a summary of the doctoral dissertation of law the land law of viet nam and of sweden

FACULTY OF LAW LAW UNIVERSITY OF University of Lund Hồ Chí Minh city ĐẶNG ANH QUÂN TWO LAND REGISTRATION SYSTEMS – THE LAND LAW OF VIỆT NAM AND OF SWEDEN Field of Study: International and Comparative Law Code: 62.38.60.01 A SUMMARY OF THE DOCTORAL DISSERTATION OF LAW 2011 2 This research was done at: LAW UNIVERSITY OF HỒ CHÍ MINH CITY LUND UNIVERSITY, SWEDEN SUPERVISORS: Prof. Hans Heinrich Vogel Prof. Phạm Hữu Nghị Discussant 1: Discussant 2: ……………………………………. Discussant 3: This dissertation will be presented at ………………. ………………… Date and time: This dissertation can be found at the following libraries:………………………………………………………… …………………………………… 3 Chapter 1 INTRODUCTION 1.1. Background Based on the implementation of the “open-door” policy and the concurrent acceptance of the market economy, Việt Nam has in recent years achieved much both in terms of joining the world market and in improving social life. Under the impact of the process of industrialization and modernization, there has been a major change in the use of major resources such as capital, land and labour with the focus being on industry and services. The rules that relate to land have, after a series of amendments, become crucial to the above process. Land users now have greater rights to land. Land use rights and the properties attached to land have become a huge source of capital that the State and the people use for investing, developing businesses, enlarging co-operative relationships and attracting foreign investment to Việt Nam. However, as the State has had not much experience in managing this new market, the real estate market in general and the market in land use rights in particular has developed spontaneously and outside the State’s control, leading to some negative impacts on the socio-economic situation. In this context, the problem of how to manage the real estate market and effectively exploit real property and correctly orientate its development has become a pressing one. A number of solutions had been put forward by the Communist Party and the State in their guidelines and policies. One of the tools used is land registration, and one thing which needs to be 4 done is the modernization of the system of land registration and land/real estate information supply in general. Successful establishment of the land registration system and the provision of a system of real estate information supply on the basis of the application of information technology will play an important role in simplifying administrative procedures; making the real estate market more and more transparent with full, clear information on real properties; guaranteeing legal safety for parties in transactions; limiting disputes regarding land and real estate; and assisting the State in both managing the real estate market and preventing lose of tax. In order to reform and modernize the land registration system pursuant to the Communist Party’s policies, research on and appraisal of the current situation of the land registration system needs to be engaged so that one can truly grasp the shortcomings of the system. Once this is done, solutions can be enacted and implemented. Many research projects have been carried out. However, most of them focus on technical solutions regarding the computerization of the management and operation of land registration activity. Some researches on legal aspects aim at the real estate market as a whole with little focus on land registration. Such research as does concentrate on the registration system mainly pays attention to the problem of real property ownership in general and does not focus on the fact that land management should be a foundation for the management of all other types of real property. Further, they do not determine the essential factors of a land 5 registration system with a view to setting up an effective system, especially so far as concerns information supply. What I choose to focus on is evaluating the Vietnamese land registration system and determining the factors indispensable for its working. In doing this, I examine useful examples in other registration systems and the Swedish system in particular is studied for reasons which will be explained later in this chapter. The title of my research is thus “Two land registration systems – The land law of Việt Nam and of Sweden”. 1.2. Purpose This research has two aims. First, it defines the fundamental issues of any land registration system, highlights the benefits of an effective system and the requirements for it, as well as the factors which can be considered as its indispensable pillars. Legislators should pay attention to these issues when reforming the land registration system. Secondly, the research evaluates the current situation of the Vietnamese land registration system by way of an analysis of the legal provisions regulating it and their implementation. This will allow me, and perhaps other researchers, to make some recommendations and generally create a body of opinion in favour of the modernization of the land registration system. Through this second head, I hope that this research will be not only a useful and necessary material for public competent agencies in improving land law and establishing the land registration system in Vi ệt Nam, but also a valuable reference material for studying and teaching law. 6 1.3. Delimitation The scope of this research is limited to the regulations on the organization and operation of the land registration machinery; the regulations concerning the establishment of a registered information system and the factors which are indispensable to the land registration system. Although the Swedish land registration system is mainly focus on here, for some issues I also touch on the experiences of various other countries. There are, too, many no less important issues concerning land registration such as land disputes and effective land registration systems other than Sweden’s could be studied. However, due to time limitations, I neither can nor aspire to treat of all these matters in one thesis. Instead, I focus on my narrower scope with the hope that I will achieve the ends I have mentioned. 