SOME PROVISIONS OF LAND LAW IN THE CIVIL FIELD

SOME PROVISIONS OF LAND LAW IN THE CIVIL FIELD
 

The study focuses on clarifying some provisions of land law for people in the civil sphere. It clearly states the provisions of land law on the rights and obligations of land users, some land support policies for people (including the poor, ethnic minorities, etc.), identifies land disputes between land users and the participation of legal aid in resolving these disputes .

 
1. Rights and obligations of land users
a) Who are the land users?
Land users who are allocated land, leased land, or have their land use rights recognized by the State; are using land stably, and are eligible for a Certificate of land use rights and ownership of assets attached to land but have not yet been granted a Certificate of land use rights, Certificate of house ownership and land use rights, Certificate of land use rights, house ownership and other assets attached to land, Certificate of land use rights and ownership of assets attached to land; receive land use rights; sublease land according to the provisions of the Land Law [1].
- Land users include ^[2]:
i) Domestic organizations include:
a) State agencies, agencies of the Communist Party of Vietnam, people's armed forces, Vietnam Fatherland Front, socio-political organizations, socio-political-professional organizations, social organizations, socio-professional organizations, public service units and other organizations as prescribed by law;
b) Economic organizations as prescribed by the Investment Law, except for the case prescribed in Clause 7 of this Article (hereinafter referred to as economic organizations);
ii) Religious organizations and affiliated religious organizations;
iii) Domestic individuals, Vietnamese people residing abroad who are Vietnamese citizens (hereinafter referred to as individuals);
iv) Residential community;
v) Foreign organizations with diplomatic functions include diplomatic representative agencies, consular agencies, other representative agencies of foreign countries with diplomatic functions recognized by the Government of Vietnam; representative agencies of organizations under the United Nations, intergovernmental agencies or organizations, representative agencies of intergovernmental organizations;
vi) Vietnamese people residing abroad;
vii) Economic organizations with foreign investment capital.
b) General rights of land users^[3]
- Granted a Certificate of land use rights and ownership of assets attached to land when meeting all conditions according to the provisions of the law on land.
- Enjoy the fruits of labor and investment results on legally used land.
- Enjoy benefits when the State invests in protecting, improving and developing agricultural land.
- Receive guidance and assistance from the State in improving and restoring agricultural land.
- Be protected by the State when others violate your legitimate rights and interests regarding land.
- Right to change land use purpose according to the provisions of this Law and other relevant legal provisions.
- Receive compensation, support and resettlement when the State reclaims land according to the provisions of this Law.
- Complain, denounce, and sue about violations of one's legal land use rights and other violations of land laws.
In addition to general rights, the 2024 Land Law also stipulates specific rights on the right to convert, transfer, lease, sublease, inherit, donate land use rights; mortgage, contribute capital with land use rights (Article 27); receive land use rights (Article 28); rights to adjacent land plots (Article 29); right to choose the form of land rent payment (Article 30),...
c) General obligations of land users^[4]
- Use land for the right purpose, within the right plot boundaries, in accordance with regulations on underground depth and overhead height, protect underground public works and comply with other relevant legal regulations.
- Carry out land registration declaration; fully carry out procedures when converting, transferring, leasing, subleasing, inheriting, donating land use rights, mortgaging, and contributing capital using land use rights according to the provisions of law.
- Perform financial obligations on land according to the provisions of law.
- Implement measures to protect land; treat, improve and restore land in polluted and degraded areas caused by oneself.
- Comply with environmental protection regulations, do not damage the property and legitimate interests of relevant land users.
- Comply with the law on finding objects underground.
- Hand over land when the State decides to reclaim land according to the provisions of law.
2. Land support policy for some disadvantaged groups according to the provisions of the Land Law
a) For the poor
According to the provisions of the 2024 Land Law, the poor and people in near-poor households are entitled to:
- Exemption and reduction of land use fees and land rent when implementing housing and land policies for the poor (Point b, Clause 1, Article 157 of the Land Law);
- Land allocation and lease to implement land policies (point c, clause 2, Article 181 of the Land Law),...
b) For ethnic minorities
The 2024 Land Law clearly stipulates that the State has policies:
- Ensure communal land for ethnic minorities in accordance with customs, practices, beliefs, cultural identity and actual conditions of each region (Clause 1, Article 16 of the Land Law);
- First-time land support for individuals who are ethnic minorities and belong to poor households or near-poor households in ethnic minority and mountainous areas, in accordance with customs, practices, beliefs, cultural identity and actual conditions of each region to ensure a stable life (Clause 2, Article 16 of the Land Law).
- Land support to ensure stable life for individuals who are ethnic minorities and have been allocated or leased land by the State but now have no land or lack land compared to the quota and are poor or near-poor households in ethnic minority and mountainous areas ( Clause 3, Article 16 of the Land Law) .
In addition, the 2024 Land Law stipulates that ethnic minorities are allocated land and leased land in specific cases for inheritance, donation, and transfer of land use rights to heirs (Article 48) ^[5]. Ethnic minorities are exempted from or have reduced land use fees and land rent when using land (Point c, Clause 1, Article 157 of the Land Law); are allocated land and leased land to implement land policies (Point c, Clause 2, Article 181 of the Land Law).
The 2024 Land Law supplements the provision that " Violating land support policies for ethnic minorities " is one of the prohibited acts when participating in land relations ^[6].
In order to facilitate organizations and individuals when applying the provisions of the 2024 Land Law to land policies implemented before the 2024 Land Law takes effect, the 2024 Land Law q stipulates transitional conditions in the case of " Individuals who are ethnic minorities and are allocated land or leased land by the State under the land support policy for ethnic minorities as prescribed by law before the effective date of this Law and are eligible to enjoy the land support policy for ethnic minorities as prescribed by this Law, shall enjoy the land support policy prescribed by this Law " (Clause 14, Article 260 of the Land Law).
c) For other vulnerable people
- The 2024 Land Law stipulates the exemption and reduction of land use fees and land rent when using land to implement housing and residential land policies for people with meritorious services to the revolution, war invalids or sick soldiers who are unable to work, and families of martyrs who no longer have the main labor force [7](Point b, Clause 1, Article 157 of the Land Law); land allocation and land lease to implement land policies for people with meritorious services to the revolution in localities that do not have land or lack land for production (Point c, Clause 2, Article 181 of the Land Law),...
- Social security policies for vulnerable groups such as: land recovery for socio-economic development for public benefit when building social service facilities established by the State or permitted to operate as social work service centers, social protection facilities; medical treatment, education, social labor centers; nursing centers for meritorious people; child support facilities; counseling and care facilities for the elderly, people with disabilities, children in special circumstances, people infected with HIV/AIDS, mentally ill people; drug rehabilitation facilities; facilities for caring for the elderly and children in special circumstances (Clause 15, Article 79 of the Land Law )...
3. Land disputes
a) What is a land dispute?
 Land dispute is a dispute over the rights and obligations of land users between two or more parties in a land relationship ^[8].
Note: according to the law, land disputes include disputes between land users (not including administrative disputes over land ^[9]).
b) Types of land disputes:
(i) Disputes to determine who has the right to use land (including disputes to reclaim land and assets attached to land from people in previous periods that, through many changes in land policy, have been divided and granted to others);

