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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN VAN HIEN TRANSFERRING LAND USE RIGHTS UNDER THE VIETNAMESE LAW Major: Economic Law Major code: 62 38 01 07 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW Hanoi - 2017 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisors: Assoc Prof Dr Tran Dinh Hao Dr Tran Quang Huy Reviewer 1: Assoc Prof Dr Nguyen Nhu Phat Reviewer 2: Assoc Prof Dr Dinh Van Thanh Reviewer 3: Dr Pham Thu Thuy The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences Time: ………… date………… month…………year 2017 The dissertation may be found at: - Vietnam National Library; - Graduate Academy of Social Sciences Library INTRODUCTION Importance of the research topic The right of transferring land use right is a fundamental right of land use rights of land users, it is also a right to be consistently implemented and accounts for a large proportion in the civil transactions of land in the context of the land is owned by the entire population and the State is the owner’s representative Therefore, the land users have no right to own land but they have only right to use land allocated by the State or transferring land use rights in the market In fact, this is a flexible mode of transferring land use rights in the market follow by rules of supply and demand, competition, price and agreements of subjects with little involvement of the State in the process of establishing and implementing the transaction Thus, transferring land use rights also contributes to accelerating the land into those who have need and ability to use land, enrich from the land, turn land into valuable assets in the market Thereby, it may be exploited tens of hectares of lands are deserted, not used because of the inability and not know how to exploit This is also one of the factors contributing to solve the situation of suspended planning in reality As the importance of land for socio-economic development of the country in general, the flexibility but also complexity of the relationship between transferring land use rights in particular, the land law, and other relevant laws that revised and supplemented and completed towards more reasonable, comprehensive manner through periods of time Especially, with a series of documents are recently promulgated including the 2013 land law, the 2014 real estate business, the 2015 civil code, the 2015 business law, the 2014 housing law, the 2014 investment law and so on, have created a comprehensive legal corridor for the subjects who participate in transaction of land use right transfer in the market There is a significant change in the basic contents such as the law is more extensive, the subjects’ rights participating into transferring land use rights in the market base on reasonable adjustment of conditions when approaching land; the legal basis to ensure that land use rights are operated in a safe, convenient market, preventing risks; the administrative procedures and intermediary mechanisms supporting the transaction are clear and accessible Financial institutions are adjusted towards suitable income from transferring land use rights This change has created the basic premise of transferring land use rights and operating in a safer and more complete legal environment whereby previous “underground” transactions have been made room for legitimate, transparent and public transactions As a result, the market for transferring land use rights in particular, and the real estate market in general, have gradually stabilized situation of “land bubble” and “erratic developments” of the real estate market have been pushed back It is also undeniable that, however, there have been complicated developments for transferring land use rights over time; the real estate transactions in general, and transferring land use rights in particular were transformed with more sophisticated mistakes, for example unlawful land use rights transfer transactions are conducted on the basis of agreement, “collusion comments” in the transfer of land use rights to cope with the law, tax evasion with great value, unauthorized profits from contracts for transferring investment projects in which the value is mainly land use rights Many land use rights transfer contracts have been implicitly or "hidden" in the form of authorization contracts, capital contribution contracts, capital transfer contracts and the right to execute investment projects and conditional civil transactions… this lead to market chaos, tax evasion and creating land bubble to profiteering This is also the main reason leading to the dispute over the transferring land use rights is increasing both quantity and complexity in nature From the legal standpoint, although a number of legal documents have been enacted and amended in various aspects of transferring land use rights, considering overall law on land use rights in general, and transaction of transferring land use rights in particular, there have been inconsistent, even contradictory and mutual exclusive by the existing law Given the conditions of the market economy and the trend of economic integration, there are still many barriers to accessing land through land use rights transfer mechanism for foreign investors, there are many obstacles for operating of land use rights transfer and many shortcomings by “application-approval mechanism” Therefore, the effectiveness of law’s adjustment is not very high, the state management of the real estate market in general, and transferring land use rights have not been achieved its purpose The land use rights are not really commodities flow in the market, the land has not really become flexible capital in a dynamic market economy From the problems mentioned above, we can see that, it is a necessary to further research works of theoretical and legal aspects, as well as the practical implementation of transferring land use rights in both present and future The research should be placed in a close and relevant relationship, and in accordance with the market economy and international economic integration Therefore, the author has conducted research topic “Transferring land use rights under the Vietnamese law” as his doctoral dissertation in law Research purpose and task 2.1 Research purpose The