Pháp luật về kinh doanh nhà ở hình thành trong tương lai từ thực tiễn thi hành tại thành phố hồ chí minh TT TIENG ANH

INTRODUCTION The necessity of research In society, many people who cannot afford to own housing use housing products from real estate investors To trade houses, real estate investors and traders shall build a number of available houses and apartments to sell to the market for consumers This requires real estate investors and traders to invest a large amount of capital to build houses, apartment buildings,… despite their limited financial capacity To solve the problem of capital for housing investment, one of the investors’ channels to mobilize capital from customers is off-plan housing business In order to promptly overcome the shortcomings of the Law on Real Estate Business 2006 on off-plan housing business, the Law on Real Estate Business 2014 was approved by the National Assembly XIII at the 8th session on November 25, 2014 to replace the Law on Real Estate Business 2006 This Act was enacted at the same time as the Law on Housing 2014 with amendments and supplements to the off-plan housing business market in order to meet the requirements of the current development practice of the country Ho Chi Minh City (“HCMC”) is an economical, commercial and service centre with a strong attraction for domestic and foreign real estate investors The type of off-plan housing business strongly attracts real estate investors Besides the positive sides, there are many investors who perform appropriating capital, fail to hand over off-plan housing business on schedule and within the committed time, or even scam customers' money To solve these problems, the study and assessment of the law on off-plan housing business referring to the reality of HCM city is necessary Therefore, the PhD candidate chooses the topic “The Law on off-plan housing business from practical implementation in Ho Chi Minh City” to his doctoral thesis in jurisprudence Objectives and aims 2.1 Research objectives The research objectives of this thesis are to contribute to perfecting the system of legal basis for off-plan housing business with reference to practice in HCMC, propose solutions to complete this field of law and improve the effectiveness of implementation in HCMC 2.2 Research aims - Research theoretical issues about off-plan housing business and the law on off-plan housing business - Researching the status quo of the law on off-plan housing business in Ho Chi Minh City Provide orientations and solutions to perfect the law on off-plan housing business and improve its efficiency in implementation in HCM city Research subjects and scope 3.1 Research subjects - The Party's viewpoints and guidelines on the creation and development of housing in the socialist-oriented market economy - The scientific arguments, the theoretical school about housing business in general and off-plan housing business in particular - The provisions of the Law on Real Estate Business 2014 and guiding documents - Practical implementation of legislation on off-plan housing business in Ho Chi Minh City 3.2 Research scope Firstly, comprehensive analysis of purchase, sale and transfer; to rent; lease-purchase off-plan housing between real estate business entities or other subjects to make profits Secondly, study the regulations on off-plan housing business of the Law on Real Estate Business 2014, the guiding documents and related laws Thirdly, limit the scope of the study from 2014 to the present with reference to Ho Chi Minh City Theoretical basis & research methodology - Scientific research methodology of dialectical and historical materialism of Marxism - Leninism - Addtionally, the thesis also uses a number of specific research methods, including: Interdisciplinary method, analytical method, historical method, commentary method, comparative method, statistical interpretation method, synthesis method, inductive method, etc New contributions of this thesis Firstly, establish a theoretical framework, including the theories of property ownership, business freedom, balance of interests between actors, and market economy Secondly, analyze the characteristics of off-plan housing business to explain the requirements for creating the law; the law’s adjustment mechanism for this type of business to ensure the freedom of business and the harmony of interests between the State, investors and the interests of buyers, tenants buy off-plan houses Thirdly, find out the status quo of the law on off-plan housing business to identify some unique characteristics compared with regulations on existing housing business, land use right business Fourthly, refer regulations on off-plan housing business to practical implementation in Ho Chi Minh City in order to point out problems, inadequacies and causes On that basis, provide orientations and solutions to complete and improve its efficiency on implementation in Ho Chi Minh City Thesis structure In addition to the commitment part, the list of acronyms, the table of contents, the introduction, the conclusion, the list of references, the thesis consists four chapters: Chapter Overview of the research situation and theoretical basis of the topic Chapter Theoretical issues on off-plan housing business and legislation on off-plan housing business Chapter The status quo of the law on off-plan housing business and practical implementation in Ho Chi Minh City Chapter Orientations and solutions to perfect the law on off-plan housing business and improve its effectiveness on implementation in Ho Chi Minh City Chapter OVERVIEW OF RESEARCH SITUATION AND THEORETICAL BASIS OF THESIS THEME 1.1 Research situation 1.1.1 Domestic researches 1.1.1.1 Group of theoretical research works on real estate business and real estate market 1.1.1.2 Group of legal research projects on real estate business 1.1.1.3 Group of legal studies on off-plan real estate business in general and the law on off-plan housing business in particular Firstly, theoretical researches on off-plan housing business Second, the researches studied the status quo of the law on off-plan property business in general and the law on off-plan housing business in particular and practical implementation in Vietnam Thirdly, the researches