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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN THI HUONG THE RIGHT TO ADJACENT IMMOVABLE PROPERTY UNDER VIETNAM’S CURRENT LAW Major : Economic Law Major Code: 38 01 07 ABSTRACT SUMMARY THESIS HANOI – 2019 The thesis was completed at: Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Science Instructor: Assoc Prof Dr Ha Thi Mai Hien Reviewer 1: Prof Dr nguyen thi mo Reviewer 2: Assoc Prof Dr Vu Thi Lan Anh Reviewer 3: Dr Dang Vu Huan The doctoral thesis defense will take place before the Academy-level thesis council in the Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, no 477 Nguyen Trai, Thanh Xuan, Hanoi On………………., day….…month……year 20 The thesis is available at: - The library of the Graduate Academy of Social Sciences - National Library of Vietnam INTRODUCTION Rationale Along with the introduction of many new legal documents recently related to immovable property such as Land Law, Housing Law, Construction Law The concepts of establisment and ownership of immovable property, the rights of the owner to the immovable property and especially the rights to adjacent immovable property have undergone major changes Accordingly, previous scientific perspectives and research results are no longer relevant or lacking broader trends in recognizing the rights to adjacent immovable property in accordance with the current provisions of law In particular, the study of adjacent immovable property rights is placed in the relationship between the issues of general principles in the Civil Code with specific regulations, adjusted for each specific type of immovable property in specific laws such as Land Law, Housing Law, Construction Law To find the most general, most appropriate and accurate principles of the rights to adjacent immovable property is not an easy task, especially in the context of the above-mentioned specialized laws on establishing ownership rights for each type of immovable property is extremely different, existing in various different forms and the ownership and usage of immovable property vary widely, intertwining with multiple entities possession and use of property These are barriers to recognize the establishment of rights for adjacent immovable property For this situation, previous published scientific studies related to the right to adjacent immovable property were modest and narrow, unable to identify all related issues and their impacts, affecting the establishment of immovable property rights in a comprehensive, complete and thorough manner Therefore, a doctoral study on “Right to adjacent immovable property under Vietnam’s current law” is necessary and objectively indispensable in both theoretical and legal aspects and the enforcement of the rights to adjacent immovable property Research purpose The purpose of the thesis research is to clarify the theoretical and practical issues of rights to adjacent immovable property From there, propose orientations and solutions to the law on the rights to adjacent immovable property in Vietnam today Objective and scope of the study Research objective: the system of perspectives, guidelines and policies of the Party and the State; legal provisions on the Rights to adjacent immovable property in Vietnam and other countries in the world; cases of actual settlement of the Rights to adjacent immovable property; reports and summaries of law enforcement situation related to the Rights to adjacent immovable property in Vietnam Scope of research: As a doctoral thesis in law, the thesis studies on the Rights to adjacent immovable property from the perspective of legal science The dissertation delves into four groups of the most basic legal provisions related to the Rights to adjacent immovable property in the relationship between civil law and other specialized legal documents such as: Land Law, Construction Law, Housing Law These are: The group of legal provisions on the basis for establishing and terminating the Right to adjacent immovable property; group of provisions on the common cases of the Rights adjacent immovable property; the group of laws that regulates the rights to adjacent immovable property and the group of laws to protect the rights to adjacent immovable property Dimension of the research: The thesis only focuses on research in Vietnam Also, in order to compare the legal basis and practice of enforcing the law on the Rights to adjacent immovable property in Vietnam, the thesis will explore the provisions of international law and previous legal documents of Vietnam related to the regulation of adjacent immovable property rights for historical evaluation and comparison Methodology and research methods The thesis is researched based on the methodology of Marxism-Leninism, the dialectical materialism of the relationship between phenomena and things, between people and society; and the Party and State view on building a free, democratic, equitable society and ensuring human rights Besides, the thesis has mainly used the following basic scientific research methods: - Synthesis method: The synthesis method is mainly used in the thesis from chapter to chapter Through various documents gathered, synthesized different ideas to solve theoretical problems to identify the nature of the Rights to adjacent immovable property and provide the legal structure of Rights to adjacent immovable property Chapter of the thesis uses synthesis method to provide a comprehensive, multidimensional picture of the current status of the law on the rights to adjacent immovable property in Vietnam today - Analytical method: This method is used to analyze, explain and systematize specific provisions of the studied legal systems The purpose of using this method is to provide a comprehensive, complete view of the regulations relating to the Rights to adjacent immovable property - Comparative method: This method is used to determine the similarities and differences of provisions in the legal systems studied in relation to the regime of rights to adjacent immovable property between Vietnamese law and national law and between Vietnamese law regulations Thereby, the thesis points out the similarities and differences of Vietnam and the international as a basis for the solutions to overcome the current inadequacies of the Right to adjacentg immovable property - Aanalyzing practical situation: A number of practical situations and cases related to the Rights to adjacent immovable property will be selected for analysis The analysis of situations is to understand and evaluate the application of relevant regulations in practice, find out the inadequacies, unreasonables in the provisions of law At the same time, the use of case studies will complement the arguments, interpretations, and recommendations that the research makes - Interpreting and inductive method: This method is mainly used in chapter of the thesis to give directions and complete solutions to the law on the Rights to adjacent immovable property in our country today - Historical dialectic method: This method is used to study and synthesize the thesis's problems that have been mentioned, studied, formed in history so far New scientific contributions of the thesis In addition to inheriting a number of issues related to the thesis of previously published scientific works, the thesis has made new contributions on the following contents: - Firstly, about the approach: The thesis approaches the Right to adjacent immovable property not only from the perspective of civil law, but also researches in the provisions of economic laws Legislation on the Rights to adjacent immovable property will be comprehensively considered in accordance with the provisions of the Civil Code, the Land Law, the Construction Law This issue has been researched and evaluated by the author in most chapters of the thesis and especially in chapter of the thesis - Secondly, the thesis is an in-depth study of theoretical issues related to the law on the Rights to adjacent immovable property, the thesis has analyzed and clarified the concept of adjacent immovable property; the concept of the Rights to adjacent immovable property; legal concept of Rights to adjacent immovable property; regulatory principles of the Right to adjacent immovable property; The basic content as well as the form of the law on the rights to adjacent immovable property - Thirdly, the thesis is an elaborate