study aims to clarify the theoretical and practical issues of the law on transferring land use rights, the law’s adjustment in the transaction of land use rights transfer Thereby, it tries to find out the basic, reasonable and accurate reasons that affect transaction of land use rights transfer in the market in order to provide directions and comprehensive solutions to ensure the operation of transaction of land use rights transfer is available, transparent and publicly in the context of the people’s ownership of land, respecting the rules of the market and the trend of international integration 2.2 Research task To fulfill the purpose mentioned above, the study focuses on solving the following tasks: First, studying on theoretical issues on land use rights, transferring land use rights such as concepts, characteristics, roles of transferring land use rights Clarifying the objective necessity of the law on adjustment in the transaction of land use rights and the particularity of Vietnamese law on transaction of land use rights transfer through the law of countries in the world on this issue and factors governing the law on transferring land use rights Second, analyzing and evaluating the land use rights transfer in reality in Vietnam through key regulatory groups such as principles, conditions, subjects, objects, rights and obligations of each parties, and procedures for transferring land use rights The assessment of the status of law on land use rights transfer, is recognized by actual results of land use rights transfer over time The limitations, shortcomings and complex issues that arise from the actual transferring land use rights are well demonstrated through analysis of actual legal issues with cases of disputes, mistakes arising or actual problems Thereby, the study points out the root causes of the problems Third, on the basic of studying and evaluating the current status of law on transferring land use rights, as well as experiences of countries in the world, the dissertation proposes some recommendations and solutions to improve the law on transferring land use rights Research subject and limitation 3.1 Research subject The research subject of the dissertation is the law on transferring land use rights in Vietnam today The study seeks to explore the existing law’s regulations on transferring land use rights including its principles, subjects, objects, prices, forms, effects and factors governing the law on transferring land use rights 3.2 Limitation Research content: Land use rights are a special and significant property in socio-economic life Land use rights are extensively governed by specialized laws The dissertation focuses on the existing law on land and adjustment of transferring land use rights Other relevant laws involving civil law, business law, investment, real estate business law, notary public law and financial law related to land and so on, will be studied in a narrow scope by specific regulations related to the dissertation’s content Spartially: the dissertation examines transferring land use rights in the territory of Vietnam Time: the study focuses on the regulations of existing law on transferring land use rights and enforcement of law on transferring land use rights The land laws in the previous time (since the 1987 land law) is also approached and studied by the author for comparative purpose to clarify the process of formation and development of the law on transferring land use rights is a process of legal development, for low to high, from inappropriate to more appropriate Methodology and research method The study bases on theoretical basis of Marxism and Ho Chi Minh’s Thought on the State and law; method of dialectical materialism and historical materialism, discrete approach to specific thinking; legal basis of sociology; methods of analyzing, synthesizing, comparing, survey, statistics as follows: - Methodology of Marxist-Leninism, Ho Chi Minh's thought, method of dialectical materialism and historical materialism are scientific methodologies to be applied throughout the chapters of the dissertation to clarify research issues on land use rights and transferring land use rights in Vietnam - Methods of analyzing and synthesizing: these methods are utilized in all chapters, specifically, present phenomena, legal opinions about land use rights, transferring land use rights; thereby, it draws the attribution, characteristics and the provisions of the law on transferring land use rights (chapter 1, 2, 3) Thereby, it provides recommendations, assessments and solutions to improve the law and efficiency of law enforcement on transferring land use rights (chapter 4) - The law comparison method: this method is utilized to compare concepts, the provisions of law on land use rights, transferring land use rights with the concepts of sale and purchase other properties This method is mainly used in chapter and - Synthesizing and statistics methods: These methods are utilized in chapter and to evaluate situation of application of the law on transferring land use rights through statistics, cases, disputes arise at the Court or transaction is suspended in practice Then, it finds out the causes in order to provide direction and suitable solutions - Methods of analysis and prediction, discrete approach to specific thinking: these methods are utilized to evaluate and predict the trend of real estate market, the socio-economic development in the direction of sustainable development; then it provides solutions to improve the law on transferring land use rights in accordance with current and future situation These methods are used in chapter - Systematized method are utilized throughout the dissertation to present issues, research content in a logical and cohesive sequencing The new contributions of the dissertation The dissertation is an intensive research work on transferring land use rights under the Vietnamese law Therefore, compare with last research works, the dissertation has new contributions as follow: First: The dissertation seeks to analyze and clarify the concept of land use rights, thereby, it identifies characteristics of land use rights to distinguish the differences between “the land use rights” possessing and other possessing Clarifying the concept of transferring