TWO LAND REGISTRATION SYSTEMS THE LAND LAW OF VIỆT NAM AND OF SWEDEN

FACULTY OF LAW LAW UNIVERSITY OF University of Lund Hồ Chí Minh Author ĐẶNG ANH QUÂN TWO LAND REGISTRATION SYSTEMS THE LAND LAW OF VIỆT NAM AND OF SWEDEN Field of study: Comparative Law Code: 62 38 60 01 THE DOCTORAL DISSERTATION OF LAW Swedish Supervisor Vietnamese Supervisor Prof. Hans-Heinrich Vogel Prof. Phạm Hữu Nghị 2011 2 TABLE OF CONTENTS ACKNOWLEDGEMENTS 6 LIST OF ABBREVIATIONS 7 CHAPTER 1. INTRODUCTION 8 1.1. Background 8 1.2. Purpose 13 1.3. Delimitation 14 1.4. Method 16 1.4.1. Legal dogmatics 17 1.4.2. Comparison 18 1.4.3. Methodology of dialectical and historical materialism 19 1.5. Materials 21 1.6. Outline 22 CHAPTER 2. INTRODUCTION TO LAND REGISTRATION 24 2.1. The need for a land registration system 24 2.2. The central concept and important elements of a system of land registration 27 2.2.1. The concept of a system of land registration 27 2.2.2. Important elements of a system of land registration 35 2.3. The benefits of a system of land registration 45 2.3.1. For the land owner/user and related subjects 47 2.3.2. For the State 48 2.3.3. For society 50 2.4. The requirements of a system of land registration 51 2.4.1. Accuracy and security 52 2.4.2. Clarity and simplicity 53 2.4.3. Timeliness 54 2.4.4. Fairness and accessibility 55 2.4.5. Low cost or cheapness 56 2.4.6. Sustainability 58 SUMMARY 59 CHAPTER 3. THE SYSTEM OF LAND REGISTRATION IN SWEDEN – RESEARCH AND EVALUATION 61 3 3.1. Outline of the system of land registration in Sweden 63 3.1.1. The process of setting up the system of land registration 63 3.1.2. Important reforms to the system of land registration in Sweden 68 3.1.2.1. Land amalgamation to overcome land fragmentation 68 3.1.2.2. Computerization and other new technologies in the system of land registration 70 3.1.2.3. Unification of the authority managing the system of land registration 75 3.2. The organization of the system of land registration in Sweden 76 3.2.1. The machinery and the staff 76 3.2.1.1. The machinery 76 3.2.1.2. The staff 80 3.2.2. The procedures for land registration 83 3.2.3. Model and content of registered land information in Sweden 90 3.3. Evaluation of the system of land registration in Sweden 95 SUMMARY 105 CHAPTER 4. THE LAND REGISTRATION SYSTEM AND ITS RELATION TO THE LAND LAW OF VIỆT NAM 107 4.1. Outline of land registration system in Việt Nam 108 4.1.1. Land registration in the former regimes in Việt Nam 109 4.1.1.1. In feudal periods 109 4.1.1.2. In the French colonial period 114 4.1.1.3. In the South of Việt Nam from 1954 to 1975 116 4.1.2. Land registration established by revolutionary power (since 1945 in the North and from 1975 in the whole) 118 4.1.2.1. Before 1980 118 4.1.2.2. From 1980 to 1988 120 4.1.2.3. From 1988 up to the present 121 4.2. Organizing the system of land registration 126 4.2.1. The machinery and the staff 126 4.2.1.1. The machinery 126 4.2.1.2. The staff 133 4.2.2. Land registration procedures 135 4 4.2.2.1. Registration unit 135 4.2.2.2. Circumstances for land use right registration and persons responsible to register land use right 137 4.2.2.3. General procedures for land registration 138 4.2.3. Construction and management of land information after land registration 145 4.2.3.1. Contents of land information 145 4.2.3.2. Land information management 151 4.2.3.3. Land information supply 154 4.3. Evaluation of the Vietnamese land registration system 156 4.3.1. The machinery 156 4.3.1.1. An agency with unstable unification 156 4.3.1.2. An unstable organization for the implementation of land registration activity 160 4.3.2. The staff 163 4.3.3. Land registration procedures and land information 177 4.3.3.1. General procedures for land registration 177 4.3.3.2. The land information system 181 4.4. Assessment of activities regarding land registration 187 4.4.1. Land use planning 187 4.4.2. Issue of land use right certificates 199 4.4.3. Determination of land prices 219 SUMMARY 231 CHAPTER 5. HOW VIỆT NAM CAN IMPROVE ITS LAND REGISTRATION SYSTEM BY STUDYING AND THEN COMPARING ITSELF TO THE SWEDISH LAND REGISTRATION SYSTEM 234 5.1. The comparison of land registration system between Vietnamese and Swedish legal frameworks 234 5.2. Some recommendations for improving the Vietnamese land registration system 243 5.2.1. A general recommendation 243 5.2.2. Some recommendations for improvement of the land registration system 251 5.2.2.1. For the administrative machinery 251 5 5.2.2.2. For the staff 256 5.2.2.3. Computerizing the land database and