LAW ON INDEMNITY WHEN THE STATE RECOVERS AGRICULTURAL LAND IN VIETNAM

Object and scope of research of the Thesis 2.1 Object of research The research object of the subject includes: - Party and State’s system of point of view, guideline, policy and law on

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

PHAM THU THUY

LAW ON INDEMNITY WHEN THE STATE RECOVERS AGRICULTURAL LAND IN

The Work was completed at:

HANOI LAW UNIVERSITY

Scientific Instructor: 1 Associate Prof Nguyen Quang Tuyen

2 Associate Prof Pham Huu Nghi

Opponent 1: Associate Prof Hoang The Lien

Opponent 2: Associate Prof Nguyen Minh Man

Opponent 3: Associate Prof Vu Thu Hanh

The Thesis shall be protected against the school-level thesis assessment Council in the meeting at Hanoi Law University at … date … month … year 2014

The Thesis can be learnt in:

1) National Library;

2) Library of Hanoi Law University

PREFACE

1 Necessity of the subject

The agricultural land recovery is not simply the land use right termination of organizations, households, individuals to a certain area of agricultural land but also leaves socio-economic consequences to be timely solved to maintain the socio-economic stability The fact shows that this is a difficult, complicated work and severe, burning disputes, claims on land often arise According to the Government Inspectorate’s assessment, the claims relating to the indemnity when the State recovers agricultural land still occupies about 70% of total land claim cases This is caused by the legal system on land recovery and land indemnity which has inappropriate contents, in addition, the real legal enforcement in this sector still has shortcomings, limitations to be solved Therefore, the comprehensive study of the theoretical and practical issues to propose the complete solutions is a necessary work and has a great significance to complete the law on land in general and the law on compensation when the State recovers agricultural land in particular With such

significance, I select the subject of “Law on indemnity when the State recovers

2 Object and scope of research of the Thesis

2.1 Object of research

The research object of the subject includes:

- Party and State’s system of point of view, guideline, policy and law on the land sector in general and on indemnity, assistance when the State recovers land

- Practical information, data, cases on application of the provisions of the law

on indemnity when the State recovers agricultural land in Vietnam

- Scientific works on compensation when the State recovers land in general and law on indemnity when the State recovers agricultural land in Vietnam in particular published at home and abroad

2.2 Scope of research

The indemnity when the State recovers agricultural land in Vietnam is a subject of large, complicated scope of research In the limited framework, the Thesis studies the theoretical and practical issues of the law on indemnity when the State recovers agricultural land in Vietnam in which focusing deeply on studying, learning the indemnity, assistance when the State recovers agricultural land of households, individuals; resettlement when the State recovers land out of the subject of this Thesis

3 Research objective, task of the Thesis

3.1 Research objective

The research objective of the subject: “Law on indemnity when the State

research on the legal bases on the State’s indemnity when recovering agricultural land at the PhD level On such basis, recommending the highly valuable solutions to complete the law, to satisfy efficiently the requirements proposed by the life reality, during the enforcement process of the law on indemnity when State recovers agricultural land

of indemnity when the State recovers agricultural land in Vietnam

- To study the theoretical issues on the law on indemnity when the State recovers agricultural land; to learn about the law and the legal reality of some countries in the world on indemnity when the State recovers agricultural land and to complete the law on indemnity when the State recovers agricultural land

- To assess the real situation of the law on indemnity when the State recovers agricultural land, on such basis, the Thesis gives the orientation and solutions to complete the law on indemnity when the State recovers agricultural land in Vietnam

4 Methodology and research method of the Thesis

In order to achieve the research objective and task of the subject, the Thesis used the following research methods:

- Dialectical materialism and historical materialism scientific research methodology of Marxism - Leninism

- Analytic method, comparative method, historical method, systematic method

- Synthetic method, analytic method, evaluative method, collation method

- Commentarial method, interpretation method used while learning about the reason of the shortcomings, limitations during the real enforcement process of the provisions on indemnity, assistance when the State recovers agricultural land

5 New points and meaning of the Thesis

The Thesis comprises the following new major contributions:

- To supplement the theoretical and practical basis on indemnity when the State recovers agricultural land and the law on indemnity when the State recovers agricultural land in Vietnam; to analyze, clarify the adjustment mechanism of the law on indemnity when the State recovers agricultural land;

- The Thesis analyzed and indicated the experience lessons for Vietnam during the establishment, completion process of the law on compensation when the State recovers agricultural land while analyzing, learning about the law and the legal reality of some countries on agricultural land indemnity when the State recovers agricultural land;

- To assess this legal sector enforcement real situation and to show the reason

of shortcomings, limitations On such basis, the Thesis mentions the requirement, orientation and proposes the detailed solutions to complete the law on indemnity when the State recovers agricultural land in Vietnam;

The Thesis is a useful reference material not only for the land policy, law makers but also a useful monograph for the teaching, learning and scientific research work of the land law in our country’s legal training bases

6 Structure of the Thesis

Apart from the Commitment part, list of abbreviation words used in the Thesis, table of contents, Preface part, research situation Overview part, conclusion, list of studies relating to the subject of the Thesis published and list of references, the Thesis includes 3 chapters

OVERVIEW OF RESEARCH SITUATION ON SUBJECT OF THE THESIS

1 Essential contents of studies relating directly to the subject of the Thesis

The indemnity when the State recovers agricultural land is an important content of the State’s land management activity; carried out by the State competent agency to ensure the interests for the recovered land people in the country’s industrialization and modernization process The agricultural land recovery must be performed in the correlation between the agricultural land protection requirement (ensuring the sustainable development) and the objective indispensable nature of the transformation of agricultural land into non-agricultural land during the country’s new development stage; besides that, the life and work as well as the interests of the people after recovering land must be paid attention, ensured by the State This is a burning topical issue, therefore, there were many studies relating to this issue and reviewed under the different angles The research of the scientific works relating closely to the subject of the Thesis has a particularly important meaning Because this is the premise for the Thesis performance process, the basis for assessing, learning about the studied theoretical and practical issues, open issues, the oriented suggestions for the further issues to be studied, that the Thesis must focus on settlement It can say that, these are very useful references, of scientific value for the author during the research, performance of the Thesis at the PhD level

Through leaning about and researching, the author sees that, there were some outstanding studies, relating to some different aspects of the subject of the Thesis These studies can be classified under the following research groups:

1.1 Research group on theoretical issues on indemnity when the State recovers land

- Discussion articles on “Concept of indemnity when the State recovers land”;

- Legal studies of some countries in the world on indemnity when the State recovers land and relevant policies;

- Studies on transfer of land use purpose in the industrialization and modernization period in Vietnam;

1.2 Research group on contents of the law on indemnity when the State recovers land

- Researches on land prices;

- Research on indemnity methods;

- Research on job settlement for the farmers whose land is recovered;

- Research on assistance to the people whose land is recovered;

- Researches on the life of the people after recovering land;

- Commentarial researches on legal provisions on indemnity when the State recovers land

1.3 Research group on enforcement organization and completion of the law

on indemnity when the State recovers land

1.4 Research group is scientific research Subject, master’s Report or Dissertation studying theoretical and practical issues on indemnity when the State recovers land

2 Assessment, result of studies relating directly the subject of the Thesis and next key contents made by the Thesis

2.1 Some comments

Approaching, learning about the studies relating to the subject of the Thesis published in the last time; we have some following comments, considerations:

methods during the research process:

- Dialectical materialism and historical materialism scientific methodology of the Marxism – Leninism to study the issue in the incessant movement, change sate and placed in the overall relationship, interaction between this phenomenon studied with other ones Moreover, the research object is considered, assessed under the

“dynamic” state… to make the research issue abundant, diversified, at once traditional and modern

This means that the research object is reviewed, assessed, approached during the formation and development movement process though the different historical stages

to see the development, completion of the thought in general and of the legal thought in particular to response to the practical demand In addition, the Party’s points of view, guidelines, policies are the fundamental political orientations to locate for the authors during the research process to achieve the proposed research objectives