land use rights and its nature Second, the entire population ownership of land has dominated peculiarities related to transferring land use rights, the dissertation seeks to analyze and explain the peculiarities affect land use rights transfer At the same time, the dissertation explores the role of law on transferring land use rights, thereby it provides the requirements of the law on transferring land use rights that suitable with Vietnam’s conditions Third, compared with previous research work, the dissertation is an existing law research work on comprehensive transferring land use rights including law on land and other relevant laws; the dissertation addresses all land use rights transfer subjects and all land types rather than individual, local people or foreigner Then, it analyzes and assesses the provisions of Vietnamese law on transferring land use rights, and providing implications and orientation of improving the law on transferring land use rights in the period of integration and globalization Forth, the dissertation has pointed out the basic causes of limitations and obstacles which have been occurring in the real life as subjects have meet disputes in land use rights transfer contracts, it also reflects the practical aspects of land use rights transfer transaction Fifth, the study has pointed out orientations, requirements and proposed specific solutions to improve the law and effectiveness of enforcement law on land use rights transfer to ensure the land use rights transfer transactions are possible, inexpensive, transparent and publicize Theoretical and practical significance of the dissertation Theoretically: the dissertation can be seen as the new scientific and theoretical contributions for transferring land use rights, the law on transferring land use rights The dissertation contributes theoretically to studying on law, improving the law enforcement on transferring land use rights in Vietnam The dissertation results can be seen as useful reference for researchers, teachers in their work Practically: the dissertation results can be seen as basis for relevant agencies to issue, amend and enforce the law on transferring land use rights In addition, it is a document that can be used in court proceedings for disputes over the transferring land use rights The dissertation structure Besides the introduction, conclusion, recommendation, references, the content of the dissertation including chapters: Chapter 1: Literature review Chapter 2: Theoretical issues on transferring land use rights and the law on transferring land use rights Chapter 3: Situation of law and the law enforcement on transferring land use rights in Vietnam today Chapter 4: Directions, requirements and solutions to improve the law and effectiveness of law enforcement on transferring land use rights in Vietnam Chapter LITERATURE REVIEW 1.1 Overview of research situation 1.1.1 Foreign research works Regulations and maintenance of private ownership of land in countries, the land is a property, it is owned and controlled by the owner Therefore, the land owner has right to buy and sell a piece of land in accordance with his/her wish without being subordinated by other subjects The state’s dominance is only procedural control to collect taxes and considering the impact of transaction to the State’s overall plan of land In contrast, the countries maintain the state ownership of land or the whole people ownership of land in which the state plays a representative role, the issue is completely different These differences show that studying on land ownership is important in identifying the rationale, origins of transferring transaction or salepurchase land, the similarities and differences between the law on adjustment of transferring land use rights and the law on purchasing land in countries with different ownership regimes These research works as follows: Ingram, Gregory K, and Yu-Hung Hong (May 2009), “Property Rights and Land Policies” PhilipWalter, Adrianavis, JamesHarris, B.McGuire (Oct 2000), “Claims to the Possession of Land” Ainsworth, Fern, “Private land claims, Illinois, Indiana, Michigan and Wisconsin” Steven W Bender, Celeste M Hammond, Michael T Madison, Robert M Zinman (2012), “Modern Real Estate and Land Transfer” Vincent Renard (2000), “Land Markets and Transfer of development rights: some examples in France, Italy and United States” Wen Yan, K.K Klein (Aug 2013), “Transfer Land Use Rights in China: Results from a Survey of Rural” “Legal environment of business” –American of Kanas University 1988 Studying on the regulations on land ownership and the right to conduct land transactions in countries around the world, we can draw the following legal premises: First, with private ownership of land, the land in trading market is particular piece of land that has been identified its owner The transaction form is land sale-purchase contracts or contract of transferring land ownership rights rather than transferring land use rights This shows the difference of content and form of land use right transactions in Vietnam Second, although the relationship between purchase land or transferring land ownership rights and self-determination of each owner of land, the law of most countries requires the owner must adhere the processes, procedures controlled by the state agencies and strictly comply with land use planning of the State This is a legal premise for the author to analyze, assess and evaluate the system of administrative procedures on transferring land use rights in Vietnam Third, recognizing and permitting free transferring land ownership, but the law of all countries stipulate tax obligation for the state The tax rate and the form of collecting tax depend on each country This is a legal premise for the author to approach and comment on the financial policies of transferring land use rights in Vietnam 1.1.2 Domestic research works In Vietnam, there have been a number of research works which directly or indirectly related to transfer land use rights that have been published in scientific journals, articles, master theses, doctoral dissertations and books have been published or uploaded on websites… 1.1.2.1 The theoretical research works on land use rights, transferring land use rights and the law on transferring land use