Abstract of juris Doctor dissertation: Residential land use right donation in accordance with current Vietnamese laws

The dissertation aims at clarifying theoretical perquisites on residential LUR donation and the law on residential LUR donation. On such theoretical foundation, provisions of the positive law as well as the practice of enforcing the law on residential LUR donation are studied in order to find a dialectical relationship between theory, law and practice of LUR donation to find and provide recommendations for solutions to improve the law on residential LUR donation.

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES TRAN THI MINH RESIDENTIAL LAND USE RIGHT DONATION IN ACCORDANCE WITH CURRENT VIETNAMESE LAWS Major Code : Economic Law : 38 01 07 ABSTRACT OF JURIS DOCTOR DISSERTATION Hanoi, 2019 The work has been implemented at: GRADUATE ACADEMY OF SOCIAL SCIENCES VIETNAM ACADEMY OF SOCIAL SCIENCES Supervisor: Associ.Prof.Dr Nguyen Thi Nga Reviewer 1: Prof.Dr Hoang The Lien Reviewer 2: Associ.Prof.Dr Doan Hong Nhung Reviewer 3: Dr Tran Quang Huy The dissertation has been defended at the Academy-level Doctor Dissertation Assessment Council, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi At ……… : ……., of …… /……./2019 The Dissertation is available for reference at: - Library of Graduate Academy of Social Sciences - National Library of Vietnam INTRODUCTION Rationale Significantly being one of methods of transferring land use right (LUR) from one user to another basing on the equal relationship in the legal status between transferor and transferee, they go beyond the designation or enforcement of the State as the representative owner of the land In fact, LUR donation may vary from donors such as close relatives (parents, children), acquaintances to organizations, communities or the State Land use right as subject of such donation is also very diverse The legal basis for donated asset is also extremely complicated, which requires thorough study of the legal system, not only the civil law on property donation, the land law on LUR donation but also relevant laws such as: the law on marriage and family, the law on notarization and authentication, the law on registration Among LUR donation, the residential LUR donation is most complicated because of its nature, characteristics, role and useful value of residential land use right With complexity of subject, object, legal foundation of residential land use right, etc and the vibrant development of real estate market, land in general, especially residential land in urban areas, sub-central areas, areas where the speed of urbanization is high, residential land is increasing and become more valuable to legal land user Considering the above mentioned complexity, the topic of “Land use right donation in accordance with current Vietnamese laws” is chosen for study in an effort to improve the law on LUR donation in general and the law on residential LUR donation in particular Objectives and tasks of study 2.1 Objectives of study The dissertation aims at clarifying theoretical perquisites on residential LUR donation and the law on residential LUR donation On such theoretical foundation, provisions of the positive law as well as the practice of enforcing the law on residential LUR donation are studied in order to find a dialectical relationship between theory, law and practice of LUR donation to find and provide recommendations for solutions to improve the law on residential LUR donation 2.2 Tasks of study To fulfill the forgoing objectives, tasks of study include the following basic issues: Firstly, develop scientific concepts on residential land use right, residential LUR donation, the law on residential LUR donation Also analyze and study in depth characteristics theoretically of residential LUR donation and its legal characteristics on residential LUR donation in Vietnam by analyzing elements impacting and governing the law on residential LUR donation; develop criteria for assessing the appropriateness of the law on residential land use right and thereby set out the requirements of improving the law on residential LUR donation; Secondly, analyze actual situation of current law on subjects, objects, forms, conditions, rights and obligations of relevant parties in the relationship of residential LUR donation Basing on reality of disputes, resolving disputes over residential LUR donation, restrictions and obstacles in current laws and difficulties in practical arbitration for disputes over LUR donation on the basis of finding causes of such reality for proposing appropriate solutions of remedy are also indicated in the dissertation Thirdly, propose orientations and solutions on amendments and supplements, and especially instruction for enforcing provisions of the law on residential LUR donation in order to improve the law on residential LUR donation in the context of market economy and the trend of international integration Objects and scope of study 3.1 Objects of study Current theoretical and practical issues on the law on residential LUR donation are studied in the dissertation Legislations on donating asset in general and real estate as land in particular in some countries in the world are also studied 3.2 Scope of study - Study provisions of the Civil Code 2015 , the Land Law 2013 and guiding documents for enforcing the Civil Code 2015 and the Land Law 2013 on asset donation and residential land use right donation; some institutions of other laws are used with the purpose of analyzing, comparing to clarify the study - Learn about regulatory documents of previous periods, prescribing donation of real estates in general and residential land use rights