Tom tat tran mai van (e) pháp luật về Đất di tích lịch sử văn hóa từ thực tiễn thi hành tại thành phố hà nội

In this context, studying the legal framework and practical implementation of land use laws for historical and cultural relics in Hanoi is essential.. The dissertation titled “Legal Regu

MINISTRY OF EDUCATION

AND TRAINING

MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

TRAN MAI VAN

LEGAL REGULATIONS ON HISTORICAL AND CULTURAL RELIC LAND FROM PRACTICAL

The dissertation has been completed at:

Hanoi Law University

Supervisors: Assoc Prof Dr Pham Huu Nghi

Examiner 1:

Examiner 2: Examiner 3:

This doctoral dissertation will be defended at the University-level

Board of Examiners at: Hanoi Law University

on:………

This doctoral dissertation can be found at:

- National Library of Vietnam

- Library Information Center, Hanoi Law University

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INTRODUCTION

1 Rationale for the research

Historical and cultural relics play a vital role in preserving the cultural and historical values of Vietnam through different periods, while also contributing

to socio-economic development, especially in the tourism sector Hanoi has the largest number of historical and cultural relics in the country, with nearly 6,000 sites, including several recognized as national and international heritage by UNESCO However, with the rapid urbanization and the pressures of the market economy, many relics in Hanoi are facing threats such as land encroachment, misuse, and legal violations related to land use

Currently, a legal framework for managing the land use of historical and cultural relics has been established to protect and manage these sites However, there are still many shortcomings in the legal regulations The rules are scattered across different legal documents, lacking consistency and coherence The 2013 Land Law only provides general principles, without specific guidelines, making implementation difficult Additionally, penalties for violations are not stringent enough, and there are inadequate mechanisms to engage communities and organizations in conservation efforts Limited funding for preservation has also led to temporary repairs rather than sustainable conservation

In this context, studying the legal framework and practical implementation

of land use laws for historical and cultural relics in Hanoi is essential The

dissertation titled “Legal Regulations on Historical and Cultural Relic Land from Practical Implementation in Hanoi” aims to analyze current regulations,

identify shortcomings, and propose solutions to improve the legal implementation related to the land use of historical and cultural relics in Hanoi The research results are expected to contribute to the conservation and promotion of these relics in Hanoi and across the country

2 Research purpose and tasks

2.1 Research purpose

This Research aims to clarify the theoretical and practical issues related to the law on land for historical and cultural relics Based on this, it proposes perspectives and solutions to improve the law and enhance the effectiveness of law enforcement regarding land for historical and cultural relics, drawing on the practical implementation in Hanoi City

2.2 Research tasks

To achieve the objectives of the dissertation, the following research tasks are identified:

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- Clarify general issues regarding historical and cultural relic land by decoding relevant concepts and building legal theories through analysis of legal definitions, characteristics, and the structure of regulations governing such land; explain the role and enforcement conditions for these regulations

- Analyze and assess legal provisions on historical and cultural relic land and their practical enforcement in Hanoi

- Propose solutions to improve the legal framework and enhance the enforcement of regulations based on practical implementation in Hanoi

3 Object and scope of research

2013 Land Law and the guiding documents on historical and cultural relic land

- The Cultural Heritage Law of 2001 and the guiding documents related to historical and cultural relic land

- The practice of implementing laws on historical and cultural relic land in Hanoi

- The Party's perspectives and policies on improving land law in general and

on historical and cultural relic land in particular

- Research works, documents, specialized books, and articles related to laws

on historical and cultural relic land

- Legal practices of some countries regarding historical and cultural relic land

3.2 Research scope

Content Limitation: As mentioned above, since the dissertation is conducted

during the effectiveness of the 2013 Land Law, the topic limits its research scope to the provisions of the 2013 Land Law and the guiding documents on historical and cultural relic land, as well as the current law on related cultural heritage

Scope Limitation: The study limits its scope to the practice of implementing

laws on historical and cultural relic land in Hanoi

4 Methodology and Research Methods

4.1 Methodology

The dissertation titled “Legal Regulations on Historical and Cultural Relic

Land from Practical Implementation in Hanoi” is conducted based on the

methodology of Ho Chi Minh's thought on building a socialist rule-of-law state;

3 the Party's perspectives and policies on continuing to renew land policies and laws during the comprehensive reform period to lay the foundation for Vietnam

to become a developed industrial country in a modern direction

4.2 Research Methods

In carrying out this research project, the author employs the following research methods: (i) Comparative methods, commentary, and interpretative methods are used in the overview of the issues related to the topic and the theoretical basis of the dissertation (ii) Historical methods, analytical methods, and evaluative methods are used in Chapter 1 to study theoretical issues of the law on historical and cultural relic land (iii) Comparative legal methods, investigative methods, and sociological statistics are used in Chapter 2 to explore the current state of the law on historical and cultural relic land through practical implementation in Hanoi (iv) Analytical methods, synthetic methods, and inductive methods are used in Chapter 3 to examine and explore solutions

to improve the laws on historical and cultural relic land and enhance the effectiveness of law enforcement based on practical implementation in Hanoi