study of the current situation of the law on the Rights to adjacent immovable property in Vietnam In particular, the thesis has discovered and pointed out: shoricomings, limitations of civil law, Construction Law, Land Law and related documents, and at the same time pointed out the shortcomings, inadequacies in the process of applying laws to resolve disputes over the Rights of adjacent immovable property in practice today - Fourthly, the thesis is a systematic study of specific orientations and solutions to perfect the law on the Rights to adjacent immovable property in Vietnam today Theoretical and practical implications of the thesis - Theoretically, the thesis offers a multi-dimensional and comprehensive view of the Right to adjacent immovable property; establishing the basic theoretical framework for the Rights to adjacent immovable property and the law on the Rights to adjacent immovable property; provide basic scientific justifications for the study and perfection of the law on the Rights to adjacent immovable property - In practice, the thesis is a reference for researchers and lecturers in civil law, economic law as well as legal agencies to resolve disputes related to Rights to adjacent immovable property Content of the thesis In addition to the introduction, conclusion and list of references, the thesis is divided into chapters: - Chapter 1: Overview of the research status - Chapter 2: Theoretical issues related to the law on the Right to adjacent immovable property - Chapter 3: Current status of the law on the Right to adjacent immovable property in Vietnam - Chapter 4: Orientation and solutions to perfect the law on the Rights to adjacent immovable property in Vietnam today CHAPTER 1: OVERVIEW OF THE RESEARCH STATUS 1.1 Research status of the thesis topic By reviewing the outstanding works related to the research topic, we can see the achieved results of the research activities, specifically as follows: Firstly, most of the studies stated that: The right to adjacent immovable property is the right to be exercised on an immovable property for the exploitation of another immovable property owned by others Therefore, the provisions on the Right to adjacent immovable property are important in scientific research as well as from a practical perspective Secondly, the scientific works have agreed in affirming the importance of the Right to adjacent immovable property and have considered this right to be a derivative from the ownership right, and the basic feature of the Right to adjacent immovable property is its immovable property and it is a kind of indivisible right even though the property can be divided into several sections Thirdly, most published works have said that in practice, the law on the rights to adjacent immovable property in our country is still inadequate, limited and does not meet the requirements of international integration and judicial reform At the same time, it does not meet the necessary needs in the usage of adjoining immovable property of the owner of the immovable property, so as to best ensure the exploitation of immovable property under the ownership that requires the use of adjacent property Fourthly, most of the studies stated that the current solution to perfect the current legal provisions on the Rights to adjacent immovable property in Vietnam is: to reconsider the usage of the term "Rights to adjacent immovable property”, to supplement and perfect the provisions on the scope of the Rights to adjacent immovable property; principles to determine compensation and compensation levels for the damage occurred; to provide specific guidance on Registration of Rights of adjacent immovable property; to supplement the legal provisions on the right of passage, water supply and drainage, irrigation and drainage, entanglement of power transmission, communication lines… 1.2 Issues that have not been thoroughly resolved Firstly, about the use of the term “easement” or "Right to adjacent immovable property" For example: There are studies that agree with the use of the term "rights to adjacent immovable property" in accordance with the law of Vietnam, but there are studies that argue that we should use the term "easement" instead of "Rights to adjacent immovable property" Or there is an opinion that stated: The Civil Code 2005, Land Law 2013 used the term "the right to restricted use of adjacent immovable property" while Civil Code 2015 unreasonably changed it to the term "Rights to adjacent immovable property”,… Secondly, the nature of easement (or the Right to adjacent immovable property) Although most studies have affirmed that the Right to adjacent immovable property is the right to be exercised on an immovable property in order to exploit another immovable property owned by others The nature of this right has a number of opposing views For example, there is a study that states that easement is the relationship between two immovable properties and that it exists regardless of the change of the property owner, and some researches suggest that the easement is a relationship between immovable property owners but not the relationship between immovable property Thirdly, the reality of the application of the law on the Rights to adjacent real estate in Vietnam still has many assessments that are not really consistent, the assessments are also on different angles depending on the approach of each author For example, there are studies saying that the current legal system of immovable property in Vietnam is "overwhelming" This has created a "messy" reality, with many duplicate and conflict documents There are studies that state: The legal system of immovable property in Vietnam is not specific, general so when a dispute arises, there are a lot of “debate” on the application of regulations to deal with such disputes… Fourthly, the research also proposes various solutions to perfect the regulations on right to adjacent immovable property in Vietnam For example: there are suggestions that: It is necessary to regulate the passage way to not only meet the needs of living conditions but also meet the needs of production and business Others propse that: Easement is applied according to the principle of ensuring the reasonable demand of the exploitation of immovable property to enjoy the easement in accordance with the purpose of using of immovable property, so setting the principles to be "suitable for the usage of immovable property " may be too much The essence here is the annoyance of the owners by the usage of easement, being the exception of the principle of owner protection, so just by meeting the minimum needs of the owners who enjoy the epidemic is acceptable… 1.3 Issues that require further study in the thesis Firstly, most of the research works focused on discussing the issues surrounding the Right to adjacent immovable property such as: Concept, characteristics, established grounds, grounds for termination of rights to any adjacent immovable property in pure civil law perspective but there is no comprehensive research on the law on the rights to adjacent immovable property; the content, form as well as the principles governing the law on the rights to adjacent immovable property on the basis of civil law and other relevant laws such as the Construction Law, the Housing Law, the Land Law Secondly, the studies have only approached a few limitations of the Rights of adjacent immovable property without comprehensive research and assessing the current status of the limitation of Rights to adjacent immovable property, especially the limitations related to construction, environmental protection Thirdly, the issue of the protection of property rights in general and the Rights to adjacent immovable property in particular are very important in real estate transactions However, the research works have focused on the protection of rights relations but no research has mentioned directly about protecting the Rights of adjacent immovable property as well as assessing the practice of legal provisions on this group Fourthly, there are many works proposing solutions to perfect the regulations on the Right to adjacent immovable property in Vietnam but only to raise legal issues without considering, explaining in a comprehensive way of orientations as well as complete solutions to the law on the Rights to adjacent immovable property based on the real life requirements in our country