rights In recent years, there have been a number of the theoretical research works on land use rights, transferring land use rights and the law on transferring land use rights as follow: Nguyen Ngoc Dien (1999), “studying on property in the Vietnamese civil law” Youth Publishing House, Ho Chi Minh city; Le Xuan Ba (2003), “The formation and development of the real estate market in the Doi Moi period in Vietnam”, Scientific and Technical Publishing House; “Legal dictionary”, Encyclopedia Publishing House and Judiciary Publishing House 2006; Nguyen Thi Nga (2003), “Building and improving the law on land use rights in Vietnam”, Master thesis in law; Nguyen Thi Thu Thuy (2004), “Some issues of land use rights under the Vietnamese law”, Master thesis in law; Luong Khai An (2006), “The right to transfer land use rights in the real estate market”, Master thesis in law; Nguyen Thi Hong Nhung (2012), “The law on transferring land use rights in the real estate business”, Doctoral dissertation in law; Nguyen Quang Tuyen (2003), “Legal status of land users in civil and economic transactions”, Doctoral dissertation in law 1.1.3.2 The theoretical issues will be inherited and developed by this dissertation From previous research works, the author has found some important viewpoints that previous scholars have studied and approached in various aspects Thus the author continues to inherit and develop, and examine research questions in the ongoing movement and development of the market economy and international integration The basic arguments are as follow: - Even though in countries maintain private ownership, state ownership or the whole people ownership of land, the land use right also arises from ownership Therefore, this right will depend on the owner; - Land or land use rights of each country are not only individual’s property but also important property of each country, national sovereignty and internal resources for the development of the country - Land or land use rights are great valuable property for individuals and businesses, therefore there should be a clear, transparent of property rights and transferring it safely and effectively - Land sale-purchase in countries recognize private ownership or transferring land use rights in countries recognize the state ownership or the entire population ownership while the state as owner, if the transaction is successful, safe and effective, it will have great benefits for all parties However, profits always come with risks; contradictions, disputes and disagreements are also take place in reality - From analysis mentioned above, the author perceives that it is necessary to place research points in the context of current and future development in Vietnam Therefore, the characteristics of ownership, land use rights in Vietnam need to be paid attention in the context of market economy, socialist orientation and international economic integration 1.1.4 The issues that the study needs to examine 1.1.4.1 Expected research of the author With the dissertation titled “Transferring land use rights under the Vietnamese law”, the author wishes to continue studying the following issues: - On the basis of theoretical issues on land use rights, transferring land use rights and the law on transferring land use rights have been analyzed and examined by previous research works, the author will inherit to comment and analyze to further clarify the concepts, characteristics of land use rights, transferring land use rights and the law on transferring 11 land use rights At the same time, the study will point out new characteristics on the issues, and analyzing and clarifying the nature of transferring land use rights - Analyzing and evaluating situation of law and the law enforcement on transferring land use rights in a comprehensive and closely interrelated relationship between the 2013 land law, the 2014 real estate business law, the 2015 Civil Code, the 2014 business law and other relevant legal documents, thereby the study points out limitations and shortcomings of the existing law on transferring land use rights The study also analyzes factors affecting the law on transferring land use rights - From the law’s limitations and shortcomings, and the law enforcement on transferring land use rights, the dissertation proposes solutions to improve the law on transferring land use rights to meet requirements of Vietnam’s socio-economic development in the international economic integration 1.1.4.2 New contributions of the dissertation * Theoretically * Practically 1.2 Theoretical basis for the study 1.2.1 Theoretical basis The study utilizes some following theories: - Marxist-Leninist doctrine and Ho Chi Minh's Thought on the state and law - The Party and State’s perspectives on socio-economic development strategies; building and improving the Vietnamese legal system; building and developing the real estate market - The theories mentioned above are used by the author to argue theoretical issues on transferring land use rights The Party’s perspective on the development of market economy, building the real estate market and improving the Vietnamese legal system and so on, for the study argues characteristics of land use rights and transferring land use rights in the context of land owned by the whole people ownership Thereby, the study seeks to clarify dominant factors affecting the law on transferring land use rights And then it proposes solutions to improve the law on transferring land use rights - Information theory - Transparency theory - The theory of rights 12 - The theory of contract These theories have important value, as a premise for the author evaluating the current status of transferring land use rights 1.2.2 Research questions 1.2.3 Research hypothesis Summary of chapter Chapter THEORETICAL ISSUES ON TRANSFERRING LAND USE RIGHTS AND THE LAW ON TRANSFERRING LAND USE RIGHTS 2.1 Theoretical issues on transferring land use rights 2.1.1 Land use rights People often refer to three types of property ownership including possession, use and disposition of property If we consider land use rights in relations with ownership, it will be three types of owner including land possession, land use rights and land disposed rights In countries maintain private ownership of land, the land use