Land is a valuable resource of each country, the right to use residential land is an important asset for the people. The law on determining residential land prices for compensation when the State recovers land has been specifically regulated in the 2013 Land Law and circulars and guiding decrees of the Government and administrative agencies of relevant ministries, branches and sectors. This demonstrates the close attention of lawmakers, the Party and the State to this issue. However, due to the incomplete system of legal regulations; continuous amendments and supplements; regulations scattered in many different types of documents, it is difficult to look up and apply. Sometimes the guiding documents are issued slowly, the content of the regulations in the documents is still complicated and difficult to understand, leading to inconsistent application in practice, causing difficulties in determining residential land prices when the State recovers land. For law enforcement to be highly effective in practice, the legal system must ensure completeness, comprehensiveness, unity, and suitability with the economic development situation of the whole country.
Determining the price of residential land for compensation when the State acquires land aims to ensure the interests of the parties involved in the land acquisition process, including: the person whose residential land is acquired - the State - the unit that takes over the land fund after the acquisition. However, currently, the process of determining the price of residential land for compensation has no legal document stipulating the role of the person whose land is acquired - the people who are directly affected by the State's land acquisition. This leads to a failure to ensure "publicity and transparency" in determining the price of residential land for compensation, resulting in conflicts arising, people do not accept the "compensation price plan" issued by the State, prolonging the land acquisition time, affecting economic development.
Subjective causes
Firstly, the current status of law enforcement in determining residential land prices when the State recovers land in localities. Although it has been clearly stipulated in the 2013 Land Law and legal documents guiding the implementation of the law by the Government and relevant ministries and branches, land is a special commodity. Each area will have different assessment conditions and factors affecting residential land prices, thereby having different methods of determining residential land prices to determine specific residential land prices at the time of land recovery decisions. This leads to the current status of determining residential land prices incorrectly, "in accordance with
market value”. Therefore, the agency assigned to determine land prices for compensation needs to understand the law, master the methods and principles of determining land prices to ensure “conformity with market value”.
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Second, due to the political and ideological education for the staff and civil servants who carry out the work of determining residential land prices for compensation. Because land is a special commodity, with specific characteristics and great value. The residential land price for compensation can be distorted, inconsistent with market value when applying the methods of determining residential land prices of the agencies assigned to determine land prices, when these agencies can be under economic or political pressure, in order to satisfy "customers", ignoring the necessary "independent and objective" nature.
Third, due to the legal awareness of the people themselves - the people whose land is recovered. People always think that they pay less fees and charges related to land, so they tend to record the value of residential land lower than the actual value in contracts for transferring and buying and selling residential land use rights. The transactions recorded in the area where land recovery takes place will be used by the agency assigned to determine residential land prices as the basis for calculating methods for determining residential land prices to compensate for the recovered land area of that area. From the incorrect input reference information of the residential land valuation method, the land price is inaccurate and the people are directly affected.
Chapter 2 Conclusion
Currently, our country's legal system related to determining residential land prices for compensation when the State acquires land is regulated quite specifically. The process of determining land prices for compensation when the State acquires land is quite detailed. Based on the practical implementation of the law in some localities with specific types of residential land, the author has drawn some assessments on the contents related to determining residential land prices in compensation work when the State acquires land.
Through this, it can be seen that although the legal regulations and guiding decrees and circulars have provided quite specific regulations, there are still shortcomings, difficulties and obstacles in implementation in practice. Therefore, the author has boldly proposed a number of solutions to improve the law on determining housing prices for compensation when the State reclaims land according to current Vietnamese law.
Chapter 3
SOLUTIONS TO IMPROVE THE LAW AND ENSURE IMPLEMENTATION OF THE LAW ON DETERMINING RESIDENTIAL LAND PRICES FOR COMPENSATION WHEN THE STATE
LAND RECOVERY UNDER CURRENT VIETNAMESE LAW
3.1 The need to improve the determination of residential land prices for compensation when the State acquires land
The law on determining residential land prices is a legal tool for the State to manage the real estate market in general or the residential land market in particular; especially in the compensation work when the State recovers residential land, it is a regulatory and management tool to ensure the interests between the parties in the relationship when recovering residential land including: the State - the person whose residential land is recovered - the investor. The process of determining residential land prices for compensation when the State recovers land has been clearly regulated and guided by legal documents. However, when implemented in the actual situation, specific to each locality, there are problems and inadequacies, causing conflicts and disputes leading to complaints between the parties involved in the land recovery work. For example, determining the price of residential land for compensation when reclaiming to open the 2.5 ring road in Hanoi, the inadequacy in calculating the price of residential land for compensation when Bac Ninh city was recognized from a type II urban area to a type I urban area or the problem in the compensation stage when Ho Chi Minh city reclaimed old apartments to build new ones or with rural residential land in typical rural areas such as in Dong Thap... This requires continuing to improve regulations and guiding documents on the process of determining residential land prices for compensation when the State reclaims land to minimize disputes, complaints, causing instability in social life; ensuring the rights and interests of related parties, especially those whose residential land is reclaimed.