today CHAPTER 2: THEORETICAL ISSUES RELATED TO THE LAW ON THE RIGHT TO ADJACENT IMMOVABLE PROPERTY 2.1 Definition, characteristic of the right to adjacent immovable property 2.1.1 Definition of adjacent immovable property Through studies of adjacent immovable property, the concept of adjacent immovable property can be interpreted as follow: Adjacent immovable properties are immovable properties that adjoined, the adjoining is the adjacent and the location of the properties are determined by their contiguity 2.1.2 Definition of the right to adjacent immovable property From the analysis and assessment of the Right to adjacent immovable property, the concept of Right to adjacent immovable property can be interpreted as follows: Right to adjacent immovable property is the right of owner of immovable property, within the conditions prescribed by law, to use other people's immovable property within the defined scope to satisfy the rational exploitation and usage of their own immovable property 2.1.3 Characteristics of the right to adjacent immovable property First, the right to adjacent immovable property is the right to property (a property right) of another person Second, the Right to adjacent immovable property is mainly established between adjoining or very close immovable property Thirdly, the Right to adjacent immovable property are general and indivisible, even though the property may be subdivided into several parts Fourth, the Right to adjacent immovable property is always attached to the property and it can only be established on the property due to its immovable nature Fifth, the Right to adjacent immovable property create passive obligations for the owner of the property Sixth, the right to adjacent immovable property is the relationship between the properties, not the property owners 2.2 Law on right to adjacent immovable property 2.2.1 Definition of law on right to adjacent immovable property The law on the right to adjacent immovable property is a combination of legal provisions governing social relations arising during the reasonably usage of the owner’s property to exploit, use an adjacent immovable property owned by another entity 2.2.2 Principles govern the law on the right to adjacent immovable property 2.2.2.1 Principle of freedom, voluntary commitment, agreement This principle clearly and vividly expresses the nature of civil law in general and the law on the Right to adjacent immovable property in particular, which is freedom of disposition Like the typical nature of other civil relations, the exercise of rights among civil entities will be agreed upon by both parties on a voluntary, non-illegal and social ethical basis 2.2.2.2 Fixed priciple According to this principle, the beneficial owner of the immovable property is only allowed to enjoy the Right to adjacent immovable property within the limits of legitimate needs and especially within the limits of his / her right to benefit from the easement The right to adjacent immovable property operates in order to ensure the reasonable demand of the exploitation of the immovable property in accordance with the intended use of both the immovable property and the immovable property affected by the right, the law also prohibit abuse of rights to immovable property subject to the easement In addition, the fixed principle does not allow owners to change the status quo of the immovable property under easement in order to make it difficult to the enjoyment of the easement of other people especially the right to use and disposition, provided that the rights of the owner of the immovable property are respected 2.2.2.3 Principle of absolute The right to adjacent immovable property is considered to be an absolute right Effective for all and respected by all The rights to adjacent immovable property are absolutely protected and not infringed upon by any entity This principle is intended to counteract or the disturbance cause by other entity to things 2.2.2.4 Principle of publicity The principle of publicity aims to recognize the rights of the owner of the Right to adjacent immovable property, also to avoid risks to third parties Disclosure of the Right to adjacent immovable property is also an essential principle for the purpose of security in transactions 2.2.3 Content of the law on right to adjacent immovable property The content of law on adjacent real immovable property includes the following groups of basic legal provisions: 2.2.3.1 Legal provisions on the basis of establishment and termination of Rights to adjacentg immovable property - Basis of establishment of right to adjacent immovable property Firstly, the right to adjacent immovable property is established by agreement Secondly, the right to adjacent immovable property is established due to its natural terrain Thirdly, the right to adjacent immovable property is established according to the provisions of law Fourthly, the right to adjacent immovable property is established by will - Basis of termination of right to adjacent immovable property Firstly, the right to adjacent immovable property terminates when both the owned property and the property targeted by the right are under the ownership of one person Secondly, the right to adjacent immovable property terminates when the use and exploitation of that propery no longer gives rise to the demand for the enjoyment of right Thirdly, the right to adjacent immovable property terminates upon the agreement of the parties Fourthly, the right to adjacent immovable property terminates in other cases as prescribed by law 2.2.3.2 Legal provisions on common cases of Right to adjacent immovable properties - The right of passage Property owners cannot confine themselves within the boundaries of the property for the rest of their lives As a high-class living entity with material and spiritual needs, as well as a member of an organized community with complex and diverse social relationships, the owner must regularly traverse in and out of the property to set up transactions Therefore, all immovable property must be connected with the community and in case that the property is not directly accessible to public roads, public equipment, the passage shall be guaranteed by the righs of the owner of the encircled immovable property to have access to other adjacent immovable property A person who is required to provide a passage for the owner of the encircled property will be paid a compensation, unless otherwise agreed - Right to water supply and drainage Due to the natural location, a property may not be directly adjacent to the source of natural water or tap water, the owner of the property may apply the limited use of adjacent immovable property to request the owners of other adjacent immovable properties for the use of their owned real estate to build a plumbing system Placement of pipes is agreed by the parties - Right to watering and drainage in cultivation Agricultural production plays an important role in our country's economy Growing rice or cultivating other plants has existed for a long time Therefore, among the rights to adjacent immovable property, the right to watering and drainage in cultivation is the earliest form of right, together with the right of passage This is a form of right which was prescribed in ancient Roman law, when agriculture play an important role in social production In cases where water can be obtained from the natural stream approaching the property, the property owner may use the irrigation water flow according to his or her needs In case irrigation water cannot be obtained from the natural flow, immovable property that needs irrigation water may be entitled to easement of watering as prescribed by law or from an agreement - The right to transmission, communication lines via other immovable property This right derived from the practices and requirements of wiring and communications lines Because these lines must come from the electricity supply, communication sources, the connection must be forced through various owner’s properties, not just through adjacent properties If the owners of these lines cause damage to the adjacent immovable property owners during the line connection, due to the lines falling, collapsing, the owners of the electricity and information transmission lines must pay compensation based on the degree of fault and the extent of damage caused by them 2.2.3.3 Legal provisions on the