Resolving land disputes when compensating for site clearance - 2

3. Research object and scope

a. The research objects of the topic include:

- The connotation of the concepts of land acquisition, site clearance compensation, land dispute concepts and land dispute resolution when compensating for site clearance; identify the basic characteristics of these concepts and common types of land disputes today, focusing on disputes in site clearance work;

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- The Party's system of viewpoints, guidelines and policies on resolving land disputes in general and in the field of site clearance compensation in particular.

- Research the formation and development of laws on land dispute resolution when compensating for site clearance;

- Research the system of policies and legal regulations on resolving land disputes when compensating for site clearance;

- Researching and evaluating the current status of law enforcement and from the current status of implementation of the above policies and regulations in life, the thesis draws conclusions and proposes some effective and feasible solutions to resolve land disputes when compensating for site clearance.

b. Scope of research:

Due to the complexity and breadth of the topic, the thesis limits the scope of research to in-depth analysis and research within a specific limit:

- The system of viewpoints, policies and guidelines of the Party and State on resolving land disputes from 1993 to present;

- System of legal regulations on land dispute resolution when compensating for site clearance from 1993 to present;

- Reports summarizing the situation of land dispute settlement when compensating for site clearance by the Court sector, documents and research works related to this issue from 1993 to present.

4. Research methods

The methodology of dialectical materialism and historical materialism of Marxism-Leninism, the thesis uses the method of collecting information, investigating - synthesizing and analyzing data from relevant legal documents, synthesizing statistics, combining theoretical research with analyzing the current situation of site clearance and giving some proposed solutions to improve the quality of land dispute resolution activities when compensating for site clearance.

CHAPTER 1: GENERAL THEORY ON LAND DISPUTE RESOLUTION DURING COMPENSATION FOR SITE CLEARANCE

1.1. Overview of site clearance compensation

1.1.1. Concept of site clearance

Site clearance is the process of carrying out work related to the relocation of houses, trees, construction works and a part of the population on a certain area of ​​land planned for renovation, expansion or construction of a new project. The site clearance process is calculated from the beginning of the formation of the site clearance council until the clearance is completed and handed over to the new investor. This is a diverse and complex process that reflects the differences between projects and is related to the direct interests of the participating parties and of the whole society.[37]

Site clearance includes stages from compensation for land users, clearance of constructions on land, relocation of people, creation of land for implementation of constructions and projects to compensation and resettlement support for people whose land is recovered, re-creating production and business jobs, and stabilizing their lives.

In addition, the requirements of site clearance work must ensure:

Firstly, site clearance work must harmoniously combine national interests, the interests of each organization, household and individual;

Second, site clearance work must be carried out scientifically according to the State's land use planning and plans and in accordance with the overall land use planning and plans of each locality;

Third, the compensation and clearance policy is implemented specifically, fairly, publicly, and equally among land users;

Fourth, site clearance work must be carried out in accordance with the correct order and procedures as promulgated by law and guiding documents.

Thus, it can be seen that site clearance is an inevitable process to implement projects, thereby encouraging domestic and foreign investment, improving the efficiency of using domestic and foreign investment capital, accelerating the industrialization and modernization process. In which, compensation for damages is an important step in determining the progress of site clearance.

1.1.2. Concept of site clearance compensation

According to the Vietnamese dictionary, compensation means: "to return to another person something of value commensurate with the damage you have caused them", which means:

• Not all compensation is in cash;

• The loss of people whose land is recovered is not only material but in many cases also spiritual.

According to Clause 11, Article 3 of the 2013 Land Law, the State's land recovery is understood as the State's decision to recover the land use rights of the person to whom the State has granted the land use rights or to recover the land of the land user who violates the land law.

From the above concept, we can see that land recovery is an administrative measure of a competent State agency. This is an involuntary, coercive process and still requires "sacrifice" rather than just absolute compensation.

According to the provisions of the 2013 Land Law, the concept of compensation for site clearance damage is understood as follows:

- Land compensation is the State's return of land use value for recovered land areas to land users.

- Support when the State reclaims land is the State's assistance to people whose land has been reclaimed to stabilize their lives, production and development through vocational training, financial support when moving, arranging new jobs, salary support for 3-6 months...

- Compensation for site clearance damage is the payment and compensation for losses of land and assets attached to land, costs of dismantling and moving houses, works, structures, graves and other support costs.

