Topic the concept of trust from the perspective of vietnamese law legal recognition, limitations, and future prospects

TABLE OF CONTENTS1 Introduction...4 2 Literature Review...5 2.1 Research Background...5 2.2 Scope of Research...6 2.3 Research Gap...6 3 Overview of Trust in Common Law...7 3.1 The origi

-FINAL ASSIGNMENT INTRODUCTION TO LAWTopic: The Concept of Trust from the Perspective of Vietnamese Law: Legal

Recognition, Limitations, and Future Prospects

Lecturer: Mr Ha Cong Anh Bao

DEPARTMENT OF ECONOMICS AND LAW

TABLE OF CONTENTS

1 Introduction 4

2 Literature Review 5

2.1 Research Background 5

2.2 Scope of Research 6

2.3 Research Gap 6

3 Overview of Trust in Common Law 7

3.1 The origin of trust 7

3.2 The definition and core elements of trust 8

3.3 The fiduciary duties of the trustee 9

3.4 The applications of trust in social life 10

4 Vietnamese Legal Framework and Functional Equivalents 11

4.1 Definition of Property law in Vietnam Civil Law 11

4.2 Guardianship in Vietnam Civil Law 12

4.3 Inheritance in Vietnam Civil Law 12

4.4 Fund management legal framework and investment funds 13

4.5 Discussion on the effectiveness of the substitution mechanisms for trust in the Civil Law 14 4.6 Dual-ownership recognition in Vietnam 14

5 Practical Limitations and Legal Obstacles 15

5.1 Limitations in law 15

5.1.1 No concept of dual ownership in Vietnamese Law: 15

5.1.2 Absence of fiduciary obligations: 16

5.1.3 No protection framework for “beneficiaries.” 16

5.2 Legal uncertainty 17

5.2.1 Legal uncertainties in managing the ward’s property 17

5.2.2 Legal uncertainties in managing entrusted property 17

5.2.3 Legal uncertainties in managing property for worshipping purposes 18

5.2.4 Legal uncertainties in managing property for Real Estate Investment Trust 18

5.2.5 Legal uncertainties in managing property for charitable purposes 18

6 Comparative Perspective 19

6.1 Trust Law in Japan 19

6.1.1 Official Legal Framework 19

6.1.2 Key Features and Innovations 19

6.1.3 Successes and Challenges 20

6.2 Trust Law in China 21

6.2.1 Official Legal Framework 21

6.2.2 Key Features and Innovations 21

6.2.3 Successes and Challenges 22

6.3 Lessons and Policy Suggestions for Vietnam 22

6.3.1 Identify the Need and Benefits 22

6.3.2 Draft a Clear and Comprehensive Trust Law 23

6.3.3 Reconcile with Civil Code Principles 23

6.3.4 Strengthen Fiduciary Duty and Governance 23

6.3.5 Phased Introduction and Education 23

6.3.6 Anticipate Challenges and Mitigate Them 23

6.4 Summary 24

7 Policy Discussion and Reform Options 24

8 Conclusion 26

1 Introduction

Originating in England around the 13th century as a tool to protect the rights of knights who had to participate in the Crusades, the trust has become one of the most widely used asset management instruments across the world Trusts are not only recognized in Common Law countries such as the United States, Canada, Australia, and New Zealand, but have also been accepted in several Civil Law jurisdictions including Germany, France, China, Japan, and South Korea The establishment of a trust is considered an effective tool for financial management

In Vietnam, however, the concept of “Trust” remains relatively unfamiliar, and the Vietnamese legal framework has yet to recognize it In recent years, scandals involving celebrities accused of lacking transparency in charitable activities—alongside growing concerns that the current legal system lacks effective mechanisms to manage entrusted property—have prompted Vietnamese policymakers to view the trust as a potentially safeand effective legal instrument Nevertheless, academic research on this subject in Vietnam remains limited and lacks legal specificity For this reason, our research team

has chosen the topic “The Concept of Trust from the Perspective of Vietnamese Law:

Legal Recognition, Limitations, and Future Prospects” in order to address the

following research questions:

 Does Vietnamese civil law adopt trust and dual ownership?