limitation of right to adjacent property - Obligation to protect the environment rights to the passageway, the parties may request the local People's Committee to settle within the jurisdiction permitted by the law or request the competent authority to impose administrative sanctions on illegal acts such as: building encroachment on adjacent land, or improper discharge of wastewater polluting the environment Secondly, exercise the right to request the competent state authority to protect the Right to adjacent immovable property as a supporting role after the implementation of civil lawsuits This require the agency of judgment execution to intervene in case the Court has made a final judgement but the infringer still blatantly obstructs the law, and does not make compensation In addition to the above measures to protect the rights to adjacent immovable properties, Vietnamese law also provides other measures to protect the ownership in general and the rights to adjacent properties in particular, such as: Administrative measures, penal measures However, compared with these protection methods, civil appeal seems to be more realistic; can be applied more widely than other measures and create very favorable and easy conditions for every violated entity to actively implement this method 2.2.4 Form of legislation on the Rights to adjacent immovable property 2.2.4.1 Provisions on the Rights to adjacent immovable property in legal documents This is the main, basic and most important form of civil law in general and the law on property rights in particular, because the state agencies in Vietnam when dealing with actual legislation cases under their jurisdiction relies heavily on legal documents 2.2.4.2 Provisions on the Rights to adjacent immovable property in common customs, practices Common customs and practices are only considered as a secondary form of legislation on the Right to adjacent immovable property because its provisions mainly exist in unwritten form, so they are often only understood in a specific way, conventional norms, lack of clarity and specificity, make it difficult to ensure uniform understanding and application in a wide range However, the advantages of common customs and practices are that they were formed from real life, from daily behaviors so they are very close to the people and often voluntarily implemented by the people 2.2.4.3 Provisions of Rights to adjacent immovable property through precedents Currently, the Right to adjacent immovable property has not been formally included in the list of cases published by the Supreme People's Court However, in relation to disputes over the Right to adjacent immovable properties, the Supreme People's Court is considering to include in the draft law the following two judgments: cassation decision No.157/2014/DS-GĐT on April 18, 2014 regarding the case of dispute over land use rights regarding the passage through adjacent immovable property and cassation decision No 06/2014/DS-GĐT on 10/1/2014 regarding the case of dispute over passageway 11 CHAPTER 3: CURENT STATUS OF LAW ON THE RIGHT TO ADJACENT IMMOVABLE PROPERTY IN VIETNAM 3.1 Status of law on the establishment and termination of adjacent property rights 3.1.1 Status of law on the establishment of right to adjacent immovable propery Vietnamese law has recognized bases for the establishment of the right to adjacent immovable property However, in the process of implicating the law, there have been a number of obstacles and inadequacies related to a number of basis for the establishment of this right, such as: While the law has provided for necessary passage for people inside, there is no necessary passageway for the person in the upper floor in the case of multi-story house If a high-rise building is divided among different owners, the owners after being divided must have appropriate paths; There are no specific documents guiding the statute of limitations for enjoying the right to adjacent properties and in this case the right to the passageway such as: The problem arise when the person appointed in the will exercise the right to the property, does the inheritance statute prescribed in Article 623 of the Civil Code apply to the real estate entitled to this right? (According to Clause 1, Article 623, the statute of limitations for real estate is 30 years) So, in this case, if after 20 years the rightful heirs exercise their rights, then it will be detrimental to the owner of the right to enjoy… 3.1.2 Status of law on the basis of termination of right to adjacent immovable propery Article 256 of the Civil Code 2015 regulate the termination of the Right to adjacent immovable property: “1 The entitled immovable property and the obliged immovable property belong to ownership rights of a person; The use and exploitation of the immovable property not arise the needs of enjoying rights; Upon agreement of contracting parties; Other bases as provided by law” In fact, the cases of termination of the Right to adjacent immovable property not stop there There are other notable situations can be mentioned For example, considering the right to benefit from an easement as a property right, it can be assumed that this right will be lost in statute of limitations Or, the demand for easement still exists, but the ability to bear the easement of adjacent immovable property no longer exist (evidenced through the specific case in the thesis) 3.2 Status of law on common cases of right to adjacent immovable property 3.2.1 Status of law on passageway Right of passage is a civil and practical right of the people, when there is no path; or there is but not suitable; or the decision of the passageway affects, causing damage to the owner of the surrounded real estate; people often pursue very fierce with their complaints Although the Civil Code 2015 has many significant changes related to the content of the Right to adjacent immovable 12 property including provisions on the right of passage However, regulations on right of passage still have inadequacies that have not been removed, if applied in practice, they will cause difficulties for the party involved Therefore, this issue needs to be considered and specified more clearly, overcoming the remaining provisions of the law to avoid persistent disputes that may be prolonged in practice Here are some practice of the law that regulate the right of passage (evidenced through the specific case in the thesis) 3.2.2 Status of law on irrigation water in agriculture Along with the shrinking of the agricultural economy, the demand for irrigation and drainage in farming has decreased, so the disputes related to this issue not arise much in reality However, the issues such as the concept of irrigation water and drainage demand have not been specified yet What is the level of flowing water for the right to demand irrigation and drainage? How to determine a suitable the water chanel? Who has the right to determine if the water chanel is appropriate or inappropriate? How is the establishment of a water channel through another person's real estate done? How much does it cost to set up a water course? Is the water course permanent or temporary? Does water need to be approved by the surrounding land owner for each water course? The law needs specific guidelines to conveniently and reasonably implement this right (evidenced through specific cases in the thesis) 3.2.3 Status of water supply and drainage through adjacent immovable property Although the legal basis related to the right to water supply and drainage through adjacent immovable property has been recorded quite sufficiently and reasonably in the legal documents However, in practice, the application of legal provisions on this issue still faces a number of inadequacies: The regulations on this type of rights among legal documents are not really consistent with each other; regulations on relations with neighboring constructions in accordance with Vietnamese standards are not consistent with the Civil Code 2015 (evidenced through specific cases in the thesis) 3.2.4 Status of the law on entitlement to electricity transmission, communication lines Establishing electric transmission and communication lines is not the obligation of the owner of the surrounded property as a user of this service (the buyer) but an obligation of the electricity and communications service provider (sellers) As a result, who is responsible for