Abstract of juris Doctor dissertation: Residential land use right donation in accordance with current Vietnamese laws

The dissertation aims at clarifying theoretical perquisites on residential LUR donation and the law on residential LUR donation. On such theoretical foundation, provisions of the positive law as well as the practice of enforcing the law on residential LUR donation are studied in order to find a dialectical relationship between theory, law and practice of LUR donation to find and provide recommendations for solutions to improve the law on residential LUR donation.

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

TRAN THI MINH

RESIDENTIAL LAND USE RIGHT DONATION

IN ACCORDANCE WITH CURRENT VIETNAMESE

The work has been implemented at:

GRADUATE ACADEMY OF SOCIAL SCIENCES

VIETNAM ACADEMY OF SOCIAL SCIENCES

Supervisor: Associ.Prof.Dr Nguyen Thi Nga

Reviewer 1: Prof.Dr Hoang The Lien

Reviewer 2: Associ.Prof.Dr Doan Hong Nhung

Reviewer 3: Dr Tran Quang Huy

The dissertation has been defended at the Academy-level Doctor Dissertation Assessment Council, Vietnam Academy of Social Sciences,

477 Nguyen Trai, Thanh Xuan, Hanoi

At ……… : ……., of …… /……./2019

The Dissertation is available for reference at:

- Library of Graduate Academy of Social Sciences

- National Library of Vietnam

INTRODUCTION

1 Rationale

Significantly being one of methods of transferring land use right (LUR) from one user to another basing on the equal relationship in the legal status between transferor and transferee, they go beyond the designation or enforcement of the State as the representative owner of the land In fact, LUR donation may vary from donors such as close relatives (parents, children), acquaintances to organizations, communities or the State Land use right as subject of such donation is also very diverse The legal basis for donated asset is also extremely complicated, which requires thorough study

of the legal system, not only the civil law on property donation, the land law

on LUR donation but also relevant laws such as: the law on marriage and family, the law on notarization and authentication, the law on registration

Among LUR donation, the residential LUR donation is most complicated because of its nature, characteristics, role and useful value of residential land use right With complexity of subject, object, legal foundation of residential land use right, etc and the vibrant development of real estate market, land in general, especially residential land in urban areas, sub-central areas, areas where the speed of urbanization is high, residential land is increasing and become more valuable to legal land user

Considering the above mentioned complexity, the topic of “Land use right donation in accordance with current Vietnamese laws” is chosen for study in an effort to improve the law on LUR donation in general and the law on residential LUR donation in particular

2 Objectives and tasks of study

2.1 Objectives of study

The dissertation aims at clarifying theoretical perquisites on residential LUR donation and the law on residential LUR donation On such theoretical foundation, provisions of the positive law as well as the practice

of enforcing the law on residential LUR donation are studied in order to find

a dialectical relationship between theory, law and practice of LUR donation

to find and provide recommendations for solutions to improve the law on residential LUR donation

2.2 Tasks of study

To fulfill the forgoing objectives, tasks of study include the following basic issues:

Firstly, develop scientific concepts on residential land use right, residential LUR donation, the law on residential LUR donation Also analyze and study in depth characteristics theoretically of residential LUR donation and its legal characteristics on residential LUR donation in Vietnam by analyzing elements impacting and governing the law on residential LUR donation; develop criteria for assessing the appropriateness

of the law on residential land use right and thereby set out the requirements

of improving the law on residential LUR donation;

Secondly, analyze actual situation of current law on subjects, objects, forms, conditions, rights and obligations of relevant parties in the relationship of residential LUR donation Basing on reality of disputes, resolving disputes over residential LUR donation, restrictions and obstacles

in current laws and difficulties in practical arbitration for disputes over LUR donation on the basis of finding causes of such reality for proposing appropriate solutions of remedy are also indicated in the dissertation

Thirdly, propose orientations and solutions on amendments and supplements, and especially instruction for enforcing provisions of the law

on residential LUR donation in order to improve the law on residential LUR donation in the context of market economy and the trend of international integration

3 Objects and scope of study

- Learn about regulatory documents of previous periods, prescribing donation of real estates in general and residential land use rights in particular

to compare to the current law on residential LUR donation;

- Learn reality of disputes over LUR donation in general and disputes over residential LUR donation in particular in the last 7 years (from

2011 to now);