5 Novelty and Scientific Value of the Dissertation

Building on the achievements and research results of published scientific works on this topic, the doctoral dissertation titled “Laws on Historical and Cultural Relic Land from Practical Implementation in Hanoi” achieves specific results as follows:

- Contributes to the refinement of the theoretical legal system on historical and cultural relic land, including defining and explaining the characteristics and structure of the law on historical and cultural relic land; highlighting the role and conditions necessary for implementing the law on historical and cultural relic land

- Assesses the current state of legal provisions on historical and cultural relic land, identifies limitations, deficiencies, and inadequacies in this area of law, reflects on practical implementation in Hanoi, and proposes solutions to improve the law on historical and cultural relic land and enhance law enforcement effectiveness

The dissertation serves as a valuable reference for lawmakers, state management officials on land matters, agencies managing historical and cultural relics in general, and those managing historical and cultural relics in Hanoi in particular, as well as land users The research results of the dissertation are also a reference for legal education institutions in Vietnam and for anyone interested in this field of law

6 Structure of the dissertation

In addition to the introduction, overview of the research situation,

4 conclusion, references, and appendices, the dissertation is organized into three chapters:

- Chapter 1: Theories on Historical and Cultural Relic Land and Legal Regulations on Historical and Cultural Relic Land in Vietnam

- Chapter 2: Current State of Legal Regulations on Historical and Cultural Relic Land from Practical Implementation in Hanoi

- Chapter 3: Perspectives and Solutions for Improving the Law and Enhancing the Effectiveness of Law Enforcement on Historical and Cultural Relic Land in Hanoi

RESEARCH SITUATION OVERVIEW

This section analyzes domestic and international studies to understand the context and research related to legal regulations on land use of historical and cultural relics, helping clarify the research topic, theoretical basis, and methodology

1 Research on historical and cultural relics

1.1 General research on historical and cultural relics

1.1.1 Domestic research

Domestic research primarily focuses on the following issues: analyzing definitions, types of relics, and their roles and significance to society; addressing management, conservation, and enhancement of relic values, particularly in the context of urbanization and socio-economic development; evaluating the current state of relic management and conservation in Vietnam, with particular emphasis on areas such as Hanoi, Bac Ninh, and Binh Duong, while highlighting limitations and challenges; proposing solutions to improve management and conservation effectiveness, such as refining the legal framework, increasing investment, and raising community awareness

1.1.2 International research

International research explores the exploration, conservation, and enhancement of historical and cultural relics with a focus on: relics encompassing various types of heritage, from traditional architecture to intangible cultural heritage, and from urban to rural areas; the need to understand the cultural, historical, and social context of relics for effective conservation; the challenges posed by urbanization and economic development

to relic conservation, necessitating an impact assessment of these factors on relics; various solutions for protecting relics, including integrating conservation with tourism development, utilizing information technology, and increasing community involvement

5 International studies provide valuable insights into issues related to the protection of historical and cultural relics, including legal aspects of land management However, there are still many challenges to overcome to protect and enhance the value of relics for future generations

1.2 Research works on historical and cultural relics in Hanoi

Previous research on historical and cultural relics in Hanoi has shown that Hanoi possesses a rich and diverse cultural heritage Studies have highlighted the importance of these relics in preserving the nation's history and identity, as well as their role in promoting tourism However, researchers have also identified numerous challenges facing the preservation of these relics, including the impacts of urbanization and tourism Proposed solutions have emphasized the need for community involvement, improved legal frameworks, and sustainable development strategies

2 Research on the law for land of historical and cultural relics

2.1 Research on the law for land of historical and cultural relics in general

2.1.1 Domestic research

Domestic research on the law for land of historical and cultural relics has focused on several key issues: clarifying the concept of land for historical and cultural relics, analyzing its legal status within the Vietnamese legal system, and comparing it with international regulations; identifying existing problems

in the management and use of land for relics, such as encroachment, unauthorized construction, unsustainable exploitation, and lack of detailed planning; analyzing the underlying causes of these problems, including both objective and subjective factors; pointing out shortcomings in the current legal system, such as general and non-specific provisions, and weak coordination mechanisms between agencies; and proposing solutions to improve the legal framework for land of historical and cultural relics, ensuring a balance between heritage conservation and socio-economic development