For example : When entering the new economic zone, Mr. A's family reclaimed a lot of land (without a land use right certificate, nor confirmed by the competent authority). Later, many people came to the new economic zone to do business. Because they were from the same hometown, when they saw Mr. B's family struggling and facing difficulties, Mr. A's family lent Mr. B's family their land for production (only verbally without confirmation from the local government, without witnesses). Later, when the land use right certificate was issued, that piece of land was registered in Mr. B's family's name. Mr. A filed a request to consider canceling the land use right certificate issued to Mr. B and requested to determine that the piece of land was reclaimed by Mr. A's family, Mr. B's family only borrowed Mr. A's family's work.

 (ii) Land boundary disputes between adjacent land users;

For example: Household A and Household B live on two adjacent plots of land. Household A built a house in 2020. It was not until 2023 that Household B was able to build a house. While building the house, Household B discovered that Household A was building a house on Household B's plot of land. Household A claimed that it was built on the land it was assigned. A dispute arose between the two parties.

(iii) Disputes over common access; Disputes over transactions related to land use rights (conversion, transfer, capital contribution, mortgage of land use rights, etc.), disputes over inheritance of land use rights , division of common property of spouses, which is land use rights , etc.;

Example of a common right-of-way dispute : The land is named after Mr. A's family and Mr. B's family share a common path. The two families live at the end of the alley, Mr. A built a kitchen on the common path. Mr. B's family is very upset because it hinders Mr. B's family's movement and cooking causes a fire risk. In the hot summer, the temperature of Mr. A's kitchen is high, making Mr. B's family very uncomfortable. The two sides have a conflict because the kitchen is built on the common path.

 

Example of a dispute related to inheritance of land use rights : A family has 7 siblings in the same household registration. The father died in 2015 and did not leave a will. In 2020, the mother died and did not leave a will, the siblings are still in harmony and live together on this land. In 2023, the eldest brother got married. Since then, the eldest brother and his wife have made things difficult for the remaining siblings, not wanting them to live on the land left by their parents and presented the Land Use Rights Certificate in the name of the eldest brother. A conflict arose, and the 6 siblings wanted to sue to divide the inheritance.

