The formation and development of the ownership regime through the constitutions of Vietnam

The 1959 Constitution, therefore, stipulated four ownership forms in terms of production means, including ownership by the whole people; collective ownership; ownership by individual w[r]

THE FORMATION AND DEVELOPMENT OF THE OWNERSHIP REGIME THROUGH THE CONSTITUTIONS OF VIETNAM

Nguyen Quang Duc1 PhD Candidate, School of Law, Vietnam National University, Hanoi

Bui Thuy Hien

Smile Vietnam Consulting Co., Ltd.

Abstract

The paper is to answer the question “What is the rule of the movement of the ownership regime in Vietnamese constitutions? Why?” Accordingly, the paper has fingered out that the ownership regime

in Vietnam (on the policy scale) has developed in two contradictory directions, which is now continuing

to diversify The current direction is seen to be consistent with the demand of the market economy and the international trade integration of Vietnam The study aims to emphasize the characteristics of the ownership regime in each period and explain why the ownership regime has such a developing tendency The specific contents of the ownership regime are analyzed on the basis of the provisions

of the Constitutions, laws and documents of the Communist Party of Vietnam It is explained by the features of Vietnam’s institution in which every major policy is basically initiated from the political will

of the Communist Party and such is highly likely to continue to be the mainstream trend in the future.

Keywords: The ownership regime, Constitution of Vietnam, development tendency.

1 Introduction

The development of ownership regime necessitates ongoing research on the progress of constitution and policy in the world A country vigorously transforming into market-driven economy, Vietnam, is not

the exception of this up growth The current study aims to answer the question: Which rules and reasons

are seen in the development of the ownership regime in Vietnam’s constitutions? It is supposed to base

on the two contradictory trends of national policy (defined by the Constitution) developments: (1) The

1946 Constitution to the 1980 Constitution: the narrowing trend of ownership regime (eliminating private ownership found); and (2) The 1992 Constitution to the 2013 Constitution: the diversification one

The paper is to figure out that the ownership regime in the Vietnamese constitutions initiates with the inheritance of the French rule alloyed with the remaining indigenous elements The interference

of ideologies, the dominance of political views advocated by the Communist Party of Vietnam as well

1 This paper is a part of the doctoral thesis titled OWNERSHIP REGIME IN THE VIETNAMESE CONSTITUTIONS / CHẾ ĐỘ SỞ HỮU TRONG CÁC HIẾN PHÁP VIỆT NAM that PhD Candidate NGUYỄN QUANG ĐỨC is working on at the School of Law, Vietnam National University, Hanoi.

as the reform of poverty and global economy integration are seen as the influencing impacts of the ownership regime in each period Based on the findings, recommendations are given to propose the development trend of the ownership regime in Vietnam’s constitution and to suggest the suitable one for future constitutional amendments

2 The formation and development of the ownership regime in the period of the 1946 Constitution to the 1980 Constitution

2.1 The characteristics of the ownership regime in this period

The diversity of the ownership regime is seen to diminish in this period, which is divided into two sub-phases, namely from the 1946 Constitution to the 1959 Constitution and since the1980 Constitution Four main characteristics of the ownership regime in the first mentioned sub-phase are summarized

as follows Firstly, the ownership subjects were diverse There were different economic sectors with

certain equally legal positions at that time of the Democratic Republic of Vietnam Besides a number

of state-owned or nationalized economic establishments, private enterprises existed and participated

in the economic relations that seem to be governed by the elements of the market economy Secondly,

the ownership objects were diverse Production means, consuming goods, movable estate, real estate,

technical know-how were not restricted to be objects of ownership relations Thirdly, the ownership

relations were reportedly impacted by the feudal-colonial property regime on land It is explained by the featured agricultural economy in which the majority of property relations formed was related to the land, with the exception of some large cities accommodating industrial facilities and commercial

and production activities Fourthly, the nature of ownership regime was diverse Besides the state

ownership, capital ownership, collective ownership, community ownership; private ownership of land and agricultural production materials was prevalent in this period as the characteristics of Vietnam’s semi-colonial feudal economy.1