in particular to compare to the current law on residential LUR donation; - Learn reality of disputes over LUR donation in general and disputes over residential LUR donation in particular in the last years (from 2011 to now); Methodology and method of study To implement this dissertation, the legal method and MarxistLeninist theoretical methods, Ho Chi Minh ideology about the state and the law, dialectical materialism and historical materialism, dialectic materialism method and viewpoints of the Communist Party of Vietnam are applied by the candidate The specific methods of study used in the dissertation are analytic - synthetic method, comparative method, inductive method, interpretation, At the same time, it also relies on statistical data, annual reporting reviews of the Ministry of Natural Resources and Environment, the Supreme People's Court and localities as well as information on the Internet New findings of the Dissertation The Dissertation topic is expected to provide new findings as followings: First: It clarifies and analyzes in depth a number of theoretical issues on land use right, residential LUR donation and the law on residential LUR donation Second: It assesses reality of the law on residential LUR donation and its activities taken place in Vietnam Third: Reality of disputes over residential LUR donation is studied, finding out causes of such disputes, thereby proposing orientations and solutions for legal improvement for resolving disputes over residential LUR donation Forth: It is to propose orientations and solutions for improvement of the law on residential LUR donation; also some solutions for overcoming previously occurred difficulties and shortcomings on residential LUR donation Fifth: The dissertation is an intensive scientific research, valuable in terms of both theory and practice, as basis for developing next studies Scientific significance of the Dissertation Study outcomes of the dissertation will be important and intensive knowledge on residential LUR donation The dissertation topic is reference material for researchers and lecturers to give lectures on the land law and the civil law and also for agencies to apply laws on addressing disputes related to residential LUR donation Conclusions and ideas presented in this topic can help state competent authorities improve the institution on residential LUR donation In addition, this dissertation is also significant for propaganda, education and application of the law on residential LUR donation Structure of the dissertation In addition to: Commitments, Acknowledgement, Abbreviations, Forewords, Table of contents, List of reference materials, Appendixes and main content of the Dissertation are divided into four chapters: Chapter 1: Literature review associated with the Dissertation topic Chapter 2: Theory on residential LUR donation and the law on residential LUR donation Chapter 3: Reality of the law on residential LUR donation in Vietnam Chapter 4: Orientation, requirements and solutions for legal improvement, enhancing effectiveness of enforcing the law on residential LUR donation in Vietnam CHAPTER LITERATURE REVIEW ASSOCIATED WITH THE DISSERTATION TOPIC 1.1 Situation of the topic study Reviewing outstanding works related to the topic shows outcomes of studies as follows: Firstly, regarding the asset ownership and use right in the human relation, with its economic significance of determining which asset belong to whom, this relation is simply a social relation if it was established and existed in a society where the state and laws were not available When the same are available in the society, the ownership relation is governed by laws, i.e with laws, rights and obligations of subjects in such ownership relation are stipulated by the State, thereby the ownership relation becomes a legal relation On other words, ownership becomes ownership right when rights of the assets’ owner are recognized and protected by law Due to difference in land ownership in Vietnam, land use right is not only one of three ownerships in which State is representative, but split from the ownership and becomes private ownership of a land use right holder Secondly, for the nature of asset donation, most of foreign or domestic studies provide a common consideration: donating assets, including personal property and real estates, even in different features or characteristics of each asset, with different forms and demands of donation, amounts to a common nature that is the transferring of asset ownership from asset owner to other person who is in consent and there is not compensation Thirdly, there are many studies about asset donation contracts, including asset donation contracts in general and land (land use right) donation contracts in particular Accordingly, content of an asset donation contract or a land use right donation contract mentions parties’ rights and obligations in the land use right transfer relation and analyzes, assesses legal regulations toward such parties’ rights and obligations in such relation Some other studies suggest that the rights and obligations of parties in the asset donation relation are the legal consequences arising from the contract In particular, which rights, obligations each party has and to what extent they are depend entirely on the agreement of the parties on issues such as object of donation, term, method of contract performance and other agreements Accordingly, content of a donation contract includes specific terms about object of donation, parties’ rights and obligations and agreements such as violation-related liabilities, methods of contract performance guarantee, etc but all must not be contrary to laws Fourthly, some