- Information collection, treatment method The scientific information in the studies are collected, analyzed, treated by the authors from many other sources: (i) Provisions in the State’s legal documents; (ii) Resolutions, documents of the Party; (iii) From sociological survey, inspection result; (iv) From real enforcement summary of the law on indemnity, ground clearance when the State recovers land; (v) From works, articles of the domestic authors; (vi) From websites; (vii) From foreign documents,… showing that the studies of the previous authors also mentioned an other comprehensive and “multicolored” picture on indemnity, assistance to the people whose land is recovered

- Analytic, synthetic method also applied in most of the studies as the basis for the authors to judge, assess the research issue under the legal implementation angle

and the legal enforcement reality on indemnity and assistance when the State recovers land

- Moreover, some other methods also used additionally such as deductive method, inductive method, comparative method,… to study and clarify the research contents

can be under the different angles of view but the majority of studies on the above mentioned indemnity, assistance, resettlement reasoning issues when the State recovers land just attach special importance to propose the concept, characteristics of indemnity, assistance, the difference between indemnity and assistance as well as indemnity and compensation Along with that, the majority of the authors judge that the objective indispensability of the land recovery is explained under the required angle of the country’s industrialization and modernization career At the same time, confirming it is necessary that the State must be responsible to compensate for (indemnity, assistance) the people whose land is recovered through the explanation under the damage angle of the people whose land is recovered by the State

We do not deny the correctness of the judgments and assessments of the authors in the above mentioned studies, but if the reasoning on indemnity, assistance when the State recovers land is approached in more multidimensional manner, with larger scope, the research issue shall be more profound, as the better premise to approach the contents of the implementation law on this issue For example: the concept of land recovery must be studied in the relationship with expropriation, compulsory acquisition, or land requisition, in the relationship with land ownership, property ownership… Or, when the authors mention the consequence of the land recovery or the objective indispensability of the land recovery, the most just stop at the analysis and explanation from the requirement on the country’s industrialization and modernization career… We think that, the approach shall be more practical and more profound if they are recognized at the efficiency of the land recovery to transfer the purpose, to move the economic structure This shall become more evident when in fact, there are thousands of hectares of land of agriculture and forestry farms, stations, state-owned enterprises… existing in the old regime, were exploited and used inefficiently, wastefully and at this moment, still in “tremble”, not clear in their management and control mechanism Along with thousands of hectares of agricultural land assigned to the households, individuals to use stably, in long-term without paying land use fees to the State but they have no direct use demand but lease, lend, give to the others for exploitation without declaration… So, the question is that, such land areas must be represented by the State as the owner, at the same time as the State management entity on land, with redistribution and readjustment to how use efficiently, the land recovery to use for the State’s different purposes is also a one of the manifestations of such requirement

indemnity, assistance when the State recovers land, as well as the approach works under the practical aspect of the indemnity, assistance such as: “Discussion on land price so high or low in indemnity” of MA Dang Anh Quan or “Discussion on land price as regulated by the Law on Land of 2003” of Pham Xuan Hoang; In terms of the concept of indemnity, there are “Theoretical issue around the indemnity concept

when the State recovers land” of PhD Nguyen Quang Tuyen or “Some opinions to complete the law on indemnity when the State recovers land” of Le Ngoc Thach; Book of “Job settlement for the agricultural labor in the urbanization process” of Associate Prof Nguyen Thi Thom and MA Phi Thi Hang (co-editor) – National Political Publishing House in 2009, or Book of “Job of the farmers in the industrialization, modernization process of the Red delta to 2020” of PhD Tran Thi Minh Ngoc (editor) - National Political Publishing House in 2010),… showing that, the majority of the authors’ points of view think that, the State’s land recovery is for the use of the State, of the people who are exploiting, using without fault caused by them, the State is responsible to indemnify and compensate them for the damages encountered by them at both material and non-material aspects At the same time, the authors in the studies state that, the current policy on indemnity, assistance and resettlement is not actually satisfactory, much lower than the reality, hasn’t compensated the damages burdened by the people whose land is recovered…

