Proposal to supplement regulations on lending land use rights

(Baonghean) -The 2003 Land Law is the legal basis for competent authorities in the process of implementing the task of state management of land nationwide, in line with the reality of social life, creating favorable conditions for people and those assigned land by the State to use land funds, invaluable resources of the country more and more effectively, contributing to increasing revenue for the state budget, promoting economic development.

However, the implementation of the Land Law still reveals many limitations and shortcomings. The application of the 2003 Land Law in dispute resolution practice still has many shortcomings and problems, causing the dispute resolution process to be prolonged, going through many levels but still not being thoroughly resolved. In general, land dispute lawsuits are very complicated, prolonged, and fierce, and the parties often disagree with the decisions of competent authorities. There are many reasons, but the main reason is that the land law system is not really consistent.

From that practice we propose the following suggestions:

1. Proposal to amend and supplement Article 72 of the draft Land Law on the principles of land compensation when the State acquires land

The law stipulates: “Anyone whose land is recovered shall be compensated by being allocated new land with the same purpose of use. If there is no land for compensation, he/she shall be compensated in cash according to the land price with the same purpose of use at the time of the land recovery decision and shall be supported for land damage caused by the land recovery”. In reality, determining the time of compensation as the time of the land recovery decision has some unreasonable points, because in the implementation of compensation and clearance, most of the people's complaints are related to land prices.

According to current regulations, people are compensated according to the plan approved by the state agency when there is a decision to reclaim land. However, from the time of the land reclamation decision until the competent authority completes the procedures for people to receive compensation, it often takes from 3 to 5 years. At that time, the land price at the time of receiving compensation is much different from the land price at the time of the land reclamation decision. Therefore, people whose land is reclaimed always suffer losses. During those years, land prices and land compensation policies have changed, and people's opportunities to invest in business or have a house have been lost.

Furthermore, when agricultural land is reclaimed and converted to non-agricultural purposes such as urban construction, commercial housing construction, etc., people whose land is reclaimed are only compensated at the price of agricultural land. Then this land area is assigned to companies that build houses for sale. Each square meter of land at this time is worth up to several million or tens of millions. People whose land is reclaimed compare the difference between the price of the land they are compensated for and the price of the land that investors sell to home buyers. When the price of the land is compensated too low while the price of the land after changing the purpose of agricultural land use is too high, disputes and lawsuits arise. In our opinion, it is necessary to supplement the regulation on calculating the price of land compensation in the direction that if by the time of "compensation payment" the land price increases by 5% or more compared to the time of "the decision to reclaim the land", the agency that issues the decision to reclaim is responsible for recalculating the land price to pay compensation.

2. Proposal to supplement regulations on lending land use rights.

With the regulations on transfer, donation, lease, inheritance, capital contribution... with the value of land use rights stipulated in legal documents, our State has recognized land use rights as a form of property and can be the subject of civil transactions. However, in reality, not only do the parties transfer, donate, lease, inherit, and contribute capital to land use rights, but there are also many cases of lending land use rights.

Through practical summaries, it can be seen that the Court has accepted many lawsuits in which the parties lent land to acquaintances for use, because the user did not live in the locality, so the borrower completed the procedures for granting a land use right certificate, and after a long time, the land user filed a lawsuit to reclaim the land. For these lawsuits, although the parties often did not prepare documents when lending, based on the verification of the land origin, the prosecution agency still has the basis to make an accurate judgment.

In reality, there are many relationships related to borrowing land use rights. However, the State has not yet issued any documents regulating or guiding this group of relationships. So, if the litigant files a lawsuit to reclaim the borrowed land and has grounds to affirm that the litigant's request is well-founded, will the Court accept the case and resolve it? If it does, which legal provisions will be applied to resolve it? In reality, most courts still accept the case and resolve it, the legal basis to apply is Article 512 - Article 517 of the Civil Code on property borrowing contracts. However, this is only a temporary solution because land use rights are considered a special type of property, so the Civil Code has made separate adjustments in Part Five regulating the transfer of land use rights without applying Part Three, Chapter XVIII regulating common civil contracts to regulate legal relationships related to the transfer of land use rights.

The role of law is to promptly record and adjust social relations arising in social life, creating a safe legal environment for those social relations to develop healthily. Although not yet recognized by law, relations regarding land use rights lending still occur a lot in practice, so they need to be recognized and adjusted by law. Therefore, it is thought that the Drafting Committee should consider adding this content.

Bui Thu Thao (Provincial Procuracy)