c. Temporary land use right certificate issued by a competent state agency or listed in the land registry without any dispute.
d. Documents issued by competent authorities of the old regime to land users who have continuously used the land since then and have no disputes.
d. Documents on inheritance, donation, or giving of housing attached to land that are confirmed by the People's Committee of the commune, ward, or town and that land is not in dispute.
e. The judgment or decision of the People's Court that has come into legal effect or the decision to resolve land disputes of a competent state agency that has come into legal effect.
g. Documents for handing over charity houses.
h. Land transfer documents, house sale and purchase documents with transfer of land use rights are verified by the People's Committee of the commune, ward or town to show that the land is not in dispute and the People's Committee of the district, town or provincial city confirms the verification results of the People's Committee of the commune, ward or town.
2.2. According to the provisions of Clause 2, Article 3 of Decree No. 17, as amended and supplemented by Decree No. 79, land users who have one of the documents mentioned in sub-section 2.1. Section 2 need to carry out procedures for granting a Land Use Right Certificate to exercise the rights under Decree No. 17; therefore, the authority to resolve disputes related to land use rights needs to be distinguished as follows:
a. If there is a dispute over who has the right to use the land, it will be resolved by the competent People's Committee.
b. If there is a dispute over a contract for conversion, transfer, lease, sublease of land use rights and mortgage or guarantee, capital contribution with the value of land use rights, the People's Court shall accept and resolve the dispute. According to Decree No. 17, which has been amended and supplemented by Decree No. 79, in this case, the land user must complete procedures to exercise the rights to conversion, transfer, lease, sublease of land use rights and mortgage or guarantee, capital contribution with the value of land use rights; therefore, when resolving
In resolving disputes related to land use rights in this case, the People's Court shall apply Decree No. 17 as amended and supplemented by Decree No. 79 and corresponding articles of the Civil Code to declare the contract invalid and handle the consequences of the invalid contract.
In case before the dispute arises, the land has been granted a land use right certificate by a competent state agency according to the provisions of the 1993 Land Law and the guiding documents of the General Department of Land Administration, the Court shall accept and resolve the case as guided in sub-section 1.3, section 1, part I of this circular.
c. If the dispute is over property such as a house or other structures (such as a kitchen, bathroom, toilet, well, garage, church, fence wall attached to the house, construction works on land allocated for production and business purposes such as factories, warehouses, irrigation systems, livestock barns or other structures or on land with other properties such as timber trees, leaf trees, fruit trees, industrial trees or other perennial trees) associated with the use of that land, then according to the provisions of Clause 3, Article 38 of the 1993 Land Law, the People's Court shall accept and resolve the dispute according to general procedures.
3. In case the land does not have one of the documents guided in sections 1 and 2 of Part I:
3.1. If there is a dispute over who has the right to use the land, it will be resolved by the competent People's Committee.
3.2. In case of disputes over contracts for conversion, assignment, lease, sublease of land use rights and mortgage or guarantee, capital contribution using the value of land use rights, the People's Court shall accept and resolve the case and apply the corresponding articles of the Civil Code to declare the contract invalid and handle the consequences of the invalid contract.
3.3. If the dispute is over property that is a house or other structures (such as a kitchen, bathroom, toilet, well, garage, church, fence wall attached to the house, construction works on land assigned for use for production purposes)
In cases where the land has other assets (such as timber trees, leaf trees, fruit trees, industrial trees or other perennial trees) associated with the use of that land, the Court shall accept and resolve the case.
When resolving these types of disputes, it is necessary to distinguish between the following cases:
a. In cases where the parties have a document from the People's Committee of the competent authority confirming that the land use is legal, but have not yet been granted a land use right certificate according to the provisions of the 1993 Land Law, the court will resolve both property disputes and land use disputes.
b. In case the party does not have a document from the competent People's Committee confirming that the use of the land is legal, but has a document from the competent People's Committee stating that the use of the land does not violate the planning and can be considered for the transfer of land use rights, the Court shall resolve the property dispute, at the same time determine the boundary, temporarily transfer the land use rights to the party so that the competent People's Committee can carry out the procedures for transferring the land use rights and granting the land use right certificate to the party in accordance with the provisions of the law on land.
c. In case the People's Committee of competent authority has a document stating that the use of the land is illegal and the property is not allowed to exist on that land, the Court will only resolve the property dispute.
