract. Any breach of trust by either party means that the subjects have violated this principle.

In fact, it is undeniable that when doing business, any organization or individual wants to achieve the highest benefit. If there is no balance of interests between the parties in a business relationship - meaning that achieving the benefit of one entity does not affect or harm the benefit of another entity - then there will never be a consensus and a conclusion to the signing of a contract for the purchase, lease, or hire-purchase of tourism real estate. On the other hand, tourism real estate business in a market economy is directly governed by the objective laws of the market; especially the law of value. Therefore, there are many organizations and individuals doing tourism real estate business that do not hesitate to use any means to gain the highest profit, even if it causes damage to the interests of the State, society or the interests of the investor; of customers. This is unacceptable from a legal perspective, from a social justice perspective, and from a business ethics and culture perspective. What the government wants to achieve is for real estate investors to make a profit.

based on fair competition, transparency and respect, not harming the interests of the State, society, customers and the interests of other investors. The rights and obligations of investors in tourism real estate business will be studied specifically in section 2.1.3. in this chapter.

Principle 2: Real estate put into business must meet all conditions as prescribed by the Law on Real Estate Business 75

This is an objectively necessary principle because the real estates put into business on the market are extremely rich and diverse. There are real estates that are only land use rights, while others include both land use rights and specific tourism real estates. These tourism real estates have extremely different legal origins such as: there are real estates that originate from domestic entities, foreign entities, individuals, and legal entities; there are tourism real estates that are already available and have clearly established ownership and usage rights, but there are also tourism real estates that will be formed in the future, but have not yet established ownership and usage rights; there are real estates that the law never allows to be traded on the market. Therefore, the above principles are stipulated to ensure that the subjects participating in the transaction comply with the provisions of the law, in order to prevent risks mainly for customers in the case of transactions with real estates that are not qualified or not allowed to be traded. The specific conditions for tourism real estate to be allowed to be put into business will be analyzed specifically by NCS in a separate section on conditions for tourism real estate to be allowed to be put into business in Section 2.1.2. of this chapter.

Principle 3: Tourism real estate business must be honest, public and transparent.

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Honesty, openness and transparency are important and indispensable principles in business activities in general and tourism real estate business in particular, in terms of state management, market management and transaction participants. Specifically:

75 Clause 2 Article 4 Law on Real Estate Business 2014

76 Clause 3 Article 4 Law on Real Estate Business 2014.

- From the perspective of state management of the real estate market: this principle will help the State grasp and control the volume of tourism real estate transactions in the market, the actual developments of the market and through that, to direct, orient and adjust promptly and appropriately when the market fluctuates. This is also an important factor for the State to control the implementation of tax obligations to the State of real estate business entities. Honesty, transparency and publicity in real estate business activities also aim to limit the development of "underground" markets and informal markets. This principle, if seriously followed by real estate investors, will be one of the important and useful tools to prevent and combat corruption in the field of tourism real estate business activities.

- In terms of the market: honesty, transparency, and publicity are important principles for tourism real estate business activities to take place healthily and legally, limiting and preventing speculation to raise real estate prices many times higher than the real value for the purpose of profiteering. This distorts the market development; creates a "real estate bubble" that negatively affects the investment and business environment. Therefore, compliance with the principles of publicity and transparency in tourism real estate business contributes to preventing, restraining, and overcoming the shortcomings of the real estate market caused by the negative impact of the market mechanism. This principle is important in the context that Vietnam is in the group of countries with low publicity and transparency index of the real estate market. In fact, in recent times, there have been many cases of dishonest and fraudulent real estate business, causing confusion for people, investors, and domestic and foreign enterprises.

- For the subjects participating in the transaction: this is the principle that investors in tourism real estate business must comply with, comply with and become the motto, purpose and action of investors because the real estate market is an imperfect market, posing risks to customers if the activities in this market are not public, transparent and honest. On the other hand, honesty, transparency and publicity in business activities also reflect the professional ethics in business of the investors. This principle is not only stipulated in the Law on Business

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