studies in Vietnam are specially about land use right donation Scientific outcomes the candidate can inherit from these studies are: First, to a certain extent, theoretical premises for land use right donation, land use right donation contract, such as concept, characteristics and nature of land use right donation, classification of land use right donation contract with some other types of contracts, history of establishment and development of the law on land use right donation Second, reality of such legislations about land use right donation, land use right donation contract as regulations on subject of land use right donation; regulations on object of land use right donation; regulations on form, content of land use right donation; regulations on parties’ rights and obligations on land use right donation; regulations on conditions of land use right donation and conditional land use right donation and relevant regulations, is initially studied and clarified by analyzing positive law’s provisions, integrated with actual situation of arbitration on disputes over land use right donation contracts at courts Difficulties, obstacles and barriers in enforcement practice of the law on land use right donation and resolving disputes over land use right donation have also been pointed out in some aspects of subjects, objects, forms of contract, etc and causes of that situation are also identified Third, some studies provide numerous solutions, both theoretically, legally and practically, to speed up improvement of the law on land use right donation Therefore, during studying the topic, achievements and scientific values of the above mentioned studies are inherited by the author, which are foundation for continuous studies both in theory and practice 1.2 Open issues to be settled thoroughly While studying transactions on land use right on the background of people’s land ownership regime in which the State acts as the representative owner in Vietnam, acquisition of theoretical and legal foundations on land use right donation in countries around the world - where private land ownership are prevailed, will only present the most general problem of donation but fail to identify specific problems on land use right donation Previous studies about land use right donation in Vietnam also show that most of these studies are about the period before the Civil Law 2015 and the Land Law 2013 were promulgated After this period, these studies’ materials are mainly presented in the form of articles published on domestic journals, reflecting the individual aspects of land use right donation such as: asset donation contracts, land use right and housing donation contracts It is more notable that there is not any separate, intensive and comprehensive research on residential LUR donation It is affirmed objectively that a comprehensive, focused and intensive study on residential LUR donation with theoretical foundation of theories, suppositions, placed in the relationship of impact, governed by the context of political, economic, social, historical and international integration, a review and assessment of the legal system governing land use right donation, in associated with alternative relations with different specialized laws is in fact not available For that reason, in this dissertation, the author has studied some following intensive issues: First, theoretically, it is necessary to clarify nature of residential land and method for identifying residential land, including residential land and construction works on such land, which is determined as integral to the residential land and as basis for determining object to whom the land use right is donated It is also to clarify basis for identifying how residential land use right of a household is differed from other lands of organizations or enterprises Time of legal residential land use right and land-attached assets arisen for purpose of residence is basis for classifying the land use right to be donated Especially they are significant for determining whether the assets to be donated as object in the donation contract is invalid or not Second, it is theoretical and practical foundation of legal governing toward residential LUR donation With which elements are the law on residential LUR donation governed? What is criteria for evaluating a legal system governing effectively residential LUR donation in the socioeconomic life? Third, under the aspect of laws and their actual enforcement: Studies about the law on residential LUR donation must be integrated into the legal system that gives direct and alternative impacts and governing them, such as the Law on Real Estate Business, the Land Law, the Housing Law, the Construction Law, the Civil Code, the Notary Law, the Law on Civil Status, The Law on Marriage and Family clarify the degree of governing and adjustment of each specific law toward each issue directly related to the right to donate residential land use rights, such as: subject, object, condition, scope of donation; rights and obligations of parties in the donation relationship, processes, procedures and responsibilities of the public agency system in appraising, permitting, inspecting and supervising the donation process and handling any violation Fourth, legal and practical issues of residential LUR donation contracts, once performed, are coping with difficulties and obstacles, detailing: - It is to determine whether the asset as residential land use right and object in the LUR is only residential LUR or included land-attached asset; When they are assets integral in the donation relation; When the residential LUR is object of donation but not for land-attached asset; Whether or not the