4 Methodology and method of study

To implement this dissertation, the legal method and Leninist theoretical methods, Ho Chi Minh ideology about the state and the law, dialectical materialism and historical materialism, dialectic materialism method and viewpoints of the Communist Party of Vietnam are applied by the candidate The specific methods of study used in the dissertation are analytic - synthetic method, comparative method, inductive method, interpretation, At the same time, it also relies on statistical data, annual reporting reviews of the Ministry of Natural Resources and Environment, the Supreme People's Court and localities as well as information on the Internet

Marxist-5 New findings of the Dissertation

The Dissertation topic is expected to provide new findings as followings:

First: It clarifies and analyzes in depth a number of theoretical issues

on land use right, residential LUR donation and the law on residential LUR donation

Second: It assesses reality of the law on residential LUR donation and its activities taken place in Vietnam

Third: Reality of disputes over residential LUR donation is studied, finding out causes of such disputes, thereby proposing orientations and solutions for legal improvement for resolving disputes over residential LUR donation

Forth: It is to propose orientations and solutions for improvement of the law on residential LUR donation; also some solutions for overcoming previously occurred difficulties and shortcomings on residential LUR donation

Fifth: The dissertation is an intensive scientific research, valuable in terms of both theory and practice, as basis for developing next studies

6 Scientific significance of the Dissertation

Study outcomes of the dissertation will be important and intensive knowledge on residential LUR donation The dissertation topic is reference material for researchers and lecturers to give lectures on the land law and the civil law and also for agencies to apply laws on addressing disputes related

to residential LUR donation Conclusions and ideas presented in this topic can help state competent authorities improve the institution on residential LUR donation In addition, this dissertation is also significant for propaganda, education and application of the law on residential LUR donation

7 Structure of the dissertation

In addition to: Commitments, Acknowledgement, Abbreviations, Forewords, Table of contents, List of reference materials, Appendixes and main content of the Dissertation are divided into four chapters:

Chapter 1: Literature review associated with the Dissertation topic Chapter 2: Theory on residential LUR donation and the law on residential LUR donation

Chapter 3: Reality of the law on residential LUR donation in Vietnam

Chapter 4: Orientation, requirements and solutions for legal improvement, enhancing effectiveness of enforcing the law on residential LUR donation in Vietnam

CHAPTER 1 LITERATURE REVIEW ASSOCIATED WITH THE DISSERTATION

TOPIC

Reviewing outstanding works related to the topic shows outcomes of studies as follows:

Firstly, regarding the asset ownership and use right in the human

relation, with its economic significance of determining which asset belong to whom, this relation is simply a social relation if it was established and existed in a society where the state and laws were not available When the same are available in the society, the ownership relation is governed by laws, i.e with laws, rights and obligations of subjects in such ownership relation are stipulated by the State, thereby the ownership relation becomes a legal relation On other words, ownership becomes ownership right when rights of the assets’ owner are recognized and protected by law Due to difference in land ownership in Vietnam, land use right is not only one of three ownerships in which State is representative, but split from the ownership and becomes private ownership of a land use right holder

Secondly, for the nature of asset donation, most of foreign or

domestic studies provide a common consideration: donating assets, including personal property and real estates, even in different features or characteristics of each asset, with different forms and demands of donation, amounts to a common nature that is the transferring of asset ownership from asset owner to other person who is in consent and there is not compensation

Thirdly, there are many studies about asset donation contracts,

including asset donation contracts in general and land (land use right) donation contracts in particular Accordingly, content of an asset donation contract or a land use right donation contract mentions parties’ rights and obligations in the land use right transfer relation and analyzes, assesses legal regulations toward such parties’ rights and obligations in such relation Some other studies suggest that the rights and obligations of parties in the asset donation relation are the legal consequences arising from the contract

In particular, which rights, obligations each party has and to what extent they are depend entirely on the agreement of the parties on issues such as object

of donation, term, method of contract performance and other agreements Accordingly, content of a donation contract includes specific terms about object of donation, parties’ rights and obligations and agreements such as violation-related liabilities, methods of contract performance guarantee, etc but all must not be contrary to laws

Fourthly, some studies in Vietnam are specially about land use right

donation Scientific outcomes the candidate can inherit from these studies are:

First, to a certain extent, theoretical premises for land use right donation, land use right donation contract, such as concept, characteristics and nature of land use right donation, classification of land use right donation contract with some other types of contracts, history of establishment and development of the law on land use right donation