1.4. Method The method used in my research is a combination of legal dogmatics, comparison and the methodology of dialectical and historical materialism. Depending on the topic, each method will be used either in an appropriate combination with the others or by taking the key role in the study of a topic. Việt Nam understands legal dogmatics differently from the way it is understood in western countries. Legal dogmatics is a method that is used in legal research in many countries, but when translated into Vietnamese, its name sounds rather strange. This method tends to analyse, explain and appraise the provisions of a defined legal system with a view to making recommendations for their development or improvement. With this meaning made explicit, legal dogmatics is no novelty to Vietnamese researchers. It is really a rather general name covering the activities of analysis, evaluation, synthesis, and systematization, each of which is undertaken in 7 research and is more often called by its separate name. I shall however tend to combine the more specific methods under the one heading. 1.5. Materials Materials used in this research are both Vietnamese and English. They are found from many sources such as law, legal documents, cases, reports of public agencies, books, monographies, legal reviews and information on internet. 1.6. Outline Apart from this introductory chapter, my general conclusions, the annex and the list of reference materials, the contents of my research will be presented in my four main chapters. Chapter 2 INTRODUCTION TO LAND REGISTRATION 2.1. The need for a land registration system Land always plays an important role in all fields of social life, from the economy, and politics, to culture. It is one of the most precious natural resources and the highest valuable property. Good management of land and a sound system of land information are essential conditions for fostering economic development. So, creating an effective system of land registration is a necessary starting point for most countries. 2.2. The central concept and important elements of a system of land registration 2.2.1. The concept of a system of land registration Depending on the conditions and situations in each country, a land registration system can be designed in one of several forms, but mainly there are two very popular types, namely “land registration” and “cadastre”. Land registration tries to define the 8 rights and benefit relating to land and will include two types of registration which can be applied independently or linked to each other called: deed registration and title registration. The cadastre focuses on the geometric characteristics of real property units known as land parcels/units. The purpose of any kind of land registration is the protection of the right to own or use land and engage in other real estate transactions. Land registration is usually executed voluntarily by the land owner/user or other concerned parties. The primary purpose of the cadastre is setting up a system of land information to serve the tax collection purposes and only after that it is used in defining the legality of landholdings. This activity is implemented by the public authorities. As society became more developed, the volume of land transactions increased and the demand for information as well as the need to confirm and protect land ownership/land use rights become more urgent; the land registration system establishing land ownership was then established. It thus supplements and improves the information already contained in the cadastre. 2.2.2. Important elements of a system of land registration The key factors of any land unit will be covered including: (i) the geometry, relating to its physical features and border; (ii) the legality which specifies the rights and legal benefits attaching to it; (iii) the value which shows the profitability of the land; and (iv) the use which shows the way in which land is being exploited. The four above factors have an interactive relationship with each other and are indispensable to any effective land registration system. 2.3. The benefits of a system of land registration 9 2.3.1. For the land owner/user and related subjects For land owners/users and other concerned parties, their rights to and interests in land will be guaranteed. They can use them to generate capital for investment and improvement of their economic condition. 2.3.2. For the State For the government, this system can supply important information allowing it to set up development policies and serve other management activities such as land use planning, urban development, environmental protection and control of the development of the real estate market. In addition, the system can support the public taxation system and, incidentally yield a high income by way of its information services. 2.3.3. For society For society, a clear system of land information will limit disputes, stabilize society and guarantee the transparency and speed up the development of the real estate market. This will lead to the development of the economy and a decrease in poverty. 2.4. The requirements of a system of land registration In the light of the above, building an effective system of land registration is something almost all countries can expect to do or want to do. And the basic requirements of and key criteria for the construction of a system of land registration can now be listed. 