 

Example of a dispute over a transaction related to land use rights : Mrs. A's family is in a difficult situation. To change their lives, the family decided to send their child to work abroad. To have money for their child to work abroad, her family decided to mortgage the land use rights of the house they were living in to get money. Because she was old and weak and had limited education, she asked a nephew in her family who knew many people to do the procedures to mortgage the house. Because she trusted him, whatever her nephew told her to do, she did it, and she signed without checking or reading carefully before signing. After her child went to work abroad, she sent money back. Every month, she also sent money to her nephew to pay the monthly mortgage. After 1 year, when she had money sent back from her child, she went to the bank to pay off the debt. Only then did she find out that her nephew had not mortgaged her land at the bank but had sold it to someone else. The money she gave him every month was considered money she paid to the landlord. A conflict arose, Mrs. A wanted to reclaim her land and sued her nephew.

(iv) Land disputes in the implementation of commercial housing and social housing real estate projects (often occurring between projects or projects and buyers; disputes related to future assets); land disputes in the transfer of all or part of real estate investment projects with land use rights .

For example : When selling social housing apartments, Investor B committed to having a common playground for the apartments in the social housing area. However, after receiving the apartments, Investor B turned the common playground into a paid parking area. The apartments filed a lawsuit against the Investor to demand the return of the right to use the playground.

c) Types of land dispute resolution
(i) Negotiation: the disputing parties resolve conflicts and disagreements themselves without the intervention of a third party.
This is a solution that should be encouraged because it saves time, money and is emotionally satisfying for both parties.
(ii) Mediation involves a mediator providing guidance or analysis to help the parties come up with a solution to the dispute.
- For grassroots mediation: The State encourages parties to land disputes to reconcile themselves and mediate at the grassroots level ^[10]according to the provisions of the law on grassroots mediation. The order and procedures are prescribed in the Law on Grassroots Mediation 2013.
Basic negotiation and conciliation is not a mandatory procedure but is encouraged for disputing parties.
- For conciliation at the People's Committee of communes, wards and towns: Clause 2, Article 235 of the 2024 Land Law stipulates that the disputing parties must conduct conciliation at the People 's Committee of the commune where the disputed land is located for disputes specified in Article 236 of the 2024 Land Law.

Authority of the People's Committee of the commune where the disputed land is located: - The Chairman of the People's Committee at the commune level is responsible for establishing a Land Dispute Mediation Council to conduct dispute mediation. - Land dispute mediation at the People's Committee at the commune level is carried out within no more than 30 days from the date of receipt of the request for land dispute mediation. - The conciliation must be recorded in a record signed by the parties involved in the conciliation and confirmed by the People's Committee of the commune level as successful or unsuccessful. The record of conciliation is sent to the disputing parties and kept at the People's Committee of the commune level where the disputed land is located. - In case the conciliation fails and one or more disputing parties do not sign the minutes, the Chairman of the Council and the members participating in the conciliation must sign the minutes, stamp them with the seal of the People's Committee at the commune level and send them to the disputing parties.