Second, reality of such legislations about land use right donation, land use right donation contract as regulations on subject of land use right donation; regulations on object of land use right donation; regulations on form, content of land use right donation; regulations on parties’ rights and obligations on land use right donation; regulations on conditions of land use right donation and conditional land use right donation and relevant regulations, is initially studied and clarified by analyzing positive law’s provisions, integrated with actual situation of arbitration on disputes over land use right donation contracts at courts Difficulties, obstacles and barriers in enforcement practice of the law on land use right donation and resolving disputes over land use right donation have also been pointed out in some aspects of subjects, objects, forms of contract, etc and causes of that situation are also identified

Third, some studies provide numerous solutions, both theoretically, legally and practically, to speed up improvement of the law on land use right donation

Therefore, during studying the topic, achievements and scientific values of the above mentioned studies are inherited by the author, which are foundation for continuous studies both in theory and practice

1.2 Open issues to be settled thoroughly

While studying transactions on land use right on the background of people’s land ownership regime in which the State acts as the representative

owner in Vietnam, acquisition of theoretical and legal foundations on land use right donation in countries around the world - where private land ownership are prevailed, will only present the most general problem of donation but fail to identify specific problems on land use right donation Previous studies about land use right donation in Vietnam also show that most of these studies are about the period before the Civil Law 2015 and the Land Law 2013 were promulgated After this period, these studies’ materials are mainly presented in the form of articles published on domestic journals, reflecting the individual aspects of land use right donation such as: asset donation contracts, land use right and housing donation contracts It is more notable that there is not any separate, intensive and comprehensive research

on residential LUR donation

It is affirmed objectively that a comprehensive, focused and intensive study on residential LUR donation with theoretical foundation of theories, suppositions, placed in the relationship of impact, governed by the context of political, economic, social, historical and international integration,

a review and assessment of the legal system governing land use right donation, in associated with alternative relations with different specialized laws is in fact not available For that reason, in this dissertation, the author has studied some following intensive issues:

First, theoretically, it is necessary to clarify nature of residential land and method for identifying residential land, including residential land and construction works on such land, which is determined as integral to the residential land and as basis for determining object to whom the land use right is donated It is also to clarify basis for identifying how residential land use right of a household is differed from other lands of organizations or enterprises Time of legal residential land use right and land-attached assets arisen for purpose of residence is basis for classifying the land use right to be donated Especially they are significant for determining whether the assets to

be donated as object in the donation contract is invalid or not

Second, it is theoretical and practical foundation of legal governing toward residential LUR donation With which elements are the law on residential LUR donation governed? What is criteria for evaluating a legal system governing effectively residential LUR donation in the socio-economic life?

Third, under the aspect of laws and their actual enforcement: Studies about the law on residential LUR donation must be integrated into the legal system that gives direct and alternative impacts and governing them, such as the Law on Real Estate Business, the Land Law, the Housing Law, the Construction Law, the Civil Code, the Notary Law, the Law on Civil Status, The Law on Marriage and Family clarify the degree of governing and adjustment of each specific law toward each issue directly related to the right

to donate residential land use rights, such as: subject, object, condition, scope of donation; rights and obligations of parties in the donation relationship, processes, procedures and responsibilities of the public agency system in appraising, permitting, inspecting and supervising the donation process and handling any violation

Fourth, legal and practical issues of residential LUR donation contracts, once performed, are coping with difficulties and obstacles, detailing:

- It is to determine whether the asset as residential land use right and object in the LUR is only residential LUR or included land-attached asset; When they are assets integral in the donation relation; When the residential LUR is object of donation but not for land-attached asset; Whether or not the issue of partial or whole invalidation in the donation contract has been proposed when there is a conflict

- Subject in the residential LUR relation is household including various members who share the residential LUR, but on the certificate of LUR, only householder’s name is specified, but not all members sharing the LUR; Are oversea-Vietnamese, foreigners living and working in Vietnam, persons without nationality living in Vietnam, enterprises, foreign organizations investing and working in Vietnam, … beneficiaries of conditional donation right?

- For object of donation: Whether or not object of donation is extended in the context of the newly born Land Law together with many changes on method of determining LUR to eliminate the compulsion of

"assigning" fixed "addresses" to be donated

- Which consequences have been caused from the fact that LUR registration is compulsory and land-attached asset registration is not compulsory? In which case is a LUR donation contract invalidated? When is

a LUR legal but not permitted for donation? Whether or not is a LUR beneficiary bound in such donation relation?