mentioned orientations and solutions to perfect the law on housing business formed in the future and improve implementation efficiency in Vietnam 1.1.2 Foreign researches 1.1.2.1 Jan Hoogmartens, Establishing a Market Economy: Commercialisation of Land-Use Rights in China, Y.B Int'l Fin & Econ L 445 (1999) 1.1.2.2 Gregory M Stein, Acquiring Land Use Rights in Today's China: A Snapshot from on the Ground, 24 UCLA Pac Basin L.J (2006) 1.1.2.3 Gregory M Stein, The Chinese Land Use Right Is It Property, 21 Prob & Prop 22 (2007) 1.1.2.4 A Jr Randolph, The New Chinese Property Law - A Real Estate Practitioner's Perspective, 21 Prob & Prop 14 (2007) 1.1.2.5 S Rowton Simpson (1976), Land, Law, and Registration, London: Cambridge University Press 1.1.2.6 Fabian Thiel (2010), Property entail obligations: Land and property law in Germany: Past, present and future - Combodian Yearbook of Comparative Legai Studies, Cambodia society of comparative law, IL Virtue Unions publisher RMS 1318 -20, Hollywood, Plaza, 610 Nathan Rd Mongkok, Hong Kong… 1.1.3 Evaluation of research results related to the thesis topic and key issues which need further research 1.1.3.1 Evaluation of research results related to the thesis topic Firstly, the scientific works related to the thesis topic have built a system of off-plan real estate concepts, housing business in general and off-plan housing business in particular Secondly, study some legal issues of off-plan property business in general and off-plan housing business in particular by analyzing the basis, concepts, characteristics, meaning, structure of the law on off-plan housing business and the factors that govern this legal field, etc However, these researches have not yet comprehensively covered and evaluated the research situation; analyzing the theoretical framework of research and scientific arguments has been deficient or not systematically analyzed the law on off-plan housing business Some contents of the scientific works related to the thesis topic are no longer new and updated Thirdly, the studies mentioned above analyze theoretical and practical issues about the real estate market and the law on real estate business or explain theoretical and practical issues about the law on off-plan property business in general and the law on off-plan housing business in particular However, the research results of the works related to the thesis topic have not been indicated from the practice in Ho Chi Minh City Fourthly, in different scopes and degrees, many works offer solutions to perfect the law on off-plan property business (including regulations on off-plan housing business) and improve its efficiency in practice Some recommendations have been received and recorded in the Law on Real Estate Business 2014 ii) Evaluation of research methods The research works related to the thesis topic use some specific research methods as follows: - Methods of systematic, interdisciplinary research - Analytical, evaluation, synthesis and inductive research methods; comparative method - Analytical methods, logical reasoning; method of commenting and evaluation; synthesis and induction methods - Research methodology of dialectical materialism and historical materialism 1.1.3.2 Key issues that this thesis needs to continue studying Firstly, continue to study and supplement the theoretical basis for the law on off-plan housing business Secondly, find out the legal content of off-plan housing business with reference to practical implementation in Ho Chi Minh City to identify the inaquadate points, and explain the reasons Thirdly, continue to research and propose solutions to perfect the law on off-plan housing business and improve its efficiency on enforcement in Ho Chi Minh City 1.2 Theoretical basis of this thesis 1.2.1 Research theories Perspectives and theories about the movement of house ownership relations in the market economy, theory on the operation and development of the real estate market, the theory of citizens' right to business freedom and the dialectical relationship between law and economic relations, especially about the regulatory and constructive role of law in economic relations that the relationship on housing business (including existing housing and housing formed in the future) play an important role in this thesis 1.2.2 Research hypotheses Firstly, what economic organizations, especially real estate investors, are currently facing difficulties in off-plan housing business in the context of developing a socialist-oriented market economy in Vietnam and these barriers and difficulties stem from what regulations of the real estate business law in general and the law of off-plan housing business in particular Secondly, what are the specific characteristics of off-plan housing business that the law needs emphasise to ensure the legitimate rights and interests of investors and real estate traders, and improve the efficiency of state management As a result, a favourable, equal, open, transparent and sustainable investment and business environment would create and gain effectiveness to the economy Thirdly, the specific factors of Ho Chi Minh City that affect the effectiveness on implementing the law off-plan housing business should be focused Fourthly, with the role of creating, accompanying and promoting innovative ideas for start-ups, the State needs to develop, perfect and implement mechanisms, policies and laws to develop the real estate market in general and off-plan housing business in particular Fifthly, the completion of the current regulations on off-plan housing business must comply with the objective rules of the market economy in general and the real estate market in particular if it needs to have effective results and meet the needs of international integration 1.2.3 Research questions Firstly, what does the concept of off-plan housing business include? Compared to other types of business such as real estate market segments, land use rights purchase, what are the similarities and differences between the existing housing business and off-plan housing business? Secondly, how the characteristics of off-plan housing business affect and influence the law on off-plan housing business? Thirdly, the current regulations on off-plan housing business positively or negatively affect the development of the real estate market in general and off-plan housing business segment in particular? What are the causes of the positive and negative effects? Fourthly, what requirements of the market economy, the real estate market, and international integration need to comply with regulations on offplan housing business? Fifthly, how the specific conditions, circumstances and requirements for socio-economic development in Ho Chi Minh City affect the completion of the law on off-plan housing business and the effectiveness on enforcement in Ho Chi Minh City? Sixthly, what are the orientations and solutions for completing the law on off-plan housing business in the all-people ownership regime for land, the development of a socialist-oriented market economy and Vietnam's international integration? 