In addition to the provisions on the jurisdiction of the Civil Court in resolving land disputes, Vietnamese law also stipulates the jurisdiction to resolve disputes between competent state agencies and individuals and organizations at the Administrative Court.
According to Clause 5, Article 11 of the Ordinance on Procedures for Settling Administrative Cases, the Court has the authority to settle complaints about administrative decisions and administrative acts in the field of land management.
The content of state management of land is specifically regulated in Article 13 of the 1993 Land Law. Therefore, administrative decisions and administrative acts in the field of land management regulated in Clause 5, Article 11 of the Ordinance on procedures for handling administrative cases include the following decisions and acts:
- An administrative decision in the field of land management is a written decision of a state administrative agency or a competent person in a state administrative agency on the implementation of state management of land as prescribed in Article 13 of the 1993 Land Law, applied once to one or several specific subjects on a specific issue in administrative management activities.
- Administrative acts in the field of land management are acts of state agencies and competent persons when performing tasks and public duties regarding state management of land.
If the complaint against an administrative decision or administrative act falls under one of the provisions of Article 13 of the Land Law and is related to the legitimate rights and interests of the plaintiff and their complaint is lawful, the competent court shall resolve the case through an administrative case.
After 10 years of implementation, the Land Law dated July 14, 1993 will be replaced by the Land Law dated November 26, 2003 from July 1, 2004. The Land Law dated November 26, 2003 has important amendments and supplements to the regulations on resolving land disputes and resolving land complaints.
The 2003 Land Law stipulates the authority of the People's Court to resolve land disputes as follows:
Disputes over land use rights in which the parties have a land use right certificate or one of the types of documents specified in Clauses 1, 2 and 5, Article 50 of this Law and disputes over assets attached to land shall be resolved by the People's Court. For the first time, documents on land use rights are regulated in the law (previously these documents were regulated in the guiding document of the General Department of Land Administration, in Decree No. 17/1999/ND-CP).
The Government's Decree has created favorable conditions for competent authorities to apply in the process of resolving land disputes, overcoming the overlap in authority to resolve land disputes between the People's Committee and the People's Court.
2.4.2. Situation and assessment of the current status of resolving land use disputes at the Court
* According to incomplete statistics of the Office of the Supreme People's Court, in 5 years (1998 - 2002), People's Courts at all levels accepted and resolved a large number of disputes over land use rights, specifically as follows:
- In 1998: The People's Courts accepted to resolve 4,543 cases at first instance and resolved 3,550 cases, of which the district-level People's Courts accepted 4,342 cases and resolved 3,382 cases.
Provincial People's Courts have accepted 1,263 cases for appeal and resolved 1,107 cases.
- In 1999: The People's Courts accepted to resolve 6,504 cases at first instance and resolved 3,712 cases, of which the district-level People's Courts accepted 6,913 cases and resolved 3,632 cases.
Provincial People's Courts have accepted 1,329 cases for appeal and resolved 1,085 cases.
- In 2000: The People's Courts accepted 5,553 cases for settlement at first instance and resolved 4,247 cases, of which the District People's Courts accepted 5,421 cases and resolved 4,755 cases. The Provincial People's Courts accepted 1,436 cases for settlement at appeal and resolved 1,214 cases.
- In 2001: The People's Courts accepted 8,479 cases for settlement at first instance and resolved 6,600 cases, of which the District People's Courts accepted 8,158 cases and resolved 6,340 cases. The Provincial People's Courts accepted 1,905 cases for settlement at appeal and resolved 1,632 cases.
- In 2002: The People's Courts accepted to resolve 12,690 cases at first instance and resolved 9,058 cases, of which the District People's Courts accepted 12,299 cases and resolved 8,776 cases. The Provincial People's Courts accepted to resolve 2,074 cases at appeal and resolved 1,725 cases.
According to the above statistics and comparison with the data of other civil cases, it can be seen that the number of cases on land use rights in recent years has not decreased and accounts for a large number of civil cases in general. According to statistics of the Office of the Supreme People's Court in 2001, the People's Courts accepted to resolve at first instance 58,979 civil cases in general and resolved 46,299 cases [38, p. 15].