 Whether Vietnamese law accommodates similar legal instruments or principles?

 What are the benefits and challenges of integrating trust-related mechanisms into thelegal system?

 Why doesn't Vietnamese law adopt the trust concept?

 What lessons can Vietnam learn from other civil law jurisdictions that have integrated trust into their legal systems?

This research also aims to explore some legal questions arising from the attempt to adopt trust or trust-like mechanisms in Vietnamese law One of the issues is the compatibility between the dual ownership principle in Common Law and the ownership framework of Vietnam’s Civil Code Another crucial issue is what legislative adaptations Vietnamese Law should undergo to integrate the “Trust” mechanism without causing conflicts between the two principles Addressing these problems is important for determining the feasibility of adopting the “Trust” concept in Vietnam and ensuring legal harmony with the country’s tradition

2 Literature Review

2.1 Research Background

In common law systems, the trust has evolved into a cornerstone of private law, shaped

by both judicial precedent and academic doctrine At the forefront of this scholarly

tradition stands Ford and Lee’s Principles of the Law of Trust (1983), a seminal work that

meticulously articulates the legal mechanics of trusts Their analysis of dual ownership—where the trustee holds legal title while the beneficiary holds equitable interest—and thetrustee’s fiduciary obligations continues to serve as a foundational reference point Bydissecting the legal relationships among settlor, trustee, and beneficiary, Ford and Leeprovide a doctrinal framework critical to evaluating whether a civil law jurisdiction likeVietnam, which lacks the concept of dual ownership, can realistically incorporate trustlaw

Comparative legal scholars have also turned their attention to the transplantation of trust

mechanisms into civil law environments, particularly in East Asia Reception of the Trust

in Asia: An Historical Perspective (Cambridge University Press) offers a sweeping

historical account of how Japan gradually accepted trust law, highlighting the socio-legalconditions that facilitated its adaptation While the work is rich in historical context, itsanalytical depth on the legal doctrine remains limited

In contrast, the Chinese experience offers a legislative experiment worth close

examination As analyzed in Trust Law of China and Its Uncertainties (National Taiwan

University Law Center), China’s 2001 Trust Law represented a landmark attempt tocodify trust principles within a civil law setting However, this study draws attention toongoing ambiguities in ownership structures and fiduciary duties, suggesting that theseunresolved issues continue to undermine the law’s effectiveness

2.2 Research Purpose

This study seeks to critically explore the feasibility of integrating trust-like legalmechanisms into Vietnam’s civil law system The research begins with a close reading oftrust law as developed in common law jurisdictions, particularly through Ford and Lee’sarticulation of the fiduciary framework and dual ownership model These principles willserve as benchmarks for assessing compatibility with Vietnam’s legal traditions.Beyond this foundational analysis, the study will examine how civil law jurisdictions—specifically China and Japan—have sought to legislate or doctrinally adapt trust law to fit

their respective systems The goal is to identify workable models and legal strategies thatmay inform Vietnam’s own pathway.

In parallel, the research will assess Vietnamese legal institutions that perform similarroles to trusts, such as guardianship, fund management, or agency arrangements Byexamining these mechanisms’ operational structures and doctrinal basis, the study aims touncover both their utility and limitations in replicating trust functions

Ultimately, the research intends to diagnose the legal, institutional, and conceptualbarriers that prevent trust law from taking root in Vietnam and, building on thatdiagnosis, to offer a set of grounded recommendations for reform—either through newlegal instruments or the reconfiguration of existing frameworks

2.3 Scope of Research

The scope of this study is carefully bounded within the theoretical and legal dimensions

of trust law It centers on analyzing the core tenets of trust law in common law, especially

as framed by Ford and Lee’s foundational text It then moves to a comparative inquiryinto how selected civil law jurisdictions—namely China and Japan—have attempted toincorporate trust principles, offering practical insights for Vietnam

On the domestic front, the study will explore Vietnamese institutions that share functionalsimilarities with trusts The analysis will focus on their legal structure and efficacy,identifying both overlaps and critical deficiencies

Importantly, this research does not aim to produce a comprehensive legislative draft ordelve into broader questions of property or inheritance law Its principal objective is toassess the doctrinal feasibility and institutional adaptability of trust mechanisms withinVietnam’s existing legal order, laying the groundwork for future legal development in this

area.