1.2.4 Thesis approach and research methodology Firstly, the approach of this thesis is to analyze and comprehensively evaluate issues from legal systems and the implementation of off-plan housing business in Ho Chi Minh City compared with other localities in the country to identify similarities and differences Secondly, research methodology includes: - The primary research methodological of this thesis is the theory of Marxism - Leninism, Ho Chi Minh's thought on the state and the rule of law, especially Uncle Ho's thought of respecting the law - The theory underpinning and throughout the research process is based on developing a socialist-oriented market economy, respecting, recognizing and protecting the business freedom right, ensuring equality, publicity, transparency and legal feasibility Chapter THEORETICAL ISSUES OF THE LAW ON OFF-PLAN HOUSING BUSINESS IN VIETNAM 2.1 Theories of off-plan housing business 2.1.1 Concept of housing and off-plan house 2.1.1.1 Concept and classification of housing i) Concepts of housing - The Vietnamese Common Dictionary states: “A house: A building with a roof, surrounding walls, and doors for living, cultural activities or material storage; Accommodation and activities of a family” - The Law on Housing 2014 indicates: “Housing means any building in which households or individuals live.” (clause 1, Article 3) Housing has the following essential characteristics: Firstly, housing is man-made construction for living purposes Secondly, due to the purpose of sheltering, houses are often associated with other constructions such as kitchens, bathrooms, toilets, gardens, etc (these works are also referred to auxiliary works) to serve the daily needs and living of individuals and households Thirdly, based on traditional cultural customs, psychology and people’s tastes in regions, the architectural design and location of houses are not the same Fourthly, housing patterns are different between urban and rural areas Fifthly, housing is attached to many generations in the family for a long time ii) Housing classification - Based on the purpose of use: i) Separate houses; ii) Apartment buildings; iii) Commercial housing; iv) Official residences; v) Housing to serve resettlement; vi) Social houses - Based on the physical form: i) Existing houses; ii) Off-plan houses - Based on the quality of major structural parts and the use value of each house 2.1.1.2 The concept of off-plan housing According to the Law on Real Estate Business 2014: “Off-plan housing are houses which are under construction and have not been permitted to put into operation” Off-plan houses also has the following basic characteristics: Firstly, off-plan houses is houses under construction and have not been permitted to put into operation Secondly, off-plan houses are products of real estate investors They belongs to the group of commercial housing Off-plan housing are allowed to be sold, leased, and purchased during the construction process to make profits Thirdly, off-plan housing is a specific type of real estate Fourthly, if the ownership of off-plan housing does not need a certificate of house ownership issued by a competent authority, the investor is still allowed to transfer, lease-purchase to other investors, buyer and tenants if they statisfy legal conditions such as completing the construction of the foundation, Buyers and tenants may transfer the purchase contract or leasepurchase contract of housing formed in the future to other organizations and individuals (third parties) Buyers and tenants who ultimately purchase off-plan houses are people getting certificates of house ownership, etc 2.1.2 Concept of off-plan housing business 2.1.2.1 Definition of off-plan housing business The Law on Real Estate Business 2006 states: “Real estate business means investing capital in the creation, purchase, acceptance of transfer, lease or hire- purchase of real estate for sale, transfer, lease-out, sublease or sale on hire-purchase for profit purposes” The Law on Real Estate Business 2014 states: “Real estate trading means capital investment in building, purchasing, and receiving real estate for sale, for transfer, for lease, for sublease, or for lease purchase; provision of real estate brokerage services; real estate trading floor services; real estate counselling services or real estate management for profit purposes” As the concepts of real estate business mentioned above, it can be seen that off-plan housing business is: a specific type of real estate business, capital investment in building, purchasing, and receiving real estate for sale, for transfer, for lease purchase to make profits Off-plan housing business has the following specific characteristics: Firstly, off-plan housing business has potential risks for buyers, tenants, and renters Secondly, this segment of the real estate market is strictly managed by the State in order to prevent fraud and appropriation of capital of investors Thirdly, the parties (the seller, the buyer, the lessor, the lessee of off-plan houses) shall carefully study law before deciding whether to invest in off-plan houses Fourthly, buying a house formed in the future is different from buying a house with instalment payments 2.1.2.2 Objects of off-plan real estate business Objects of off-plan housing business are houses which are under construction and have not been permitted to