After the collapse of the US-backed government in the South (1975), the Communist Party,

as the victor, determined that the people’s democratic revolution was completed in Vietnam and set out the task of developing a socialist regime on a national scale It was concretized in the 1980

Constitution in which the ownership regime, thereby, was changed as follows Firstly, ownership

relations were formed on the basis of centralized planning mechanism The property transfer was only seen in between state-owned enterprises and collective organizations It can basically be said that the transformation of ownership took place in a one-way direction: the private ownership shifted

to state ownership or collective ownership; State ownership moved to collective ownership Secondly,

the nationalization degree of ownership relations grew Centralized planning was considered to be

in the golden age with the rapid increase in the state ownership form The ownership regime was classified as simplest of its forms The contractual relationship in which only state and collective economic organization participated was seen as the proof of its monotony This fact existed even in retail business, where the system of state and collective trade organizations was organized in all fields and at all levels from the central to provincial ones.2

1 Hoang Ngoc Thinh, ‘The development of private ownership through Vietnam’s constitutions’ (1999) 6 Law Journal of Hanoi Law University 43-44.

2 ibid 44.

2.2 The formation of the ownership regime in the 1946 Constitution

The 1946 Constitution is highly appreciated by Vietnamese academics in general It recognized a wide range of civil rights as human values committed by the State including political freedoms (ideology, association, protest and election) and property rights, business freedom.1 Private property is considered

as a natural and inviolable right of human, and is therefore required to be specified in all issues related

to the establishment, transfer and protection of ownership The law, hence, is supposed to stipulate measures against private property infringement and restrict sanctions that are likely to harm it

(i) Private property rights guaranteed: Article 12, the 1946 Constitution writes “The right to private property is guaranteed” It was the first time that the private ownership was committed in

the highest legal document if the 1946 Constitution is considered as the first constitution of modern Vietnam In spite of the great expectation of the backward society just escaping from the colonial rule, the 1946 Constitution was unfortunately not implemented in a large part of the country, which was then still occupied by the French and where laws enacted before 1945 remained in effect The meetings of the first National Assembly could not be organized so legal documents on ownership were not particularly issued during this period The opportunity to be specified of the property right recognized in the first Constitution was not given to the legal institution Remarkable legal documents regarding ownership are Decree No 519-TTg of October 29, 1957 on the conservation of antiquities relics; Decree No 410-TTg of September 6, 1957 on ten incentive policies for production in the mountainous area These documents contained a number of provisions on the protection of property rights to antiquities relics and trees in rural areas.2

It shows, on the other hand, a close relationship between ownership and privacy That is, other civil freedom shall be protected if these rights are both guaranteed Effective protection of privacy and property rights is also a guarantee of freedom of religion, press and politics (prescribed in Articles

of 10 and 11, the 1946 Constitution) Private property without guarantee, therefore, shall result in an immediate threat to all other rights

(ii) Limiting sanctions that damage private property right: Private property is basically a human

right to be automatically entitled and committed by the State The right, thus, is usually not stipulated

in a Constitution which is considered as a contract exerting power of the government Private properties of individuals, organizations or of a country are all exclusion comparable The distinction

of ownership by subject does not hold significant legal value or generalization.3 From such a thought, and regarding ownership regime, the 1946 Constitution can be seen as owning only one provision that does not obscure the legal meaning of the ownership regime In addition, the concise design helped

to limit the sanctions that may allow the public authority to damage private property, the shortcoming that the later Constitutions have demonstrated

1 Vu Cong Giao, ‘A survey of policy orientation and development through Vietnamese constitutions and suggestions on the activities of Rosa Luxemburg Institute in Vietnam in the period of 2015-2020’ <http://rls-sea.de/viet/wp-content/ uploads/sites/5/2014/07/Vu-Cong-Giao_Vietnamese-Report-of-Findings_online-version_final.pdf> accessed 25 March 2018.