right is one of three types of ownership The landlord is also the land owner While exploiting land use rights, they also have right of disposition toward land use rights such as exploitation of land, use or transfer land to others by themselves through sale-purchase, donate, lease that land and so on However, in Vietnam, land belongs to the entire population ownership while State is representative owner, land use rights are entirely different Thus, land use rights depend on the State as representative owner and it has a close and inseparable relationship with the land ownership This is clearly expressed through the State's dominant powers over the entire land The State determines land use purpose by planning, determining land prices and financial revenues from land to decide land allocation, lease, conversion of land use purpose and collecting land From theoretical issues discussed above, we can draw the concept of land use rights as follow: Land use rights are specific powers that a land user who permitted performing his/her land ownership including the right to exploit, enjoy yields, land profits, the right to transfer land use right via legal transactions The land use right is a property right enjoyed by land users and protected by law 2.1.2 Transferring land use rights 2.1.2.1 Concept and characteristics of land use right transfer 13 Concept of land use right transfer Transferring land use rights is the parties’ agreement to arise a legal relationship in which one side has obligation to transfer of land use rights to the other as a property ownership transfer, the other side has obligation to pay the amount of money equivalent to the value of land use rights that determined by the parties’ agreement with a certain land area Characteristics of land use right transfer First, parties get involve the transfer of land use rights must meet certain conditions stipulated by the State; Second, the object of transferring land use rights is land use rights rather than land itself which is not owned by transferor but it is owned by a representative of the State; Third, the State does not only stipulate conditions for the transferor as well as each type of land but also stipulate transferor and his partner must fulfill their financial obligations in accordance with the law; Fourth, the law does not only strictly regulate for subject, transferor but also regulate the process and procedures of transferring land use rights; Fifth, the land use right transfer take place in regional areas; Sixth, the land use right transfer is affected by the nature of the real estate market; Seventh, the land use right transfer is influenced by the Party and State’s policies; Eighth, the land use right transfer is often associated with salepurchase other properties on the land; Ninth, the land use right transfer is affected by the international economic integration 2.1.2.2 The role of transferring land use rights to socio-economic life First, through the transfer of land use rights, the land resources will be appropriately allocated and used to meet the needs of land use, thereby, facilitating the exploitation and use of land effectively Second, the land use right transfer creates capital and motivation to promote the development of other economic sectors Third, the land use right transfer market is the place where reproductive factors of production for transferors Fourth, the land use right transfer will bring a large source of revenue for the State budget, thereby improving the management, inspection and supervision of land use throughout the country 14 Fifth, the land use right transfer contraction is the legal basis for the healthy development of land use right transfer market, thereby securing the rights and legitimate interests of the parties Thus, the role of land use right transfer is very important for socioeconomic life However, this role can only be promoted effectively when the land use right transfer market is governed by the law, consistent with objective reality, ensuring transparency, clarity and equality among parties who involve transferring land use rights 2.2 The law on transferring land use rights 2.2.1 Concept and characteristics of the law on transferring land use rights 2.2.1.1 Concept of the law on transferring land use rights The law is founded and existed in societies It is specific to socioeconomic forms, as a tool to maintain and protect the interest of the ruling class Together with the State, the law plays an important role in the development of a society The general law is defined as follows: “The law is a system of compulsory rules issued or recognized by the state to govern social relations in accordance with specific goals and directions” 2.2.1.2 Characteristics of the law on transferring land use rights First of all, the law on transferring land use rights has the characteristics of general law It is different from the rules of moral, religious or customs in the class, unity and coherence Besides the general characteristics, the law on transferring land use rights also has specific characteristics to distinguish the law on transferring land use rights with other property transfer First, the law on land use right transfer in Vietnam is characteristic of the entire population ownership of land while the state as owner representatives and unified management Second, the law on land use right transfer is characteristics of historical, social and selective inheritance Third, the law on land use right transfer is characteristics of uniform in the whole country and is governed by many laws Fourth, the law on land use right transfer has a special object 2.2.2 Factors affecting the law on land use right transfer The law is built by the state but it is also governed by other factors in a civil society In Vietnam, the law on land use right transfer is governed by the Communist Party and State’s policies; socio-cultural factors; 15 environment factor; habits, customs and international economic integration These factors are as follows: 2.2.2.1 The State and Communist Party of Vietnam’s policies 2.2.2.2 Economic management mechanism 2.2.2.3 Factors of culture, life and nationality 2.2.2.4 Habits, religious beliefs and customs 2.2.2.5 Environment and sustainable development factors 2.2.2.6 International