2.4 Research Gap

Despite the growing global and regional interest in Trust Law, Vietnam has yet to develop

a structured academic or legislative framework that addresses this concept in acomprehensive manner Current Vietnamese literature largely provides preliminaryoverviews without confronting essential doctrinal questions - such as “The LegalRelationship of Trust in Some Countries and Implications for Vietnam” by Lê Vũ Namand Lê Bích Thủy (2020) engage with comparative perspectives but stop short of offering

a substantive doctrinal analysis Meanwhile, Lê Bích Thủy’s other contributions discussing charitable trusts and asset management - highlight potential applications of

-trust-like mechanisms but remain conceptual and policy-oriented, lacking in legalspecificity This disconnects between international depth and domestic underdevelopmentunderscores the pressing need for a more thorough legal engagement with trust concepts

in the Vietnamese context Moreover, the absence of experimental research on theperceptions and awareness of the legal profession and the justice regarding fiduciaryrelationships further hampers scholarly and legislative progress This gap not only limitsVietnam’s capacity to formulate an internally coherent trust regime but also emphasizesthe necessity of deeper analytical and comparative inquiry to inform future legaldevelopment

3 Overview of Trust in Common Law

3.1 The origin of trust

Trust or the asset management trust is believed to come to existence because of theCrusades in the 12th century in the Middle Ages of England During that time, whenknights and landowners set off to the Holy Land, they were faced with the difficulty ofmanaging their lands and estates To address this problem, they transferred their land totrusted individuals (called "feoffees") to manage their assets during their absence with aview to upholding duties to the Crown and ensuring the support and protection of theirfamily from the income generated by their land However, when the knights returnedhome from the Crusades, some of those entrusted with the land refused to return it Thisled to development of a new system outside the rigid structure of common law: the Court

of Chancery The Court of Chancery was founded in the late 14th century and eventuallybecame the primary court that would implement the equitable rights of individuals whenthe common law was inadequate to provide justice Equity, an evolving concept and anextension to common law, was created to provide fairness and justice based on morality,and not necessarily according to set rules Therefore, the knights were granted a favorablejudgement and had their lands back to them With an increased jurisdiction, the Court ofChancery established the foundations for the trust as a separate body of law It establishedthe duties of the trustees and the rights of beneficiaries and drew a clear differentiationbetween equitable and legal ownership This was important, as it allowed individuals to1

place property in a form that could control and safeguard wealth better than it couldunder the common law system alone Accordingly, before entering the war, knights couldtransfer the ownership of their assets to other individuals to ensure proper managementfor the benefit of the knight and his family until his return, or it will be transferred to his

1

Alpha Wealth Group, ‘The History of Trusts and the Court of Chancery’

https://www.alphawg.com/news-and-heir if the knight is killed in battle Subsequently, the concept of trust has been furtherdeveloped, refined, and applied across various fields in society to this day, not onlywithin the territory of England but also in numerous nations across the globe.