Comparing the number of land use dispute cases accepted in 2001, which was 8,479 cases out of the total number of civil cases of 58,979 cases, the rate was 6.95%.
The rate of solved cases 6,600/46,299 cases is 7%
* Classifying disputes over land use rights that the People's Court has accepted to resolve, there are the following types of disputes:
+ Disputes over land use rights conversion contracts.
+ Disputes over land use rights transfer contracts.
+ Disputes over land use rights lease contracts.
+ Disputes over mortgage contracts of land use rights.
+ Disputes over inheritance of land use rights.
+ Demanding land for lending, permission to use, encroaching on land, common walkways...
In addition, the People's Court also accepts and resolves many disputes over the division of common property between husband and wife, such as land use rights, upon divorce; and parents-in-law or parents-in-law reclaiming land when their son and daughter-in-law, or daughter and son-in-law, divorce.
Results of resolving disputes over land use rights at People's Courts at all levels in recent times:
+ In 1998, out of 3,550 cases resolved at the first instance level, 714 cases were successfully mediated, and at the appeal level, 22 cases/1,107 cases were successfully mediated.
+ In 1999, out of 6,504 cases accepted at the first instance level, 3,712 cases were resolved, 829 cases were successfully mediated, and at the appeal level, 45/1,085 cases were successfully mediated.
+ In 2000, out of 5,553 cases accepted at the first instance level, 4,247 cases were resolved, of which 335 cases were successfully mediated, and at the first instance level, 30/1,214 cases were successfully mediated.
+ In 2001 (9-month data), the court of first instance accepted 8,479 cases, resolved 6,600 cases, of which 2,599 cases were successfully mediated, and at the appeal level, 43/1,632 cases were successfully mediated.
The above figures reflect an increasing trend in the number of land use disputes. The settlement results are higher year after year, especially the successful mediation rate is increasing. This is encouraging.
Hanoi
* Situation of land dispute resolution in court in the city
In recent years, the situation of land use disputes in the area
The main disputes in the city are: Disputes over land use rights transfer contracts, land use rights transfer contracts and disputes over land claims for lending, land use, and land encroachment.
According to statistics of the City People's Court, the number of land use right disputes tried at first instance by district and county People's Courts in 2 years (2002-2003) is as follows:
Year
Classify
2002 | 2003 | |||||
Acceptance | Handle | Ratio | Acceptance | Handle | Ratio | |
- Dispute over land use rights transfer contract | 5 | 4 | 80% | 51 | 30 | 58.8 % |
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- Dispute over land use rights transfer contract
15 | 12 | 80% | 41 | 25 | 61% | |
- TCHĐ leases land use rights | 3 | 2 | 66.7 % | 6 | 6 | 100% |
- Demanding land for loan, use, encroachment... | 51 | 32 | 62.7 % | 173 | 118 | 68.2 % |
Add: | 74 | 50 | 271 | 179 |
2002: City People's Court heard the appeal:
+ Land use disputes resolved 10/10 (100%)
+ Regarding land use rights transfer contracts: 11/15 (73%)
+ Demanding land for lending, letting people stay, encroaching on land...: 15/19 (70%)
From the results of resolving land use disputes of the District People's Court in the above-mentioned city, we see that the number of land dispute cases accepted and resolved by the court is increasing day by day. The resolution of disputes to reclaim lent land, land for use... is often not high. Due to the complexity of land disputes, in many cases, the lawsuit has gone through 2 levels of trial, the litigant continues to appeal to the Civil Court - Supreme People's Court, the result is that the first instance and appeal judgments are annulled because the trial is not within the jurisdiction, the case is transferred to the People's Committee for settlement; the Court incorrectly determines the origin of the disputed property when resolving the dispute.
Example 1: An inheritance dispute case between the plaintiffs, Ms. Trieu Thi Lai, Ms. Trieu Thi Dao, and Ms. Trieu Thi Duong (Mr. Trieu Van Phe's wife), and the defendant, Mr. Trieu Van Ly. The content of this case is as follows:
Mr. Trieu Van Loan and Mrs. Trieu Thi Nghe had four children: Mr. Ly, Mr. Phe (died in 1967, had wife Trieu Thi Duong and 4 children), Mrs. Lai and Mrs. Dao. Mr. Loan died in 1976, Mrs. Nghe died in 1986 and did not leave a will. The legacy of the elders