Law on indemnity when the state recovers agricultural land in Vietnam

I should think that, do not discuss deeply this term issue, because it does not bring many practical meanings, as well 1.2.2 Concept of indemnity when the State recovers agricultural lan

Law on indemnity when the state recovers agricultural land in

Vietnam

agricultural land is used as a direct production material and can not

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

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 useright 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 the entities to use under the provisions of the law on land”

1.1.3 Objective necessary need of agricultural land recovery for the

country’s industrialization and modernization process

Firstly, the Resolution adopted by the national XIth Party Congress confirmed that: “Striving to 2020, our country shall basically become an industrial country under the modern direction” (10, page 31)

Secondly, our country was originated from a poor and backward agricultural

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

Thirdly, the agricultural land recovery is still due to the agricultural land use

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 isexploited 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”

1st point of view: The Constitution of 1992 didn’t regulate the land recovery 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

2nd point of view: “Indemnity” or “compensation” of damages when the State 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 touse in the defense, security, national benefice, public benefice purposes

3rd point of view: According to the particular point of view, the author thinks 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 afterrecovering, 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

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 users in compliance with the provisions provided by the law on 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 compliance with the provisions provided by the law on land

The indemnity when the State recovers agricultural land owns some main

specific characteristics as follows:

Firstly, as a basis to generate the indemnity when the State recovers

agricultural land, that is when the State recovers land to use for the defense,

Thirdly, in terms of indemnity scope when the State recovers agricultural land, 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:

Firstly, based on the whole population land possession regime of which the

State is the representative

Secondly, based on our State’s preeminent nature

Thirdly, based on the land users’ profit damages, it’s the consequence arising directly caused from the State’s land recovery act

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1.3 Reasoning on law on indemnity when the State recovers agricultural land 1.3.1 Objective necessity of the law governing the indemnity when the State

recovers agricultural land

Firstly, the law has the specific characteristics that the other management

measures have no; it’s normative property, general compulsoriness, enforcement and

adaptability

Secondly, deriving the whole population land possession regime of which the State is the representative The State on behalf of the people performs the right of the owner On such basis, the State carries out land hand-over, land hire or land recovery

Thirdly, as mentioned in the above part, the indemnity when the State recovers land in general and the indemnity when the State recovers agricultural land in particular is a difficult, complicated and sensible sector; because it directly touchesthe practical benefits of the relevant parties that first of the land users, therefore an efficient adjustment by the law is required

Fourthly, the law specifies in details land recovery cases, agricultural land

recovery purpose, recovery competence, order, procedure and consequence

resolution method caused by the agricultural land recovery, These provisions help

the indemnity work when the State recovers agricultural land to be performed explicitly, fairly and lawfully

1.3.2 Concept, characteristics and factors affecting the law on indemnity

when the State recovers agricultural land

1.3.2.1 Concept of law on indemnity when the State recovers agricultural land Studying, learning about the contents of these provisions, it can see that the

law on indemnity when the State recovers agricultural land is an important

institution

of the law on indemnity of Vietnam and understood in reasoning aspect as follows:

“The law on indemnity when the State recovers agricultural land is the synthesis oflegal norms issued by the State to adjust the social relationships arising during the indemnity process when the State recovers agricultural land, to solve harmoniouslythe

interests of the State, investors and of the people whose land is recovered”

1.3.2.2 Characteristics of law on indemnity when the State recovers

Firstly, the law on indemnity when the State recovers agricultural land is

influenced and affected by the form of whole population land possession

Secondly, the indemnity basis in the law on agricultural land recovery is not only on the actual material damages borne by the farmers when the State recovers land but also calculates the non-material damages at the recovery time and in the future that the farmers must encounter

Thirdly, the law on indemnity when the State recovers agricultural land must solve harmoniously the conflict between the “public” benefits of the State, of the society and the “private” benefits of the land users in the land recovery

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1.3.2.3 Factors affecting the law on indemnity when the State recovers

agricultural land

Party’s point of view, guideline on construction and completion of the land

legal policy in general and the policy, law on indemnity, support when the State recovers land in particular; whole population’s land possession regime; economic management mechanism and international integration process

