Some Solutions to Improve the Law on Land Use Lease Contracts

The government should simplify and simplify the administrative procedures, reduce and eliminate unnecessary procedures. Along with the policy of promoting administrative reform, streamlining the apparatus, making the apparatus operate effectively is to simplify administrative procedures so that people can easily access them. However, in reality, the reform in many places is only a formality, so it has not really been effective, the time to carry out land procedures in reality is often longer than the time prescribed in legal documents.

Land law is a part of the legal system, closely related to other branches of law such as civil law, real estate business law, investment law, banking law, notary law... In this relationship, legal norms and branches of law have an interactive relationship with each other, promoting each other's development. Therefore, innovation and improvement of land law in general and the law on land use rights lease in particular must be placed in an organic relationship between the entire legal system to create interaction, complementarity and unity.

In addition, regulations on leasing land use rights must be consistent with practical conditions and socio-economic development trends, paying attention to ensuring international economic integration. Leasing land use rights is also a form of asset leasing, land use rights themselves are considered a special type of commodity that can be circulated on the market, so the relationship of leasing land use rights is also governed by market rules, characterized by the relationship of supply and demand. In a market economy, developing the real estate market to attract foreign investment, expanding real estate goods, expanding real estate transaction rights, making transactions simple, convenient and easy, is a goal that the State is paying special attention to.

3.2. Some solutions to improve the law on land use right lease contracts

3.2.1. Perfecting legal regulations on the form and content of contracts

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When establishing a land use rights transfer transaction, the subjects must determine the basic contents and terms that must be included to ensure the criteria: Conditions for entering into a contract; Ensuring the ability to perform the contract; Information about the subject of the contract; Dispute resolution mechanism [16]. While civil law has provisions on the conditions for the validity of a contract in general, land use rights transfer contracts have additional specific conditions. For common, specific, and complex transactions that pose many potential risks of disputes such as land use rights transfer, the law should develop the most specific regulations possible. Currently, the revised Civil Code, which has just been passed by the National Assembly, is in the direction of general regulations on land use rights transfer contracts, specific regulations are prescribed by specialized laws, specific regulations on the content of land use rights transfer contracts contained in the 2005 Civil Code have been eliminated, however, the land law does not yet have such specific regulations.

In fact, current land use right transfer transactions are not only land, but also assets attached to land (trees, houses, offices, infrastructure, factories in industrial parks, etc.). Meanwhile, the legal status of assets attached to land is fundamentally different from land use rights due to the specific nature of ownership. The revised Civil Code does not regulate this issue, so the implementation in practice may cause difficulties in dispute resolution. In the guiding documents, a section should be devoted to regulating this transaction on the basis of clarifying transactions on assets.

attached to land (purchase and sale of assets attached to transfer of land use rights; purchase and sale of assets attached to leased land; lease of land use rights attached to assets on land...) and principles of law application to these transactions.

Regarding the form and procedures for implementing land use rights transfer contracts, according to Article 501 of the Draft Civil Code amended and submitted to the National Assembly for approval, the provisions are similar to those in the 2005 Civil Code, " Land use rights transfer contracts must be made in writing in a form consistent with the provisions of this Code, land laws and other relevant laws" . In fact, disputes in civil transactions related to the form of land use rights transfer contracts are quite common, so lawmakers need to explain specifically "what is appropriate".

During the process of drafting the revised Civil Code, there were many opinions surrounding the issue of "whether to prescribe the form of the contract" because in reality, there are many transactions that have been declared invalid by the court due to violations of the form, including many cases of taking advantage of the provisions of the law to avoid continuing to perform the contract. In addition, excessive attention to the form of the contract (as prescribed by law) may violate the principle of free will and voluntary agreement of the subjects. However, the regulation of the form of land use rights transfer transactions must be made in a contract due to the complex nature of this transaction, so it is necessary to create the most transparent and standard legal corridor possible to first ensure the rights of the participating parties, and strengthen the management and supervision of the State. However, the amendment of the Civil Code to the general provisions as above may lead to inconsistent application, due to the complexity of land relations and low awareness of a part of the population, the Vietnamese legal system is too large and difficult to look up, we still need to have specific regulations on the basic contents of the contract, clearly defining the contents of the contract.

in the law will help people easily understand and grasp the basis to protect their legitimate rights and interests when necessary. The current solution we can think of is to provide a set of sample contracts for people to refer to, increase propaganda, dissemination and legal aid for people. In addition, it is necessary to review the provisions of the law, unify the understanding and application, eliminate overlapping provisions, and issue specific guidance documents on this issue.

3.2.2. Perfecting legal regulations on the effective time of contracts

The time when the contract comes into effect is important because at that time the parties are officially bound by what they have agreed in the contract, which is the basis for dispute resolution. According to the provisions of Article 689 of the 2005 Civil Code, the Land Use Rights Transfer Contract must be made in writing and notarized or certified.

Regarding the time of validity of the land use right lease contract: according to the provisions of Article 122 of the 2005 Civil Code, a civil transaction is valid when all of the following conditions are met: The person participating in the transaction has civil act capacity; The purpose and content of the transaction do not violate the prohibitions of the law, are not contrary to social ethics; The person participating in the transaction is completely voluntary; The form of the civil transaction is a condition for the validity of the transaction in cases where the law so provides. In addition, Clause 3, Article 689 of the 2005 Civil Code stipulates that " The contract for the transfer of land use rights must be made in writing, notarized and authenticated in accordance with the provisions of law ". Therefore, for the contract for the transfer of land use rights to be legally valid, it must be made in writing and notarized and authenticated. This is a condition for the parties to comply with the law when entering into the contract.

