civil law 2 topic the right of ownership comparing german law and vietnamese law

The owner of an animal must, in the exercise of his powers, uphold the special conditions for the protection of animals” With the Vietnam Civil Code, according to paragraph 2, article 16

VIENAM NATIONAL UNIVERSITY

SCHOOL OF LAW -

GROUP 2 Subject: Civil Law 2 Topic

" The right of ownership: Comparing German Law and Vietnamese

Law”

Ha Noi, 2022

 Members:

1 Trần Quang Huy 20062022 –

2 Nguyễn H nh Linh ạ – 20062031

3 Nguyễn Minh Nguyệt – 20062042

4 Tống Tr n Minh Phúc 20062049 ầ –

5 Lê Th ị Phương – 20062050

6 Nguyễn Di m Qu nh ễ ỳ – 20062053

7 Đào Sơn Tùng – 20062065

TABLE OF CONTENTS

Part I: Introduction 4

Part II: Body 4

1 Normal rights of ownership: 4

2 Co -ownership: 5

2.1 On the concept and subject of co-ownership in the two sets of laws: 6

2.2 On division and types of co-ownership in the two sets of laws: 6

3 Ownership of an Apartment: 8

3.1 IN BGB 8

3.2 VCC 8

4 Treuhand ownership: 10

5 Security ownership: 11

Part III: Conclusion: 12

Part I: Introduction

Ownership and other rights to property have profound social, practical and legal implications Property rights are an important part of the Civil Code, especially the Vietnamese Civil Code which has many similarities with the German Civil Code The similarities and differences are based on the cultures and societies of two different countries However, both laws are geared towards human rights

Part II: Body

1 Normal rights of ownership:

According to the BGB, the right of ownership is considered as a relationship

of the ownership against the rest of the world This right is dealt with in paragraph 903 BGB:

“The owner of an object can, when this does not interfere with the law or other rights of third parties, do with the object what he wishes and exclude others from interfering The owner of an animal must, in the exercise of his powers, uphold the special conditions for the protection of animals”

With the Vietnam Civil Code, according to paragraph 2, article 160 “The owner of the property can do whatever he wishes as long as his act does not interfere with the law or damage to the benefit of society, rights and benefits

of nation, third parties”

 It can be seen that the rights of the owners to their property in both BGB and Vietnam Civil code are similar when they both govern the owner of property can do what he or she wishes as long as their acts do not interfere with the law or rights of third parties

The right of ownership is also an absolute power, whenever there is a disturbance of this right itself or of the object encumbered with this property right, according to the BGB, the owners of the property can claim to take back their property according to article 985

“The owner can claim the return of the object from the possessor”

With Vietnam civil law, according to article 166, it also accepts the owner

to claim the possessor to return the property:

“An owner has the right to reclaim his or her property from a person unlawfully possessing, using or receiving benefits from property”

This claim is to against the holder of the property If the property is transferred, bought into the hands of someone else, the claim will directly change to the new possessor Furthermore, in German Civil law, there are several other claims to protect the right of ownership in both property law and

in the law of obligation The system of claims is all to serve the purpose of guarateeing the power of the owners to their property and also claiming the power of ownership right is the most comprehensive right Vietnam civil code also has some other methods to protect the right of the owner such as article

163 “No one may be unlawfully deprived of or limited in relation to his or her ownership rights or other rights with respect to property” and paragraph 1 article 164 “An owner of or a subject having other rights with respect to property is entitled to himself or herself protect his or her rights and to stop any person infringing his or her rights, by measures which are not contrary to provisions of law”

Overall, German Civil law and Vietnam Civil law are absolutely similar to each other when they both confer the owner a comprehensive right of ownership and also have some similar other method to protect the owner of the right However, there is a difference between BGB and Vietnam Civil code In BGB, it accepts corporeal object as the only object of property right, property rights over objects other than corporeal objects cannot in principle exist Meanwhile, Vietnam Civil law accepts other kinds of objects such as incorporeal objects as objects of property rights According to article 105, Vietnam Civil law defines property is money, valuable papers and property rights This is an improvement of Vietnam Civil Code from the BGB