(iii) Filing a lawsuit to resolve disputes at Court : by submitting a petition. For this form, the order and procedures are prescribed in the 2015 Civil Procedure Code.
(iv) Dispute resolution at the competent People's Committee : by submitting a request for land dispute resolution to the People's Committees at all levels as prescribed in Article 236 of the 2024 Land Law.
d) Authority to resolve land disputes
Article 236 of the 2024 Land Law specifically stipulates the authority to resolve land disputes. Accordingly, the competent authorities to resolve land disputes include:
- District and provincial People's Committees;
            + The Chairman of the District People's Committee resolves disputes between households, individuals, and communities.
          + The Chairman of the District People's Committee resolves disputes in which one party is an organization, a religious organization, a affiliated religious organization, a person of Vietnamese origin residing abroad, or an economic organization with foreign investment capital.
          - District and provincial courts as prescribed by the Civil Procedure Code;
- Vietnam Commercial Arbitration.
d) Provisions of land law on legal aid
Clause 4, Article 15 of the 2024 Land Law stipulates one of the State's responsibilities towards land users as follows:
 “ 4. Propaganda, dissemination, guidance , Provide legal aid as prescribed by law to land users in implementing policies, laws, administrative procedures on land, and exploiting information in the national database on land .
          The 2024 Land Law stipulates the right to legal aid for people when implementing land policies and laws, participating in administrative procedures in land relations, and exploiting information in the national land database. This provision aims to create conditions for the poor, ethnic minorities and vulnerable groups to receive free legal aid to protect their legitimate rights and interests in the civil land sector.
According to this regulation, in the process of implementing policies, laws, administrative procedures on land, and exploiting information in the national database on land, land users eligible for legal aid have the right to request legal aid according to the provisions of the law on legal aid, as follows:
(i) Ensure that the right person is eligible for legal aid : a person eligible for legal aid as prescribed in Article 7 of the Law on Legal Aid ^[11]has the right to request the State ^[12]Legal Aid Center or organizations participating in legal aid ^[13]to provide legal aid when there are disputes or problems related to land law.
 (ii) The request for legal aid must be directly related to the rights and interests of the person receiving legal aid (Clause 1, Article 30 of the Law on Legal Aid ). For example, Mr. A is a land user belonging to a poor household or an ethnic minority residing in an area with particularly difficult socio-economic conditions. He can only request legal aid to protect his legitimate rights and interests in the land sector, and cannot request legal aid for relatives or acquaintances who are not his/her legal representative. not a person entitled to legal aid .
(iii) When there is a dispute or problem regarding land law as stated in item b, part 4.3.3 of this document, a person eligible for legal aid has the right to request legal aid and submit a dossier to the State Legal Aid Center or organizations participating in legal aid in the locality to receive assistance in accordance with the provisions of the law on legal aid.
legal aid request file includes: (1) Legal aid request form (Appendix No. 1); (2) Documents proving eligibility for legal aid (Appendix No. 2); (3) Other papers and documents related to the case.
* A person requesting legal aid may submit an application for legal aid in one of the following ways:
local legal aid organization ;
+ Send documents via postal service;
+ Send documents via fax or electronic form ^[14].
4. Participation of legal aid in resolving land disputes in the civil field
Circular No. 12/2018/TT-BTP dated August 28, 2018 of the Minister of Justice guiding a number of legal aid professional activities and legal aid quality management stipulates that a legal aid case ends when:
“ Complete the legal request of the person receiving legal aid in the form of legal aid stated in the legal aid request ” ^[15].
Thus, legal aid is responsible for performing professional and technical activities of legal aid for land users eligible for legal aid from the time of assignment until the completion of the request stated in the request of the person receiving legal aid to best protect their legitimate rights and interests.
a) For legal advice^[16]
- Implementation method: provide guidance, give opinions, help draft documents related to disputes, complaints, legal problems; guide and help parties reconcile, negotiate, and agree on how to resolve the case.
- Implementation results: legal advisory document.
In practice, in the land sector, legal consultancy has brought about many results, for example: helping people in need of legal aid access the law (including access to land law and legal aid law) in a timely and proper manner; helping them better understand their rights and obligations, and the provisions of land law so that they can choose appropriate ways to resolve and respond to land disputes and conflicts; many cases are even resolved satisfactorily at the conciliation stage, without having to file a lawsuit in court, saving time, effort, and money.
b) Out-of-court representation^[17]
- Implementation method: Legal aid officers and lawyers providing legal aid carefully study the details of the case and the provisions of the law to come up with arguments and plans to best protect the legal rights and interests of the person receiving legal aid before the competent state agency in the civil scope . These tasks are not part of the litigation procedure. With this form of legal aid, legal aid officers and lawyers act as authorized representatives of the person receiving legal aid. The procedures, content and scope of authorization strictly comply with the provisions of the Civil Code and related guiding documents.
Implementation results :
+ Document appointing a representative to perform legal aid outside of litigation.
+ The person performing legal aid protects the legitimate rights and interests of the person receiving legal aid before competent state agencies in the civil scope.
- Some tasks in the process of implementing legal aid cases in the form of out-of-court representation in the civil scope:
+ Meet and contact with people receiving legal aid, their relatives; witnesses, etc.;
+ Research files and prepare documents to carry out representation;
+ Verify, collect documents, objects, evidence, and details related to the representation;
+ Working with relevant agencies, organizations and individuals;
+ Participate in representing before competent agencies, organizations and individuals to resolve cases.…
c) Participate in litigation civil in court
Implementation method : The person providing legal aid is a Legal Aid Officer or a Lawyer providing legal aid who participates in the proceedings as a protector of the legal rights and interests of the person receiving legal aid during the court's settlement process. civil land disputes
- Implementation results:
+ Document appointing a person to participate in the proceedings.
+ Arguments and plans to protect the legitimate rights and interests of the person receiving legal aid provided to the Court.
- Some tasks when performing legal aid cases participating in civil proceedings:
+ Meet and contact with people receiving legal aid, their relatives; related people, etc.;
+ Research files, prepare documents;
+ Verify, collect documents, objects, evidence, and related details;
+ Request for property appraisal and valuation;
+ Working with relevant agencies, organizations and individuals;
+ Participate in questions and debates at court; view court records.