issue of partial or whole invalidation in the donation contract has been proposed when there is a conflict - Subject in the residential LUR relation is household including various members who share the residential LUR, but on the certificate of LUR, only householder’s name is specified, but not all members sharing the LUR; Are oversea-Vietnamese, foreigners living and working in Vietnam, persons without nationality living in Vietnam, enterprises, foreign organizations investing and working in Vietnam, … beneficiaries of conditional donation right? - For object of donation: Whether or not object of donation is extended in the context of the newly born Land Law together with many changes on method of determining LUR to eliminate the compulsion of "assigning" fixed "addresses" to be donated - Which consequences have been caused from the fact that LUR registration is compulsory and land-attached asset registration is not compulsory? In which case is a LUR donation contract invalidated? When is land for residence in both urban and rural areas), accounting for 93.62% of the total natural land area.1 A residential land use right is a special asset, valuated in cash on the basis of the market price and in accordance with the law, the goodwill of the owner as the State, it is allowed to involve in civil transactions 2.1.2.2 Concept and features of residential LUR donation “LUR donation is a right of land user (donor) who accordingly has right to discuss and assign the his/her LUR to another subject (donee) without any demand of compensation, though a written civil contract with consent of donee according to provisions of the Civil Law and the Land Law” Firstly, there are LUR donation transactions legally established and complied with provisions of the land law, the civil law and other relevant ones, but they are of two different types of donation: ordinary residential LUR donation and conditional residential LUR donation Secondly, object of donation is not only land use right but also landattached assets Thirdly, subject of donation is not only one possessing the residential LUR but it belongs to use right of various subjects 2.1.2.3 Roles of residential LUR donation Together with recognizing other rights of transferring land use right in current land law, it shows that LUR donation in general and residential LUR donation in particular are essentially significant in socio-economic life 2.3 Theory on the law on residential LUR donation 2.3.1 Concept and features of the law on residential LUR donation From the process of synthesis, studies ad experience review from practice of legislative application, the law on residential LUR donation can be defined as follow: The law on residential LUR donation is a total of legal provision promulgated by the State, which specifies the subjects, objects, rights and obligations of parties, form and validity of donation transactions, processes and procedures that competent state agencies must carry out and the guarantee by state institutions to ensure that the residential LUR 11 donation is carried out in practice Studies about the law on residential LUR donation in relation with other laws on asset donation and the law on asset donation in general show that they are featured as follows: - The law on residential LUR donation is a part of the system of legal provisions on LUR donation, asset donation - The law on residential LUR donation is specified on various documents - The law on residential LUR donation assures and respects freedom, mutual agreement between relevant parties during establishment and implementation of donation transaction but limited to the law 2.3.2 Legal structure for regulating residential LUR donation The legal system regulating residential LUR donation relation is structured as follows: First, legal norms for objects and conditions of the donation transaction Second, legal norms for regulating subjects of the residential LUR donation Third, legal norms regulating rights and obligations of parties in residential LUR donation Fourth, legal norms regulating forms and validity of residential LUR donation Fifth, legal norms regulating order and procedure for implementing residential LUR donation 2.3.3 Elements affecting the law on residential LUR donation The law is developed basing on the State’s will but also governed by elements of a civil society In Vietnam, the land law in general and the law on transferring land use right in particular (of which is residential LUR donation) are governed and affected by such elements as guidelines, policies of the Communist Party of Vietnam; land ownership; social and cultural elements; international integration in economy 12 CHAPTER REALITY OF THE LAW ON RESIDENTIAL LUR DONATION IN VIETNAM 3.1 Reality of the law on objects, conditions of residential LUR donation and obstacles in practice 3.1.1 Content of the law regulating the residential land use right – Objects and conditions of residential LUR donation In the current land law, specific conditions for residential LUR when involving in land use right donation is not specified, but general conditions for all transactions of LUR transfer Accordingly, a type of LUR – residential LUR when becoming an object of donation transaction, one of LUR transfer transaction, must satisfy and comply with such general conditions In detail, residential LUR to be donated must satisfy the following conditions: Firstly, it is granted with LUR certificate; Secondly, it is not in dispute; Thirdly, the LUR certificate is not distrained to ensure judgment execution; Fourth, it is within the land use term 3.1.2 Obstacles and inadequacy arisen in practice when studying about assets as LURs in the LUR