2 Co-ownership:

Co-ownership (Miteigentum) more than one person is jointly entitled to a – right, then, unless the law leads to a different conclusion (§ 741 German Civil Code (BGB)) Article 207 Vietnam Civil Code regulation about Multiple

ownership: "Multiple ownership means ownership of property by more than one subject"

 The similarities:

Although the wording is different, it can be understood that both laws stipulate that co-ownership is a property with two or more owners who both have rights and obligations to that property by law or by agreement, favorable Second, both the German Civil Code and the Vietnam Civil Code divide co-ownership into two categories

 The deference:

2.1 On the concept and subject of co-ownership in the two sets of laws:

The German Civil Code regulates co-ownership in the direction of shares That is, the interpretation and rules of co-ownership are based on assets, specifically shares In addition, German law recognizes that the owner is only

"human" Vietnam Civil Code recognizes co-ownership for assets including stocks For subjects of co-ownership, Vietnam law recognizes them as

"objects", that is, the subjects specified in the Vietnam Civil Code include individuals and legal entities

It can be seen that the Vietnam Civil Code is more broadly regulated in the scope of subjects and owners specified together with co-ownership for the German Civil Code

2.2 On division and types of co-ownership in the two sets of laws:

The German Civil Code divides co-ownership into two different categories: a right of co-ownership in equal indivisible shares, also known as Miteigentum Nach Bruchteilen, and The ownership of the object in question will, also known as Gesamthandseigentum

Miteigentum Nach Bruchteilen can be simply understood as the total number of shares that will be split into equal shares Each joint owner will be allowed to have ownership and use rights to an equal share of the distributed shares as well as a share of the proceeds of the shares Although the shares are distributed equally in the common share community, only the co-owner can have management rights over the shares that he/she can own and use The joint

owners act independently of each other, but at the same time, the owners have certain obligations to each other according to the provisions of German law Gesamthandseigentum can simply be understood as property that cannot

be divided and co-owners are required to jointly use and exercise their rights and obligations with that property However, this type of co-ownership only exists when the law recognizes it, for example, the rights and obligations of husband and wife towards joint property formed after marriage "Co-ownership is an invisible community especially can hardly be character-ised

as an indivisible power over an object" However, there is debate as to whether this type of co-ownership is still relevant to ownership in general

Vietnam Civil Code also divides co-ownership into two categories: Ownership in common (Article 209) and Joint ownership (Article 210) Ownership in common is identified by identifying each owner's partial ownership However, the share of rights and obligations of the owners is proportional to the share of the property they contribute to the common object

of ownership The rights and obligations of the owners may be equal or different However, many other cases occur when the owners have an agreement with each other

Joint ownership means that it does not matter how much property each owner contributes, but the rights and obligations are equally enjoyed by the co-owners According to Vietnamese law, Joint ownership is divided into two types: divisible joint ownership and indivisible joint ownership Divisible joint ownership means that common property can be divided among co-owners such

as husband and wife who are in a legal marriage relationship Indivisible joint ownership means indivisible common property that can be applied to residential communities or shared ownership of apartments

 In general, it can be seen that Vietnamese law provides a broader and more visionary provision in the regulation of co-ownership German law only recognizes that the shares are equally distributed and that the co-owners have equal rights and obligations However, the Vietnam Civil Code protects the rights of owners who donate to common property more

by giving them more rights than other owners

 The Vietnam Civil Code also recognizes unspecified cases of contributions by owners that give them equal rights and obligations However, Vietnamese law does not have a binding co-ownership relationship like the Gesamthandseigentum of the German Civil Code

3 Ownership of an Apartment:

The right of ownership of an apartment is a special type of ownership

3.1 IN BGB:

The ownership of an apartment, or Wohnungseigentum, is a specific type

of ownership that gives the owner entitlement to a specified part of a building The Wohnungseigentum was introduced in German law through special legislation The act introducing the ownership of an apartment also introduced the Dauerwohnrecht, the right to live in a building for a longer duration of time The ownership of an apartment is constructed around a co-ownership in

a community with indivisible shares The Wohnungseigentum enables several people to each ‘own’ a separate area of a building they co-own.The Wohnungseigentum thus comprises a share in the community as well as a specific, exclusive ownership of a defined part of the building Together these two entitlements form the Wohnungseigentum that German doctrine considers

a normal type of ownership As such this type of ownership of an apartment can be transferred and be burdened with other property rights in the same way

as a normal right of ownership Furthermore, the claims available to normal .