2.1.2 International research

Research on the law for land of historical and cultural relics in countries such as South Korea, France, and China have analyzed legal systems, management mechanisms, and challenges in preserving historical and cultural relics, focusing on: analyzing legal provisions and policies related to heritage conservation; identifying the challenges faced by these countries in heritage conservation, such as destruction due to socio-economic development, climate change, lack of resources, etc.; proposing recommendations to improve the effectiveness of heritage management and conservation, such as raising public awareness, applying technology, and strengthening international cooperation;

6 emphasizing the important role of government agencies, social organizations, and communities in heritage conservation; and using various research methods, such as content analysis, in-depth interviews, and surveys

2.2 Research on the enforcement of laws regarding land for historical and cultural relics in Hanoi

Research has focused on a common issue: the violation of laws concerning land for historical and cultural relics in Hanoi, with problems such as: Historical and cultural relics, particularly temples and pagodas, are often encroached upon, illegally constructed, or used for improper purposes; Authorities have not strictly enforced legal regulations, leading to prolonged violations; Many violations have persisted for years without being fully resolved; Addressing these violations faces many challenges due to various reasons, including pressure from involved individuals and organizations

2.3 Overview assessment of existing research

i) Assessment of Content

At a general level, the aforementioned research works have compiled, systematized, and contributed to the theoretical framework on historical and cultural relic land to varying extents and scopes However, in terms of content directly related to the dissertation topic, these works have addressed some fundamental theoretical issues concerning historical and cultural relic land

ii) Assessment of Research Methods

- Dialectical Materialism and Historical Materialism of Marxism-Leninism

- Information Collection and Processing Methods

- Synthesis and Analysis Methods

- Sociological Investigation Methods

3 Theoretical foundation

3.1 Research theories

The research theories focus on the management of historical and cultural relic land based on the public ownership regime over land represented by the State within the socialist-oriented market economy This includes theories on the regulatory and formative role of law in preserving and promoting the valuable spiritual and cultural values of historical and cultural relics

3.2 Research questions

To achieve the research objectives, based on an overview of the research status of the topic, the author has identified the following research questions to establish hypotheses for the dissertation:

- Has the legal framework on historical and cultural relic land been developed and implemented based on theories appropriate to the characteristics

to be addressed?

- On what basis should the legal regulations on historical and cultural relic land be improved and implemented? What solutions are needed to address the limitations and deficiencies of these regulations to contribute to the preservation, maintenance, and promotion of the values of historical and cultural relics in the country's industrialization and modernization efforts, while also enhancing traditional cultural values and educating younger generations to cherish and take pride in the national heritage?

3.3 Research hypotheses

- The legal framework on historical and cultural relic land has not yet been developed and implemented based on theories suitable for the characteristics of such land and the context of the socialist-oriented market economy and international integration in Vietnam

- The management and use of historical and cultural relic land have not sufficiently considered the specific characteristics of such land Current legal regulations and their implementation have limitations, shortcomings, and deficiencies that need to be addressed

- The legal framework on historical and cultural relic land needs to be improved and implemented based on appropriate perspectives Effective solutions are required to overcome limitations and deficiencies to preserve, maintain, and promote the values of historical and cultural relics amidst the country's industrialization and modernization, contribute to the enhancement of traditional cultural values, and educate younger generations to cherish and take pride in the national heritage

4 Research approach and methods

- The dissertation's approach involves analyzing and evaluating comprehensively the issues from institutional, organizational, and practical aspects of managing historical and cultural relic land in Hanoi

- Specific research methods include: the methodological basis of the dissertation being Marxist-Leninist theory, Ho Chi Minh's thoughts on the rule

of law, especially the principle of legal supremacy advocated by President Ho Chi Minh

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Conclusion of Overview

The law on land for historical and cultural relics is an important part of the legal system regarding land Research on the land of historical and cultural relics and its regulatory laws lacks a systematic approach, especially in the context of a socialist-oriented market economy and international integration in Vietnam

Studies on historical and cultural relics and relic land have focused on the concept, characteristics of relic land, the requirements for its protection, and related laws These studies have contributed to systematizing the legal theory

on land for historical and cultural relics but have been rarely updated since the issuance of the 2013 Land Law Therefore, further research is necessary The results of the overview provide a systematic and comprehensive understanding of the laws regarding land for historical and cultural relics, along with the practical situation in Hanoi, serving as an important foundation for the subsequent sections of the dissertation

1.1.1 Concepts of historical and cultural relics and legal regulations on historical and cultural relic land

Historical and cultural relics: Historical and cultural relics are sites,

structures, areas, or items that provide significant value from historical, cultural, or architectural perspectives They are often regarded as symbols of the identity and traditions of a community, nation, or people and are preserved and protected to maintain their value and integrity Historical and cultural relics can include:

- Architectural works or sites related to historical events or figures, cultural celebrities; for example: Ba Dinh Square, Ho Chi Minh's Stilt House; Pac Bo Cave (Cao Bang Province); House No 48 Hang Ngang Street (Hanoi), Ho's House in Kim Liên Commune (Nam Đàn District - Nghệ An Province), etc