put into operation 2.1.2.3 The principles of off-plan real estate business Firstly, ensure compliance with laws; Secondly, base on the balance of interests between parties; Thirdly, be honest, open and transparent 2.1.2.4 The meaning of off-plan real estate business 10 Firstly, in the national economy, off-plan housing business contributes to improving the attractiveness and promoting the development of the real estate market This type of business solves difficulties in capital sources for real estate investors and promotes the turnover of investment capital Secondly, off-plan property business can mobilize capital in the housing construction process by asking buyers and tenants to pay in advance an amount of the purchase or lease-purchase value As a result, clients can easily own houses thanks to paying in instalments Besides, buyers and tenants of off-plan houses are eligible to give comments during the construction process in accordance with their preferences without paying any costs in repairing and renovating when receiving the raw house The increasing demands for real estate create competition and differentiation among real estate companies This requires enterprises that trade off-plan houses to improve service quality and meet the needs of clients At the same time, it is necessary to diversify investment forms to maximize capital mobilization channels and remove weak businesses from the real estate market Thirdly, off-plan housing business positively affects the development and operation of real estate brokerage service organizations, real estate consultants, financial and credit institutions, Fourthly, off-plan housing business promotes the development of other manufacturing, business and service industries such as the construction industry; mining industry, production of construction materials, interior and exterior decoration of works, household appliances; and creates more job opportunities for workers, 2.2 Legal theory on off-plan housing business 2.2.1 The legal basis for off-plan housing business Firstly, base on the state management of the real estate market in general and off-plan housing business in particular Secondly, laws is the most effective method that the State uses to manage society in general and off-plan housing business in particular Thirdly, studying legal practices and experiences of developed countries such as the United States, Sweden, Korea, Singapore, Japan,… shows that 11 these countries manage effectively, openly and transparently the real estate market in general and off-plan housing business by the law Fourthly, the development or breakdown of the real estate market directly affects the entire economy on a country and a global scale In order to prevent the collapse of the real estate market, it is necessary to enact the law on real estate business in general and off-plan housing business in particular 2.2.2 Legal concepts of off-plan housing business The law on off-plan housing business includes the synthesis of regulations that guarantees to be implemented by the State’s coercive power This law aims to regulate social relations arising in off-plan housing business which are mainly between investors doing off-plan housing business and clients through transactions of buying, selling, transferring, leasing and buying houses formed in the future Also, the law on off-plan housing business would ensure the smooth, synchronous and healthy operation of the real estate market and enhance the effectiveness of state management in real estate business In addition to the general characteristics of the real estate law, the law on off-plan housing business also has some essential characteristics as follows: Firstly, is a general legal field, including some relevant laws such as Law on Investment, Law on Real Estate Business, Law on Enterprises, Law on Construction and Law on Credit Institutions, Secondly, are preventive regulations that prevents violations in off-plan housing business Thirdly, regulations on off-plan housing business are stricter than those of existing housing business 2.2.3 The principles of off-plan housing business Firstly, off-plan housing business must ensure compliance with laws Secondly, off-plan housing business must be based on the balance of interests between parties Thirdly, off-plan housing business must be honest, public and transparent Fourthly, off-plan housing business must ensure business freedom and protect the legitimate rights and interests of the State and society in the real estate market Fifthly, off-plan housing business respects and complies with the objective laws of the market economy 12 Sixthly, off-plan housing business prevents and detects tricks, and strictly handles violations the law on off-plan housing business 2.2.3 Structure of the law on off-plan housing business Firstly, a group of general regulations on off-plan housing business Secondly, a group of regulations stipulate the rights and obligations of parties in off-plan housing business Thirdly, a group of regulations about state management in off-plan housing business Fourthly, a group of regulations stipulate the order and procedures in offplan housing business 2.2.4 Factors affecting the housing business law to form in the future 2.2.4.1 The Party's strategies and viewpoints about the development of the real estate market in the socialist-oriented market economy 2.2.4.2 Land ownership regime 2.2.4.3 Economic management mechanism 2.2.4.4 Social factors Chapter STATUS QUO OF THE LAW ON OFF-PLAN HOUSING BUSINESS AND ITS PRACTICAL IMPLEMENTATION IN HO CHI MINH CITY 3.1 The status quo of the law on off-plan housing business 3.1.1 Right to trade off-plan houses To participate in the real estate market, qualified investors must meet requirements as prescribed by law: Firstly, conditions of subjects that trade off-plan housing Secondly, forms of off-plan housing business 3.1.2 Conditions of off-plan housing for business Firstly, off-plan houses must have documents on land use rights, project dossiers, construction drawing design approved by competent authorities, construction permission if required, acceptance protocol about technical infrastructure construction corresponding the project schedule; acceptance record about