compensation when there are damages in the process of establishing transmission, communications lines and the process of using the service The issues that also need to be raised are that in the process of establishing power transmission, communication lines, which cause damage, how should the compensation be handled? Who is responsible for compensation? Compensation under which regulations, contractual or noncontractual? With the development of information technology and the Internet, the demand for establishing transmission and communication lines is increasing In 13 the process, there may be disputes related to this issue (evidenced through specific cases in the thesis) 3.3 Status of the limitation of right to adjacent immovable property 3.3.1 Status of law on environmental protection obligations Although, the law stipulates that the owners of property rights in general and the right to adjacent immovable properties in particular must be responsible for the protection of the environment However, currently, especially in urban areas, over 95% of domestic wastewater discharged directly into the environment The main reason is due to limited awareness of households, chasing after the immediate economic benefits and overlooking, even ignoring the requirements of environmental protection, especially in deciding on investment policies Therefore, the environment situation has not been improved significantly In addition, the regulations of the law on environmental protection are overlapping, inadequate, unable to keep up with the reality of socio-economic development; State management of the environment still faces many shortcomings, failing to keep up with the increasingly complex developments of environmental issues, especially in the prevention, detection, handling and control of pollution sources; The coordination between different levels and sectors is not effective; showing unefficiency in handling environmental incidents; Investment resources are still very limited, scattered, which also limited the effort to improve the environment (evidenced through specific cases in the thesis) 3.3.2 Status of law in case of emergency circumstance Clause 2, Article 171 of the Civil Code 2015 stipulates: “In an emergency circumstance, the owner and holder of other property-related rights to a property must not hinder another person from using his/her own property or hinder another person from causing damage to such property in order to prevent or abate the greater danger or damage that threatens to happen.” and Clause of this Article stipulate: "The owner or the holder of other propertyrelated rights shall be compensated for damage in accordance with the provisions of Article 595 of this Code" However, Article 595 stipulates compensation for damages in cases that exceed the requirements of the emergency situation: “A person causing damage as a result of exceeding the requirements of an emergency situation must compensate any aggrieved person for that part of the damage which resulted from exceeding the requirements of an emergency situation” The question is, if it is still within the bounds of the emergency situation then will compensation be instituted? For example, because a house is on fire, the owner of the inner real estate is forced to break down the outside of the homeowner's wall to escape Thus, although in the context of an emergency situation, it has caused damage to owners of adjacent immovable property (broken houses) In this case, should there be an appropriate compensation plan to remedy damage to the owner of the adjacent property mentioned above? 14 Another problem posed by the emergency situation is that the damage caused must be smaller than the damage to be prevented (both in terms of properties and magnitude) However, comparing these two interests is not always easy, but requires careful evaluation and consideration of the sources of danger to the society, the damage suffered by the society and the affected subjects 3.3.3 Status of law on the obligation of ensuring public order, public safety; respecting the construction rules Regarding the obligation to ensure public order and safety; respecting construction rules, there are now quite a number of legal documents in this field such as the Construction Law, the Law on Urban Planning, the Housing Law However, these are the normative principles In order to apply that regulation, it is still necessary to rely on many construction regulations, even common construction practices in each region and each locality Currently, especially in urban areas that are crowded, and therefore living in apartments is a popular choice for every citizen However, when living in these apartments, infiltration occurs, leaking from the upper floors to the lower floors, or cracking, landslides, peeling of ceilings, walls Although Article 11 of Circular No 02/2016/TT-BXD on February 15, 2016 on promulgating regulations on management and usage of apartment buildings, but this solution is very difficult and owners often divert the responsibility to investors because they think that quality of the apartment before the opening has not been good, thus leading to the above deterioration, leading to disputes between the investor and the residents, even the common residents nearby in the management and usage of utilities of the apartment building As of June 2018, the whole country had 108 apartment projects with disputes between residents and investors The rate of dispute between buyers and sellers is estimated to be up to about 30% in apartment projects A significant proportion of the disputes stemming from the deliberate wrongdoing of investors, failure to comply with the provisions of law The majority of cases come from misuse of the common area, expansion and change function of a part of the unplanned area; violating regulations on the usage of maintenance funds, operating costs of building management, organizing first-time residence conferences or violating construction progress and the procedures for granting certificates for house ownership On the other hand, stemming from the ambiguity in the law, it is the calculation of the area of the apartment, the area of the lot, the technical box, the area of private – public separation is unknown and misleading These issues need to be promptly and timely handled by the authorities instead of letting the disputes break out 3.3.4 Status of law on establishing air vents, light gaps, visibility Currently, many people wonder how to properly construct windows so that they are not fined and not raise dispute from neighbors This is a very concerned issue, especially in urban environment, crowded land, and close 15 housing Article 178 of the Civil Code 2015 provides for the restriction of the right to create the following: “1 A house owner may only install entry and exit doors and windows opening onto adjacent houses or opposite houses and common walkways in accordance with the law on construction” However, after that, the construction standards in 2018 did not mention this content The question is why window coverings were not included in the building codes but were in the standard form? Moreover, according to the provisions of the Construction Law 2014, the construction of door is in special cases if the repair or renovation does not change the architecture of the exterior, not adjacent to roads in urban areas requiring architectural management In fact, when addressing the needs of the people, each district does it differently Some districts allow people to open their doors without asking for consent from their neighbors, except for community access Meanwhile, some districts still apply according to the guidance of the Department of Construction since 2010, which requires the consent of neighbors on the same alley to resolve This has led to disputes and complaints in many districts such as Go Vap and Binh Thanh Dispute disputes about door-opening often arise in urban areas, when the "an inch of land" is "an inch of gold" In order to have good ventilation in the house, adjacent households often make windows in their walls However, many households failed to reach an agreement with nearby property owners, so disputes arose In fact, living space in urban areas is very narrow, sometimes just painting a wall too thick or misplacing materials onto the house just a few centimeters also cause a dispute Therefore, in the long run, the