2.4.1. Accuracy and security 2.4.2. Clarity and simplicity 2.4.3. Timeliness 2.4.4. Fairness and accessibility 2.4.5. Low cost or cheapness 10 2.4.6. Sustainability Chapter 3 THE SYSTEM OF LAND REGISTRATION IN SWEDEN – RESEARCH AND EVALUATION 3.1. Outline of the system of land registration in Sweden 3.1.1. The process of setting up the system of land registration The modern cadastre has deep roots in Sweden. It rests on old traditions and rules dating from the 13th century, the time of the oldest written codes. The first cadastral system was created in the 16th century. It was based on cadastral books established by the king for taxation purposes from 1530 onwards. The making of small scale cadastral maps was implemented throughout the 17th century and the early 18th century. Based on this, a title registration system was established in 1875. Between 1910 and 1930, the registration of all real estate in Sweden was completed. The system of land registration in Sweden has thus a long historical development and key reforms took place in an atmosphere of peace and stability. It inherits past successes and continues to improve in the direction of becoming as simple and effective a system as possible. 3.1.2. Important reforms to the system of land registration in Sweden 3.1.2.1. Land amalgamation to overcome land fragmentation It was an extensive programme of land consolidation. It was taken place in rural areas during the 18th and 19th centuries, and to an extent in urban ones in the first half of the 20th century. The clear results of the implementation of this reform were that the number of fragmented real estate units decreased significantly. The status of [...]... information After registration, any land information obtained is to be included in the cadastral file serving the public land administration 18 The cadastral file includes a cadastral database and copies of all land use right certificates The cadastral database which contains the data on the cadastral maps, the cadastral attribute data and the note is archived and managed in digital form at the provincial... REGISTRATION SYSTEMS – THE LAND LAW OF VI T NAM AND OF SWEDEN attempts to analyse the laws currently governing land registration in Vi t Nam and their application to the organisation and operation of the system An understanding of land registration and the factors needed in any registration and information system are what my research seeks to clarify Acknowledgement of these basic issues gives an overall... Land registration procedures 4.2.2.1 Registration unit Land must be legally registered and established as a fundamental unit called a land parcel/unit for registration A 17 parcel/unit of land is a portion of land whose boundary is determined on site or described in cadastral files It is formed when the State grants land use right to land users via the allocation of land, the leasing of land, and the. .. registration of land use right and assets attached to land was assigned to the agency of natural resources and environment and the land use right registration office just nearly two years ago As a result, the machinery of land registration has not been stable yet It is still in the process of reorganization 4.3.1.2 An unstable organization for the implementation of land registration activity With uncertain... is the Agency of Natural Resources and Environment and its Land Use Right Registration Offices 5.2.3 Reorganizing some activities relating to land registration 5.2.3.1 Promulgation of the Law on registration of land use rights and ownership of real property 1 Systematize the legal provisions relating to land/ real estate registration and land information management and supply 2 Promulgate a law on real... change the laws and reorganise the structure of the registration machinery and registration activities These changes are also needed to support the effective application of information technology to the land registration system of Vi t Nam After a comparison of the two land registration systems, acknowledging the existence of the advantages and disadvantages of the Vietnamese one, some recommendations... which cannot then become lawful properties in the real estate market A huge source of capital is, as a result, stagnant On another aspect, the land use right certificate plays a role as an important factor in the cadastral files and the cadastral database, so the failure to issue such certificates is also one of the reasons that make the land registration system unable to improve its information supply... LAND REGISTRATION SYSTEM 5.1 The comparison of land registration system between Vietnamese and Swedish legal frameworks From the comparison of the land registration system in Vi t Nam and Sweden based on area and population, land registration machinery, land information system and requirements of the land registration system, one can see that there are several major differences between the two systems... right are land users and the heads of the organizations assigned to manage certain particular kinds of land 4.2.2.3 General procedures for land registration Land registration shall be uniformly applied by the Office of Land Use Right Registration following the “one-stop” procedure The land user only has to submit applications and receive results at the one authority assigned, in most cases the Office of. .. registration 4.3.3.2 The land information system The technology used for registration and land change management has not been unified and several different management software systems are in use Technical equipment is out of date and inappropriate for the application of modern information technology and software to the management of land registration and the updating of changes Internal communications are . includes a cadastral database and copies of all land use right certificates. The cadastral database which contains the data on the cadastral maps, the cadastral attribute data and the note is archived. site or described in cadastral files. It is formed when the State grants land use right to land users via the allocation of land, the leasing of land, and the recognition of land use rights for. change in the land regime. However, these changes had not been registered or recorded. Land information reflected the actual situation of land by only covering land area, land use and landowner.