donation and causes Firstly, general conditions for residential land use as asset to be donated Studying 04 general conditions as specified in Article 188 Paragraph of the Land Law 2013 indicates that there are still many unclear, not really appropriate points and they have become a barrier in practice They can be noticed with some of the following manifestations: First, the prerequisite that only assets granted with certificates of land use right and ownership of housing and land-attached assets are permitted for donation is somewhat rigid and forced Second, the condition of “land without dispute” as prescribed at Clause Article 188 of the Land Law 2013 is quite general and without any specific regulations to determine or define what is a disputed LUR that is not permitted for donation Third, the condition of “LUR is not distrained to ensure judgment execution” is also not rational 13 Secondly, determining assets to be donated as LUR in case that housing and other assets are on the land The provisions are not consistent and somewhat not practical which are causes of inconsistent application in fact of the law on residential LUR donation In detail: First, “surface right” is a new right in the civil laws of Vietnam, however there are lack of specific provisions in the current laws, which cause handling residential LUR donation in some cases confused Second, studies of the relation between residential LUR and landattached assets such as housing and construction works show that clear and specific regulations are needed to address the relations of residential LUR donation in practice Thirdly, splitting registration of LUR and land-attached assets with two different demands according to the current land law has been being barrier to donation in disputes 3.2 Reality of the law on subjects donating residential land use right and obstacles in practice 3.2.1 The content of the law on subjects donating residential land use right Since the relation of residential LUR donation is within a civil law, participatory subject must satisfy general conditions for a subject involving in a civil transaction In details: 3.1.2.1 Subject as donor The forgoing regulations show that if subject is a donor in a residential LUR donation it is compulsory to consider whether its origin and establishment must be residential LUR, regardless they are enterprise, organization, household or individual On other hand, such residential LUR donation must subject to proper object as prescribed by the State, then donor can become subject of such donation 3.1.2.2 Subject as donee of residential LUR donation It can be seen that current regulations fail to ensure the effective and appropriate management and supervision of the transfer of land use rights and land-attached assets, especially regarding LUR donation, a transfer with multiple characteristics This inadequacy and lack of specificity and clarity are being major barrier for actual transactions of donation 14 3.2.2 Obstacles and inadequacy arisen in fact during studying about subject in the relation of residential LUR donation and its cause At present, current legislations are just for listing cases subjects are not permitted to receive LUR donation or to donate LUR, but not regulations on specific conditions for subjects in implementing the right of asset donation Owners of land-attached assets that are allocated by the State to households, individuals with land use levy collection or leased with rent paid once for the whole period of lease have no right to donate land-attached assets under their ownership This is a major omission of the land law, while recognizing the right to donate assets owned by households and individuals who use land rented and paid annually, and foreigners and over-sea Vietnamese people residing in foreign countries are eligible for purchasing, this right among households and individuals that are allocated land with land use levy collection and leased land with rent paid once is not recognized 3.3 Reality of the law on rights and obligations of participatory parties in the relation of residential LUR donation 3.3.1 Content of the law on rights and obligations of participatory parties in the relation of residential LUR donation 3.3.1.1 Rights and obligation of donor Pursuant to general regulations on asset donation contracts, rights and obligations of LUR donor and donee are prescribed as follows: * Rights of donor (in case of conditional donation) - Request donee to implement one or more obligations before or after the donation - Revoke the donated LUR and claim for damage if donee fails to implement his/her post-donation obligations * Obligations of donor - Deliver the LUR as agreed properly in term of area, class of land, type of land, location, code and land status; - Complete formalities for the ownership transfer to donee so that a certificate of land use right and land-attached asset ownership is granted to donee - Never request donee to compensate to receive the LUR - Notify donee of any defect of the LUR or land-attached assets If 15 donor is aware of any asset’s defect but fails to notify it, donor is responsible for compensating any damage incurred by donee; otherwise he/she is not responsible for such compensation of damage There is not any specific provision of conditional LUR donation in the current land law, however LUR donation is a type of special asset donation, so conditional LUR donation in general and residential LUR donation in particular must comply with the civil law on conditional donation 3.3.3.2 Rights and obligations of donee * Rights of donee: - Have the right to agree to accept or not accept the LUR donated - Request donor to hand over the LUR