application of construction standards (by law legislative documents) is not stable As the original law, the Civil Code needs to specify more clearly the conditions for the window to the next house, how many window can be placed, the distance Also, the specialized law (Construction Law) also needs to supplement detailed regulations to ensure the legal basis for granting permits as well as resolving disputes, and at the same time to suit the current complicated situation of construction - Status of establishing air vent, light gap, visibility Currently, with economic development, the standards of enjoyment of housing and working facilities are changing In urban areas, more and more offices are being built in the direction suitable to the technical requirements necessary for the installation of air conditioners and air; Private housing getting air conditioning is also becoming a normal need of the people However, the legal regime on ventilation is still quite simple The current law only talks about air vents in relation to common walls and stipulates that if there is no agreement between the common owners, it is illegal to make holes in common walls (Clause 3, Article 3) 16 Civil Code 2015) If only based on the rules of writing, the ventilation holes in separate walls are not subject to any restrictions Currently, the law does not impose a limit on the right to exploit a view from the window of the property owner and vice versa, nor does it require 16 the adjoining property owner to respect this right by how to avoid performing constructions that obscure or limit that view There is also no law on the balconies as a means of sight The practice also does not recognize the fierce conflicts related to the construction of balconies that have the effect of zooming the vision into neighboring properties 3.4 Status of law on the protection of right to adjacent immovable property 3.4.1 Status of law on the registration of the right to adjacent immovable property In order for real right in general and the right to adjacent immovable property in particular to be respected, its existence must be clearly and publicly known to the society According to the experience of developed countries in the world, the best way for the whole society to know the existence of rights is to build a complete system of rights registration for any one to approach In reality, so far Vietnam only has the Civil Code 2015, the Land Law 2013 that stipulates the registration of establishment, change or termination of right to adjacent property according to the order of land change registration (Point 1, Clause 4, Article 95 of the 2013 Law on Land) Property shown on a certificate of land use right is the subject of land use rights, transactions of houses and assets attached to the land However, in reality, there are many disputes on this issue, the main reason being that when transferring the rights, the receiver does not know the information on the land that has a path for the owner of encased property Therefore, after getting transfer the land use rights, disputes were raised with people who use the land and who owns adjacent property Besides, by not showing information on rights of passage on the certificate of land use right will restrict the rights of land users Another problem that may arise is that under the provisions of the 2013 Land Law, the condition for granting a land use right certificate is that the minimum land area must be sufficient under the provisions of law, except for a few exceptions (such as Article 29 of Decree No 43/2014/ND-CP on May 15, 2014, which stated the conditions for land smaller than the minimum areas that to be granted certificates of land use rights and house ownership residential land and other properties associated with) So, a question is: how to solve the case of an immovable property surrounded by other immovable properties that has an area equal to or smaller than the minimum land area to be granted a land use right certificate and by creating a passage, there is not enough minimum land area left? If creating a passage through the enclosed property, it will affect the right to land use right certificate; while the criteria to open the passage is to bring the most convenient and the least annoyance This is a very difficult problem in densely populated cities; where an ich of land area is considered "an inch of gold" 3.4.2 Status of law on self protection method Due to the fact that it does not have state coercive power, it completely depends on the voluntariness of the parties (rights holders and violators) when 17 there is an infringement Therefore, the thoroughness and effectiveness of the application of this method completely depend on the right holder or the goodwill and voluntary of the violator In certain cases, the holder of right to adjacent immovable roperty still has to resort to a more effective method - that requires the intervention of a competent state agency Most of the disputes related to the right to adjacent immovable property often need the intervention of a competent State agency, few cases have been successfully resolved by the self-protection method due to the lack of coercion in such method 3.4.3 Status of law on measures require protection from courts or other competent state agencies Regarding the right to adjacent immovable property, the methods of requesting protection from courts or other competent state agencies often occur in disputes over passageways Disputes over passageway to be in trial by the Court have many different causes: There are cases where households with adjacent land inside have used the land of the encasing owner for a very long time but then conflict arised, and the encasing household prevent the encased household to use the passage by building a wall across the passage, using obstructions across the passage, threatening to cause injury if the encased household passes through the land There is also the case that the owner of the encasing property previously allowed the encased property to pass through, but when the land was transferred to a different owner, this person does not allow the owner of the encased property to pass through In such cases, the Court will consider and decide whether the encasing property is to reserved a passage for adjacent encased property owners Practical cases related to this issue have been mentioned by the author in section 3.2 above However, through the practice of trial and study of the above cases, the author realized that there are some problems that remain: Firstly, if the Court accepts the encased property owner to go through the adjacent encasing property, will they be granted a land use right certificate for the land used for the passageway? Secondly, how does the Court force the adjacent encased property owner to compensate the encasing property owner? In addition, the effectiveness of civil rights protection is often associated with the execution of civil judgments, so it is greatly affected by civil judgment enforcement This is also a limitation in the protection of the rights of the holders of rights to adjacent immovable properties In cases where the judgment debtors fail to voluntarily execute their judgments, the civil judgment enforcement agencies must issue decisions to enforce the execution In many cases, the judgment debtors often not cooperate, even intimidate, oppose, and hindering the judgment execution process For such cases, many judgment execution agencies and executives who are directly on duty are often afraid and not want to face those people to execute the judgment, lack of determination in organizing the execution of a legally valid judgment The indecision of the judgment enforcement agencies and the executors also makes the execution of 18 the judgments prolong for a long time, without a definite term, nor to ensure the rights of the plaintiff as well as the formality of the law CHAPTER 4: ORIENTATION AND SOLUTIONS TO PERFECT THE LAW ON THE RIGHT TO ADJACENT IMMOVABLE PROPERTY IN VIETNAM TODAY 4.1 Orientation to improve the law on the right to adjacent immovable property in Vietnam today 4.1.1 Balancing the interests of real estate owners with their Right to adjacent immovable properties Balancing the interests of real estate owners with their Rights to adjacent immovable property is done through laws and policies of the State to harmonize the relationship between the interests