3.2 Orientation to perfect the law on determining residential land prices for compensation when the State acquires land
The improvement of the law on determining residential land prices for compensation when the State reclaims land must be based on the theoretical basis of the nature of determining residential land prices for compensation, on the basis of the current state of the law and the practice of law enforcement on determining residential land prices for compensation.
Often when the State reclaims land in our country today, especially the main reasons causing the determination of land prices are not "consistent with market value". Accordingly, the basic and principled solutions that need to be implemented are:
One, perfecting regulations and guiding documents on determining residential land prices for compensation when the State reclaims land to approach actual market prices. The goal of this legal solution is to ensure a unified and appropriate legal system on determining residential land prices. Helping to provide results for compensation when the State reclaims land "in accordance with market value". Minimizing conflicts between related parties in the process of State land reclaimation;
Second, perfecting regulations and legal documents on the organization of land valuation for compensation when the State reclaims land, clarifying the role of people, specifically people whose land is reclaimed, in determining land prices for compensation. Helping people monitor the "publicity and transparency" in the process of determining land prices when the State reclaims land. Ensuring their own rights in compensation when land is reclaimed;
Third, perfecting the law on methods for determining residential land prices for compensation when the State acquires land in the context of ensuring the interests of parties involved in land acquisition activities. Perfecting this law helps consulting organizations determine land prices for compensation when acquiring land not to be confused in choosing the appropriate method, determining residential land prices "in accordance with market value".
Fourth, perfect the law on determining residential land prices for compensation when the State reclaims land in the direction of "independence and objectivity" in determining residential land prices, and enhance "publicity and transparency" in the work of reclaiming residential land.
Fifth, improve the effectiveness of propaganda, education, and understanding of land law, raise awareness of compliance with regulations and instructions of legal documents on determining residential land prices for compensation for officials and civil servants at units assigned to determine residential land prices for compensation, as well as organizations consulting on land price determination. This is an important premise to help promote the determination of land prices "in accordance with market value". Ensure the determination of residential land prices in a
"independent, objective" way, not affected by economic - political factors that distort land prices when determined.
Six, raise awareness of land law among the people. Help people be aware of their rights, responsibilities, and obligations in determining residential land prices for compensation when the State reclaims land. When legal awareness is raised, the situation of "evasion and evasion" to reduce the amount of money to be paid from land use rights collection will be pushed back. In order to create a healthy residential land price information market. From there, a database can be built for the work of determining residential land prices for compensation. Bring residential land prices in line with market values.
3.3 Some recommendations to improve the law on determining residential land prices for compensation when the State acquires land
3.3.1 Perfecting the law on determining residential land prices
In the 2013 Land Law, it is stipulated that residential land prices are determined according to the principle of "consistent with the common residential land price on the market" but it does not specifically stipulate what is "consistent", there is no specific standard to measure the tolerance considered suitable for the common residential land price on the market. According to the experience of regulations on determining land prices in general, and residential land prices in particular of developed countries, the use of "quantitative" words is convenient for the application of land price determination because it will calculate the tolerance allowing the calculation of residential land prices for compensation closest to the common residential land price on the market.
The common land price on the market is the land price that appears most frequently in the transferred transactions on the market. But there is a problem here, the price of the transferred transactions on the market recorded as the basis for determining the calculation of the residential land price for compensation is the land use right transfer price recorded in the transfer contracts, so are the hand-to-hand transactions where this price appears most frequently but is not recorded in the contracts calculated as the basis for determining the residential land price for compensation? There must be a mechanism, issued documents, and regulations to verify the accuracy of the price of these hand-to-hand transactions as the basis for determining the residential land price for compensation, there must be regulations and instructions to verify the authenticity of this land price. This price reflects
correct, accurate market price at a specific time, in another direction, the price recorded in the transfer contracts does not necessarily reflect the correct market price because when people want to "avoid" or "reduce" taxes and fees to be paid to the State, they will agree with each other to record on the transfer contract a value lower than the real value of the land plot being traded.
The process of land acquisition and compensation is a complex process with many stages and the participation of many related units that can last for a period of time while the residential land market always fluctuates according to the development of the market economy. Residential land prices may be correct at this time but at another time they are no longer accurate, so there should be regulations on the date of determining residential land prices or the time of determining residential land prices. Because there are currently regulations on the time of land acquisition and compensation but there are no regulations on the time of land valuation, making it difficult for units and organizations assigned to determine residential land prices for compensation to determine which valuation time is appropriate. This causes the promulgated residential land prices for compensation to be inconsistent with the actual residential land prices on the market, and the land acquisition work will face opposition from the people of the land acquisition because the compensation is not satisfactory.