completion of the buiding foundation in the event of an apartment building or a mixed-use building that is built in the future 13 Secondly, before entering an agreement on sale or lease-purchase of offplan housing, the investors must notify the province’s authority that the house is eligible for sale or lease-purchase in writing Within 15 days from the day the notification is received, the authority in charge of housing in province shall respond in writing to the investor with the building permit to be sold or leased purchase; if the building does not meet the requirements, they must provide explanation 3.1.3 Guarantee on off-plan housing sale or lease-purchase Firstly, before selling or lease-purchasing off-plan houses, the investor’s financial obligations must be guaranteed by a competent commercial bank if the investor fails to transfer the building on schedule as commitment to clients Secondly, the scope, conditions, content and guarantee fee shall be agreed upon by the parties within ensuring the fulfilment of the guarantor's responsibilities in case the investor fails to transfer the house on schedule as commitment, and must be made into a contract The investor is responsible for sending a copy of the guarantee contract to the purchaser and the lessee when the agreement on sale and lease-purchase is signed The guarantee contract stay unexpired until the house is handed over to the buyer or the lessee Thirdly, in case the investor fails to transfer houses on schedule as commited and the buyer or the lessee requests, the guarantor is responsible for refunding the advance payment and other payments to clients in accordance with the purchase and sale contract and the guarantee contract which are signed 3.1.4 Payment in off-plan housing purchase, sale or lease purchase The payment in off-plan real estate sale or lease-purchase is specified in Article 57 of the Law on Real Estate Business 2014 3.1.5 Rights and obligations of the parties in off-plan real estate sale or lease-purchase 3.1.5.1 Rights and obligations of the seller in off-plan real estate business 3.1.5.2 Rights and obligations of the buyer in off-plan real estate business 3.1.5.3 Rights and obligations of the lessor in off-plan real estate business 3.1.5.4 Rights and obligations of the lessee off-plan real estate business 3.1.6 Contracts of off-plan housing sale and lease-purchase i) Contents of off-plan housing sale and lease-purchase contract 14 Pursuant to the Appendix to Decree No 76/2015/ND-CP dated September 10, 2015 of the Government on guidelines the Law on Real Estate Business (hereinafter referred to as Decree No 76/2015/ND-CP) CP dated September 10, 2015) ii) The effective time of off-plan housing sale and lease-purchase The effective time of the contract shall be agreed upon by the parties and stated in the contract In case the contract is notarized or authenticated, the effective time of the contract is the time of notarization or authentication If the parties have no agreement, no notarization or authentication, the contract’s effective time is when the parties sign the contract 3.1.6.1 Conditions for transfer of off-plan housing sale and leasepurchase contracts i) The buyer, the lessee who has not yet received the house or has received the house has the right to transfer off-plan housing sale and lease-purchase contracts to another organization or individual when the request for granting the land of use right certificate to the purchaser or lessee has not yet submitted to the competent authorities ii) The organization or individual that receives the transfer of the contract has the right to transfer the purchase and sale or hire purchase contract further to another organization or individual when the request for granting the land of use right certificate to the purchaser or lessee has not yet submitted to the competent authorities iii) The transfer of off-plan housing sale and lease-purchase contracts requires the assignment of contracts for each house or each apartment; in case selling and lease-purchasing many individual houses or apartments in one contract, the entire number of houses or apartments in such contract must be transferred 3.1.6.2 Procedures to transfer off-plan housing sale and leasepurchase contracts Firstly, regarding the procedure for setting up the transfer contract, the transfer of the house purchase and sale contract must be in writting and made into an agreement as agreed by both the transferee and transferor This transfer agreement signed by both parties is made into 06 copies, including 03 copies for the investor, 01 copy submitted to the tax authority, 01 copy kept by the transferor, and 02 copy for the transferee and transferor In case the transfer 15 contract must be notarized or authenticated, there must be an additional 01 copy to be kept at the notary and authenticated agency ii) Procedures for notarization and authentication of transfer agreements iii) Procedures for certifying the transfer agreement for the investor iv) Finally, the last agreement transferee shall be granted the Certificate of rights to use land and ownership of land property by a competent authority as prescribed in law on land v) In case the investor cannot be identified, the confirmation of the transfer agreement (due to dissolution, bankruptcy, termination of operation or other reasons as prescribed by law) shall be carried out as follows: - In case the transfer of a house purchase and sale contract has been performed before the effective date of this Circular and the transferred house has not yet been granted a Certificate, the agreement on transfer of the house sale and purchase contract must be approved by the People's Committee of Vietnam at the commune level which certifies the transfer agreement - In case the People's Committee at commune level does not have enough documents to certify, it shall publicly post up a copy of the transfer agreement of the house purchase and sale contract at the headquarters of People's Committee or the residential place where the house is located If there are no dispute or lawsuit within 60 days from the date of publicly posting the transfer agreement, the People's Committee shall certify in the transfer agreement that there is no