1.3.3 Adjusted legal structure on indemnity when the State recovers

agricultural land

The indemnity condition when the recovers agricultural land is the factors that the land users should have so that they can be indemnified when the recovers land The indemnity conditions must be regulated to ensure that the indemnity is fairly, reasonably, properly performed to the land use reality to protect maximum the benefits to the land users, to ensure the close strictness in accordance with the law Secondly, the normative group specifies the contents of indemnity, support to the people whose land is recovered

The indemnity, support contents to the people whose agricultural land is

recovered include the detailed provisions of indemnity scope (that is land

indemnity

and damage indemnity of property on land, in the certain cases the State can

support); of indemnity method (the indemnity can be made by agricultural land having the same use purpose with recovered land or by money equivalent to the recovered agricultural land use right value); of land price to be indemnified,

calculated under the land price frame stipulated by the State correspondingly to thetypes of recovered land, at the land recovery time

Thirdly, the normative group states the indemnity order, procedure to the

people whose land is recovered

Fourthly, the normative group stipulates the resolution of claims, denouncements relating to the indemnity, support when the State recovers agricultural land The recovered land people if not agreeing with the indemnity, support decision, have the

right to make claims, denouncements to the competent authorities

1.4 Formation and development history of the law on indemnity when the

State recovers agricultural land

1.4.1 Stage before the issue of the Law on land of 1993

1.4.2 Stage from the issue of the Law on land of 1993 to before the issue of

the Law on land of 2003

1.4.3 Stage from the issue of the Law on land of 2003 to now

The Law on land of 2003 reserves item 4 chapter 2 to stipulate the land

recovery and indemnity when the State recovers land with many important

amendments, supplements, attached with quite a lot of implementation guiding documents, in which emphasizing the harmonious resolution point of view of the

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benefit of the State, land users and investors, heightening the open and transparent principle in the land recovery At this moment, these issues were recognized at chapter VI Law in land of 2003 (from Article 61 to Article 94)

In summary: The development process research of the indemnity provisions

when the State recovers land through the periods indicates that our State always cares about the amendment, supplement and completion of the legal system of this sector to meet the practical requirement and to protect more and more the legal rights and benefits of the people whose land is recovered and the common benefits

of the community in the land use for the security, defense, national benefit, public benefit, socio-economic development purposes

1.5 Experiences and legal reality of some countries in the world on indemnity when the State recovers agricultural land and suggestions to Vietnam

1.5.1 Experiences of China

1.5.2 Experiences of Korea

1.5.3 Experiences of Singapore

1.5.4 Some suggestions to Vietnam during the construction and completion

process of the law on indemnity when the State recovers agricultural land

Firstly, it needs to grasp thoroughly the principle that the person who uses

land is responsible for the indemnity, to associate the entitled benefits with the responsibilities to be done and to create a justice in the land recovery, this was performed by the countries

Secondly, Vietnam should determine an appropriate land valuation model to construct

a professional land valuation agency, of independence to work objectively,

correctly

Thirdly, when implementing the indemnity work, it should pay special

attention to solve the social issues to the recovered agricultural land people;

because

generally, due to the specific objective and subjective conditions, the farmers are difficult to find an appropriate job to their capacity

Fourthly, even in Korea, land is under the private possession, but because land

is a type of public property, if land is used in the general purposes such as defense, security, national benefit, public benefit The State still reserves the right to

recover land

Conclusion of Chapter 1

1 Agricultural land is a special production material, can not be replaced in the agricultural production For our country, agricultural land plays a particularly important position on a lot of politic, economic, social and environmental aspects

in

the condition where 70% of the population are farmers

2 Our country is in the industrialization, modernization promotion process to achieve the target to 2020 to become basically an industrial country under the modern direction The land recovery in general and the agricultural land recovery

in

particular is unavoidable to solve the land issue required by the country’s

industrialization and modernization

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3 The agricultural land recovery influences directly the farmers’ benefits and causes the adverse consequences to them such as no production land, life falling into

difficult situation, In order to solve the negative consequences caused by the

agricultural land recovery to the land users, the State is responsible to perform the

indemnity when recovering agricultural land The indemnity provisions when the State recovers land are constructed and promulgated to create a legal basis for the actual implementation Because the agricultural land recovery is a difficult,

complicated issue, the indemnity institution when the State recovers agricultural land often amended, supplemented and completed in accordance with the

requirement of the country development reality

In addition, in the market economic condition and international integration, the reference, acquisition of experiences of the countries during the construction and completion process of the law in general and of the law on indemnity when the State

recovers agricultural land in particular are very necessary; because, the

construction

of the law in the market economy is still a relatively new issue in our country, meanwhile, the countries which have a developed market economy reached many useful experiences of this issue