2 Hoang Ngoc Thinh (n 1) 46.

3 Pham Duy Nghia, ‘The demand to revise the 1992 Constitution in terms of the ownership by the entire people’ (A practical assessment of the implementation of the economic regime in the 1992 Constitution, Ho Chi Minh city, 24th February 2012) <http://law.ueh.edu.vn/lkt/index.php?language=en&nv=news&op=Bai-viet-cua-Giang-vien/Nhu-cau-ve-sua-do-Hien-phap-1992-ve-so-huu-toan-dan-PGS-TS-Pham-Duy-Nghia-68> accessed 31 March 2018.

(iii) Land ownership - the basis of private ownership in the 1946 Constitution: After successful

August Revolution, the 1946 Constitution affirmed the status of the Vietnamese people for the first time with land ownership in the highest law of the State The Land Reform Law, enacted on

19 December 1953, was the legal basis for implementing the slogan “the plowmen own fields”.1

In this period, Vietnam’s economy and society were characterized wartime economy, of which rural economy comprises the main part The State of Vietnam promulgated the 1946 Constitution to regulate and protect not only the civil rights of the Democratic Republic of Vietnam but also the private ownership and other property rights The State allowed the freedom to buy, sell and transfer land, creating conditions for entities to effectively exploit and use land.2 It can be said that the ownership regime in Constitution by this time was focused on ensuring the people’s right to land ownership

2.3 The inheritance and development of the ownership regime in the 1959 Constitution

2.3.1 The inheritance of the ownership regime in the 1959 Constitution

Vietnam’s economic direction during this period was to transform its backward economy into

a socialist one with modern industry and agriculture and advanced science and technology The fundamental aim of the economic policy was to continuously develop the productive forces in order

to raise the material and cultural standards of the people (Article 9) The 1959 Constitution defined the ownership regime, economic sectors, and economic management principle as the economic policy of the socialism state but suitable to the conditions of the country at war time The common ownership of production means was established along with the socialism production relation The

1959 Constitution, therefore, stipulated four ownership forms in terms of production means, including ownership by the whole people; collective ownership; ownership by individual working people; and ownership by the national capitalists The State was reported to compulsorily purchase, requisite or confiscate for the common interests and with appropriate compensation During the years of resistance war against the US, Vietnam’s economy developed under the subsidy mechanism in which production and consumption materials were distributed under plan so individuals had the right to ownership of consumer materials to serve their daily needs.3

Moreover, in order to create a legal basis for different entities of economic sectors during their production activities, the State recognized and protected the ownership of individual workers and the ownership of capitalists over the production means they were allowed to do business with.4

2.3.2 The development of the ownership regime in the 1959 Constitution

(i) The institutionalization of the ownership regime

Compared to the 1946 Constitution, Chapter II of the 1959 Constitution is a completely new chapter modeled after the constitution of socialist countries In addition to regulating the State economy to play a leading role in the national economy, the 1959 Constitution stipulated that the

1 Dang Thi Phuong, ‘The past and current regulations on the land ownership regime in Vietnam’ (2014) 12(85) Vietnam Journal of Social Science 82.

2 Nguyen Minh Doan, ‘Ownership regime in Vietnamese constitutions and current development trend of ownership regime in Vietnam’ in Nguyen Dang Dung, Pham Hong Thai, Vu Cong Giao, Constitution: theoretical and practical issues (Hanoi VNU Publisher 2011) 554.

3 ibid 556.

4 ibid 555.

state leads all economic activities under a unified plan In detail, the Constitution specified that the State protects the right of peasants to own land and other production means (Article 14); the right of handicraftsmen and other individual working people to own production means (Article 15); the right

of national capitalists to own production means and other capital (Article 16); the right of citizens

to possess lawfully earned incomes, savings, houses, and other private means of life (Article 18); citizen right to inherit private property (Article 19).1 Article 11, the 1959 Constitution stipulated that

“In the Democratic Republic of Vietnam, during the present period of transition to socialism, the

main forms of ownership of means of production are state ownership, that is, ownership by the whole people; cooperative ownership, that is, collective ownership by the working masses; ownership by individual working people; and ownership by the national capitalists”.