land information system 262 5.2.3. Reorganizing some activities relating to land registration 270 5.2.3.1. Promulgation of the Law on registration of land use rights and ownership of real property 270 5.2.3.2. Land use planning 273 5.2.3.3. Issue of land use right certificates 279 5.2.3.4. Determination of land price 282 CONCLUSION 287 APPENDIX A 294 APPENDIX B. 325 APPENDIX C 347 APPENDIX D 353 REFERENCES 361 6 ACKNOWLEDGEMENTS I would like to express my deepest gratitude to my supervisors, Professor Hans-Heinrich Vogel (Faculty of Law, Lund University, Sweden) and Professor Phạm Hữu Nghị (The Editorial Director of the State and Law Magazine, the Institute of State and Law, Việt Nam), who guided and instructed me throughout the course of this research. Their insightful instructions and comments helped me to narrow down and adjust the scope of my research at the beginning so that I could finish the research in an appropriate time. Particularly, I thank them for their patience and enthusiasm to me through our frequent meetings, discussions and their careful correction of each content of my research although both Professors were very busy. I always respect them for this. It is also one of motivities which promote me to do my research with all my best. I am especially grateful to SIDA (the Swedish International Development Agency), with its project “Strengthening Legal Education in Việt Nam”, which sponsored my research. I thank particularly Professor Mai Hồng Quỳ (the Principal of Law University of Hồ Chí Minh city), who gave me favourable conditions in my work so that I could focus on my research. I also cannot forget the kindness of all professors of the Faculty of Law, Lund University and all favourable conditions that my friends and I received from the Faculty for our research. Especially I express my gratitude to Professor Christina Moell, who always listened to me, understood and gave helpful advices to me when I felt vacillatory and wanted to stop my research. I greatly appreciate Professor Bengt Lundell, who was usually very busy, but always ready to help and resolve both my questions and suggestions in this program. Last but not least, I am sincerely grateful to my English teacher, Mr. Philip Horowitz, who checked and corrected carefully the language of my dissertation. I thank the Law Faculty of ChiengMai University for receiving me at your faculty as a visiting scholar and for your hospitality. I thank my colleagues for their share of work so that I could have enough time to do my research. I really appreciate all ! Needless to say, in spite of these above acknowlegements, I undertake responsibility for the content presented in this dissertation. I warmly welcome feedbacks in order to make my research improved. 2011 Đặng Anh Quân 7 LIST OF ABBREVIATIONS UN-ECE United Nations Economic Commission for Europe FIG International Federation of Surveyors SEMLA A joint program between Việt Nam and Sweden on Strenthening Environmental Management and Land Administration DONRE Department of Natural Resources and Environment PC People’s Committee LURRO Land Use Right Registration Office LURC Land Use Right Certificate 8 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 open-door policy was implemented by the Communist Party and the Vietnamese State at the end of 1986 in accordance with the Communist Party’s guidelines as laid down in the 6 th nationwide representatives’ assembly 1 . At this assembly, besides the recognition of mistakes and defects in earlier guidelines and policies, the Communist Party made an innovative change in its economic thinking. It established entirely new guidelines for developing a multi-sector commodity-based economy coupled with an extension of international cooperation. Some typical quotes are: “…regarding the economy with its multi- sector structure as a special characteristic of the transitional period”, “…The direction for renewing the mechanism of economic management was by way of the abolition of the system based on administrative subsidies”, “…needed to have policies on extending the exchange of goods and abolishing both the closed-door policy and the partition of the market”, “…enlarging and enhancing the effects of the international economy”, “…trying to establish economic relations with developed countries, international organizations and foreign individuals”, “…encouraging foreign investments…, need to have policies and methods in order to create favourable conditions for foreigners and overseas Vietnamese doing business in Việt Nam” 2 . This opened a period of renewal in Vietnamese history. On July 28, 1995, Việt Nam officially became the seventh member of the Association of South-East Asian Nations (ASEAN). At the beginning of March, 1996, Việt Nam participated in the Asia – Europe Meetings (ASEM) from their establishment. On November 14, 1998, Việt Nam took part in the Asia – Pacific Economic Cooperation (APEC). And on November 7 th , 2006, the General Council of the World Trade Organization (WTO) approved the Protocol (WT/ACC/VNM/48) on the Accession of Việt Nam by way of a unanimous vote 1 The 6 th nationwide representative’s assembly of the Communist Party took place between the 15th and the 18th, December, 1986. 