economic integration factor 2.2.3 The legal structure regulating relations of land use right transfer 2.2.3.1 Principles of land use right transfer 2.2.3.2 Subject of land use right transfer 2.2.3.3 Object of land use right transfer 2.2.3.4 The basic agreements of land use right transfer transactions 2.2.3.5 Form and effect of land use right transfer transactions 2.2.3.6 The order and procedures for conducting land use right transfer transactions Summary of chapter After studying the theoretical issues on transferring land use rights and the law on transferring land use rights, the author drawn the following conclusion In chapter 1, the study provides the concept and characteristics of land use rights; transferring land use rights as well as the law on transferring land use rights Land use rights are specific powers that a land user who permitted performing his/her land ownership including the right to exploit, enjoy yields, land profits, the right to transfer land use right via legal transactions From this concept, the study explores characteristics and roles of transferring land use rights From three aspects of history, society and subjects, the law on transferring land use rights is understood as the compulsory rules issued by the State aims at regulating the relations of land use right transfer in accordance with objectives and specific directions that benefits for land users Besides general characteristics of the law, the law on transferring land use rights has its own characteristics to distinguish the law on other property transfer In addition, the study also provides factors affecting the law on land use right transfer including (the Communist Party and State’s policies; socio-cultural factors; environment factor; habits, customs and international economic integration) and the legal structure including 16 (principles, subjects, objects, the basic agreements, form and effect, the order and procedures for conducting land use right transfer transactions) Land use right transfer in general, and the law on transferring land use rights are the first important issue for studying on “transferring land use rights under the Vietnamese law” This chapter is also foundation for studying on the situation of law and practice of law enforcement on transferring land use rights in Vietnam today Chapter SITUATION OF LAW AND THE LAW ENFORCEMENT ON TRANSFERRING LAND USE RIGHTS IN VIETNAM TODAY 3.1 Situation of law on transferring land use rights in Vietnam 3.1.1 Principles for transferring land use rights Given the nature of civil transaction, land use right transfer must comply general principles of the Civil Code Based on the provisions, land use right transfer can be generalized on the following principles: First, to ensure equal rights, voluntary transaction among parties in the relations of land use right transfer Second, to ensure proper implementation the provisions of the land law and relevant provisions of the law on transferring land use rights Third, to ensure proper and effect land use to protect environment and not affect the legitimate interests of the surrounding land users 3.1.2 Land use right transferors and transferees 3.1.2.1 Land use right transferors The land use right transferors must meet two conditions: first, they are landlords, second, according to the law’s provisions, the landlords have right to transfer of land use rights The scope of landlords is stipulated by Article of the 1993 Land Law on land users, in which, there are three subjects who are not allowed transferring land use rights including the people’s community, religious institutions and foreign organizations with diplomatic functions Subjects who are allowed transferring land use rights if they can meet the law regulations: (1) Domestic organizations; (2) Individuals; (3) Households; (4) Overseas Vietnamese; (5) Foreign-invested enterprises 3.1.2.2 Land use right transferees 17 According to Article 169 of the 2013 Land Law, transferees including: (1) Domestic transferees such as economic organizations, households and individuals (2) Foreign transferees including Vietnamese residing overseas 3.1.3 Subjects of transferring land use rights Based on purpose of use, Vietnam’s land is classified into three categories: agricultural land, non-agricultural land and unused land Unless the unused land, agricultural land and non-agricultural land may be transferred As mentioned in section 3.1.2, there are areas of land are not allowed transferring or transferring rights are restricted due to certain constraints of transferors and transferees including land used by religious institutions, land in protection forest areas, special-use forests, agricultural land used by population communities In addition, the land use right transferees must meet four conditions stipulated by Article 188 of the 2013 Land Law: (1) Having a certificate, except cases stipulated by Article 186 of the 2013 Land Law (2) Land without dispute (3) Land use right has not been distrained to ensure the enforcement of the judgment (4) In the period of land use 3.1.4 Basic agreements in land use right transfer 3.1.4.1 Transfer price The land law distinguishes two types of prices: First, the parties often declare the transfer price in the contract lower than the actual transaction price Second, the transfer price may be one that is maintained during transaction process or it may be a volatility prices Third, identifying the transfer price in case of different areas and actual measurement data 3.1.4.2 Payment forms Payment forms are understood as the way that parties pay together According to Article 433 of the 2015 Civil Code, payment forms are determined by the agreement in accordance with the existing law If there is no agreement or the agreement is not clear, payment forms depend on custom at the place and time of signing the contract The 2013 Land Law does not have separate regulations on payment forms In fact, the payment terms usually include the following contents: 18 (1) Payment means (2) Payment time (3) Payment under the deposit contract and transferring contract 3.1.4.3 The parties’ rights and obligations Current Land Law and Civil Code not have provisions on the rights and obligations of the parties in the land use right transfer Despite of the 2014 real