Chapter 2

REAL SITUATION OF THE LAW ON INDEMNITY WHEN

THE STATE RECOVERS AGRICULTURAL LAND

2.1 Content of law on indemnity when the State recovers agricultural land

2.1.1 Content of legal provisions on indemnity principles when the State

recovers agricultural land

According to the provisions of the existing law, the indemnity when the State recovers agricultural land must comply with the essential principles recognized at article 14 Decree No 69/2009/ND-CP dated August 13th, 2009 and article 18 Decree

No 197/2004/ND-CP dated December 3rd, 2004, details as follows:

Firstly, the recovered land people who have enough conditions in accordance with the provisions of the law are indemnified; in case of not enough conditions to

be indemnified, the People’s Committee of the central provinces, cities (hereinafterreferred to as Provincial level People’s Committee) considers for support;

Secondly, the State recovers land which has been used by the people into

which purpose, such people are indemnified by assigning new land of the same usepurpose, if no land for indemnity, indemnified by the land use right value

calculated

under the land price at the land recovery decision time

Thirdly, in the event the indemnified land users when the State recovers land haven’t performed the land financial obligation to the State in accordance with the provisions provided by the law, it should minus the amount to perform the

financial

obligation in the indemnity, support amount to refund to the State’s budget

Fourthly, the owners who have properties associated with land when the State recovers and are damaged, are indemnified

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Fifthly, the State regulates a part of benefits from the land recovery, use purpose transfer to carry out the support amounts to the people whose land is recovered 2.1.2 Content of law on indemnity condition when the State recovers

agricultural land

Firstly, the people whose land is recovered by the State desires to be

indemnified only in the event the State recovers land to be used in the defense, security, national benefit, public benefit purposes and economic development target

Besides, they must satisfy fully the conditions to be indemnified, that is: to have

land use right certificate or legal paper on land use right or enough conditions to issue land use right certificate

Secondly, the law on land anticipated also difficulties, shortcomings in the

indemnity reality when the State recovers agricultural land, caused by the historicalshortcomings In order to solve these issues, our country’s law assigns the People’sCommittee of the communes, wards, towns where the recovered land is confirmed

on its legal status: used land origin having any disputes or not; appropriate to the land use planning or not; land use time before or after October 15th, 1993

Therefore,

the opinion of the People’s Committee of the communes, wards, towns is very important to affect directly the land users who can be indemnified or not when recovering land If the land use origin determination of the People’s Committee of the commune is correct to the land use status and fair, there is no discussion Vice versa, if the land use confirmation of the People’s Committee of the commune is not

correct because during a long period of time, we loosed the land management to lead

a loss of land documents, materials or the unfair confirmation due to corruption, negation shall cause disadvantages to the recovered land people and rise

indemnity claims when the State recovers land

In addition to the indemnity condition provisions when the State recovers land, the current law on land also mentions in details, clearly the land recovery cases without land indemnity and without indemnity of property on land

2.1.3 Content of detailed legal provisions on indemnity of land and

indemnity of property when the State recovers agricultural land

2.1.3.1 Provisions on indemnity of land

- Indemnity methods: The indemnity when the State recovers agricultural land can be performed under two methods, that is the indemnity by land of the same usepurpose or if no land for indemnity, by money calculated under the land price of the

same use purpose

- The indemnity land price is the land price under the current use purpose at

the land recovery decision time published by the Provincial level People’s

Committee under the Government’s price frame

2.1.3.2 Provisions on indemnity of property

When the State recovers agricultural land, the property which can be

indemnified is plants and animals on land

2.1.4 Content of legal provisions on support to the recovered agricultural

land people

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2.1.4.1 Provision on life stabilization and production stabilization support

when the State recovers agricultural land

2.1.4.2 Provision on career transfer and job creation support when the State

recovers agricultural land

Going deep into understanding the enforcement real situation of the provisions

on career training, transfer to the farmers whose agricultural land is recovered by the

State, some assessments, comments can be proposed as follows:

Firstly, according to the law on land, the households, individuals who directly produce the agriculture when the State recovers agricultural land without

agricultural land for indemnity are not only indemnified by money but also

supported to transfer career