properly as agreed in terms of area, class of land, type of land, location, code and land status; - Continue to use the land for the proper purpose and for the remaining land use term; - Be granted with a certificate of land use right and land-attached asset ownership; - Receive donor’s notice about the defects of LUR or land-attached assets; If donor is aware of any asset’s defect of but fails to notify it, donee is compensated for any damage incurred - In case an obligation must be fulfilled prior to donation, if donee has fulfilled the obligation and donor has not delivered the asset, donee reserves right to request donor to refund the liability paid by donee; * Obligations of donee - Participate in completing formalities of registration for land use right reception at a competent state agency in accordance with the land law - Perform one or more obligations before or after donation as agreed with donor - Fulfill the financial obligations of the land user after receiving the land use right Notwithstanding the above provisions on rights and obligations, enforcement in fact shows many restrictions, obstacles and ambiguity In details: Firstly, it is about regulations on the right to refuse to receive LUR donation At present, in current legislations there is not any specific 16 provision on method, time of losing the right to refuse to receive donation in some specific cases Secondly, rights and obligations of LUR donor and donee have not satisfied parties’ demand in the transaction and have not brought into play the State role in assuring benefits of land owners 3.3.2 Obstacles and inadequacy arisen in practice when studying about parties’ rights and obligations in the relation of land use right donation and causes Firstly, regulations on conditional LUR donation contract remain sketchy, so their practical application faces many difficulties for donor, donee and state agencies Secondly, agreement about personal assets of a spouse has been being consequences of different application to notarization of residential LUR donation contracts at localities 3.4 Reality of the law on form and validity of residential LUR donation transaction 3.4.1 The law on form and validity of residential LUR donation transaction Form of residential LUR donation transaction According to the provisions of the land law, a LUR donation contract must be made in a written contract in a form consistent with the provisions of the Civil Code, the land law and relevant legal provisions In details: - A residential LUR donation contract must be made in writing - A residential LUR donation contract must be notarized or authenticated in accordance with legislation Validity of residential LUR donation transaction According to legal provisions, LUR-related transactions only become valid since the LUR transfer is registered as prescribed by the land law (Article 503 of the Civil Code 2015) The legal provision that a LUR donation transaction is valid from the time of registration is not consistent with the reality of civil transactions, and rights of parties in the transaction are not assured Many countries around the world specify that a LUR donation becomes effective right from the time of representing such donation or in case donee agrees to receive 17 asset or the time when the LUR donation contract has been established and notarized 3.4.2 Obstacles and inadequacy arisen in practice when studying the form and validity of residential LUR donation transactions and causes Firstly, the two processes of notarization-authentication and LUR donation contract registration as prescribed by laws have been making them overlapped and identical; making the process of establishing donation transactions prolonged Secondly, scope of notarizing real estate mortgage under the Notary Law has also been being "transformed" in a very flexible manner in practice 3.5 Reality of the law on orders and procedures for implementing LUR donation transactions 3.5.1 Content of the law on orders and procedures for implementing LUR donation transactions Orders and procedures for implementing LUR donation transaction are subject to Article 79 of the Decree No.43/2014/ND-CP dated 15/5/2014 In general, legislations on orders and procedures for LUR donation are similar to other forms of land use right transfer for land users 3.5.2 Obstacles and inadequacy arisen in practice of for implementing residential LUR donation transactions and causes Firstly, methods of notarization for assets as housing, construction works attached to land, for which ownership on residential LUR in donation has not been registered vary from one locality to others Secondly, registration, ownership transfer for asset donation show multiple problems occurred in practice 3.6 Other obstacles and inadequacy arisen during resolving disputes over LUR donation * There are still many inconsistent views about resolving disputes related to conditional donation contracts * Disputes over LUR donation in the case of divorce * Disputes over conditional donation contracts are originated from contrary views 18 CHAPTER ORIENTATION, REQUIREMENTS AND SOLUTIONS FOR LEGAL IMPROVEMENT, ENHANCING EFFECTIVENESS OF ENFORCING THE LAW ON RESIDENTIAL LAND USE RIGHT DONATION IN VIETNAM 4.1 Orientation for legal improvement, enhancing effectiveness of enforcing the law on residential land use right donation in Vietnam 4.1.1 Legal improvement subject to the Party’s guidelines and policies Improvement of the law on residential LUR donation in particular and LUR in general must assure to concretize the Party’s views and policies; accordingly, LUR donation not only brings into play traditional values, ethics and humanity of East Asian but also