Currently, in Vietnam, there are two systems of land valuation methods, one developed by the Ministry of Natural Resources and Environment at the request of the Government to serve the land valuation work according to the Land Law, the other issued by the Ministry of Finance to serve as the basis for the Vietnamese valuation standards system. In addition to the common methods, there are still differences in methods between the two systems. Therefore, the State needs to have regulations to unify land valuation methods to avoid the situation of not knowing which method system to apply correctly to the hired land valuation consultancy organizations.
3.3.2 Some proposals on the organization of land price determination for compensation when the State acquires land
Currently, the competent authority to recover land and the agency that determines land prices for compensation when the State recovers land are the provincial People's Committees and related units under this agency. The question is whether "fairness and objectivity" are enforced? Will there be a situation of "both playing football and blowing the whistle" when land recovery is related to group interests? Land is owned by the entire people, but the people, specifically
People whose land is recovered do not have any role in the organization of determining residential land prices for compensation when the State recovers land. Therefore, it is necessary to develop regulations and guiding legal documents to demonstrate the role of people in the organization of determining residential land prices for compensation when the State recovers land. It is possible that representatives of people whose land is recovered are present in the composition of the council organizing the determination of residential land prices for compensation in order to monitor the "publicity and transparency" in the process of determining residential land prices for compensation for each inch of recovered land that they are granted the right to use by the State.
According to regulations, the Council for organizing the determination of residential land prices can hire a consulting organization to determine residential land prices as a basis, basis, and to consider the compensation price of residential land when the State recovers land, but it does not stipulate how many organizations are reasonable to hire? Can the organization hired by the Council ensure "independence and objectivity" when determining residential land prices when the Council is the unit that pays to hire the organization, and the competent authorities in the Council are the units that directly manage the consulting organization to determine this land price? Therefore, it is necessary to have regulations on allowing many consulting organizations to determine residential land prices to conduct the valuation of recovered residential land, each organization is hired by parties with interests related to the recovered residential land. The residential land price applied for compensation will be the price agreed upon by the parties with interests after receiving the results of determining residential land prices from the hired organizations.
3.3.2 Amendment and supplement of regulations on valuation date
Currently, the time to determine the price of residential land for compensation is determined at the time of the decision to reclaim the land, which is not a fixed, specific time point. Amending and supplementing the regulations on the price determination date is necessary, helping to ensure that the price of residential land is determined to ensure the principle of determining the land price "in accordance with the market price". This helps the State, specifically the unit assigned to determine the price of land for compensation, to explain the price given in case of large market fluctuations. The market is always fluctuating and developing, we must accept the difference between the price at this time and another time but within an acceptable level limited by legal documents and regulations.
3.3.3 Building laws to ensure equal status in the complaint settlement process
In Vietnam in general and in the land sector in particular. It is very difficult to ensure fairness in resolving complaints because the unit assigned to determine land prices when recovering
and the parties in charge of resolving complaints are all state administrative agencies and units under the direction of the provincial People's Committee Chairman. It is necessary to organize a dialogue room with two similar parties in the form of a roundtable conference; it is necessary to ensure the participation of legal consulting agencies and organizations such as: legal aid centers, members of the bar association, members of the lawyer association, the Council for Democracy and Law under the Fatherland Front (in places where this Council is established) and these entities must have the right to access the settlement files. In many cases, it is the participation and explanations of the third party that make people realize early that their personal requests and demands are inappropriate and impossible... Currently, only the results of land valuation by land valuation consulting organizations organized by the land recovery organization are used as a reference basis. While the people are also the parties directly involved in the land acquisition, if they feel that the results of the land valuation units of the land acquisition side are not appropriate, they have the right to hire independent land valuation units with full functions and capacity to determine land prices to re-determine the land prices. However, the re-determined land prices are not used as the basis for determining specific land prices when making complaints. Therefore, it is necessary to develop legal documents and regulations for the use of valuation results by different parties, to ensure fairness if complaints occur.
3.3.4 It is necessary to build a healthy real estate market, a mechanism to determine land prices according to market prices.
First of all, it is necessary to clarify the concept of market price in the direction of determining the compensation price for people that they can "transfer" on the free market.
The Vietnamese real estate market in general and the residential land market in particular are currently developing markets that are not considered healthy. There is a lack of a reference database system to determine whether land prices at a given time are appropriate or have been "inflated" or "driven" to serve the interests of a local group. This causes information confusion when using information as a basis for land valuation methods for compensation. This leads to errors, not reflecting prices consistent with market values.