3.2 The definition and core elements of trust

The concept of trust has been introduced from a very long time since the 12th century and

is praised as one of the greatest achievements in the field of jurisprudence Therefore,there are umpteen legal documents from scientific research works to short articles on theInternet written by various authors who are renowned legal researchers, lawyers or evenlaw students Each article has its own and distinctive definition of trust Thus, in this part,

we will look through the definition of trust in some notable works and summarize its coreelements

Regarding the book “Modern equity”, Jill.E Martin states that: “A trust is a relationshiprecognized by equity which arises where property is vested in (a person or) persons calledthe trustees, which those trustees are obliged to hold for the benefit of other personscalled cestuis que trust or beneficiaries” 2

According to LA Sheridan and GW Keeton, “a trust is the relationship which ariseswherever a person called the trustee is compelled in equity to hold property, whether real

or personal, and whether by legal or equitable title, for the benefit of some persons (ofwhom he may be one and who are termed beneficiaries) or for some object permitted bylaw, in such a way that the real benefit of the property accrues, not to the trustees, but tothe beneficiaries or other objects of the trust” This definition indicates that the trustee3

may also be one of the beneficiaries and the benefit derived from the asset is notnecessarily directed to a specific person, instead, it may be allocated towards obtaining aparticular goal

In the book “Principle on the Law of the Trust”, Ford and Lee define trust as “anobligation enforceable in equity which rests on a person (the trustee) as owner of somespecific property (the trust property) to deal with that property for the benefit of anotherperson (the beneficiary) or for the advancement of certain purposes” .4

Considering the above definitions, we can notice that all of them share similar coremeanings regarding the concept of trust Specifically, all definitions agree that a trustarises when one or more persons are given a specific asset, becoming the legal owner ofthat asset, and are bound to preserve and manage it for the benefit of one or more other

2 Jill E Martin, Modern Equity (15th edn, Sweet & Maxwell 1997) 45

3

LA Sheridan and GW Keeton, The Law of Trusts (11th edn, Barry Rose 1983) 2

individuals or for a specific purpose The person who is given the asset and is obligated topreserve and manage it is called the trustee The person who transfers the asset to thetrustee is known as the trust creator (or settlor) The individual who benefits from thetrust asset is referred to as the beneficiary.

3.3 The fiduciary duties of the trustee

Fiduciary duties are duties enforced by law and imposed on persons in certainrelationships requiring them to act entirely in the interest of another, a beneficiary, andnot in their own interest They could vary based on the nature of the beneficiary served by

a fiduciary but typically include certain legal and ethical responsibilities regardingpreserving beneficiaries' interests which are as follows

Firstly, the duty of care, which is the legal responsibility of a person or organization toavoid any behaviors or omissions that could reasonably be foreseen to cause harm toothers The existence of this obligation is due to the fact that trust assets must be managedcarefully to ensure the entirety of the beneficiary’s benefits If the trust assets are lost ordamaged, the beneficiary will be affected 5

Secondly, the duty of loyalty, which pertains to acting in the best interest of the beneficiary at all times, putting their well-being first and foremost It includes the duty of the fiduciary to excuse themself from taking any actions when there's a conflict of interestwith the beneficiary's welfare 6

Thirdly, the duty of good faith, which pertains to always acting within the law to advancethe interests of the beneficiary At no time should the fiduciary take actions that are7

outside legal constraints The trustee should conduct itself openly and do everythingpossible to run the trust honestly, acting in a manner consonant with the trust documentitself and its spirit Specifically, the trustee should never be deceptive, negligent, or act inits own interest if not strictly forbidden to do so under terms of the trust document.Fourthly, the duty to keep the trust property separate, which requires the trustee to keepthe entrusted asset separate from their personal property as well as form the trust assets ofother trusts they are involved in Fulfilling this duty ensures the independence of the8

5

Legal Dictionary, ‘Duty of Care’ https://legaldictionary.net/duty-of-care/ accessed 28 May 2025

6 Investopedia, ‘What Are Some Examples of Fiduciary Duty?’

https://www.investopedia.com/ask/answers/042915/what-are-some-examples-fiduciary-duty.asp accessed 28 May 2025

7

Investopedia, ‘What Are Some Examples of Fiduciary Duty?’

https://www.investopedia.com/ask/answers/042915/what-are-some-examples-fiduciary-duty.asp accessed 28 May 2025

8

Maine Elder Law Firm LLC, ‘Duties and Responsibilities of a Trustee’ (17 April 2024)

trust property (one of the two most important characteristics of the trust relationship) andenables the trustee to manage the trust property effectively and align with the terms of thetrust agreement.