estate business law’s regulations, the scope of transaction under the law is narrow in the field of real estate business 3.1.4.4 Financial obligation that the parties must implement Financial obligation is one of the content related to the right and obligation of the parties However, this is a great content, transferors and transferees not implement this obligation together, but with the state, so the study tries to examine separately so that it can be analyzed and clarified (1) Income tax from land use right transfer (2) Registration fees (3) Cadastral fees (4) Notarization fees Value of property/contract, Fee rate (VND/case) transaction Under VND 50 million 50,000 From VND 100 million to 100,000 billion 0.1% of the value of property or From VND billion to billion contract or transaction VND million + 0.06% of the value From VND billion to billion of property or contract or transaction over billion VND 2.2 billion + 0.04% of the value From VND billion to 10 of property or contract or transaction billion over billion VND 5.2 billion + 0.03% of the value Over 10 billion of property or contract or transaction over 10 billion (maximum fee not exceeding VND 10 million per case) In addition, in the process of implement contract will arise measurement fees (the rate is set by the Provincial People’s Committee) or other expenses involving travel expenses, remuneration and so on will be determined by the parties’ agreement 19 3.1.4.5 Measures to deal with contract violations 3.1.4.6 Dispute resolution 3.1.5 Form and effect of land use right transactions 3.1.5.1 Form of land use right transfer contract (1) The contract must be in writing (2) Notarization and authentication of land use right transfer contract 3.1.5.2 Effect of land use right transfer contract The Item of Article 188 of the 2013 Land Law stipulated: “The conversion, transfer, lease, sublease, inheritance, donation, mortgage of land use rights, capital contribution by land use rights must register at the land registration agencies and it took effect since registration in the cadastral book” This regulation is very meaningful in the state management 3.1.6 Order and procedures of implementation of land use right transfer After signing the contract, the parties must register at the competent state agencies as one of the obligatory obligations were stipulated by Article 170 of the 2013 Land Law The procedures are as follows: 3.1.6.1 Documents 3.1.6.2 Receiving and executing agency of transactions 3.1.6.3 Term of settlement 3.2 The law enforcement on transferring land use right in reality 3.2.1 Situation of transferring land use rights in Vietnam over past years In recent years, the land use right transfer has been taking place excitingly in every province, especially in the big cities and sub-urban areas Since the Resolution No 19- NQ/Taiwan of the Central Committee of Party dated October 31, 2012 on the renewal of policies and laws on land; together with the 2013 Land Law, the 2014 real estate business law, the 2015 Civil Code, the land use right transfer market has been taking place excitingly (both in the primary and secondary market) The land use right transfer transactions have increased quantity and transfer value, many transactions have taken place quickly and the successfully 3.2.2 Limitations and problems arising from implementation of the law on transferring land use rights 3.2.2.1 On subjects participate in the transaction (1) Household (2) Transferor who has not right of transfer 20 3.2.2.2 General terms of transfer Article 188 of the 2013 Land Law set out four basic conditions for civil transactions of land use rights Besides these conditions, in fact, there are the following conditions: (1) Having certificate (2) Land without dispute (3) Land use right is not disturbed to ensure the execution of the judgment 3.2.2.3 On the transferee of the contract 3.2.2.4 The 2015 Civil Code is still inadequate and new legal gap 3.2.2.5 The 2013 Land Law’s shortcomings 3.2.2.6 Other limitations and shortcomings 3.2.3 Causes of limitations and obstacles The land use right disputes have increased over past years This situation comes from the following basic causes: 3.2.3.1 Objective reasons (1) Big legal system and the change of regulations over years (2) The impact of socio-economic conditions (3) Incomplete legislation 3.2.3.2 Subjective reasons (1) The people’s legal awareness is low (2) The people’s subjective consciousness while participating in transactions (3) The implement of the law has limitations and shortcomings Summary of chapter This chapter has examined the law situation and the law enforcement related to land use right transfer contract Overall, the existing law has a number of regulations, adjusting issues arising from the practice and ensuring the highest legal for parties This chapter has also clarified the provisions of the Land Law, the Civil Code, the real estate business law involving subjects of transactions, form of transactions, order and procedures of transactions and so on In the law enforcement section, in order to support argument, it explores the current shortcomings and cases To evaluate and propose solutions, the study has also clarified objective and subjective reasons of 21 shortcomings, especially the subjective reasons from both the state and people will be addressed in chapter Chapter DIRECTIONS, REQUIREMENTS AND SOLUTIONS TO IMPROVE THE LAW AND EFFECTIVENESS OF LAW ENFORCEMENT ON TRANSFERRING LAND USE RIGHTS IN VIETNAM 4.1 Directions and requirements to improve the law on transferring land use rights 4.1.1 Directions to improve the law and effectiveness of law enforcement on transferring land use rights Improving the legal system is one of the basic requirements of building the socialist rule-of-law state of Vietnam On the basis of identifying the limitations of existing law, the need to amend the provisions of the law, but how to amend, it is necessary to adhere directions as a “guideline” for the development and improvement of the law, as well as strengthening the enforcement of the law First, the development and improvement of the law on transferring land use rights must be in line with the State and Party’s policies Second, the development and improvement of the law on transferring land use rights must be