respects ownership holder’s right of asset disposal Also with the dynamic development of the market economy, land, especially residential LUR becomes more and more valuable, they have a "dual effect" in civil and economic life 4.1.2 Legal improvement must assure consistency in the legal system related to residential land use right donation Improvement of the law on residential LUR donation in particular and LUR in general must be placed in total improvement of the law on asset donation and real estate donation Improvement of the law on donation should be placed in a multi-disciplinary relationship to get a overall, multidimensional and comprehensive view 4.1.3 Improvement of the law on residential LUR donation must pertain to legal enforcement Developing laws must pertain to legal management and enforcement Otherwise it may result to impractical laws that not only fail to reflect fully and honestly the reality, but also cope with difficult for predicting and preceding the development of social relations 4.2 Solutions for legal improvement, enhancing effectiveness of enforcing the law on residential land use right donation in Vietnam 4.2.1 Solutions for improving the law on residential LUR donation in Vietnam Firstly, improvement of regulations on conditions for residential 19 LUR donation More specific and detailed regulations on conditions for dispute-free LUR should be provided; at the same there should have more flexible regulations on conditions that LUR must be attached with LUR certificate In details: Firstly, conditions for proving asset’s legality on donation should be loosened Accordingly, the prerequisite that residential LUR to be donated must have LUR certificate in accordance with Clause 1, Article 188 of the Land Law 2013 should be amended; instead, it is necessary to specify that a land user has right to donate LUR in general and residential LUR in particular when he/she has a certificate of LUR and housing and landattached ownership or he/she has one of papers issued or decided by a competent state agency under Article 100 of the Land Law 2013 Secondly, it should be specified “land without dispute” to restrict implementation of donation transaction in practice Point b clause Article 188 of the Land Law should be amended with: “Such LUR is not subject to a dispute over ownership that is being handled by a Court” This amendment identifies the time when the LUR is disputed is the time of establishing a transaction via the word "is"; Disputes over ownership that have occurred and ended are still eligible for donation Thirdly, it is necessary to clarify the condition of “land that is not subject to distrainment to ensure judgment execution” to assure compatibility between the land law and the law on asset distrainment Accordingly, point c clause Article 188 of the Land Law 2013 should be amended with expanded scope: “Land use right is not distrained to ensure judgment execution or not distrained to comply with an legally active administrative decision of a competent state agency” In addition to, the regulation about eligibility for housing transaction shows irrationality and lacks of coherence In detail, at point d clause Article 118 of the Housing Law 2014 it is stipulated that a house to be donated is “not subject to a decision on land acquisition, a notice of ground clearance or house demolition of a competent agency” This condition is recognized only if land is subject to acquisition by the State, house on land is not donated, but it is not predicted that the house is also acquired This is an omission in the Housing Law, which 20 should be amended that house to be donated is “not subject to a decision on land acquisition, a decision on house acquisition, notice of ground clearance or house demolition of a competent agency” Secondly, object of residential LUR, land-attached house and other assets in donation Since legal foundation and status of residential LUR with asset as house and other assets may be different, it is necessary to provide more appropriate and clear regulations about registration of LUR with asset as land-attached house, construction works and other asset Thirdly, more concrete instructions about donating residential LUR as common asset of a household are necessary In the current land law, regulations about household’s using land are not clear and difficult for application in practice It is necessary to issue a document regulating for a case of previous issue of a LUR certificate to a household that comprises of many members, only name of Household of Mr A, or Household of Ms B is specified on the certificate, but not how many family members have legal LUR Fourthly, more concrete and detailed regulations are necessary for determining implementation of donation conditions Regulations on LUR contract in general and residential LUR contract in particular are still sketchy in some conditions, so practical applications are difficult even for donor, donee and state agencies Fifthly, it is necessary to supplement a regulation guiding the implementation of responsibility of returning the land use right if the contract becomes invalid and LUR will not be returned to the faulty party unless the invalid contract is caused by the fact that donee is not permitted to receive donation or where the continuous land use of donee will affect the interests of the State Sixthly, it is to amend regulation on effective time of LUR donation contract The candidate proposes to amend clause Article 459 of the Civil Law 2015 as follows: “Real estate donation must be made in writing and notarized or authenticated by a competent state agency" At the same time, the type of conditions for LUR donation registration is specified in Clause 3, Article 188 of the Land Law 2013; and the provisions of Point a, Clause 3, 21 Article 167 of the 2013 Land Law, regarding notarization or authentication of LUR transfer transactions, including LUR donation transactions are kept unchanged Secondly, it is necessary to be more careful in publishing legal precedent of LUR donation Analysis of legal precedent No.14/2017/AL of the Supreme Court at the Chapter thereof show that they are not close and comply properly with legislation 4.2.2 Solutions for enhancing effectiveness of enforcing the law on residential land use right donation in Vietnam Firstly, speed up issuance of certificate of LUR and land-attached house and other asset ownership Secondly, in the process of resolving disputes about LUR donation, it is necessary to strengthen effectiveness of coordination mechanism between court agencies, land management agencies and civil status management agencies Thirdly, promote the mediation factor in the process of resolving disputes over LUR donation Fourthly, in the process of resolving LUR donation disputes, there should be a combination of judgments based on legal grounds and actual land use to assess whether a donation relationship between subjects is available or not Fifthly, strengthen the supervision of the State and mass organizations for resolving disputes 4.2.3 Some other solutions Firstly, improve the professional quality, ideology and performance of staff fulfilling the state management tasks and resolving land disputes Secondly, promote the propagation and dissemination of law education Thirdly, ensure infrastructure and facilities satisfactorily for working conditions for state agencies enforcing law and resolving disputes 22 CONCLUSION Residential LUR is significantly meaningful for each land user, which is space for existence, for life development by human Residential land (residential LUR) is also a place where people reunite and return to origin of the moral tradition of “Fatherland, ancestral land” On the other aspect, LUR is a major source of capital for business investment activities, which is the most reliable source of security in credit relationship for loans Firstly, views , arguments, doctrines from preceding studies should be inherited in the dissertation when studying residential LUR donation At the same time, it identifies key and central issues to be focused on are theoretical premise issues, legal grounds and enforcement practices for the right of donating land use rights - a type of non-agricultural land in our country Secondly, theoretical premise issues on asset donation, LUR donation and residential LUR donation are clarified, focusing on specialty of this type of land, which is basis for identifying necessity and objective demand of legal regulation on residential LUR donation; identifying legal adjustment mechanism and factors affecting and governing the law on residential LUR donation Thirdly, the positive law on residential LUR donation is identified thoroughly and profound via regulations on subjects, objects, rights and obligations, forms and validities of transactions, processes and procedures for donating residential land use The issue of the law on residential LUR donation is studied generally in the civil law, the land law, the housing law, the notary and registration law and other relevant laws which make the study more comprehensive, complete and general Fourthly, gaps in laws, obstacles in practice, barrier to establishment and fulfillment of residential LUR donation transaction are detected more thoroughly, more specifically and more accurately through analyzing the inadequacies and restrictions of the positive law, embarrassment and problems of competent authorities in the process of conducting notarization and registration and especially difficulties and complexities of disputes over donation contracts, which have been causing headaches for Court officials and enforcement agencies 23 Fifthly, solutions with active and feasible impacts in an effort to obtain a consistent, appropriate and feasible legal system are drawn and built basing on the analysis and explanation thereof on the inadequacies, restrictions and obstacles occurred in reality; at the same time, basing on the principles and basic orientations from the Party's guidelines on land policies and laws in the period of industrialization, modernization and int ernational integration of Vietnam 24 THE AUTHOR’S PUBLISHED-RESEARCH WORKS LIST Tran Thi Minh (2015), Xác định người có quyền lợi,nghĩa vụ liên quan vụ án thực tế Tạp chí Tịa án số 13/ 2017 Tran Thi Minh (2015), Ly hôn, giải cho ly hôn pháp luật Hơn nhân gia đình Việt Nam Tạp chí Tịa nhân dân số 19/2015 Tran Thi Minh (2018), Thời hiệu thừa kế pháp luật dân Việt Nam ly hôn từ 1950 đến Tạp chí Tịa án nhân dân số 21/2018 Tran Thi Minh (2018), Tặng quyền sử dụng đất theo pháp luật Việt Nam Tạp chí Nhân lực Khoa học xã hội số 11/2018 Tran Thi Minh (2019), Đối tượng điều kiện tặng cho quyền sử dụng đất Hộ gia đình, cá nhân theo pháp luật Việt Nam Tạp chí Nhân lực Khoa học xã hội số 01/2019 ... of land use right donation; regulations on object of land use right donation; regulations on form, content of land use right donation; regulations on parties’ rights and obligations on land use. .. donation contracts, including asset donation contracts in general and land (land use right) donation contracts in particular Accordingly, content of an asset donation contract or a land use right. .. right donation, land use right donation contract, such as concept, characteristics and nature of land use right donation, classification of land use right donation contract with some other types of