3.4 The applications of trust in social life

Trust is observed as an effective legal instrument, widely applied across many fields ofsocial life, particularly in common law countries such as the United States, Australia,England and more recently in certain civil law jurisdictions namely Russia, Japan, Chinafrom personal financial management to distribution of inheritance or charitable activities

In personal financial management, trusts offer secure solutions by separating trust assetsfrom personal assets This will allow individuals to allocate wealth towards somepurposes like retirement, children’s financial support in terms of education or when theystudy away from home without fear of loss due to financial difficulties such as debt orbankruptcy In the United Kingdom or Australia, trust assets may also benefit fromfavorable tax treatment In 2021, Australia had over 800,000 family trusts with a totalasset value exceeding 3 trillion USD 9

In the field of philanthropy, charitable trusts will be a useful and reliable tool to managelarge-scale donations This will solve the question related to the transparency, safety andreputation of charitable activities By separating the donated funds from personal assetsand restricting their use to specific purposes, trusts prevent misuse or embezzlement andsafeguard the funds from creditors if the managing individuals or organizations facefinancial obligations

In estate planning, trust helps in ensuring that an individual's properties are divided asdesired In the will, the person can nominate an executor or create a trust for theadministration and distribution of the inheritance among the beneficiaries Executors andtrustees work as fiduciaries, bound by law to act in good faith, care, and honesty Trustshelp in securing minor beneficiaries, handling asset administration in the long term, andfor the benefit of charities Fiduciary standards applied here help in administering theestate ethically and in an efficient manner Trust, in such a case, helps in ensuring that thedeceased person's wishes are implemented and that the beneficiaries get their inheritanceresponsibly and fairly

9 AFR.com, ‘One Family Trust and Three Kids: What Can Go Wrong?’ (30 August 2023)

https://www.afr.com/wealth/personal-finance/one-family-trust-and-three-kids-what-can-go-wrong-20230830-p5e0q8 accessed 28 May 2025

4 Vietnamese Legal Framework and Functional Equivalents

4.1 Definition of Property law in Vietnam Civil Law

According to the Article 01 of the Civil Code 2015, it is stated that “The Civil Codeprovides the legal status, legal standards for the conduct of natural and juridical persons;the rights and obligations of natural and juridical persons (hereinafter referred to aspersons) regarding personal and property rights and obligations in relations established

on the basis of equality, freedom of will, independence of property and self-responsibility(hereinafter referred to as civil relations).” Consequently, the Civil Code covers almost10

every aspect, including property rights and obligations; so as to be clear, there are 11Articles in the Chapter of Property (from Article 105 to 115) The Civil Code 2015 doesnot define property by its connotation but by listing things that it stands for According toarticle 105, together with article 107 and 108, we can diversify property into threecategories11:

 Objects, money, valuable papers and property rights

 Immovable property and movable property

 Existing property and off-plan property

In chapter XIV: Other Property-Related Rights, or to be specifically - in Article 257 ofSection 2: usufruct right, it is stated that: “Usufruct right means the right to use aproperty, under ownership of another entity, and enjoy its yield or income in a specificperiod of time.” In the journal 12

News Regulations on the Ownership and Other Real Rights on Assets in the Civil Code of 2015 Legis No.7/2017 of the Legislative Studies,;

Prof., Dr Nguyen Ngoc Dien, he wrote: The construction of the usufruct right in the Civil

Code 2015 has created a clear and strict corridor for usufruct rights to be formed andimplemented smoothly without the need for redundant provisions in specific unilateralagreements or commitments Additionally, by officially recognizing usufruct rights as astandalone property right beside ownership, all the problems related to the exercise ofrights by those who are assigned property but they do not have the right to dispose can beresolved 13