The form is prescribed by law. Clause 3, Article 188 of the 2013 Land Law also stipulates: " The conversion, transfer, lease, sublease, inheritance, donation, mortgage of land use rights, and capital contribution using land use rights must be registered with the land registration agency and take effect from the time of registration in the land registry ."

Meanwhile, the 2014 Notary Law, Clause 1, Article 5 stipulates: " Notarized documents are effective from the date they are signed by the notary and stamped by the notary practice organization ." Accordingly, we understand that the land use rights transfer contract will be effective at the time it is signed by the notary and stamped by the notary practice organization [13].

Thus, with many different provisions of current law, the above time is different in each different legal document. This has been causing difficulties in practice. Therefore, the author proposes to unify the regulations on the effective time of land use right lease contracts, which is after completing the lease registration at the competent state agency. Such regulations not only help the state manage land transactions, but also increase people's trust and serve as a basis for protecting their rights and legitimate interests during the contract implementation process.

3.2.3. Perfecting legal regulations on land lease conditions

According to the law, having a land use right certificate is a mandatory condition for the lessor to be able to lease his land use right.

The document guiding the implementation of the 2013 Land Law also stipulates [22, Article 64] :

"1. Contracts and transaction documents on land use rights and ownership of assets attached to land of households must be signed by the person named above.

Certificate or authorized person as prescribed by civil law signed.

2. Contracts and transaction documents on land use rights and property ownership rights attached to land of a group of land users or a group of property owners attached to land must be signed by all members of the group or have a written authorization in accordance with the provisions of civil law, except in cases where apartment owners jointly use a plot of land in an apartment building."

Currently, the Land Use Right Certificate is considered an important legal means for land users to exercise their rights related to land use rights. However, in reality, the issuance of Land Use Right Certificates still has many shortcomings. Many land plots, although having the required documents, have not been granted Land Use Right Certificates. As a result, a large number of land use rights have not been put into the transaction market, causing waste. The above regulations have also limited the rights of land users. In practice, the People's Court also acknowledged that signed contracts in which the lessor does not have a Land Use Right Certificate, but has the required documents and the land is not in dispute, are still valid. We propose to amend the law on this content in the direction of stipulating that legal land users with one of the following documents are allowed to lease land use rights [38, Article 100, Clause 1]:

"a) Documents on land use rights issued before October 15, 1993 by competent authorities in the process of implementing land policies of the Democratic Republic of Vietnam, the Provisional Revolutionary Government of the Republic of South Vietnam and the Socialist Republic of Vietnam;

b) Temporary land use right certificate issued by a competent state agency or listed in the Land Registration Book or Cadastral Book before October 15, 1993;

c) Legal documents on inheritance, donation of land use rights or assets attached to land; documents on handover of gratitude houses and charity houses attached to land;

d) Documents on transfer of land use rights, purchase and sale of houses attached to residential land before October 15, 1993, confirmed by the People's Committee at the commune level as having been used before October 15, 1993;

d) Documents on liquidation and valuation of houses attached to residential land; documents on purchase of state-owned houses according to the provisions of law;

e) Documents on land use rights issued by competent authorities of the old regime to land users;

g) Other types of documents established before October 15, 1993 according to Government regulations."

3.2.4. Completing some other regulations on land use rights lease

Firstly , clearly define what is non-disputed land. This will help competent authorities apply a unified understanding and conditions for determining non-disputed land, and also help people to be proactive in requesting documents confirming land status.

Second, add regulations on the priority right to continue leasing land use rights when the lease term expires. Such regulations help stimulate long-term investment in land, helping lessees feel secure in the process of using the land.

Third , clearly define the responsibilities of individuals in land management, state management agencies, and specialized cadastral leaders.

to enhance personal responsibility and improve the quality of implementation of policies and regimes on state management of land.

3.3. Some supplementary solutions to improve the quality of law enforcement on land use right lease contracts

Firstly , implementing administrative procedure reforms. Legislative reforms will not be able to maximize their effectiveness if law enforcement remains cumbersome and complicated. In the land sector, the Ministry of Natural Resources and Environment has announced a set of administrative procedures in this sector, including 41 procedures for places where a one-level Land Registration Office has been established (a reduction of 30 procedures); 62 procedures for places where a one-level Land Registration Office has not been established (a reduction of 9 procedures). At the same time, the Ministry has reviewed and abolished a number of unnecessary procedures or tasks in land allocation, leasing, and issuance of Land Use Right Certificates. The time for carrying out procedures has also been significantly reduced compared to previous regulations for all procedures, especially for procedures for land recovery for national defense, security, socio-economic development for national interests, public interests, etc. The dossier for carrying out procedures has also reduced a number of types of documents that must be submitted; Supplement regulations on digital registration procedures for localities that have implemented electronic registration; supplement regulations on electronic transactions.

Second , reduce administrative procedures when registering land use rights transfer. According to the provisions of the land law, transactions on land use rights are carried out at the land registration office. Land use rights registration includes initial registration and registration when there are changes so that the State can monitor and update changes in land. This is mandatory work, a prerequisite for state management of land use rights transfer, ensuring safety for organizations and individuals when transferring land use rights.

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