Rights and obligations of households and individuals using land under current Vietnamese law

INTRODUCTION

1. Urgency of the topic

Land is an extremely valuable national resource, a special means of production, a leading important component of the living environment, a location for distributing residential areas, building economic, cultural, social, security and defense facilities . 1. Since ancient times, people have recognized the special importance of land. W. Petty - a British economist affirmed: "Labor is the father, land is the mother that creates all material wealth". In Lich Trieu Hien Chuong Loai Chi, Phan Huy Chu wrote: "The treasure of a nation is nothing but land. All wealth and people are born from there"

… For an agricultural country with a traditional rice cultivation profession like Vietnam, land plays an extremely important role. Historically, states have always paid attention to land issues with the land tenure policy, the military land policy during the Early Le Dynasty, the land reclamation policy during the Tran and Nguyen Dynasties, etc. Since its inception, our Party and State have always paid attention to and focused on the land sector and considered it an important issue of the revolution. Land policies and laws have contributed significantly to the achievements of national development. After 35 years of implementing the renovation process initiated from the 6th National Party Congress (1986), it has been shown that respecting and protecting individual property rights is the "key" to successfully transforming the economy into a socialist-oriented market economy, bringing the country out of the comprehensive crisis; achieving extremely proud socio-economic achievements. The change in thinking about economic management of our Party starts from identifying and promoting the role of households and individuals in agricultural production: Households and individuals are autonomous economic units in agriculture; implementing the allocation of agricultural land to households and individuals for stable and long-term use; recognizing the land use rights of land users in general and households and individuals in particular; allowing them to transfer land use rights within the land allocation period... Thus, the connotation of land use rights of households and individuals is expanded with new values and new perceptions. It overcomes the "narrow" framework of the traditional concept of the right to exploit and use the useful properties of land to bring material value to people. Land use rights are valued in money and exchanged on the market; used as collateral to ensure the performance of civil obligations in lending relationships with banks.

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1 Preamble to the 1993 Land Law

trade, credit institutions and joint venture capital, investment and production cooperation

- business ... These contents were first stipulated in the 1993 Land Law, creating the initial legal basis for the formation of an organized land use rights market in our country. The regime of rights and obligations of households and individuals using land was inherited, supplemented and perfected in the Laws amending and supplementing a number of articles of the 1998 and 2001 Land Laws; the 2003 Land Law, the 2013 Land Law and documents guiding their implementation. To improve the feasibility of the regime of rights and obligations of households and individuals using land in implementation; the Land Law has provisions on ensuring the rights of households and individuals using land; provisions on implementation procedures. However, through practical implementation, there are difficulties and obstacles such as the lack of specific and clear regulations on the rights and obligations of husband and wife using land for the land that is the common property in the land area of the household; the lack of clear regulations on the land use rights of female household members who are married or married in another locality for land allocated to the household; the concept of household, the concept of household using land stipulated in the 2013 Land Law is not suitable; some regulations on the rights and obligations of households and individuals are not compatible with the rights and obligations of other land users such as: i) The scope of capital contribution by land use rights of households and individuals is narrower than that of land-using organizations; Vietnamese people residing abroad, enterprises with foreign investment capital (FDI); ii) The subjects receiving capital contributions in the form of land use rights of households and individuals using land are more limited than the subjects receiving capital contributions in the form of land use rights and assets owned by organizations; Vietnamese people residing abroad, enterprises with foreign investment capital using land for production and business cooperation; iii) The mechanism for determining specific land prices as the basis for calculating compensation and support for households and individuals directly engaged in agricultural production whose agricultural land is recovered by the State for national defense and security purposes; and for economic and social development for national and public interests is not suitable, significantly affecting the rights of households and individuals; iv) Households and individuals using land are not allowed to transfer land use rights to enterprises with foreign investment capital, which limits access to investment resources in the agricultural sector, etc. Although studying the rights and obligations of households and individuals using land is not a new topic and there have been a number of published works at different scopes and levels, with the shortcomings arising in practical implementation as mentioned above, this field still has a lot of room for further research. With that meaning, the PhD student (NCS) chose the topic "Rights and obligations of households and individuals using land ".

"Families and individuals using land according to current Vietnamese law" as a doctoral thesis in law.

2. Research purpose and tasks

2.1. Research purpose

Clarifying theoretical and practical issues of rights and obligations of households using land, of the law on rights and obligations of households and individuals using land. From there, proposing directions and solutions to improve the law and effectively implement the law on rights and obligations of households and individuals using land.

2.2. Research tasks

- Overview of the theoretical basis of the rights and obligations of households and individuals using land under current Vietnamese law, building a theoretical framework of the rights and obligations of land users, households and individuals, in the coming time.

- Study the experiences of countries around the world on the rights and obligations of households and individuals using land and draw successful and unsuccessful lessons to make recommendations for Vietnam.