- Residential LUR donation is from aspect of an obligatory relation between a donor and donee arisen in a residential LUR donation contract This approach aims at determining rights and obligations of subjects and legislations on parties’ rights and obligations in a residential LUR donation contract

- Is the time of establishing the transfer of residential LUR from donor to donee as prescribed by current law appropriate with practice?

Under laws, it is required to determine time of transferring residential LUR between participatory parties, and avoiding default (disputes) due to changed land prices, or due to change in goodwill of participatory parties Is time of “unifying goodwill” between participatory parties in the donation relation considered as time of transferring residential LUR to donee?

- Care must be taken to prevent illegal transactions in order to disperse assets and avoid performing obligations to other entities through donation transactions

Fifth, with actual issues arisen in the contrary and negative direction, demonstrated with subjects’ violations when fulfilling the transaction of residential LUR donation, resulting in their consequences towards the economy and society, objective indispensability of continuous improvement

of the law on residential LUR donation in particular and the law on LUR donation in general is focused among other specialized laws and other relevant laws To make the law highly predictable and feasible, requirements and criteria are especially proposed and set up in the dissertation for a legal system of residential LUR donation that is effective and appropriate with economic and social conditions of the country, with market economy institutions and adapting to integration trends

CHAPTER 2 THEORY ON RESIDENTIAL LAND USE RIGHT DONATION AND THE LAW ON RESIDENTIAL LAND USE RIGHT

DONATION

2.1 Theory on residential LUR donation

2.1.1 Concept of asset donation

2.1.1.1 Concept of asset

The asset is land use right, a type of asset expressed in the form of

"Right" protected by Vietnamese law, valuated in cash and fully entitled to

be transferred in civil or commercial exchange; it has right to dispose of this asset according to goodwill and purpose of person with asset ownership

2.1.1.2 Concept of asset donation

(1) Donation is an expression of asset ownership holder’s goodwill regarding transferring his/her asset ownership to another person; (2) Asset must be in the possession of the donor; (3) The donor must be still alive at the time of donation exercise; (4) The donation must be made through a written contract; (5) The donation must be subject to the consent (approval)

of the donee; and (6) The donor does not require the donee to compensate him/her for any material benefits In this regard, some views of scientists also show agreement

2.1.2 Theory on residential LUR donation

2.1.2.1 Concept and features of land use right

Land use right is a right toward an asset belonging to ownerships

of organizations, households and individuals arisen with decision of land

allocation, land lease, LUR recognition by competent state agencies or from LUR transfer transactions The possession, use and disposition of land use rights must comply with the conditions and procedures prescribed by law

2.1.2.2 Concept and features of residential land use right

Residential land is planned and recognized as land for residence, used for major purpose of housing and other construction works in service of life by competent state agencies

There are 33,123,078 hectares of land throughout the country, of which 31,010,279 hectares have been used for various purposes (including

land for residence in both urban and rural areas), accounting for 93.62% of the total natural land area.1

A residential land use right is a special asset, valuated in cash on the basis of the market price and in accordance with the law, the goodwill of the owner as the State, it is allowed to involve in civil transactions

2.1.2.2 Concept and features of residential LUR donation

“LUR donation is a right of land user (donor) who accordingly has right to discuss and assign the his/her LUR to another subject (donee) without any demand of compensation, though a written civil contract with consent of donee according to provisions of the Civil Law and the Land Law”

Firstly, there are LUR donation transactions legally established and

complied with provisions of the land law, the civil law and other relevant ones, but they are of two different types of donation: ordinary residential LUR donation and conditional residential LUR donation

Secondly, object of donation is not only land use right but also

land-attached assets

Thirdly, subject of donation is not only one possessing the

residential LUR but it belongs to use right of various subjects

2.1.2.3 Roles of residential LUR donation

Together with recognizing other rights of transferring land use right

in current land law, it shows that LUR donation in general and residential LUR donation in particular are essentially significant in socio-economic life

2.3 Theory on the law on residential LUR donation

2.3.1 Concept and features of the law on residential LUR donation

From the process of synthesis, studies ad experience review from practice of legislative application, the law on residential LUR donation can

be defined as follow: The law on residential LUR donation is a total of legal provision promulgated by the State, which specifies the subjects, objects, rights and obligations of parties, form and validity of donation transactions, processes and procedures that competent state agencies must carry out and the guarantee by state institutions to ensure that the residential LUR