disputes or lawsuits and the competent authority can issue the Certificate to the transferee based on that certification 3.1.6.3 Procedures to transfer off-plan housing sale and leasepurchase contracts Procedures to transfer off-plan housing lease-purchase contracts are specified in Clause 2, Article 11, Decree No 76/2015/ND-CP dated September 10, 2015 3.1.7 Handling of violations of the law on off-plan housing business Firstly, organizations and individuals that have illegal acts in real estate business shall, depending on the nature and seriousness of their violations, be disciplined, administratively sanctioned or examined for penal liability, if causing damages must be compensated in accordance with laws 16 Secondly, handling the recovery of real estate projects in general and offplan housing projects in particular 3.2 Practical implementation of the law on off-plan housing business in Ho Chi Minh City 3.2.1 Overview of natural, socio-economic conditions and the impact on the implementation of the law on housing business in the future in Ho Chi Minh City - Overview of the natural, economic and social conditions of Ho Chi Minh City - Impacts of natural, socio-economic conditions on the implementation of the law on off-plan housing business in Ho Chi Minh City 3.3.2 Assessment of practical implementation of the law on off-plan housing business in Ho Chi Minh City i) Achievements Firstly, the legal system on real estate business in general and off-plan housing business in particular is gradually sufficient to improve the effectiveness on state management in the real estate market Secondly, the awareness and understanding of the law on real estate business in general and off-plan housing business are increased Thirdly, officials and civil servants in charge of state management in real estate business strictly apply laws Fourthly, off-plan housing business in Ho Chi Minh City is methodically implemented and complies with laws Fifthly, practical implementation of the law on off-plan housing business contributes to ensuring the legal principle as well as the strictness of the law Sixthly, practical implementation of the law on off-plan housing busines in Ho Chi Minh City contributes to improving the efficiency of state management in land ii) Limitations and shortcomings Firstly, regarding the legitimacy of off-plan housing projects to be put into business Before being put into business, off-plan houses and construction works must have one of the legal documents as prescribed in Clause 1, Article 55 of the Law on Real Estate Business 2014 This is one of the conditions for investors to offer houses to clients in order to raise capital to continue the project In fact, there are still risks related to the legitimacy of the investment 17 projects For instance, although the land allocation decision has been made and the investor has paid the land use fee, the land acquisition by the competent authorities to the investor is disputable such as Gateway Thao Dien project of Kim Son Land Company Secondly, regarding the bank guarantee in off-plan housing sale and leasepurchase contracts First, regarding the regulations about the appropriate time to establish the guarantee commitment, Clauses 1, 2, Article 56 of the Law on Real Estate Business 2014 and Clause 1, Article 12 of Circular No 07/2015/TT-NHNN are incompatibilities in content Second, in terms of the inadequacy of the guarantee fee agreement between the investor and commercial banks, Circular No 07/2015/TT-NHNN stipulates that the guarantee fee between the project investor and commercial banks is freely agreed upon by the parties and there is no legal framework to limit the guarantee fee Third, commercial banks operate in compliance with regulations on credit institutions The bank which is responsible for finance and the legal process must follow those legal regulations and the agreement on the level of guarantee with the investor However, because buyers not fully know the information or investors does not provide information, there are some disputes Thirdly, regarding the mechanism to control the investor's use of capital in off-plan housing sale and lease-purchase contracts First, Article 57 of the Law on Real Estate Business 2014: “The investor must use the customer’s advance payment for the legitimate purpose as committed” This Act also adds provisions on the right to be provided with information about the use of advance payment and the obligation to provide information on the use of advance payment by the parties in off-plan housing sale and lease-purchase contracts and the provisions of the commercial bank guarantee Commercial banks can supervise the use of mobilized capital However, in fact, the buyer's right to be provided with information after signing the contract is still essential because they are transferring money to the seller and have not yet received the property The risk level in this case is relatively high Providing information of the investor is mainly at the stage 18 before and when entering into the contract Current law does not have provisions to strengthen the right to provide information of home buyers after the contract is signed As the owner of a house in the future, almost the buyer is not allowed to participate in construction process How the project is implemented is decided by the investor Second, although the regulations provide a legal framework to regulate the investor’s purpose of using advance payments of clients, the implementation of this regulation is still difficult in practice Third, there exists a mechanism to control the use of capital for the right purposes when mobilizing capital in the form of buying and selling off-plan houses Fourthly, investors violate the obligation to use the advance payment for the illegal purposes Fifthly, investors violate the obligation to hand over the house formed in the future and transfer ownership to the buyer Sixthly, the right to transfer off-plan housing sale contracts still has many shortcomings Seventhly, disputes of off-plan housing sale contracts cannot settle iii) Causes of existing problems and shortcomings - Objective reasons Firstly, the legal system on off-plan housing business based on the regime of all-people ownership