- Analyze and evaluate the current status of legal regulations and law enforcement practices on the rights and obligations of households and individuals using land belonging to two land groups: Agricultural land group and non-agricultural land group, deeply analyze the rights and obligations of using agricultural land according to current Vietnamese law, clearly state the results achieved, limitations, shortcomings and causes of those limitations and shortcomings.

- Proposing viewpoints, directions and solutions for innovation and implementation mechanisms on the rights and obligations of households and individuals using land in two land groups: agricultural land and non-agricultural land, and at the same time having solutions to promote the real estate market to develop in a healthy and transparent direction.

3. Research object and scope

3.1. Research subjects

The research object of the thesis is limited to the following main contents:

- The Party's viewpoints and guidelines on continuing to innovate land policies and laws in general and regulations on the rights and obligations of households and individuals using land in particular during the period of comprehensively promoting innovation and international integration.

- Scientific arguments and theoretical schools on households and individuals using land; rights and obligations of land users in general and rights and obligations of households and individuals using land in particular.

- Provisions of the 2013 Land Law and documents guiding its implementation on the rights and obligations of households and individuals using land.

- Practical implementation of laws on rights and obligations of households and individuals using land.

- Philosophy, theoretical basis and practice of building and implementing regulations on rights and obligations of households and individuals using land, etc.

3.2. Scope of research

The rights and obligations of households and individuals using land under current Vietnamese law is a topic with a wide scope of research, related to the provisions of many laws. However, within the limited framework of a doctoral thesis in law; the thesis limits the scope of research to the following specific contents:

Scope of content : The thesis studies the provisions of the 2013 Land Law and guiding documents on the rights and obligations of households and individuals using land.

Accordingly, the thesis studies the legal regulations and practical implementation of the law on the rights and obligations of households and individuals using land in two groups: agricultural land and residential land, focusing on deeper research on the rights and obligations of households and individuals using agricultural land, because the agricultural land sector still has many shortcomings and limitations that hinder the development of the agricultural economy and limit job creation for the population.

Time scope : The scope of research on the rights and obligations of households and individuals using land is the legal documents from the promulgation of the 2013 Land Law to the present. To a certain extent, the thesis studies relevant documents promulgated before the 2013 Land Law.

Spatial scope : Scope of research on the implementation of the Thesis on the rights and obligations of households and individuals using land according to legal regulations nationwide.

4. Methodology and research methods

To achieve the research goals and tasks, the thesis uses the following main methods:

The dialectical materialist and historical materialist research methodology of Marxism-Leninism studies property rights in general, land use rights and obligations of households and individuals using land in particular, origin, nature; formation and development process; analysis and assessment of legal rights and obligations of households.

family and individual in dialectical relationship with other legal relations and must analyze them in a certain historical context.

- Analysis and synthesis method: Also known as secondary data research method, used to collect, analyze and exploit information from available sources related to the thesis topic; Party documents, summary assessment of the implementation of rights and obligations of land users through data of the Ministry of Natural Resources and Environment; of central and local state agencies and a number of projects analyzing the implementation of the Land Law of international organizations such as the World Bank (WB) and the Asian Reconstruction Bank (ADB).

- Comparative method: Is one of the important research methods, used in many contents of the thesis, such as the content on the characteristics of households and individuals (stating the differences between households and individuals with other subjects); comparing and contrasting with other countries; comparing changes in land policies, laws and laws on the rights and obligations of land users as households and individuals over time; comparing the contents of some land law documents related to the rights and obligations of land users as households and individuals, thereby seeing the appropriate and inappropriate provisions of the law on their rights and obligations.

- Historical method: This method is widely used in Chapter 2, in the contents on the history of formation and development of the law on the rights and obligations of households and individuals using land in Vietnam; evaluating the effectiveness of the law on the rights and obligations of households and individuals using land in Vietnam at different stages in the implementation process in Vietnam.

- Statistical method: This method is mainly used in Chapter 3 to clarify the comments on the legal status and practical implementation of the law on the rights and obligations of households and individuals using land in Vietnam with contents such as the promulgation of legal documents on the rights and obligations of households and individuals using land in Vietnam through secondary documents.

- Observation method: This method is used to make assessments and comments on the current state of law enforcement on the rights and obligations of households and individuals using land in Chapter 3 of the thesis. During the thesis, the researcher visited a number of localities, state agencies, and households to observe the behavior of competent officials and land users.

- Policy analysis method: This is an indispensable method in studying the legal system and policies on the rights and obligations of households and individuals using land in Vietnam today, aiming to analyze and compare the level of synchronization and conformity between national law and international law on the research issue, gaps or errors that need to be filled, the main subjects and coordination in solutions and intervention policies to perfect the system of rights and obligations of households and individuals using land according to current Vietnamese law, resources and conditions for policy implementation.

- Evaluation method: This method is used throughout all chapters of the thesis from the general assessment of the research situation, theoretical basis of the topic; assessment of the legal status on the rights and obligations of households and individuals using land; assessment of implementation practices to identify limitations, weaknesses and causes as a basis for providing orientations and solutions to overcome.