We completely share with the above mentioned remarks however we think that, the research issue shall be more diversified and multidimensional, deeper if their scope and object are extended For example, when the interests of the people whose land is recovered are solved, but due to limited legal execution awareness and consciousness, the ground clearance is delayed, to lead the delayed project implementation time schedule for the investors, causing damages to them, or the legal execution delay from the public authorities leads the project to prolonged to cause damages to the investors, who is responsible to compensate these damages? This is also a necessary issue to be questioned and solved further

aspects of the legal enforcement on indemnity, assistance, resettlement through analyzing the provisions of the current law and pointed out the practical examples for proving Details as: Article of “Assistance policy when the State recovers land of PhD Tran Quang Huy; Article of “Law on order, procedure of land recovery, indemnity and ground clearance and problems arising in the application process” of PhD Nguyen Thi Nga); Article of “Shortcomings, problems arising in the application process of the indemnity methods when the State recovers land” of PhD Nguyen Thi Nga and Bui Mai Lien)… Thereby, we see that, the “hidden corners” of the law on indemnity, support, resettlement when the State recovers land are gradually “half-opened” more clearly through vivid practical examples However, following and directly witnessing the reality in the recent years show that, shortcomings, problems are still much more diversified and complicated, they are expressed in many different forms, therefore, they must be studied more deeply, more practically so that this issue carries the respiration

of the life This is also the wish that we shall be directed toward

all studies on solutions to contribute to continue to complete the law on indemnity, support, resettlement when the State recovers land However, they shall be more scientific, comprehensive and feasible when they are questioned more generally, uniformly and directly This is also the task that the Thesis is directed toward during the research process

2.2 Next key contents made by the Thesis

Firstly, in the country’s industrialization and modernization process, the

agricultural land recovery to transfer into the non-agricultural purpose is an objective necessary need, this was mentioned by the studies However, the agricultural land is recognized as a specific production material and of particularly important meaning in the socio-economic life in Vietnam (a country develops from the agricultural economy), that affects the provisions of the law on recovery and indemnity for agricultural land but hasn’t been clarified by the authors Thus, this is one of the contents to be continuously studied in the Thesis

Secondly, in the indemnity sector when the State recovers land, there are still

different scientific points of view on the terms relating to recovery and indemnity, the Thesis shall clarify more this issue

Thirdly, the indemnity principles, conditions when the State recovers land are

the very important orientations to affect the indemnity, satisfactory indemnity guarantee, correctness, sufficiency for damages that the land users must bear when land is recovered In the other hand, the indemnity policy shall be more feasible, more enforceable in fact if they are more approached and shared, interested to the enterprises, investors, particularly the investors in the real estate business sector in the current stage which is pushing them to encounter innumerable difficulties and challenges Along with that, the interests generated from the land movement process shall be also regulated fairly, appropriately to create income source to the State to re-invest, construct the country This hasn’t been clarified in the studies, the Thesis shall analyze more clearly this issue

Fourthly, the land indemnity, indemnity of property on land, were mentioned by

some studies but only general or at small aspects but haven’t described comprehensively these contents in consideration of both theoretical and practical aspects The Thesis shall study more systematically and deeply, comprehensively the land indemnity, indemnity of property on land when the State recovers agricultural land

in which especially paying attention to indemnity price because this is the center of the indemnity issue In the other hand, when talking about the land indemnity price, the majority of studies only analyzed, thought in one way under the direction: the State’s indemnity price is low, too different from the market price or the support level is not satisfactory, not to ensure the life stability, job of the people whose land is recovered,…

to have no back-thinking to share the difficulties faced by the enterprise and the State during the indemnity process It shall be more comprehensive when we recognize objectively to assess rightly the real situation of this issue, as the valuable basis to complete the law, this is the issue to be mentioned in the Thesis

Fifthly, the support when the State recovers land was mentioned by the studies

but mainly under the angle to analyze the provisions of the law on support but hasn’t clarified the nature as well as its relationship with the indemnity, this shall be expressed in the Thesis On the other hand, the provisions of the law on support shall

be more deeply studied in the Thesis, because the author thinks that, in the indemnity sector when the State recovers agricultural land, the support is an additional very necessary measure to complete more the indemnity purpose, to ensure the legitimate interests for the farmers whose production material is recovered, to help them to

quickly stabilize the life Particularly, some types of agricultural land in the relatively special positions such as: pond and garden land adjacent to living land not recognized

as living land, agricultural land in the area neighboring to the urban area, administrative center or agricultural land alternated in the residential area… Under the existing law, these types of agricultural land have institutions very different to the type of pure agricultural land; in which, the support level is much higher than the indemnity level