of land, which is represented and uniformly managed by the State, is relatively new in our country Secondly, the law on off-plan housing business still has some unclear and inappropriate contents The relevant legal documents have been passed, but they are still lacking in synchronization Thirdly, regulations on dispute settlement and complaints in off-plan housing business are not clear enough, leading to limited adjudication, settlement of disputes and complaints On the other hand, the negative side of the market mechanism partly nullifies the strictness of the law Fourthly, policies and laws on real estate business in general and off-plan housing business in particular are unstable, lack of synchronization, overlapping, and lack of uniformity Some contents seem incompatible with the civil law, the law on complaints and denunciations, leading to the difficult 19 situation of determining the jurisdiction to settle and the low quality of settlement, etc Fifthly, the publicity and transparency of the real estate market in general and the disclosure of information about off-plan housing business in particular are still low Sixthly, the legal system on real estate business in general and off-plan housing business in particular are not synchronous and compatible Seventhly, due to the impact of the negative side of the market mechanism, it reduces the effectiveness on state management in real estate business in general and off-plan housing business in particular, etc - Subjective reasons Firstly, the organization to implement the law on off-plan housing business is not strict enough; the dissemination and education of the law on real estate business (including regulations on off-plan housing business) has not been focused; the performance of state management tasks, including the direction of elaboration, implementation, examination, preliminary review and conclusion of lessons learned in law enforcement is not adequate and timely Secondly, the inspection work has not been organized regularly, lacked initiative, and has not met the requirements and requirements of reality Thirdly, awareness to comply with the law on off-plan housing business is still limited Fourthly, the material and technical facilities for land management are outdated and have not met the requirements; the capacity of land management officials is still limited Fifthly, the effectiveness of state management of real estate business in general and off-plan housing business in particular is still limited and weak Sixthly, the capacity, professional qualifications, management capacity and legal understanding of real estate business of some officials and civil servants is still limited Seventhly, some people participating in off-plan housing sale has misconceptions, disregard for the law Eighthly, handling violations of the law on off-plan housing business has not achieved the desired effect, etc 20 Chapter ORIENTATIONS, SOLUTIONS TO PERFECT THE LAW ON OFF-PLAN HOUSING BUSINESS AND IMPROVE EFFECTIVENESS ON IMPLEMENTING IN HO CHI MINH CITY 4.1 Orientations to perfect off-plan housing business and improve effectiveness on implementation in Ho Chi Minh city 4.1.1 Orientations to perfect the law on off-plan housing business Firstly, perfecting the law on off-plan housing business must base on the Party's views and guidelines on building and developing the real estate market Secondly, perfecting the law on off-plan housing business must place in the relationship of the economic legal system in general and the law on real estate business in particular Thirdly, perfecting the law on housing business in the future must be based on summarizing the practical implementation of this field of law Fourth, perfecting the law on off-plan housing business must meet the requirements of developing a socialist-oriented market economy in the context of accelerating industrialization - modernization and international integration 4.1.2 Orientations to improve effectiveness on implementation in Ho Chi Minh City Firstly, continue to strengthen and improve the effectiveness and quality of propaganda, dissemination and education of the law on off-plan housing business, not only for officials and civil servants doing management tasks on the real estate market but also for all classes of people, economic organizations and businesses of all economic sectors, etc Secondly, improving effectiveness on implementing the law on off-plan housing business parallels with continuing to review, build and perfect the legal system on the off-plan housing business to meet the needs of the future, current conditions and circumstances in Ho Chi Minh City Thirdly, improving effectiveness on implementing the law on off-plan housing business associates with continuing to improve the enforcement mechanism in Ho Chi Minh City 21 4.2 Solutions to perfect the law on off-plan housing business and improve effectiveness on implementation in Ho Chi Minh City 4.2.1 A group of solutions to perfect the law on offplan housing business - Amend and supplement regulations on guarantee in off-plan housing sale, lease-purchase off-plan housing - Supplement regulations on handling violations when the investors violates the guarantee terms - Supplement regulations on the mechanism to control the investors’ use of advance payments in off-plan housing business - Specificialize regulations on handling fluctuations and ensure benefits for customers and investors 4.2.2 A group of solutions to improve effectiveness on implementation in Ho Chi Minh City - Closely inspect and supervise the legality of off-plan real estate project documents to be put into business - Strengthen inspection and supervision activities of competent authorities - Improve the quality and capacity of intermediary organizations and individuals in real estate brokerage services business in Ho Chi Minh City - Strengthen the propaganda and dissemination of the law on real estate business in general and the law on off-plan real estate business in particular CONCLUSION Real estate business in general and off-plan housing business in particular are indispensable business types in the market economy This type of business was created by social requirements to find profitable investment opportunities