- Inductive method: This method is mainly used in Chapter 4. Based on the research and evaluation results in Chapter 1, Chapter 2, Chapter 3; The thesis provides orientations and solutions to perfect the law on the rights and obligations of households and individuals using land and improve the effectiveness of enforcement in our country.

- Systemic, interdisciplinary method: This is a research method commonly used in scientific research, and legal research is no exception. Systemic, interdisciplinary method is used to study the rights and obligations of households and individuals using land from theoretical and practical bases; study the process of formation and development of this legal institution. The thesis not only studies the provisions on the rights and obligations of households and individuals using land of the 2013 Land Law but also related provisions of a number of other legal fields such as civil law, law on administrative procedures, law on notarization, authentication, law on civil proceedings, etc.

5. New points of the thesis

Systematize and build theoretical basis on households and individuals using land; rights and obligations of households and individuals using land in the socialist-oriented market mechanism and international economic integration.

Determine the nature, meaning, and value of legal regulations on the rights and obligations of households and individuals using land in certain historical periods. The researcher proves that: The subject of land use is a household with deep roots.

The most distant, rich, diverse and complex of land users. The thesis clarifies the nature, characteristics and conditions for land use rights to become commodities in the regime of public ownership of land in Vietnam.

The researcher studies the regulations on the rights and obligations of households and individuals using land in some countries in the world, comparing them with the corresponding regulations of Vietnam; on that basis, draws reasonable lessons when promulgating and implementing land law regulations based on the universal principles of international law, of which the most important is the principle of equality of rights and obligations between land users when participating in land law relations.

Correctly assess the current legal status on the rights and obligations of households and individuals using land; in particular, the limitations, shortcomings and causes of the limitations and shortcomings in the regulations and implementation of the rights and obligations of households and individuals using agricultural land. From there, the thesis proposes a mechanism to ensure the implementation of the law on the rights and obligations of households and individuals using land in the market mechanism and the process of international economic integration.

The researcher presents theoretical bases such as the theory of property rights, the theory of rights, the theory of fair law, the theory of actual evidence... to explain the research issues and at the same time proposes solutions to amend and supplement the provisions of the current land law in order to promote all resources from land of household and individual economies to develop the economy, especially the agricultural economy, in which the legal status of households and individual farmers plays an important role, along with other subjects including solutions such as: Land allocation, land lease; capital contribution by land use right value instead of land contribution thereby limiting land recovery; the rights of users in forming new-style cooperatives on a large scale; agricultural land accumulation, solutions on financial obligations... The purpose of the Thesis is to propose directions and solutions to protect the land property rights of households and individuals, propose and recommend the State to establish Projects to immediately resolve difficulties in the implementation of the current land law, while waiting for the Land Law to be amended, such as: Project on agricultural land accumulation; Project on land contribution mechanism of households and individuals. The general principle of this mechanism is that the State encourages landowners to contribute land to develop new residential areas or renovate existing residential areas to create land funds and funds for the purpose of developing infrastructure, public services... instead of reclaiming land as at present.

6. Theoretical and practical significance of the thesis

6.1. Theoretical significance

The research results of the thesis bring the following theoretical implications:

- Theoretical overview of the rights and obligations of households and individuals using land, a basic institution of land law. The thesis emphasizes that this is an important legal thinking with the State recognizing the property rights of households and individuals in the land sector.

- Through the use of a system of research methods, the thesis generalizes the basic principles that the laws of many countries in the world are operating under, which can be applied to Vietnam, especially the principle of equality of all land users in terms of legal rights and obligations.

- Through analyzing the current legal status on the rights and obligations of households and individuals using land, the author proposes innovations in theoretical thinking about households in relation to land use rights in the era of Industry 4.0 and the circular economy model following the development trend of the world. In theory, it is necessary to research, evaluate and build appropriate policy and legal frameworks to address the shortcomings and inadequacies that are hindering the development of the agricultural land market in the economy in our country today.

6.2. Practical significance

- The research results of the thesis are the basis to help managers, policy makers and legal practitioners continue to develop and innovate thinking in legal regulations on the rights and obligations of households and individuals using land.

- Contribute to the development of a theoretical framework on the rights and obligations of households and individuals using land in Vietnam today and the law on the rights and obligations of households and individuals using agricultural land, promoting the process of agricultural land accumulation to increase the rights of households using agricultural land to become agricultural business households through appropriate market mechanisms.

- Contribute to the innovation of state management processes and methods regarding the rights and obligations of households and individuals using land in general and agricultural land use rights in particular according to current Vietnamese law.

- Contribute to the development of legal science, management science, public policy, public administration to implement joint venture models, associations between households and individuals using land with each other or with other entities for development.

Rights and obligations of households and individuals using land under current Vietnamese law - 2

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