So, in fact, the application is extremely complicated and sensible, they are also one of the causes to “ignite” the disputes, claims, denouncements Therefore, they should be analyzed, judged more thoroughly and carefully

Sixthly, the Thesis shall attach more special importance to its research

direction from the real cases arising in fact with very different points of view, settlement opinions; there are shortcomings, problems that the reason due to the implementation law still has gaps, opened so there is no basis for application; but there are shortcomings, problems caused by a lack of clarity, transparency of the law, so the understanding and application are not similar in the localities; there are the provisions which have proved far from the reality and the entities intentionally find the way to “sneak the law” to obtain illegal profits,…

Seventhly, the Thesis is made in the context of the Law on Land of 2013

adopted by the National Assembly but not effective Therefore, the acquisition and inheritance of the previous provisions of the law on indemnity shall be continuously studied to have a mechanism for developing, enforcing more efficiently in fact; at the same time, the new contents of the provisions of principle and generalization in the law shall be carefully studied thoroughly to have more concrete, detailed enforcement instructions with a proper mechanism This shall be also focused by the author during the Thesis research process

In summary, in the country’s industrialization and modernization process, especially in the socio-economic context with continuous and quick changes, the results that our country’s legal scientific researchers reached in the indemnity sector when the State recovers land in general and agricultural land in particular should be continuously studies, added and completed Therefore, an independent, intensive and systematic study on the indemnity law is very necessary when the State recovers agricultural land in Vietnam, this is the task that the Thesis shall do

Chapter 1 THEORETICAL ISSUES ON INDEMNITY WHEN THE STATE

RECOVERS AGRICULTURAL LAND AND LAW ON INDEMNITY WHEN THE STATE RECOVERS AGRICULTRUAL LAND IN VIETNAM

1.1 Reasoning on agricultural land recovery

1.1.1 Concept, characteristics of agricultural land

1.1.1.1 Concept of agricultural land

The beginnings of the humankind, land was considered as the premise of the nature, initial condition of the life The famous historian, monographer Phan Huy Chu (1782-1849) in the XIXth century wrote: “Treasures of a country do not what

loved with land, people and the riches are born from so that” Many years from now, land is always the cradle to bring up the human life, is the accommodation, the condition for survival, is the particularly important production material which can not be replaced in the agriculture, forestry production With total area of over 33 million ha, in Vietnam, land is divided into many types based on the use purpose, agricultural land is one type of land in the national unified land capital

Agricultural land comprises generally types of land, has same use characteristics, as a production material mainly serving the agricultural, forestry production purpose such as cultivation, breeding, aquaculture, afforestation; regeneration and restoration, protection of forest; ecological environment protection; test research on agriculture, forestry

The conception of agricultural land at the above mentioned large scope is necessary and appropriate to the exploitation and use reality of organizations, households, individuals That is more and more significant in fact while determining which type of recovered agricultural land in the agricultural land group to be as the basis to define the proper indemnity method and level

1.1.1.2 Characteristics of agricultural land

quality of land, fertility of soil

be replaced in the agriculture, forestry, aquaculture and salt making sectors

1.2.2 Concept of agricultural land recovery

Based on the selective acquisition of the opinions, points of view of the scientists, the Law on land of 2013 adopted by the National Assembly on November

29th, 2013 shall be effective on July 1st, 2014, clause 11, article 4 provided that: “The State’s land recovery is that the State decides to recover the land use right of the person assigned by the State with the land use right or to recover land of the user who commits the law on land”

From that, the land recovery can be generally understood as follows: “The land recovery is that the State decides administratively to recover land and land use right assigned to the entities to use land under the provisions of the law on land” Deriving from this concept, the concept of agricultural land recovery can be given as

follows: “The agricultural land recovery is that the State issues the administrative

decision to recover agricultural land and agricultural land use right handed over to