2 Cited from the Documents of the 6 th nationwide representative’s assembly. 9 of all 149 members of WTO, finishing the eleven-year process of negotiation regarding Việt Nam’s accession. On November 29, 2006, the National Assembly of Việt Nam ratified the Protocol 3 . Living conditions have improved. The average per capita income increased from below 200 USD/person in 1990 to 1024 USD/person in 2008. The number of poor households (according to the national standard) decreased from over 60% in 1990 to 13,8% in 2008 4 . 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. Many changes are occurring, but the State has not properly regulated them yet. Within no more than fifteen years, the real estate market, especially the undeveloped land and residential housing markets, passed through three waves of “boom” (the price of land and residential housing increased continuously; many transactions were engaged in, pushing land prices higher and higher in a way that the State could not control) and relative “slump” (the real estate market became quiet even though land and residential housing prices did not decrease) : "boom" from the end of 1993 to 1996, from the end of 2000 to 2004 and from the end of 2006 to 2008; “slump” from 1997 to 1999, from the end of 2004 to 2006 and from 2008 up to the present, this last being mainly due to the world economic crisis. Although real estate transactions take place all over the country, most of them are illegal, thus creating an unofficial market that is outside the State’s control. This is for many reasons, including the following: the documentation 3 The Resolution No.71/2006/QH11 of the National Assembly dated November 29, 2006 on ratifying the Protocol of Việt Nam’s Accession to WTO. 4 The Government’s Periodic Report on the implementation of human rights in Việt Nam, Information Portal of the Vietnamese Government, dated April 24, 2009, http://www.chinhphu.vn/pls/portal/docs/PAGE/VIETNAM_GOVERNMENT_PORTAL/NEWS_REP/ HD_CUACHINHPHU/NAM2009/THANG04/BAO%20CAO%20NHAN%20QUYEN.HTM. Retrieved [20101018 20:11]. 10 relating to most real properties is lacking so dealings with them cannot be brought within the scope of lawful transactions (the simplest case being the lack of a certificate of land use right); the capacity of the competent authorities regarding land management remains weak and full of shortcomings, while there is also an overlap in competence between the various agencies which leads to evasion of responsibility and the relaxation of both discipline and management; land use planning – a management tool as well as a source of information that affects the development of the real estate market – is patchy and lacks both viability and stability; finally, although it is not publicly admitted, there are many opportunities for such negative phenomena as corruption and speculation in land. Moreover, financial policies regarding land prices and the financial obligations of land users have not shown yet their effects on regulating and supporting the development of the real estate market. In general, the development of the real estate market has not met yet the demands of society, especially the demand for residential homes for low-income people. All of the above has created a confused real property market in Việt Nam. Though it is close to its inception, this has already led to much inequality and to disorder in the life of the people and in economic development as a whole. 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 with the following fundamental ideas as key: “…Setting up a public, united and transparent mechanism and process of real estate registration in order to create conditions for cleaning up and giving legal safety to real estate transactions; on that basis, it can positively impact business and investment…” 5 ; 5 Cited from the Resolution No.16/2007/NQ-CP of the Government dated February 27, 2007 on promulgating action programs of the Government in order to implement the Resolution enacted by the 10 th Central Committee of the Communist Party at the fourth Assembly about some main guidelines [...]