10 Civil Code 2015, Article 01

11

Tran Nguyen, Business Law Study Guide

12

Civil Code 2015, Article 275

13 Ngoc Dien Nguyen Prof, Dr, “Những Điểm Mới về Quyền Sở Hữu và Các Quyền Khác Đối Với Tài Sản Trong

Bộ Luật Dân Sự Năm 2015” (Tap Chi Lap Phap, April 1, 2017)

<https://lapphap.vn/Pages/TinTuc/211476/Nhung-diem-moi-ve-quyen-so-huu-va-cac-quyen-khac-doi-voi-tai-san-trong-Bo-luat-Dan-su-nam-2015.html> accessed

4.2 Guardianship in Vietnam Civil Law

Related to Guardianship, according to clause 1 and 3 in the Article 46 of the Civil Code

2015, it is stated that: “Guardianship means an individual or organization (hereinafterreferred collectively to as guardian) is required by law or appointed to take care of andprotect legitimate rights and interests of a minor or a legally incapacitated person or aperson with limited cognition and behavior control (hereinafter referred to as a ward)”;

“The guardianship must be registered at a competent authority as prescribed in law oncivil status affairs Natural guardians must fulfill their obligations regardless of theirregistration of guardianship.” Or in Article 59, the Guardians have completely no rights14

in making transactions involving the high-value property of the ward unless having theconsent of the supervisor or for the interests of the ward From that perspective, it is15

recognizable that ward is the actual owner of the property, while they have no ability inmaking civil transactions related to their own property However, the guardians are theirrepresentatives in making the transactions on behalf of the ward for the interests of theward even though guardians are not the owner of the property All regulations seem tostrictly protect the rights of wards comprehensively However, in reality, due to the faintrole of the guardianship supervisor and loopholes in laws to restrict the rights ofguardians in managing the property of wards as well as the lack of legal separationbetween the property under guardian’s management and his/ her property, especiallywhen the guardian is of parental relation to the ward, it is common to find guardians who,because of their lack of professional knowledge on asset management or lack of legalknowledge or because of any other reasons, wrongfully managed the property of thewards, especially the minors, and consequently harms wards’ property, even unjustlyusurp the property.16

4.3 Inheritance in Vietnam Civil Law

In the Dictionary of Law, Institute of Legal Studies, Ministry of Justice, inheritance is

described as: “Inheritance is the right to leave one's property to another person afterdeath, to inherit a legacy under a will or by law” According to the Article 609 of the17

Civil Code 2015, it is stated that “A natural person may make a will to dispose of his orher estate, may leave his or her property to an heir in accordance with law, or may inherit

an estate left to him or her under a will or in accordance with law An heir not being

14

Civil Code 2015, Article 46, Clause 1 and Clause 3

15 Civil Code 2015, Article 59

16 Thuy Bich Le, “Personal Property Management in Trust: Implications for Vietnam” (2022) 6 Science &amp; Technology Development Journal - Economics - Law and Management.

natural person has the right to inherit estate under a will” In the Civil Code 2015, there18

is a specific article - Article 645: Estate used for worship purposes - which is arecognition for our custom in the law Worshipping has long been a tradition inVietnamese people’s life, with the aim to pay respect to the senior and to educate younggenerations about paying respect, along with remembering their merits and dedications.Consequently, the state respects and protects this good tradition by allowing individuals

to save a part of their own assets for worshipping Regulations on estate used for worshiphave been modified and amended multiple times to better satisfy the practical needs.However, the process of applying this still reveals quite limitations and shortcomings thatneed to have further research and improvements For instance, there are no regulationsyet to limit the right to possess and dispose of the estate for worshipping the legitimateowner of this To be more specific, as there are no requirements of the duty to use theestate for the purpose of worshipping, this estate can also be private assets This results inthe next owner having his/her own right of disposal and there is no one to assure that theworshipping activities are going to last for the next time period 19