based on the requirements of objective reality Third, the development and improvement of the law aim at encouraging the development of civilian market and ensuring the entire population ownership of land while the state as owner representative 4.1.2 Requirements to improve the law and effectiveness of law enforcement on transferring land use rights (1) Ensuring transparency and openness of the transferring land use rights in the real estate market to promote the land use right transfer (2) Ensuring uniformity and consistency among legal documents on transferring land use rights (3) The improvement of the law on land use rights to develop the real estate market must ensure interests and rights of the parties (4) Ensuring convenience, simplicity and low costs of transactions mean the registration of land use rights is quick, convenient and simplifying the collection of taxes and registration fees 4.2 Solutions to improve the law and effectiveness of law enforcement on transferring land use rights 4.2.1 Solutions to improve the law (1) The transaction subject as household 22 (2) Land without dispute (3) Land use right is not disturbed to ensure the execution of the judgment (4) The land use right transfer contract content (5) Recognition of actual contracts (6) The right to postpone implement obligations (7) Need to identify misuse of land (8) Need to consider and amend Item of Article 210 of the 2013 Land Law (9) Need to have specific regulations aimed at limiting individuals and organizations to take advantage of the legal validity of notarized documents to sign the land use right transfer contract fraudulently to implement latent transactions or take advantage of the situation to implement illegal acts 4.2.2 Solutions to improve the effectiveness of law enforcement on transferring land use rights 4.2.2.1 For the state agencies (1) Developing a simple, open and accessible land information system (2) Further reform of administrative procedures on land (3) To promote one’s ability 4.2.2.2 For the people who are parties of transaction 4.2.2.3 For the intermediary institutions and the market support Summary of chapter This chapter has focused on proposing solutions to improve the law as well as measures to promote one’s ability and effectiveness of law enforcement This chapter’s contents include directions, requirements to improve the law and specific solutions for both development and enforcement of the law Recommendations were provided on the basis of contents which have been analyzed and evaluated in the dissertation, from theory to practice of law enforcement It has also clarified the current shortcomings in order to resolve the practical issues 23 CONCLUSION Transferring land use rights is an indispensable, objective need of a market economy in terms of land is owned by the entire population in our country The nature of land use rights transfer is that the transfer of land use rights from legitimate transferor to transferee in accordance with an order, procedure and conditions stipulated by the law Thus, the transferor has obligation of his legitimate land use right transfer to transferee Conversely, the transferee has obligation to pay for the transferor In addition, the transferor must pay tax fee of land use right transfer, the transferee must pay registration fee and land administration fee stipulated by the law The law on transferring land use rights is the large law stipulated by various legal disciplines in which the 2013 Land Law and its documents are core ones Besides, a number of relevant documents including the Civil Code, Business Law, Investment Law, Real Estate Business Law, Housing Law, Notary Law, Tax Law and fees have been adjusted at various aspects related to land use rights transfer Basically, this is a relatively comprehensive legal system for transferring land use right transactions However, if there is only the legal system regulating the land use right transfer, it will be not enough and transactions cannot operate smoothly and less risky It requires a consistent, non-overlapping legal system The law of adjustment of transferring land use right also requires consistent with the real life In addition, it is necessary to have mechanisms to ensure that land use right transfer transactions are effectively implemented Thus, the state and intermediary service organization’s participation are also one of the important bridges to implement these transactions in reality The shortcomings, difficulties, disputes and so on in the process of signing and implementing land use right transfer over years have actually shown the effectiveness of law enforcement on transferring land use rights not achieved as the people expected To improve the mechanism, policies and laws on transferring land use rights to minimize shortcomings, conflicts and overlapping provisions of the law on transferring land use rights, ensuring these transactions are operated in a safe and effect legal environment to reduce risks and disputes of land use rights transfer in reality, is an urgent matter in the near future 24 The author’s published-papers list related to the dissertation Nguyen Van Hien (2016), Situation of law on transferring land use rights in Vietnam today, Review of Law and Democracy, 21 July 2017 Nguyen Van Hien (2016), Improving law framework on transferring land use rights, Review of Law and Democracy, 8(293), pp 20-25 Nguyen Van Hien (2016), The nature of land use right transfer contract under the existing law, Review of Law and Democracy, 9(294), pp 25-28 Nguyen Van Hien (2016), On the land use rights and conditions for transferring land use rights, Review of Humanities and Social Sciences, 9(40), pp 21-27 25 ... the law on transferring land use rights - Information theory - Transparency theory - The theory of rights 12 - The theory of contract These theories have important value, as a premise for the author... requirements of Vietnam’s socio-economic development in the international economic integration 1.1.4.2 New contributions of the dissertation * Theoretically * Practically 1.2 Theoretical basis... building and improving the Vietnamese legal system; building and developing the real estate market - The theories mentioned above are used by the author to argue theoretical issues on transferring