of the real property owners and the person with the Right to adjacent immovable property This can be seen as an optimal principle that needs to be chosen to protect the interests of both parties 4.1.2 Ensuring compatibility with the principles of democratic development, with a focus on the principle of agreement in regulating relations arising from the exercise of the Right to adjacent immovable property Currently, most areas of social life in our country, including those related to the rights to adjacent immovable property, the rights of people, are guaranteed by law Therefore, in all areas of civil life in general and in relations arising from the Rights to adjacent immovable property in particular, the focus on the principle of agreement in adjusting relations arising from the Right to adjacent immovable property is essential Those involved in legal relations must be responsible for what they have established and agreed to the other party and when disputes arise, if the parties cannot reach an agreement, then the law will intervene It is best to voluntarily negotiate with each other, if this can be done, the parties will not be subject to the constraints of the law nor have to spend too much money, effort to appeal to court that sometimes will end up in vain A verdict won, but in the end, they might lose a good neighborly relationship 4.1.3 Overcoming limitations and shortcomings of the law Conflicts, overlaps in legal provisions of a legal document or between legal documents related to the Rights to adjacent immovable property will lead to difficulties in organizing the implementation of law in practice In fact, in recent times, many areas of social life including the rights to adjacent immovable property have negative phenomena or complicated social relations but there are practically no legal documents to regulate In order for the law to promote its true role and effects, special attention must be paid and the enhancement of law enforcement efficiency Guiding documents need to be issued synchronously with the effective time of the law, to avoid waiting for the decree and guiding circulars to be implemented Renewing the work of law 19 dissemination with more investment and focus, avoiding useless information, focus on the right targets and problems, meeting the needs of the people 4.1.4 Consistent with the judicial reform strategy Regarding the civil sector, after nearly 20 years of implementing the judicial reform strategy, the most successful result was the issue of the Civil Code 2015, which is the original law of the private law system From the Civil Code, Specialized legal documents also have changes and amends to be more suitable The provisions on property and ownership are more fully and clearly recognized For the first time, the Civil Code has recognized the “Other rights to immovable property” regime including usufruct right, surface right and right to adjacent immovable property In particular, the implementation of the tasks and objectives of the judicial reform strategy, the system of judicial bodies also improve the quality of handling and adjudicating various types of cases, ensuring the Court's judgments are legitimate, bringing justice to society There are many cases involving rights to adjacent immovable property that stop at the first instance trial It proves that the concerned parties have acknowledged the legitimacy of the sentence and complied with the judgement without requiring an appeal… 4.1.5 Ensuring human rights and ownership right Ownership is the backbone of civil law, the premise of civil law relations in property and one of the most important basic rights of citizens, so the law of any nation has regulations to protect ownership rights Article 32 of the 2013 Constitution of the Socialist Republic of Vietnam stipulates: "the right of private ownership and the right of inheritance are protected by the law" and Article 163 of the Civil Code 2015 provides for the protection of property rights and other property rights: "No one may be illegally restricted in or deprived of his/her ownership rights or other propertyrelated rights to his/her property." Therefore, ensuring the property rights of citizens has a great meaning, because it protects not only the interests of citizens in particular but also the interests of the whole society in general The development trend that requires the guarantee of human rights and ownership of citizens in the economic sector is the goal and driving force for the process of economic development of Vietnam; the impact of democratization of social life, the impact of international economic integration and the contributions of mankind; the renewal of awareness about the ownership regime, socialism and political determination of the Communist Party during the renewal process 4.1.6 Ensuring intergration and compatibility with international law The current international integration has pushed countries closer together in all areas, including the legal field The process of international integration requires each country to harmonize its problems to conform to the common standards recognized by most countries in the world Therefore, it is necessary to consider the compatibility, the harmony between Vietnamese law in general, the law on the Rights to adjacent immovable property in particular and the international law Currently, the current law provisions on the Rights to 20 adjacent immovable property of Vietnam are basically consistent with the provisions of countries around the world, although every country in the world use the term "easement" to refer to the provisions on the Right to adjacent immovable properties 4.2 Solution to perfect the law on the right to adjacent immovable property 4.2.1 Solution to perfect regulations on the establishment and termination of Rights to adjacent immovable property - Supplementing specific guidance on the statute of limitations for enjoying the Rights of adjacent immovable properties - Specifying a path necessary for the owner at the top in case of multistorey house - Specifying a number of other bases that terminate the Rights to adjacent immovable properties in Clause 4, Article 256 of the Civil Code 2015 from a practical perspective 4.2.2 Solution to perfect regulations on common cases of right to adjacent immovable property 4.2.2.1 Solution to pefect regulations on the rights to adjacent immovable properties related to the passage - Specifying what count as inadequate passageway? - Considering and supplementing the provisions on the right to request passageway for owners of encased property to ensure production and business needs 4.2.2.2 Solution to pefect regulations on the right to irrigation and drainage in cultivation - The law needs to anticipate the determination of reasonable water lines according to certain specific criteria - It is necessary to base on technical standards in agriculture and cultivation to give technical standards to determine the demand for irrigation and drainage - Need to clarify the cost of setting the water line will be borne by whom - It is necessary to set specific criteria to determine whether the establishment of a water line is permanent or temporary 4.2.2.3 Solution to pefect regulations on water supply and drainage through adjacent immovable property There is a need for consistency in the regulations related to the establishment of adjacent constructions in the Vietnam's construction standard and the Civil Code 2015; and regulations on the connection of drainage systems in Decree No 80/2014/ND- CP must illustrate the case when water supply and drainage must go through another immovable property 4.2.2.4 Solution to perfect regulations on power transmission and communication lines 21 - Article 255 should be amended in the following direction: “An owner of immoveable property, or electricity supply organizations, information and communication services have the right to install electricity transmission cables and communication cables in a reasonable manner through the immoveable property of other owners, but must ensure the safety and convenience of such owners If damage is caused, compensation must be made” - Regarding compensation for damage caused by transmission lines and communications cables, the following cases need to be noted: (1) if damage caused by above-mentioned equipment is caused by the service provider then the service provider must pay