... the rights of land owners/users; boundaries of land parcels; buying, selling, leasing and managing the land, settling land disputes; (ii) Evaluation of land prices: determining the value of land and properties on land, collecting land taxes; (iii) Land use: managing the use of land through land use plans These factors are defined and controlled in many different ways in land management, but there is... bearing different names, both the land registration and the cadastre are activities of establishing, recording and disseminating land information In the land registration system, the focus is on recording rights relating to land and, generally, the legal aspects of land, while cadastral activities relate more to the geometric and geographical characteristics of land, land use and land value, reflecting... collected from land registration activities, and 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 The system of land registration is an important part of the overall system of land management, as it contains and provides... 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 Vi t Nam and of Sweden 1.2 Purpose Bearing in mind the demand for the modernization of the land registration and the real estate information system with a view to assisting the State... ownership of determined land units Based on that information, the system of land registration has the function of providing a stable support for the possession, use and disposition of land It guarantees ownership and other rights in a parcel of land and supports the dynamics of the land and credit markets With clear information about land ownership available, investors are more likely to feel safe when their... Austria, Germany, the Netherlands, Sweden and Switzerland, cadastral activity predated and influenced the development of land registration activity, then created a unified system of land registration In some countries, for example New Zealand and several Australian states, land registration was first developed and later improved with cadastral surveys and maps in the land register In other countries,... activity of the agencies responsible for land management – all of which is presented in the analysis of the organization and activities of the land registration machinery – the research will look at regulations on land use planning, the issue of land use right certificates and the State’s determination of land prices The results of these activities should prove to be an extremely valuable data source for the. .. modernization of the land information system 18 This method is of special importance in Chapter 5 where I compare the land registration systems of Vi t Nam and Sweden, the natural, economic and social conditions influencing the operation of the registration machinery and, finally, the establishment, management and supply of land information The experiences of certain other countries regarding the computerization... when researching the land registration system In Chapter 2, although two separate aspects of land registration activity are review, namely “cadastre” and “title registration , on the basis of the relationship between these activities and social demands (or the requirements of the State and the people) and the study of the development of each activity, I conclude that they constitute two unified activities... receives a land use right from the State Registration for any changes in a land use right shall be carried out when a person using a parcel of land has been issued with a certificate of land use right but there are changes in the land use such as transferring the land use right, changing land use purpose and changing the restrictions on the rights of the land user24 24 Stipulated by Article 38 of the Decree . chapter. The title of my research is thus Two land registration systems – The land law of Việt Nam and of Sweden . 1.2. Purpose Bearing in mind the demand for the modernization of the land registration. Evaluation of the system of land registration in Sweden 95 SUMMARY 105 CHAPTER 4. THE LAND REGISTRATION SYSTEM AND ITS RELATION TO THE LAND LAW OF VIỆT NAM 107 4.1. Outline of land registration. FACULTY OF LAW LAW UNIVERSITY OF University of Lund Hồ Chí Minh Author ĐẶNG ANH QUÂN TWO LAND REGISTRATION SYSTEMS THE LAND LAW OF VIỆT NAM AND OF SWEDEN Field of study: