The formation and development of the ownership regime through the constitutions of Vietnam

The 1959 Constitution, therefore, stipulated four ownership forms in terms of production means, including ownership by the whole people; collective ownership; ownership by individual w[r]

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332 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

THE FORMATION AND DEVELOPMENT OF THE OWNERSHIP REGIME THROUGH THE CONSTITUTIONS OF VIETNAM

Nguyen Quang Duc1 PhD Candidate, School of Law, Vietnam National University, Hanoi

Bui Thuy Hien

Smile Vietnam Consulting Co., Ltd

Abstract

The paper is to answer the question “What is the rule of the movement of the ownership regime in Vietnamese constitutions? Why?” Accordingly, the paper has fingered out that the ownership regime in Vietnam (on the policy scale) has developed in two contradictory directions, which is now continuing to diversify The current direction is seen to be consistent with the demand of the market economy and the international trade integration of Vietnam The study aims to emphasize the characteristics of the ownership regime in each period and explain why the ownership regime has such a developing tendency The specific contents of the ownership regime are analyzed on the basis of the provisions of the Constitutions, laws and documents of the Communist Party of Vietnam It is explained by the features of Vietnam’s institution in which every major policy is basically initiated from the political will of the Communist Party and such is highly likely to continue to be the mainstream trend in the future

Keywords: The ownership regime, Constitution of Vietnam, development tendency. 1 Introduction

The development of ownership regime necessitates ongoing research on the progress of constitution and policy in the world A country vigorously transforming into market-driven economy, Vietnam, is not the exception of this up growth The current study aims to answer the question: Which rules and reasons

are seen in the development of the ownership regime in Vietnam’s constitutions? It is supposed to base

on the two contradictory trends of national policy (defined by the Constitution) developments: (1) The 1946 Constitution to the 1980 Constitution: the narrowing trend of ownership regime (eliminating private ownership found); and (2) The 1992 Constitution to the 2013 Constitution: the diversification one

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PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

as the reform of poverty and global economy integration are seen as the influencing impacts of the ownership regime in each period Based on the findings, recommendations are given to propose the development trend of the ownership regime in Vietnam’s constitution and to suggest the suitable one for future constitutional amendments

2 The formation and development of the ownership regime in the period of the 1946 Constitution to the 1980 Constitution

2.1 The characteristics of the ownership regime in this period

The diversity of the ownership regime is seen to diminish in this period, which is divided into two sub-phases, namely from the 1946 Constitution to the 1959 Constitution and since the1980 Constitution

Four main characteristics of the ownership regime in the first mentioned sub-phase are summarized as follows Firstly, the ownership subjects were diverse There were different economic sectors with certain equally legal positions at that time of the Democratic Republic of Vietnam Besides a number of state-owned or nationalized economic establishments, private enterprises existed and participated in the economic relations that seem to be governed by the elements of the market economy Secondly, the ownership objects were diverse Production means, consuming goods, movable estate, real estate, technical know-how were not restricted to be objects of ownership relations Thirdly, the ownership relations were reportedly impacted by the feudal-colonial property regime on land It is explained by the featured agricultural economy in which the majority of property relations formed was related to the land, with the exception of some large cities accommodating industrial facilities and commercial and production activities Fourthly, the nature of ownership regime was diverse Besides the state ownership, capital ownership, collective ownership, community ownership; private ownership of land and agricultural production materials was prevalent in this period as the characteristics of Vietnam’s semi-colonial feudal economy.1

After the collapse of the US-backed government in the South (1975), the Communist Party, as the victor, determined that the people’s democratic revolution was completed in Vietnam and set out the task of developing a socialist regime on a national scale It was concretized in the 1980 Constitution in which the ownership regime, thereby, was changed as follows Firstly, ownership relations were formed on the basis of centralized planning mechanism The property transfer was only seen in between state-owned enterprises and collective organizations It can basically be said that the transformation of ownership took place in a one-way direction: the private ownership shifted to state ownership or collective ownership; State ownership moved to collective ownership Secondly, the nationalization degree of ownership relations grew Centralized planning was considered to be in the golden age with the rapid increase in the state ownership form The ownership regime was classified as simplest of its forms The contractual relationship in which only state and collective economic organization participated was seen as the proof of its monotony This fact existed even in retail business, where the system of state and collective trade organizations was organized in all fields and at all levels from the central to provincial ones.2

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2.2 The formation of the ownership regime in the 1946 Constitution

The 1946 Constitution is highly appreciated by Vietnamese academics in general It recognized a wide range of civil rights as human values committed by the State including political freedoms (ideology, association, protest and election) and property rights, business freedom.1 Private property is considered as a natural and inviolable right of human, and is therefore required to be specified in all issues related to the establishment, transfer and protection of ownership The law, hence, is supposed to stipulate measures against private property infringement and restrict sanctions that are likely to harm it

(i) Private property rights guaranteed: Article 12, the 1946 Constitution writes “The right to private property is guaranteed” It was the first time that the private ownership was committed in

the highest legal document if the 1946 Constitution is considered as the first constitution of modern Vietnam In spite of the great expectation of the backward society just escaping from the colonial rule, the 1946 Constitution was unfortunately not implemented in a large part of the country, which was then still occupied by the French and where laws enacted before 1945 remained in effect The meetings of the first National Assembly could not be organized so legal documents on ownership were not particularly issued during this period The opportunity to be specified of the property right recognized in the first Constitution was not given to the legal institution Remarkable legal documents regarding ownership are Decree No 519-TTg of October 29, 1957 on the conservation of antiquities relics; Decree No 410-TTg of September 6, 1957 on ten incentive policies for production in the mountainous area These documents contained a number of provisions on the protection of property rights to antiquities relics and trees in rural areas.2

It shows, on the other hand, a close relationship between ownership and privacy That is, other civil freedom shall be protected if these rights are both guaranteed Effective protection of privacy and property rights is also a guarantee of freedom of religion, press and politics (prescribed in Articles of 10 and 11, the 1946 Constitution) Private property without guarantee, therefore, shall result in an immediate threat to all other rights

(ii) Limiting sanctions that damage private property right: Private property is basically a human

right to be automatically entitled and committed by the State The right, thus, is usually not stipulated in a Constitution which is considered as a contract exerting power of the government Private properties of individuals, organizations or of a country are all exclusion comparable The distinction of ownership by subject does not hold significant legal value or generalization.3 From such a thought, and regarding ownership regime, the 1946 Constitution can be seen as owning only one provision that does not obscure the legal meaning of the ownership regime In addition, the concise design helped to limit the sanctions that may allow the public authority to damage private property, the shortcoming that the later Constitutions have demonstrated

1 Vu Cong Giao, ‘A survey of policy orientation and development through Vietnamese constitutions and suggestions on the activities of Rosa Luxemburg Institute in Vietnam in the period of 2015-2020’ <http://rls-sea.de/viet/wp-content/ uploads/sites/5/2014/07/Vu-Cong-Giao_Vietnamese-Report-of-Findings_online-version_final.pdf> accessed 25 March 2018

2 Hoang Ngoc Thinh (n 1) 46.

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(iii) Land ownership - the basis of private ownership in the 1946 Constitution: After successful

August Revolution, the 1946 Constitution affirmed the status of the Vietnamese people for the first time with land ownership in the highest law of the State The Land Reform Law, enacted on 19 December 1953, was the legal basis for implementing the slogan “the plowmen own fields”.1 In this period, Vietnam’s economy and society were characterized wartime economy, of which rural economy comprises the main part The State of Vietnam promulgated the 1946 Constitution to regulate and protect not only the civil rights of the Democratic Republic of Vietnam but also the private ownership and other property rights The State allowed the freedom to buy, sell and transfer land, creating conditions for entities to effectively exploit and use land.2 It can be said that the ownership regime in Constitution by this time was focused on ensuring the people’s right to land ownership

2.3 The inheritance and development of the ownership regime in the 1959 Constitution

2.3.1 The inheritance of the ownership regime in the 1959 Constitution

Vietnam’s economic direction during this period was to transform its backward economy into a socialist one with modern industry and agriculture and advanced science and technology The fundamental aim of the economic policy was to continuously develop the productive forces in order to raise the material and cultural standards of the people (Article 9) The 1959 Constitution defined the ownership regime, economic sectors, and economic management principle as the economic policy of the socialism state but suitable to the conditions of the country at war time The common ownership of production means was established along with the socialism production relation The 1959 Constitution, therefore, stipulated four ownership forms in terms of production means, including ownership by the whole people; collective ownership; ownership by individual working people; and ownership by the national capitalists The State was reported to compulsorily purchase, requisite or confiscate for the common interests and with appropriate compensation During the years of resistance war against the US, Vietnam’s economy developed under the subsidy mechanism in which production and consumption materials were distributed under plan so individuals had the right to ownership of consumer materials to serve their daily needs.3

Moreover, in order to create a legal basis for different entities of economic sectors during their production activities, the State recognized and protected the ownership of individual workers and the ownership of capitalists over the production means they were allowed to business with.4

2.3.2 The development of the ownership regime in the 1959 Constitution

(i) The institutionalization of the ownership regime

Compared to the 1946 Constitution, Chapter II of the 1959 Constitution is a completely new chapter modeled after the constitution of socialist countries In addition to regulating the State economy to play a leading role in the national economy, the 1959 Constitution stipulated that the Dang Thi Phuong, ‘The past and current regulations on the land ownership regime in Vietnam’ (2014) 12(85) Vietnam

Journal of Social Science 82

2 Nguyen Minh Doan, ‘Ownership regime in Vietnamese constitutions and current development trend of ownership regime in Vietnam’ in Nguyen Dang Dung, Pham Hong Thai, Vu Cong Giao, Constitution: theoretical and practical issues (Hanoi VNU Publisher 2011) 554

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336 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS state leads all economic activities under a unified plan In detail, the Constitution specified that the State protects the right of peasants to own land and other production means (Article 14); the right of handicraftsmen and other individual working people to own production means (Article 15); the right of national capitalists to own production means and other capital (Article 16); the right of citizens to possess lawfully earned incomes, savings, houses, and other private means of life (Article 18); citizen right to inherit private property (Article 19).1 Article 11, the 1959 Constitution stipulated that “In the Democratic Republic of Vietnam, during the present period of transition to socialism, the

main forms of ownership of means of production are state ownership, that is, ownership by the whole people; cooperative ownership, that is, collective ownership by the working masses; ownership by individual working people; and ownership by the national capitalists”.

(ii) The formation of the ownership by the entire people and collective ownership

The concept of ownership by the entire people appeared more as a result of ideology, philosophy and political economy than of the tradition of civil law It is reported that the term of ownership by the entire people was officially introduced into Vietnam since the 1959 Constitution although its recognition remained unclear (Article 11) It can be interpreted that the article only listed without defining the types of ownership, in which the concept of State ownership was defined as that of the entire people Article 12, the 1959 Constitution began to declare that the state economy, all mineral resources, waters, forests, undeveloped land, and other resources defined by law as belonging to the State were also the property of the whole people

The 1959 Constitution marked the emergence of a different view of private ownership or private property Articles 14, 15, 16 of the Constitution affirm that the State protects the ownership of land and other production means of craftsmen and individual workers, production means and other possessions of national capitalists The Constitution also specified the need to renovate those economic sectors and gradually transform them into state or collective economic sectors.2

For farmers, craftsmen and other individual workers, the State encouraged and created conditions for cooperatives to establish and families to join their land and materials with cooperatives’ to develop collective economy based on collective ownership of the workers For the capitalists, the State conducted the public-private partnership, developing the economy under the socialist path Prejudices against individual business entities remain; however, the law is seen to protect the ownership of the production means and their assets, and inheritance

(iii) The formation of State ownership of land (by the entire people)

After land reform, the North conducted agricultural cooperation According to the Resolution of the Sixth Central Conference of the Communist Party, the commune members’ land, in principle, must be fully put into the cooperative and uniformly used The State left its members a land area not exceeding 5% of the average area per capita in the commune for growing vegetables, planting fruit trees and raising animals.3 Article 14 and Article 40, the 1959 Constitution respectively recognized that the State by law protects the right of peasants to own land and other production means, and the public property of 1 Thai Vinh Thang, ‘Vietnamese Constitutional History’ (Ministry of Justice, 26February 2015) <https://moj.gov.vn/qt/

cacchuyenmuc/ctv/news/Pages/nghien-cuu-trao-doi.aspx?ItemID=14> accessed 31 May 2017 2 Hoang Ngoc Thinh (n 1) 46.

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the Democratic Republic of Vietnam is sacred and inviolable It is the duty of every citizen to respect and protect public property The 1959 Constitution once again affirmed the view of the Communist Party and the State of Vietnam in implementing the slogan “the plowmen own the field”.1

2.4.1 The inheritance content of the ownership regime in the 1980 Constitution

Inheriting the 1959 Constitution, the mechanism of centralized, bureaucratic and subsidiary state management was clearly and consistently defined in 1980 Constitution The Constitution asserted that “The State leads the national economy under unified plans” (Article 33), which also defined the principle of collective responsibility and leadership in the state apparatus In addition, the 1980 Constitution significantly expanded the level of guarantee with economic, social and cultural rights as stipulated in the Constitution of socialist countries Specifically, the Constitution stipulated that education and health care were free of charge, and people are entitled to the right of access to housing, employment and state assistance to implement these two rights

The 1980 Constitution, however, no longer recognized that private ownership was a fundamental right of citizens compared to the 1959 Constitution Article 27 of the Constitution only stipulated that “The State protects citizens’ right to ownership of lawfully earned income, savings, housing, living

materials, and production tools used in case of separate labor permitted The law protects citizens’ right to inherit property” Being aware of the transitional period Vietnam was experiencing at that

time, the State did not recognize the existence of private ownership and the corresponding economic sectors, considered it as a non-socialist economy and sought to abolish it The subsidy and collective ownership is seen to cover most provisions of the 1980 Constitution Only some of citizen rights stipulated in the Constitution are reported to be exercised over some types of people The application of the right to housing to only citizens who are public officials is a specific example.2

(i) Removing the ownership of production means

The private ownership was reaffirmed in the 1980 Constitution with a higher level of denial for this “non-socialist” economic sector Article 18, the 1980 Constitution affirmed that the State implements a national economy with two main components including state economy and collective economy Articles 24, 25, and 26 of the 1980 Constitution stated the continued improvement of the economic components of individual farmers, craftsmen and capitalists in appropriate forms It, thus, can be seen that the role of private ownership remained minor in the national economy and in the legal system For the same reason, there were virtually no legal mechanisms in Vietnam for the protection of private ownership, which was considered as non-socialist at this time, but only measures to renovate and eliminate the types of private ownership regime on production means.3

The 1980 Constitution only stipulated two forms of ownership of land and production means namely the ownership by the entire people and the collective ownership The private ownership 1 Dang Thi Phuong (n 6).

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338 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS of land and production means was not recognized; the State only protected the private ownership of houses and assets used to meet the residential needs instead These stipulations are reportedly aimed to accomplish the goal of completing the socialist infrastructure for 20 years (until the end of the twentieth century) and to develop a comprehensively developed socialism, the goals set by the Communist Party in the Fourth National Congress (1976).1

The Constitution stated that individuals and households did not have the right to own land, but were entitled to the right to use and exploit land, and transfer properties on land In the case of no property present on the land, people have no right to transfer of the use of land, including the inheritance of land use rights In the case when the person assigned with land dies, the land use right shall be transferred to the person currently using the same land of the deceased Civil exchanges on land were banned during this period since the State allocated land to cooperatives and production enterprises On the other hand, due to the socialist reform policy in the South that brought households and individuals into production enterprises and cooperatives, the civil transactions mainly dealt with the daily necessities of individuals and families.2

(ii) Protection of personal property rights

The concept of personal property formed under the influence of the constitutional regulations on restricting the private ownership on production means and the protection of citizen’s right to lawful income, saving and housing is the feature of legal system in this period This concept is seen to explain somewhat the contradiction between the categories since these mentioned assets are naturally owned by the individual meaning private property Legal science considers the personal property as the socialist legal institution in which the legal provisions govern the relationship between entities arising from the possession, use and disposition of property for the purpose of living and consumption of these entities In brief, personal property differs from private ownership in the object of the ownership relationship and the purpose of the entities involved in the ownership relationship.3

The period of 1960-1986 recorded a number of institutions and legal provisions on personal property and its protection although not yet complete, such as Circular No 48-TTg of June 3, 1963 on the ownership of cattle; Circular No 228-TTg of May 22, 1975 on deposits of business owners at the State Bank; Decision No 55/CP of February 23, 1980 on the ownership of cars of individuals, Decision No 39/CP of February 9, 1979 on management of gold, silver and gems The objects of private ownership relations were assets satisfying the daily consumption of citizens such as houses, trees, money and lawful foreign currencies Most of these documents have regulations requiring owners not to use property for illegal business, or not to commit activities that may affect security and social order The measures of private property protection were paid little attention to in legal system.4

(iii) Thoroughly enforcing the entire people’s ownership of land

Until the 1980 Constitution, it seemed that the socialist revolutionary ideology of production relations had been publicly expressed in the Constitution since the scope of the entire people’s 1 Vu Cong Giao (n 2).

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ownership extended to all important national economic resources.1 Article 19, the 1980 Constitution stipulated that “Land, forests, mountains, lakes, mines, natural resources in the ground, in the seas

and continental shelves and other properties belonging to the State prescribed by law are owned by the entire people” This provision removed the previous forms of land ownership and established

a single form of land ownership namely the ownership by the entire people of which the State is the owner Although the 1980 Constitution specified that the land was owned by the entire people; the State, in fact, implemented the recovery, registration and statistics recording of land, aiming to establish its ownership Land users were supposed to exist as before The 1987 Land Law consisted of six chapters and 57 articles defining the principles of land use, rights and obligations of land users Article 1, the 1987 Land Law stated that “Land is owned by the entire people, managed by the State” It was the legal basis for completing the land law system in which the State clearly performed the role of representing the ownership of the entire people under the provisions of the 1980 Constitution After a period of implementation, the land ownership including three forms is reported to be no longer suitable The regulation of collective ownership form on land, for example, seemed to create unreasonable, wasteful and ineffective land usage

3 The formation and development of the ownership regime in the period of the 1992 Constitution to the 2013 Constitution

3.1 Characteristics of the ownership regime in this period

Fundamental changes were seen in the economy of this period when the renovation policy of the Communist Party and State of Vietnam was used to implement a multi-sector economy, freeing up all potentials in society to develop the economy of the country The institutionalization of this approach, especially in terms of ownership regime, is reported to be much slower than changes in the economy Ownership regime included some characteristics2 as follows:

Firstly, the private ownership of production means considered as private property as well as

the private enterprises, joint ventures among private entities are reported to exist in Vietnam’s economy from 1986 to 1992, though not yet recognized by the Constitution and legal system Some important principles of the market economy such as business freedom, private ownership of production means had not been institutionalized until the 1992 Constitution The Corporate Law, the Private Enterprise Law, the Bankruptcy Law, and the Civil Code were respectively enacted relating to the ownership regime

Secondly, private ownership of production means was on thrive According to the Ministry

of Planning and Investment, for just over eight years since the promulgation of the 1990 Private Enterprise Law (effective in 1991) and the 1990 Companies Law (effective in 1991), there were 421 joint-stock companies nationwide with the capital of VND 5,231,057 billion; 2,227 limited liability companies with the capital of VND 13,099,332 billion; 26,639 private enterprises with the capital of VND 5,995,876 billion; and tens of thousands of business households and small business households registered under Decree No 66-HDBT of March 2, 1992 This development is noted as a bold mark in the formation and development of property laws

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Thirdly, it is worth noticing that the ownership regime became much more diverse than that in all

previous periods This diversity was not only derived from Vietnam’s socialist-oriented multi-sector economy but also due to its integration into the world economy Entities with a unique organizational structure and ownership regime such as joint venture enterprises, 100% foreign invested enterprises, BOT and BTO enterprises are reported to appear in the economy for the first time

Fourthly, the diversity in the object of ownership relations is seen in the addition of more types

of rights For example, the origin of goods, the names of businesses, inventions were additionally considered to be objects of ownership relations

Fifthly, the widespread existence of foreign owners in Vietnam featured the ownership regime

in this period The foreign investment attraction had rapidly increased the number of foreign owners invested in Vietnam in the form of joint venture enterprises, 100% foreign invested enterprises, BOT and BTO enterprises with benefits closely associated with the movement of assets and capital

3.2 The formation and development of the ownership regime in the 1992 Constitution

(i) Maintaining the leading role of state ownership and collective ownership

The 1980 Constitution to reform the socialism in the South and build the foundation for socialism on a national scale was no longer suitable for the renovation process It was the reason for the enactment of the 1992 Constitution with the line of socialist-oriented market economy development The ownership regime, thus, experienced a reformative change The 1992 Constitution stipulates three ownership regimes, namely the ownership by the entire people, collective ownership, and private ownership, in which the entire people’s ownership and collective ownership constitute the foundation (Article 15).The important subjects of ownership by the entire people including land and state capital and assets invested in enterprises were identified in the Constitution By 2003, two laws passed by the National Assembly, namely the Land Law and the State Enterprise Law, promulgated two different provisions relating to two subjects of the ownership by the entire people While the Land Law stated that the land was owned by the people of which the State was the representative; the State Enterprises Law defined that “State enterprises are economic organizations owned by the State

with total charter capital”(Article 1).1

The concept of “ownership by the entire people” is understood as the common ownership of at least all citizens living in the territory of Vietnam This legally requires the creation of a mechanism so that all people (co-owners) have the right to participate in the “disposition” and to “benefit” from this ownership Being owned by the whole people is hardly identical with “state ownership” It requires a clear definition of: (i) Who is the State (a system of different bodies and structures rather than a centralized or unified body)?; (ii) “Central State” or “Local State?; and (iii) Who is the representative of the State entity (governmental, legislative and judicial authorities)?

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Article 17, the 1992 Constitution listed all subjects owned by the entire people, lack of classifications according to the importance of State’s property The Constitution put the subject of “land, forests, mountains, rivers and lakes” in the same degree with “state capital and assets invested in enterprises” which varied widely in nature, political, economic and social significance It should be noted that property owned by the “nation”, “state” or “the whole people” not only brings benefits but also a financial burden and other obligations to the people as a taxpayer The issue is seen in terms of not only protection for these assets but also people’s control over its increase (investment in construction or procurement by government authorities should be controlled within the statutory limits).1

(ii) Maintaining the ownership by the entire people on land

Absorbing the innovation spirit of the Seventh National Party Congress, the 1992 Constitution and the 1993 Land Law were respectively adopted to replace the 1980 Constitution and the 1987 Land Law The multi-sector economy has been initiated and developed since the 1992 Constitution and the Land Law of 1993 defined the real estate market, land price regulations, five types of rights for households and individuals to use land (rights to transfer, assign, lease, inherit and mortgage land use rights) The 2003 Land Law stipulated that the land was owned by the entire people of which the State was the representative who assigns land households and individuals for stable and long-term use.2

The terms “land” and “parcel of land”, however, are different in their meaning and object; therefore, the nationalization of specific “parcel of land” did not happen by that time In other words, the State, in term of land law, only expanded its control in the use and disposition right The land users were supposed to carry out the provisions of changing the purpose of land use or assigning the land parcel if demanded The motivation of this land “nationalization” was notably seen as the State policy of centralizing the relations related to land ownership.3

Furthermore, the regulations on (land) ownership by the entire people remained unclarified, as did the rights of the entire people as the owner, and responsibilities of the State as the owner representative The constitutional regulations, in fact, did not harmonize the interests of the State, investors and land users The compensation for people whose land was recovered was reported to remain unsolved, leading to the wasteful and inefficient use of land and the complicated complaints and disputes on land The definition of the (land) ownership by the entire people was questionable since the right of land users was stipulated in the Land Law in the almost same way with the owner rights An effective mechanism failed to be constituted in legal system to handle conflicts between land accumulation for large-scale concentrated production area and regulations on agricultural land assignment limit, duration as well as the limit for transfer of agricultural land use rights

(i) Restoring of private property

The ownership right of citizen was restored in the 1992 Constitution in a new spirit and consistent with economic policies and regulations on citizens’ right to business freedom as stated: “Citizens have 1 Nguyen Tien Lap (n 22).

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the right to ownership of lawful income, savings, housing, personal possessions, means of production, capital and other assets in enterprises or in other economic organizations; the right to use the land allocated by the State is provided for in Article 17 and 18 The State protects the citizen’s right to bequeath and to inherit” (Article 58) It is noted that the scope of the citizen’s ownership was expanded

since the ownership of the production means had not been recognized in the 1980 Constitution.1 Accordingly, lawful assets in the form of private ownership were not limited in quantity and value A lawful owner or possessor had the right to request a court or other authorities to force any person infringing its ownership rights or right to possess to return the property and to cease the infringement of its ownership rights or right to possess, and had the right to demand compensation for any damage (Article 255, the 2005 Civil Code) It can be said that the 1992 Constitution had institutionalized the Communist Party’s policy in the development of a socialist-oriented market economy with various forms of ownership of production means including the ownership by the entire people, the collective ownership, private ownership in which the ownership by entire people and the collective ownership constitute the foundation Forms of mixed ownership were seen to be initiated under the requirements of market economy development in Vietnam

However, the possession, use and disposition of properties in the form of private ownership must not damage or affect the interests of the State, the public interests, the legitimate rights and interests of others Individuals were not allowed to own the property defined by law as belonging to the State, or falling under the ownership of the entire people (Article 17) The recognition of long-term existence of the private ownership regime, individual economic sectors, small owners, private capitalist, the rights to business freedom of citizens, the introduction of insurance have contributed significantly to the creation of more jobs, the increase in income for workers, and the legitimate enrichment among citizens.2 A completely different perspective on the private ownership regime was shown in the 1992 Constitution Private ownership of production means and other assets was considered a component of a state-controlled, multi-sector economy The enactment of 1995 Civil Code, which adjusted the ownership relations, marked a significant point in the legal system of Vietnam since the 1992 Constitution.3

It is shown as the Vietnam’s laws on private ownership stepped up when the country entered a market economy It is demanding to finalize the legal system of ownership in general and the form of private ownership in particular in an economy where private ownership continuously played an increasingly important role In other words, the law of ownership associated with the economic and socio-political changes of a country is a clear reflection of that country’s policy

(ii) Restoring the right to use land of individuals and organizations

Among the individual property rights, the right to use land plays the most important role, and is a great asset of the majority of farmer households The State allowed individuals and households to exercise the rights to exploit, use, transfer, lease, exchange and inherit land use rights Land use rights were recognized by the State as particularly important economic value goods of individuals, households and other entities.4

1 Nguyen Minh Doan (n 7) 558. 2 ibid.

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The (amended and supplemented) 1992 Constitution consistently affirmed that land was owned by the entire people, of which the State was the owner representative It was what the Communist Party agreed at the Fifth and Sixth Conference of the 11th Central Executive Committee besides introducing new guidelines and orientations related to the State management in land use plan It also unanimously determined that the land use right was a special property and goods but not a property right Land users who were allocated or leased land by the State for stable and long-term use had a number of rights (conversion, transfer, lease, inheritance, gift, and mortgage) in accordance with the law Land users were entitled to receiving compensation when the State recovered the land, as well as required to take responsibilities to register the land use right, ensure the rightful land use purpose and comply with the State’s decision of land recovery The State did not recognize the reclaiming of land allocated by the State to others during the implementation of land policies; did not raise the issue of adjusting agricultural land allocated to households and individuals Instead, the State continued to allocate and lease agricultural land to households and individuals for an extended definite term; expand the limit of agricultural land use right assignment in accordance with specific conditions of each region, in each period, creating favourable conditions for the process of land accumulation and concentration, forming agriculture production zones

(iii) Focusing on the protection of property rights

It is noted that the law, since 1986 up to now, pays great attention to the ownership regime The concept of private ownership has also experienced a fundamental change: private ownership of the production means was recognised and protection measure was stipulated Civil Codes introduced a number of property protection measures that the legal systems of many countries have acknowledged and used effectively Chapter XV, Part II of the 2005 Civil Code or Section 2, Chapter XI, Part II of the 2015 Civil Code have stipulated the right of the owner to reclaim his/her belongings if illegally seized or rights to request other entities to stop illegal acts of exercising property rights, the right to legal possession, and the right to claim damages caused by others to their properties The protection of property rights by criminal means has also significantly changed The approach of criminal law that considered socialist property infringements, namely State and collective ownership, more serious than those to private property, has no longer remained It marked not only a matter of legislative techniques but a reflection of the new view of State on private property and a non-discriminatory approach regarding different forms of ownership.1

Institutionalizing the views of the Communist Party of Vietnam and inheriting the reasonable contents of Article 15 and Article 43, the 1992 Constitution; constitutional regulations on the goals of economic development in the 2013 Constitution can be summarized as follows:

Firstly, it emphasizes sustainable development of the economy together with progress in social,

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Secondly, it highlights the construction of an independent and sovereign economy which shall

promote its internal resources, international cooperation, and the industrialization and modernization of the country (Article 50) The nature and structure of the economy play a determinative role in the country development (Article 51) It can be seen that the 2013 Constitution has inherited and developed contents expressing the motivation and goals of developing a socialist-oriented market economy in Vietnam, which was previously detailed in Articles of 15, 16, 19, 20, 21, 22, 23 and 25 of the 1992 Constitution It affirms the development of a socialist-oriented market economy with multiple forms of ownership and multiple sectors in the economic structure; different economic sectors are equally treated to cooperate and compete in accordance with the law

Thirdly, the 2013 Constitution continues to assert that the State economy plays a leading role,

which is supposed to necessarily ensure the socialist orientation of the economy and to unify the provisions on political and economic institutions of the Constitution However, during the process of revising the 1992 Constitution, there was a different view that demanded on implementing the social policy, regulating the economy and creating the favorable condition for other sectors, thereby enhancing the welfare and social security.1 It originated from the concern that the leading role regulation of the State economy somehow leads the State to nurturing a number of stagnant, low-performing and corruptive economic sectors It is worth noticing that the Communist Party of Vietnam in this regard is somewhat clearly determining that the State economy does not lead the other economic sectors, but first and foremost supports the direction and regulation of the economy.2

Regarding the above provisions of the 2013 Constitution, in recent years, barriers and discrimination between economic sectors have been seen to significantly decrease with the provision of general policies for different types of businesses including state-owned enterprises, private enterprises and foreign-invested enterprises; between domestic investors as well as international investors; thereby creating a fair competitive environment under the rules of market economy and international practices It is figured out, however, that equality between state-owned enterprises and private enterprises was still not seen in land, credit, investment opportunities, information, human resources and project bidding In the law on investment remain differences in treatments for domestic enterprises and foreign-invested enterprises in terms of project operation limits, between the domestic organizations, individuals and foreign organizations and individuals and Vietnamese abroad in terms of leasing land, land allocation with land use fees Regulations on contract performance or distribution are found obstacles in trading, hence creating corporate monopolies associated with state one.3

1 Nguyen Phu Trong, ‘Speech to closing ceremony of the 8th Party Central Conference, Session XI’ (the 8th Party Central Conference, Hanoi, October 2013) <http://tulieuvankien.dangcongsan.vn/van-kien-tu-lieu-ve-dang/hoi- nghi-bch-trung-uong/khoa-xi/phat-bieu-cua-tong-bi-thu-nguyen-phu-trong-be-mac-hoi-nghi-lan-thu-8-ban-chap-hanh-trung-uong-dang-khoa-xi-586> accessed 25 July 2019

2 The 9th Central Committee of the Communist Party, ‘Enhancing the Communist Party’s leadership and power, promoting the strength of the entire nation, strengthening the comprehensive renovation process, soon bringing the country out of the underdeveloped state (The 10th National Party Congress, Hanoi, 25 April 2006)<http://www chinhphu.vn/portal/page/portal/category1/NuocCHXHCNVietNam/ThongTinTongHop/noidungvankiendaihoidang? categoryId=10000715&articleId=10038386> accessed 16 February 2018

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345

PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM 3.3.2 The development of the ownership regime in the 2013 Constitution

Compared to the 1992 Constitution, the 2013 Constitution owns the following new regulations:

(i) Regarding the ownership

The nature of Vietnam’s economy has been reflected in the 2013 Constitution; that is, the right to business freedom (Article 33) and the inviolability of the organization’s assets and individuals (Article 32) The 2013 Constitution stipulates that “everyone” instead of “citizens” in the 1992 Constitution enjoys the right of business freedom and protects property rights This amendment has expanded the scope of subjects and rights of owners in accordance with domestic and international practices

The 2013 Constitution also recognizes and respects the private property rights and the right to inherit lawful income, savings, housing, chattel, production means and funds in enterprises or other economic organizations (Article 32) and protects the right to intellectual property (Article 62) Private possessions of individuals, organizations of investment, production, and business are protected by the law and are not subjected to nationalization (Article 51).Thus, with the amendments in Article 32 and Article 33, the 2013 Constitution strengthens the government’s policy on the right to business freedom and lawful ownership of property of all organizations and individuals in the country and abroad It is believed to be an important legal basis for investors while stabilizing the investment environment in Vietnam

(ii) Regarding the ownership forms

The 2013 Constitution continues to recognize and protect the multiple forms of ownership in Vietnam (Article 51), which constitute the legalization of the ownership forms in the 2015 Civil Code Accordingly, this Civil Code specified forms of ownership as including: ownership by the entire people, common ownership and private ownership, instead of six ownership forms stipulated in the 2005 Civil Code including state ownership, private ownership, collective ownership, common ownership and ownership of political organizations, socio-political organizations and ownership of professional social organizations This change is considered consistent with the provisions of the 2013 Constitution and Vietnam’s practices.1

Besides, it is also suggested that regulation be applied to only two forms of ownership, namely common ownership and private ownership since the ownership by the entire people actually belongs to the common ownership However, the drafting committee of the Civil Code 2015 at the beginning said that the ownership by the entire people (of which the State is the owner representative) is regulated to a number of special assets such as land, natural resources Considering entire people ownership, a specific form of common ownership, is thus believed to trivialize the political, economic and defense position of the ownership of the entire people.2

These arguments persisted at every occasion of constitutional or civil law amendments in Vietnam, probably due to the inconsistent approaches taken by legislators and theorists Theoretically, there seems to be an implicit dogmatic conception of “the ownership by the entire people” norm (an objective necessity in a socialist society) which, on the other hand, simply trivializes it with the 1 Thu Phuong, ‘Ownership regime supposed to be suitable for the reality’ Tin tuc (Hanoi, 10 February 2015) <https://baotintuc.

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346 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS concept of “State ownership” without marked effort to make it transparent.1 It is also the reason for the 2015 Civil Code to step further in clarifying the form of ownership by the entire people In detail, while the Civil Code 2005 stipulates that “Property in the form of State ownership includes land,

” (Article 200), the 2015 Civil Code does “Land, water resources, mineral resources, resources in the waters, airspace and other natural resources and the assets invested and/or managed by the State belong to the entire people with the representation and centralized management of the State”(Article 197) Considering that these two forms are explained in the same way, the change

from state ownership to ownership by the entire people has contributed to clarifying the content and nature of this type of ownership

(iii) Regarding the economic sectors

Firstly, it is noted that the collective economy, individual economy, small owner, private

capitalist economy, household economy or foreign-invested economy which law and specific government policies define are not specifically stipulated in the 2013 Constitution Such provisions are said to be consistent with the nature of the basic law, ensuring the generality and high stability of the Constitution when the structure of the economy may change Secondly, the 2013 Constitution does not identify the “State economy”, an economic system based on the ownership by the entire people on production means (including the state budget and other economic-financial resources of the State) with “State enterprises” which are considered as a part of the State economy It is believed to eliminate the misunderstandings about the leading role of the State economy as well as the role of state-owned enterprises In addition to the provisions of inequality, discrimination between economic sectors and enterprises, the current law has not clearly defined the strict and transparent mechanism of enforcing, monitoring the business management processes and procedures It is what the legal system is demanding to finalize besides protecting enterprises of all economic sectors from being discriminated against and treated with inequality in reality.2

4 Conclusion

The study shows that the movement of the ownership regimes in Vietnamese constitutions evolves in two contradictory cycles: (i) the gradual elimination process of the private regime in the period of the 1946 Constitution to the 1980 Constitution; and (ii) the diversification process of the ownership forms in the 1992 Constitution to the 2013 Constitution

The first cycle, starting with “ownership is as an inviolable sacred right” stipulated in the 1946

Constitution, is explained by the idea of moving towards freedom after centuries of being ruled The ownership regime in the Constitutions of 1946, 1959 and 1980 has changed significantly based on the premise of ideas, political tendencies and the dependence on the leading role of the Communist Party of Vietnam Concerning constitutional techniques, ownership regime was regulated into a chapter in the Constitutions of 1959 and 1980 instead of a brief one Article 12 of the 1946 Constitution Regarding the content, the ownership regime in the 1946 Constitution was guaranteed for the first time in the highest legal document, bringing great expectations for an outdated society that had just escaped from colonial rule, restoring human rights with particular emphasis on private property as 1 Nguyen Tien Lap (n 22).

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347

a natural human right since birth From the 1959 Constitution, issues related to ownership were identified as one of the main principles of Marxism-Leninism, so the ownership regime was supposed to bear the characteristics of the transition period from people’s democracy to socialism As a result, the diversity of ownership forms was narrowed down; production materials were almost excluded from private ownership Private ownership of the production means was virtually nonsense although there were no regulations to eliminate or claim ownership of this object as illegal By the 1980 Constitution, the degree of nationalization and state ownership became even higher and the time was considered the golden age of central planning In summary, the evolution of the ownership regime in the Constitutions before the Doi Moi (Renovation reform) period is seen as the process of gradual elimination of the private system and the strong establishment of the public regime for important production means The paralysis of the economy and spiral of poverty were reported as the consequences creating a premise for the Doi Moi and seemingly reversing the progress of the ownership regime in the later constitutions

The second cycle is seen as the period when the renovation policy of the Communist Party and

the State of Vietnam began to be brought to life in order to enable all potentials in society to develop the country’s economy The institutionalization of this approach, especially in terms of ownership, is reported to be much slower than changes in the economy

From 1986 to 1992, the private ownership of production means existed as a non-recognized ownership form in the Constitution By the 1992 Constitution, some important principles of the market economy such as business freedom, private ownership of production means started to be institutionalized, boldly marking the formation and development of property laws The ownership regime in this period became much more diverse than in all previous periods, which was not only derived from a multi-sectors economy but also from international economy integration Different types of rights were seen as the objects of property relations and the widespread existence of foreign owners in Vietnam was the feature of ownership regime in this period The opening of foreign investment attraction has rapidly increased the number of foreign owners in Vietnam with benefits closely tied to the movement of assets and capital they invest in Vietnam

The 2013 Constitution belongs to the development stage of modern constitutionalism which demands respect and protection of property, the public interest with property, the interests of individuals and the society in the equal and non-discriminative manner It is accepted that in the current context, it is not possible to effectively implement the public regime of production means and social assets Creating favourable conditions for economic sectors to be equal and competitive on the basis of law has been focused instead It questions the clarification regarding the handling between public interests and private interests in the constitution and laws of the country

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348 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS reforms in the future, which are: continuing to promote equity among owners, developing mixed ownership forms and determining the role of ownership entities in the ownership by the entire people and introducing new legal concepts to solve theoretical and practical problems in the country

References

Communist Party of Vietnam, Document of the 6th National Congress (National Politics Publisher 1986)

Dang Thi Phuong, ‘The past and current regulations on the land ownership regime in Vietnam’ (2014) 12(85) Vietnam Journal of Social Science

Hoang Ngoc Thinh, ‘The development of private ownership through Vietnam’s constitutions’ (1999) Law Journal of Hanoi Law University

Nguyen Dang Dung, Trinh Quoc Toan, Dang Minh Tuan., Scientific commentary on the 2013

Constitution of the Socialist Republic of Vietnam (National Politics Publisher 2016)

Nguyen Minh Doan., ‘Ownership regime in Vietnamese constitutions and current development trend of ownership regime in Vietnam’ in Nguyen Dang Dung, Pham Hong Thai., Vu Cong Giao, Constitution:

theoretical and practical issues (Hanoi VNU Publisher 2011)

Nguyen Tien Lap, ‘The regime ownership by the entire people and land tenure’ Tia sang (Hanoi, 19 October 2010) <http://tiasang.com.vn/-dien-dan/che-do-so-huu-toan-dan-va-van-de-so-huu-dat-dai-ky-i-3571> accessed 28 January 2016

Pham Duy Nghia, ‘The demand to revise the 1992 Constitution in terms of the ownership by the entire people’ (A practical assessment of the implementation of the economic regime in the 1992 Constitution, Ho Chi Minh city, 24th February 2012) <http://law.ueh.edu.vn/lkt/index php?language=en&nv=news&op=Bai-viet-cua-Giangvien/Nhu-cau-ve-sua-doi-Hien-phap-1992-ve-so-huu-toan-dan-PGS-TS-Pham-Duy-Nghia-68> accessed 31 March 2018

Thai Vinh Thang, ‘Vietnamese Constitutional History’ (Ministry of Justice, 26 February 2015)<https:// moj.gov.vn/qt/cacchuyenmuc/ctv/news/Pages/nghien-cuu-trao-doi.aspx?ItemID=14> accessed 31 May 2017

The 9th Central Committee of the Communist Party, Enhancing the Communist Party’s leadership

and power, promoting the strength of the entire nation, strengthening the comprehensive renovation process, soon bringing the country out of the underdeveloped state (The 10th National

Party Congress, Hanoi, 25 April 2006)<http://www.chinhphu.vn/portal/page/portal/category1/ NuocCHXHCNVietNam/ThongTinTongHop/noidungvankiendaihoidang?categoryId=1000071 5&articleId=10038386> accessed 16 February 2018

Thu Phuong, ‘Ownership regime supposed to be suitable for the reality’ Tin tuc (Hanoi, 10 February 2015) <https://baotintuc.vn/phap-luat/cac-hinh-thuc-so-huu-phu-hop-voi-thuc-tien-2 0150210221836690.htm> accessed 20 January 2018

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The formation and development of the ownership regime through the constitutions of Vietnam

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