Compensation payments are made according to the following basic principles:[19]

- For organizations that are allocated land by the State without collecting land use fees, compensation and implementation costs will be included in the project's investment capital;

- Organizations and individuals who are allocated land or leased land by the State with land use fees and land rents collected are responsible for paying in advance compensation and expenses for organizing the implementation of compensation according to the provisions of Decree 47/2014/ND-CP issued on May 15, 2014 on compensation, support and resettlement when the State reclaims land and are deducted from the land use fees and land rents payable;

- Foreign organizations, individuals, and Vietnamese people residing abroad who invest in Vietnam and are allocated land or leased land by the State with land use fees or land rent collected do not have to pay land use fees or land rent payable;

- The deduction level does not exceed the amount of land use fee and land rent payable;

Furthermore, current law also stipulates that depending on each specific case, people whose land is recovered or whose property is damaged will be compensated or supported for property on the recovered land, supported in moving, supported in stabilizing their lives, supported in vocational training, and supported in stabilizing production and life in the resettlement area.

From the above perceptions, it can be understood that the nature of compensation and site clearance when the State reclaims land for security, defense, national interests, and public interests in the current process is not simply material compensation but must also ensure the interests of the people who have to move. That is, they must have stable housing, living conditions equal to or better than the old place to create conditions for people to live and stabilize.

1.2. Overview of land disputes when compensating for site clearance

1.2.1. Concept of land disputes when compensating for site clearance

Land disputes are a common phenomenon. When there is antagonism between classes in society, land is always the subject of dispute. As society develops, land disputes also increase rapidly in number and intensity. Land disputes are conflicts and disagreements between subjects participating in land law relations when they believe that their legitimate rights and interests are violated.[15]

Disputed land is understood as the type of land where there is a dispute between the legal user of that land and another individual, with the State (regarding land compensation) or between people who share that land with each other about land use rights, about property attached to the land, about boundaries, about land use purposes or about rights and obligations arising in the process of land use.

There are many different understandings of the concept of land disputes, specifically

like:

- Land disputes are disputes over land use rights.

- Land disputes are all disputes arising in land relations including disputes over land use rights, disputes over property attached to land, disputes related to administrative boundaries and land use purposes.[11]

- Or according to the Land Law Textbook of Hanoi Law University: " Land disputes are disagreements, contradictions or conflicts of interests, rights and obligations between subjects when participating in land law relationships ".[39]

However, Clause 24, Article 3 of the 2013 Land Law stipulates that: " Land disputes are disputes over the rights and obligations of land users between two or more parties in land relations ."

In this concept, we need to note: The subject of land disputes is not land ownership, the subjects participating in the dispute are not subjects with land ownership rights. This is indisputable because Article 53 of the 2013 Constitution or Article 4 of the 2013 Land Law clearly stipulates that land belongs to the entire people, with the State representing the owner and uniformly managing it.

It can be seen that the concept of land dispute stated in the Land Law is a concept that includes disputes over land use rights, disputes over property attached to land, and disputes over administrative boundaries.[23] From the above concepts and characteristics, we can understand that land disputes when compensating for site clearance are disputes arising between subjects participating in land law relations regarding rights and obligations in the process of compensation for site clearance.

We can give some characteristics of land disputes when compensating for site clearance as follows:

- Firstly, land disputes arising during the process of site clearance also have the characteristics of land disputes in general. The subjects of land disputes are the subjects of land management and use rights, they are not the subjects of ownership rights. Land use rights of the subjects arise on the basis of decisions on land allocation and land lease. According to the 2013 Land Law, the State allows the transfer of land use rights from other subjects or the State recognizes land use rights for land in use. Thus, the subjects of land disputes are organizations, households, individuals, and communities participating as managers or land users. The subjects of land disputes are management rights, use rights and benefits arising from the land use process. Because land is a special type of property that is not owned by the disputing parties but is owned by the entire people, with the State representing the owner.

- Second, the content of land disputes during site clearance is very complicated and fierce. Spiritual and material values ​​crystallized in the land are the root of all disputes. The main types of disputes are disputes over compensation prices, disputes over unreasonable support and resettlement policies, etc.

- Third, due to the nature of the land clearance issue, disputes often arise year after year, with no consensus between land users and the State, between land users and investors. Many projects and constructions drag on for decades due to the complicated and slow land clearance process.

- Fourthly, because the site clearance work is to serve the interests of national defense and security, national interests, public interests and economic development, disputes arise and cause many negative consequences in many aspects of social life, making