damages and the liability to pay damages is determined as the contractual compensation liability; (2) if the damage is caused by the equipment to the owner of the property that have the equipment passed through or to a third person, the non-contractual compensation liability shall apply Whoever is the owner of the device must pay compensation for the damage caused by that device The compensator may be the owner of the property using the transmission line, communication line (buyer), or may be the provider of the power and communication services 4.2.3 Solution to perfect regulations on the limitation of right to adjacent immovable property - There should be uniform regulations on the installation of doors to adjacent properties in the Civil Code and the Construction Law - The law on civil liability (compensation for environmental damage) in the field of environmental protection needs to be clearly and specifically stipulated, avoiding a circular reference that has not yet been resolved such as "compensation for damage according to the provisions of law” At the same time, there need to be clear regulations to distinguish between responsibilities, remediation and environmental restoration under administrative law and liability to compensate for damages according to civil law - The law should have more specific provisions on sanctions for neighbors when using the Right to adjacent immovable property which causes damage to adjacent property owners - Supplementing subjects with other property-related rights in Clause 1, Article 177 of the Civil Code 2015 4.2.4 Solution to perfect regulations on the protection of right to adjacent immovable property - Specific guidance on registration of the Right to adjacent immovable property - Amending regulations on the right of passage to go through conciliation at the commune-level People's Committee before the Court processes the case - Improve the practical effectiveness of ownership protection measures 4.2.5 Other solutions - Consider using which term: "Right to adjacent immovable property" or "Easement" 22 - Specific guidance on compensation levels for right holders - Supplementing the scope for the Right to adjacent immovable property - Supplementing the principle of identifying obliged immovable propery - Supplementing the concept of adjacent immovable property, encased immovable property - Supplementing various types of Rights to adjacent immovable property to ensure other necessary needs - Agree on the use of the term "Rights to adjacent immovable property" in legal documents - Further improve the adjudicating capacity of the Judges - Enhancing the law propagation, dissemination and education CONCLUSION The study of property rights in general and the right to adjacent immovable property in particular is considered a traditional issue and receives special attention from legal studies around the world In the system of real rights, ownership is the absolute right in which the right holder can exercise his right through his acts on his own property, in addition to the right to own, the right to adjacent immovable property is also a form of real right This is a form of property rights that affect the properties of others The right to adjacent immovable property is an urgent and meaningful right in guiding the implementation and application of law to settle dispute cases on adjacent immovable property of law enforcement agencies In modern society, due to the need to economically and effectively exploit all assets in society, the right to adjacent immovable property is always in need of consideration, recognition and protection by the State Particularly, in Vietnam, derived from the characteristics of political and economic regimes, especially the system of entire citizen ownership of a number of special assets (land, water resources, mineral resources and properties invested and managed by the State), therefore creating opportunity for socio-economic premises to appear to establish the right to adjacent immovable property rights Therefore, the topic "The right to adjacent immovable property under Vietnam’s current law" is an elaborate and comprehensive research on theoretical and practical issues of civil relations concerning the Rights to adjacent immovable properties Accordingly, the following issues have been researched and resolved: Firstly, the thesis has a systematic and comprehensive overview of issues related to the Rights to adjacent immovable property With diverse and abundant domestic and foreign documents, the author has selected the most exceptional publications Thereby, pointing out the research achievements that the thesis has inherited and continued to develop It also points out the 23 remaining issues that need to be addressed further when recognizing the types of rights to adjacent immovable property in Vietnam Secondly, the thesis analyzes and clarifies theoretical issues related to the law on the rights to adjacent immovable property By analyzing the views on the Rights to adjacent immovable property in the world and in Vietnam, the author has introduced the concept and characteristics of the rights to adjacent immovable property in this research In particular, the work emphasizes the theoretical issues of the law on the rights to adjacent immovable property, points out and analyzes the concepts, governing principles, content and form of the law on the rights to adjacent immovable property Thirdly, the thesis has pointed out the provisions of the law on the Rights to adjacent immovable property and assessed the status of law provisions and practices on enforcement of the Rights to adjacent immovable property to resolve disputes in Vietnam today Given the characteristics of Vietnam, the Right to adjacent immovable property is a part of civil law and economic law, so, within the scope of the study, the author focuses on researching and evaluating regulations laws on grounds for establishment and termination of rights to adjacent immovable property; common cases of rights to adjacent immovable property; limitations of the rights to adjacent immovable property and current property protection rights in Vietnam Fourthly, on the basis of the clarification of theoretical and practical issues, the thesis has provided orientations and solutions to perfect the law on the rights to adjacent immovable property in Vietnam today Finally, the right to adjacent immovable property is a large regulation, related to many different areas and there are a number of other issues that need to be addressed as follows: the principle to exercise the right to adjacent immovable property as provided in the Civil Code and in accordance with certain specific laws or the issue of the validity of the right to adjacent immovable property However, within the scope of this thesis, the author only mentions the most basic issues of the right to adjacent immovable property For other issues, the author will continue to improve and perfect in the future scientific researches./ 24 PUBLISHED WORKS BY THE AUTHOR RELATED TO THE THESIS Nguyen Thi Huong (2017), The right to adjacent immovable property in the Civil Code 2015, Court Journal, No 7/2017, p 5-9 Nguyen Thi Huong (2018), Basis for establishing the right to adjacent immovable property according to the provisions of the Civil Code 2015, Court Journal, No 14/2018, p 29-33 Nguyen Thi Huong (2019), Registration of the Right to adjacent immovable property in Vietnam today, Court Journal, No 13/2019, p 28-31 Nguyen Thi Huong (2019), Protection of right to adjacent immovable property in Vietnam today, Legal Profession Journal, No 4/2019, p 12-16 and 24 Nguyen Thi Huong (2019), Characteristics of the right to adjacent immovable property under Vietnamese civil law, Human Resources and Social Sciences Journal, No (69) / 2019, p 25-30 25 ... rights to the passageway, the parties may request the local People's Committee to settle within the jurisdiction permitted by the law or request the competent authority to impose administrative... the law on the Rights to adjacent immovable property in Vietnam today Theoretical and practical implications of the thesis - Theoretically, the thesis offers a multi-dimensional and comprehensive... indispensable in both theoretical and legal aspects and the enforcement of the rights to adjacent immovable property Research purpose The purpose of the thesis research is to clarify the theoretical and