4.4 Fund management legal framework and investment funds

Under the law on securities, part of the “trust” model has appeared in Vietnam law InVietnam, there have been several investment funds over the past few years; however,most of the Real estate investment funds originated from other countries, which includes:VNL fund of VinaCapital, VPF of DragonCapital, VPH of Saigon Asset Management, …etc Through these examples, it is obvious that the investment activity under the trustrelationship has existed and is continuing to grow in Vietnam However, as there are stillsome gaps in the structure of law and regulation, which leads to high risks in investinginto these kinds of funds, investors do not actually feel safe participating in this activity

In Vietnam, fund certificates are also accepted Each certificate is being sold at 10.000VND, by buying the certificate, it means that people are funding the investing fund andlet the administrators use that money for investing and generating profits However, whenthe funds go bankrupt, the fund certificates will also be cancelled

4.5 Discussion on the effectiveness of the substitution mechanisms for trust in the Civil Law

18

Civil Code 2015, Article 609

19 Thi Quynh Nga Pham and Thi Tuyet Le, “Di Sản Dùng Vào Việc Thờ Cúng Theo Quy Định Của Bộ Luật Dân Sự Năm 2015 - Một Số Tồn Tại, Vướng Mắc và Đề Xuất, Kiến Nghị Hoàn Thiện” (tapchitoaan.vn, January 8, 2025)

<https://tapchitoaan.vn/di-san-dung-vao-viec-tho-cung-theo-quy-dinh-cua-bo-luat-dan-su-nam-2015-mot-so-ton-tai-From the case law and previous research on Vietnam Civil Law, we can clearly see thatthere are a few mechanisms in the law that partly have the same function as trust.However, there are still some gaps and differences when being compared to trustrelationships To be the substitution for the trust, there has to be a special mechanism forthe division of ownership.

4.6 Dual-ownership recognition in Vietnam

In the Civil law system, the ownership is absolute and indivisible as it is “absolute

ownership” According to Nguyen Van Dien in “Quyen so huu va can cu xac lap quyen so huu tai san theo quy dinh cua phap luat hien hanh” Tap chi Dan chu & Phap luatin

(2021), he stated that “In theory, ownership is the absolute right of subjects in Civil Law, the law always recognizes and protects the ownership rights of owners” 20 The Precedent

No 02/2016/AL on Dispute over property reclaim has the following abstract: “In a case when an overseas Vietnamese who, at his/her cost and expense, acquired transfer of land use right and asked a Vietnamese citizen to put the land use right in the name of that person on his/her behalf is involved in a dispute with such Vietnamese citizen, the Court should have considered that Vietnamese citizen’s contribution to preservation and restoration to increase the value of the land use right; where it is impossible to determine specific contribution, it is supposed to consider that the overseas Vietnamese and the Vietnamese citizen have equal contribution to the increased value of land use right in comparison with its initial value.”21 From that perspective, it is clear that ownership is

“indivisible” and there is no recognition for dual ownership in Vietnam Civil Law.However, in the Common law system, Ownership can be divided into two parts,including: Legal ownership and Equitable ownership; forming the “Magic Triangle” Itcan be made possible through a very signature model of England - Trust

5 Practical Limitations and Legal Obstacles

5.1 Limitations in law

5.1.1 No concept of dual ownership in Vietnamese Law:

The definition of “Trust” is a great achievement in Common Law; however, this

definition is unfamiliar to countries following the Common Law System, including

Vietnam As the concept of 'Trust' is not yet recognized in Vietnamese law, it remains

insufficient to address various practical demands of society Specifically, while the

20 Van Dien Nguyen, “Quyền Sở Hữu và Căn Cứ Xác Lập Quyền Sở Hữu Tài Sản Theo Quy Định Của Pháp Luật

Hiện Hành” (Tap chi Dan chu Phap luat, March 18, 2021)

<https://danchuphapluat.vn/quyen-so-huu-va-can-cu-xac-lap-quyen-so-huu-tai-san-theo-quy-dinh-cua-phap-luat-hien-hanh> accessed May 28, 2025.