1.1.3 Objective necessary need of agricultural land recovery for the country’s industrialization and modernization process

that: “Striving to 2020, our country shall basically become an industrial country

country In order to overcome laggard risk and to reduce step by step distance with the developing countries, there is no way that Vietnam must perform the

industrialization, transfer of agricultural economic mechanism into industrial, commercial, service mechanism, if that, it should make planning of a part of agricultural land fund into construction of industrial parks, economic zones, high technology parks

purpose transfer demand to use land more efficiently The agricultural land recovery due to the State’s demand shall be reasonable, rulable and legitimate if such land is exploited and used efficiently for the defense, security, national benefit, national benefit purposes and for the economic development target The agricultural land recovery shall also be indispensable and received the high consent, unanimity of the people whose land is recovered if such land is really used for the country’s industrialization and modernization career and along with this is the satisfactory indemnity, support policy to the people whose land is recovered, moreover, it’s the job arrangement associated with the reasonable, balanced economic mechanism movement

1.2 Reasoning on indemnity when the State recovers agricultural land

1.2.1 Interpretation of the term of “indemnity when the State recovers land”

issue, but only the compulsory purchase or requisition issue with legal property indemnity of individuals, organizations (Article 23, Constitution of 1992) In case of land use right compulsory purchase, the State shall compensate damages to the users under the appropriate reimbursement mechanism

recovers land, the issue needs to be identified again Firstly, it should see that: The land recovery under the law on land, is that the State confided by the people’s power (the Socialist Republic of Vietnam is the State of the people, by the people and for the people) and by its will regulated by the law, decides to recover land of organizations, individuals for the benefice of whole society Therefore, in this case, the law should state as “compensation of damages” when the State recovers land to use in the defense, security, national benefice, public benefice purposes

that, “Land recovery” and “Indemnity when recovering land” are the terms always associated with the whole population possession regime to the land of which the State is the representative This should be reviewed at two aspects: (i) The State’s possession representation right to the land is a basic, legal foundation for the State to perform the land recovery; (ii) the indemnity is an indispensable consequence after recovering, if the land users meet the conditions provided by the law on land On the other hand, ‘indemnity” is a proper term placed in the context where the State recovers land as the land representative owner

In addition, in consideration of nature, “indemnity” or “compensation” or

“reimbursement” is all an offset corresponding to damages caused These are the terms of relatively homogeneous comprehension I should think that, do not discuss deeply this term issue, because it does not bring many practical meanings, as well as not change the contents on the State’s great responsibilities and obligations to the

people, when the State performs the land recovery It is important that, when the State recovers land, a serious implementation mechanism of the offset corresponding to the tangible and intangible damages on material and spirit to the people whose land is recovered

1.2.2 Concept of indemnity when the State recovers agricultural land

The indemnity when the State recovers land can be fully understood as

follows: The indemnity when the State recovers land is that the State or

organizations, individuals assigned, hired by the State with land to use for the defense, security, national benefit, public benefit, economic development must offset damages of land and property on land caused by the land recovery act, to the land

Deriving this concept, the concept of indemnity when the State recovers

agricultural can be given as follows: The indemnity when the State recovers

agricultural land is that the State or organizations, individuals assigned, hired by the State with agricultural land to use for the defense, security, national benefit, public benefit, economic development purposes must offset damages of land and property on land caused by the agricultural land recovery act, to the land users in

The indemnity when the State recovers agricultural land owns some main specific characteristics as follows:

agricultural land, that is when the State recovers land to use for the defense, security, national benefice, public benefice purposes or for the economic development target

agricultural land: only the legal agricultural land use right people namely with land use right certificate, or legal land use right paper or enough conditions to issue just indemnified land use right certificate

the households, individuals whose land is recovered not only are indemnified for land and property damages but also considered, solved by the State for social issues such as life stabilization support, production stabilization support, transfer of job through new career training

1.2.3 Concept of support when the State recovers agricultural land

The “support” is that the State solves the consequences happening after the indemnity, the “support” can be considered as a solution in the indemnity, plays a role to offset the gaps that the indemnity provisions haven’t solved

1.2.4 Reasoning basis of indemnity when the State recovers agricultural land

The indemnity when the State recovers agricultural land is established on the following essential reasoning foundations:

State is the representative

directly caused from the State’s land recovery act