- Objects within the interior of architectural structures (personal items, ritual objects in cultural and religious institutions, etc.); for example: Central Highlands gongs, the Golden Throne in the Imperial City of Hue, etc

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- Natural landscape environments surrounding or interspersed with the relics; for example: Thang Long Imperial Citadel, Ho Dynasty Citadel (Thanh Hoa); Dong Da Mound (Hanoi), etc

- Intangible cultural heritage values associated with the sites; for example: Hung Kings Temple Festival, Giong Festival, Lim Festival, etc

Historical and Cultural Relic Land: Land with historical and cultural relics

or scenic spots, once classified or protected by a provincial People's Committee, must be strictly managed according to Article 158, Clause 1 of the

2013 Land Law

Legal Regulations on Historical and Cultural Relic Land: Legal regulations

on historical and cultural relic land are part of the land law system that governs the preservation, management, and protection of relics with historical and cultural value This is a specialized area of law focused on protecting and maintaining important cultural and historical heritage of a country or community

1.1.2 Characteristics and structure of legal regulations on historical and cultural relic land

Characteristics of Legal Regulations on Historical and Cultural Relic Land: Legal regulations on historical and cultural relic land are a subset of land law This legal framework is based on several fundamental principles:

- The law has distinctive features not found in other management measures; these include normative nature, general applicability, coerciveness, and adaptability

- Through legal adjustment mechanisms, order and land use of historical and cultural relics and scenic spots are established and systematized

- As mentioned above, historical and cultural relic land, and scenic spots exist on such land

- The state, through legislation, establishes a tightly organized system of agencies

Structure of Legal Regulations on Historical and Cultural Relic Land:

- General provisions, including regulations on objects and scope of regulation; prohibited actions in managing and using historical and cultural relic land; principles of land use for historical and cultural relics

- Regulations on the management regime of historical and cultural relic land, including planning and land use plans for relics; regulations on granting, correcting, and revoking land use certificates for relics; regulations on the system of agencies managing relic land; state management content of historical and cultural relic land, etc

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- Regulations on land use for historical and cultural relics, including rights and obligations of land users; land use forms, duration; subjects of land use; rights and obligations of relic land users, etc

- Regulations on protecting the rights and legal interests of relic land users, including provisions on inspection, handling complaints, accusations, and violations of the law concerning relic land; regulations on resolving land disputes related to relics, etc

1.2 Role and conditions for ensuring the implementation of legal regulations on historical and cultural relic land

1.2.1 Role in ensuring the implementation of legal regulations on historical and cultural relic land

In summary, implementing legal regulations on historical and cultural relic land in Vietnam plays a crucial role in preserving cultural heritage and provides opportunities for tourism development, local economic growth, and maintaining cultural diversity This contributes to the prosperity and sustainable development of the country

1.2.2 Conditions for ensuring the implementation of legal regulations on historical and cultural relic land

- Political assurance

- Legal assurance

- Human resource assurance

- Legal awareness among stakeholders in implementing regulations on historical and cultural relic land

- Financial and material resource assurance

- Meeting the management requirements for historical and cultural relic land

- Meeting the requirements for using historical and cultural relic land

Conclusion of Chapter 1

Historical and cultural relics are invaluable assets in the cultural heritage of the Vietnamese people, requiring protection and preservation by individuals, communities, and the State to enhance traditional values in the era of industrialization, modernization, and international integration Protecting historical and cultural relics cannot be separated from protecting the associated land

In a market economy, the increasing value of land has led to many serious violations regarding historical and cultural relics land for profit, harming the values of the relics and creating societal concerns Therefore, managing and

11 using land for historical and cultural relics through legal means is essential and indispensable

The law on land for historical and cultural relics is a branch of land law, encompassing regulations issued by the State and enforced through coercive power to regulate social relations related to the management and use of land for historical and cultural relics To ensure effective enforcement, political, legal, human resources, legal awareness, and infrastructure conditions are necessary

Acts such as encroachment or misuse of historical and cultural relic land are strictly prohibited Regulations on the use rights of historical and cultural relic land include proper use according to planning, land use plans, and purposes, with land users required to adhere to principles of efficiency, effectiveness, and environmental protection These principles aim to protect and sustainably develop the values of the relics, though practical application still lacks specificity

2.1.2 Current state of regulations on the management of historical and cultural relic land

The state management for historical and cultural relic land comprises legal norms issued by the state that specify the roles, powers, responsibilities, and obligations of the state, while also regulating the relationships between the state and land users during this process

- Regulations on the Entities Involved in the Management of Historical

and Cultural Relic Land: The state acts both as the owner and as the land

management authority Agencies from the central to local levels (the