Proposal to add regulations on lending land use rights.
(Baonghean)The 2003 Land Law provides the legal basis for functional agencies in the process of implementing state management tasks regarding land nationwide. It aligns with social realities, creating favorable conditions for the people and those to whom the State has allocated land to use the nation's invaluable land resources more effectively, contributing to increased state budget revenue and promoting economic development.
However, the implementation of the Land Law still reveals many limitations and shortcomings. The application of the 2003 Land Law in practice to resolve disputes still gives rise to many inadequacies and obstacles, causing the dispute resolution process to be prolonged, involving multiple levels without achieving a thorough resolution. Generally, land dispute cases are very complex, protracted, and intense, with parties often disagreeing with the rulings of competent authorities. There are many reasons for this, but the main one is that the legal system regarding land is not yet truly synchronized.
Based on that experience, we propose the following suggestions:
1. Propose amendments and additions to Article 72 of the draft Land Law regarding the principles of land compensation when the State reclaims land.
The law stipulates: "Anyone whose land is confiscated shall be compensated by being allocated new land of the same use. If there is no land available for compensation, they shall be compensated in money at the price of land of the same use at the time of the land confiscation decision and shall be provided with assistance for land damage caused by the land confiscation." In practice, determining the compensation time as the time of the land confiscation decision has some inconsistencies, because in the implementation of compensation and resettlement, most complaints from people relate to land prices.
According to current regulations, people are compensated according to a plan approved by the state agency when a land expropriation decision is made. However, the process from the land expropriation decision to the completion of procedures for people to receive compensation often takes 3 to 5 years. By then, the land price at the time of receiving compensation has changed significantly compared to the land price at the time of the land expropriation decision. Therefore, those whose land is expropriated always suffer disadvantages. During those years, land prices and land compensation policies have changed, and people lose opportunities for investment, business, or housing.
Furthermore, when agricultural land is reclaimed for non-agricultural purposes such as urban development or commercial housing construction, those whose land is reclaimed are only compensated at the agricultural land price. This land is then allocated to construction companies for sale, with each square meter of land now worth several million or even tens of millions of Vietnamese dong. Those whose land is reclaimed often compare the compensation price they receive with the price the developers sell to homebuyers. Disputes and lawsuits arise when the compensation price is too low while the price after the conversion from agricultural land is too high. In our opinion, it is necessary to add a regulation regarding the calculation of land compensation prices. If, at the time of "compensation payment," the land price has increased by 5% or more compared to the time of "the land reclamation decision," the agency that issued the reclamation decision is responsible for recalculating the land price to pay the compensation.
2. We propose adding a provision regarding the lending of land use rights.
With regulations on the transfer, donation, lease, inheritance, and capital contribution of land use rights as stipulated in legal documents, the State has recognized land use rights as a form of asset and as an object in civil transactions. However, in reality, not only do cases of parties transferring, donating, leasing, inheriting, or contributing land use rights occur, but there are also many cases of lending land use rights.
Based on practical experience, it can be seen that the courts have handled many cases where parties lent land to acquaintances for use. Because the original landowner did not reside in the locality, the borrower processed the land use right certificate, and only after a long time did the original landowner file a lawsuit to reclaim the land. In these cases, although the parties often did not draw up any documents at the time of lending, based on the verification of the land's origin, the judicial authorities still have grounds to make an accurate judgment.
In current practice, there are many relationships involving the borrowing of land use rights. However, the state has not yet issued regulations or guidelines on this group of relationships. Therefore, if a party files a lawsuit to reclaim borrowed land and has grounds to assert that their claim is valid, can the court accept and resolve the case? If so, which legal provisions will be applied? In reality, most courts still accept and resolve cases, applying Articles 512-517 of the Civil Code on contracts for borrowing property. However, this is only a temporary solution because land use rights are considered a special type of property, and the Civil Code has specific provisions in Part Five regarding the transfer of land use rights, not Part Three, Chapter XVIII, which regulates common civil contracts, to govern legal relationships related to the transfer of land use rights.
The role of law is to record and regulate social relations arising in social life in a timely manner, creating a safe legal environment for those social relations to develop healthily. Although not yet recognized by law, relationships involving the lending of land use rights still occur frequently in practice, so it is essential to have them recognized and regulated by law. Therefore, I believe the drafting committee should consider adding this content.
Bui Thu Thao (Provincial Prosecutor's Office)