owners through Paragraphs 985 and 1004 BGB are available to the holders of this special right of ownership In addition these special co-owners can use Paragraph 1004 BGB to exclude others, including other co-owners, from the exclusive ownership of their part of the building

3.2 VCC

Paragraph 1 Article 214 Vietnam Civil Code states:

The areas, equipment and furnishings, and other properties which are for common use in an apartment building as provided in the Law on Residential Housing are under joint ownership of all owners of the apartments in the

apartment building and are indivisible, unless otherwise provided by law or unless all of the owners reach some other agreement

This means that apartment ownership in Vietnam is under Multiple Ownership

 The right of ownership of an apartment in Germany is more regulated than in Vietnam While the Civil Code of Vietnam only regulates ownership rights for apartments, in Germany there is also an ownership right for non-residential areas of a building in respect of non-residential areas of a building

“Section 1 Definitions

(1) Pursuant to the provisions of this Act, title to an apartment

[Wohnungseigentum] may be created in respect of apartments, and title to

units [Teileigentum] may be created in respect of non-residential areas of a building

(2) Title to an apartment comprises the separate ownership [Sondereigentum (1)] of an apartment together with a co-ownership share [Miteigentumsanteil]

of the jointly owned property [gemeinschaftliches Eigentum] of which it is an integral part

(3) Title to a unit is the separate ownership of non-residential areas of a building together with a co-ownership share of the jointly owned property of which it is an integral part

(4) Title to apartments and title to units can not be created by combining separate ownership with co-ownership of several plots of land

(5) Jointly owned property within the meaning of this Act shall be the plot of land as well as those parts, facilities and installations of the building which are neither separately owned property [Sondereigentum (2)] nor property owned by a third party

(6) The provisions governing ownership of apartments shall apply mutatis

While the BGB stipulates very specifically: "Title to an apartment includes the separate ownership [Sondereigentum (1)] of an apartment together with a co-ownership share [Miteigentumsanteil] of the jointly owned property [gemeinschaftliches Eigentum] of which it is an integral part." , Vietnam's Civil Code stipulates only multiple ownership: "The areas, equipment and furnishings, and other properties which are for common use in an apartment building as provided in the Law on Residential Housing are under joint ownership of all owners of the apartments in the apartment building and are invisible, unless otherwise provided by law or unless all of the owners reach some other agreement."

4 Treuhand ownership:

The German foundation of a uniform concept of ownership is laid down in Paragraph 903 BGB: “The owner of a thing may, to the extent that a statute or

a third party rights do not conflict with this, deal with the thing at his discretion and exclude others from every influence” But also the German legislator created deviations on the uniform concept of ownership A remarkable example of devided ownership in German Law is the Treuhand

With Treuhand, the Treugeber (settlor) transfers the Treuhand-ownership to the Treuhänder (trustee) The Treuhand-ownership can be seen as the juridical ownership with regard to an object Although the Treugeber has transferred his juridical ownership to the Treuhänder, he retains the economic ownership The concept of Treuhand shows major similarities to the common law express trust The recognition of economic ownership does not imply a lesser form of legal ownership A doctrinal solution is found in the distinction between the internal and external effects of the Treuhand In relation to third parties there

is only one type of ownership – the right of ownership of the Treuhänder From

a property-law point of view, the Treuhänder can freely dispose of the object under Treuhand However, in the internal relation between Treugeber and Treuhänder, the Treuhänder is bound by the terms of the contact This contract can limit the Treuhänder’s power to dispose, but may also stipulate duties to manage and take care of certain objects In case of non-performance, the Treugeber has a set of contractual remedies against the Treuhänder at his