of real estate businesses and contribute to increasing the supply of housing in the real estate market Off-plan housing business brings many advantages to real estate investors (sellers, lessors) and customers (buyers, renters) Real estate investors can raise capital requirements for housing investment through this type by mobilizing advance payments from customers without paying interest Buyers and tenants 22 of off-plan houses are eligible to share their ideas with investors about architectural designs, quality, construction materials,… during the process of building houses to suit their preferences At the same time, buyers, tenants and buyers of off-plan houses cooperate with the investors to carry out the housing construction and transfer the house as committed, which is vital to the development of the economy To raise investment capital for real estate business, one of the solutions is to allow investors to mobilize advance payments from customers through the sale, lease, lease, lease purchase of offplan real estate The most essentail feature of off-plan housing business compared with the existing real estate business is that at the time of signing a contract to buy, sell, lease, or lease-purchase a off-plan house, the house (object of real estate purchase and sale contract, rental contract, lease-purchase agreement) is in the process of construction and is not tested to put into use Therefore, this type of business contains potential risks such as fraudulent appropriation of money from buyers, tenants; appropriating clients’ capital or tranferring houses in bad quality,… To prevent these risks, the law on off-plan housing business was enacted with conditions and principles for sale, lease-purchase of off-plan houses, guarantee issues, payment methods when buying or lease-purchasing off-plan houses, rights and obligations of parties in buying, selling, leasepurchasing off-plan real estate,… The Law on Real Estate Business 2006 and related legal documents such as Law on Housing 2005, Decree No 71/2010/ND-CP dated 23/06/2010 of the Government on guidelines the Law on Housing, Decree No 153/2007/ND CP dated October 15, 2007 of the Government on guidelines the Law on Real Estate Business,… create a legal basis for real estate business in general and off-plan housing business in particular However, because the legal system on off-plan housing business is still quite new in our country and is in the process of completion, deficiencies in the law is inevitable Some real estate investors have taken advantage of weakness in the law to act and maximise profits illegally Consequently, these acts cause damage and negatively affects the legitimate rights and interests of the buyer and the lessee in off-plan housing business Overcoming the inadequacies of the 2006 23 Law on Real Estate Business, the Law on Real Estate Business 2014 was enacted with a chapter regulating off-plan housing business, in which regulations on off-plan housing business was modified, supplemented to meet the requirements in practice The law on off-plan housing business belongs the law on real estate business It includes regulations that ensure to be implemented by the State's coercive power and regulate the group of social relations in off-plan housing business in order to protect legitimate interests of the partiess and improve the efficiency of state management in off-plan housing business The law on off-plan housing business is an integrated legal field including the Law on Real Estate Business 2014, the Law on Housing 2014, the Civil Code 2015, the Law on Investment 2015, and some other related laws Contents in the law on off-plan housing business include principles, conditions, guarantee, payment methods, and rights and obligations of parties The law on off-plan housing business is influenced by a number of fundamental factors such as the Party's views about developing the real estate market by law, land ownership regime, economic management mechanism, traditional cultural and psychological factors,… By studying the legal theory on off-plan housing business and analyzing the content of this legal field, this thesis researches practical implementation of the law on off-plan housing business in Ho Chi Minh City in factors: Natural, socio-economic conditions and impacts on implementing the law on off-plan housing business in Ho Chi Minh City and assessment of practical implementation in Ho Chi Minh City The assessment of implementing the law on off-plan housing business in Ho Chi Minh City indicates that besides the achieved results, it still has limitations and shortcomings These limitations, obstacles and weaknesses have objective and subjective causes, which are analyzed and identified in detail in Subsection 3.2.3 of the thesis On the basis of research results in Chapter 1, Chapter 2, Chapter 3, Chapter of the thesis which analyze the legal issues of off-plan housing business, assess the status quo of the law on off-plan housing business and practical implementation in our country in Chapters and 2, this thesis 24 provides orientations and solutions to improve the law on off-plan housing business and improve its effectiveness on implementation in Ho Chi Minh City in the near future The orientations are divided into two groups, including: orientation to perfect the law on off-plan housing business and orientation to enhance the law enforcement on off-plan housing in Ho Chi Minh City Solutions to improve the law on off-plan housing business and solutions to improve the law enforcement in Ho Chi Minh City are analyzed and argued in detail in subsection 4.2 of Chapter of this thesis 25 ... synchronization Thirdly, regulations on dispute settlement and complaints in off-plan housing business are not clear enough, leading to limited adjudication, settlement of disputes and complaints On... for setting up the transfer contract, the transfer of the house purchase and sale contract must be in writting and made into an agreement as agreed by both the transferee and transferor This transfer... Committee or the residential place where the house is located If there are no dispute or lawsuit within 60 days from the date of publicly posting the transfer agreement, the People's Committee