(ii) The formation of the ownership by the entire people and collective ownership

The concept of ownership by the entire people appeared more as a result of ideology, philosophy and political economy than of the tradition of civil law It is reported that the term of ownership by the entire people was officially introduced into Vietnam since the 1959 Constitution although its recognition remained unclear (Article 11) It can be interpreted that the article only listed without defining the types

of ownership, in which the concept of State ownership was defined as that of the entire people Article

12, the 1959 Constitution began to declare that the state economy, all mineral resources, waters, forests, undeveloped land, and other resources defined by law as belonging to the State were also the property of the whole people

The 1959 Constitution marked the emergence of a different view of private ownership or private property Articles 14, 15, 16 of the Constitution affirm that the State protects the ownership of land and other production means of craftsmen and individual workers, production means and other possessions

of national capitalists The Constitution also specified the need to renovate those economic sectors and gradually transform them into state or collective economic sectors.2

For farmers, craftsmen and other individual workers, the State encouraged and created conditions for cooperatives to establish and families to join their land and materials with cooperatives’ to develop collective economy based on collective ownership of the workers For the capitalists, the State conducted the public-private partnership, developing the economy under the socialist path Prejudices against individual business entities remain; however, the law is seen to protect the ownership of the production means and their assets, and inheritance

(iii) The formation of State ownership of land (by the entire people)

After land reform, the North conducted agricultural cooperation According to the Resolution of the Sixth Central Conference of the Communist Party, the commune members’ land, in principle, must be fully put into the cooperative and uniformly used The State left its members a land area not exceeding 5% of the average area per capita in the commune for growing vegetables, planting fruit trees and raising animals.3 Article 14 and Article 40, the 1959 Constitution respectively recognized that the State by law protects the right of peasants to own land and other production means, and the public property of

1 Thai Vinh Thang, ‘Vietnamese Constitutional History’ (Ministry of Justice, 26February 2015) <https://moj.gov.vn/qt/ cacchuyenmuc/ctv/news/Pages/nghien-cuu-trao-doi.aspx?ItemID=14> accessed 31 May 2017.

2 Hoang Ngoc Thinh (n 1) 46.

3 Communist Party of Vietnam, Document of the 6th National Congress (National Politics Publisher 1986) 66.

the Democratic Republic of Vietnam is sacred and inviolable It is the duty of every citizen to respect and protect public property The 1959 Constitution once again affirmed the view of the Communist Party and the State of Vietnam in implementing the slogan “the plowmen own the field”.1

2.4 The inheritance and development of the ownership regime in the 1980 Constitution

2.4.1 The inheritance content of the ownership regime in the 1980 Constitution

Inheriting the 1959 Constitution, the mechanism of centralized, bureaucratic and subsidiary state management was clearly and consistently defined in 1980 Constitution The Constitution asserted

that “The State leads the national economy under unified plans” (Article 33), which also defined

the principle of collective responsibility and leadership in the state apparatus In addition, the 1980 Constitution significantly expanded the level of guarantee with economic, social and cultural rights

as stipulated in the Constitution of socialist countries Specifically, the Constitution stipulated that education and health care were free of charge, and people are entitled to the right of access to housing, employment and state assistance to implement these two rights

The 1980 Constitution, however, no longer recognized that private ownership was a fundamental right of citizens compared to the 1959 Constitution Article 27 of the Constitution only stipulated that

“The State protects citizens’ right to ownership of lawfully earned income, savings, housing, living

materials, and production tools used in case of separate labor permitted The law protects citizens’ right to inherit property” Being aware of the transitional period Vietnam was experiencing at that

time, the State did not recognize the existence of private ownership and the corresponding economic sectors, considered it as a non-socialist economy and sought to abolish it The subsidy and collective ownership is seen to cover most provisions of the 1980 Constitution Only some of citizen rights stipulated in the Constitution are reported to be exercised over some types of people The application

of the right to housing to only citizens who are public officials is a specific example.2

2.4.2 The development of the ownership regime in the 1980 Constitution

(i) Removing the ownership of production means

The private ownership was reaffirmed in the 1980 Constitution with a higher level of denial for this “non-socialist” economic sector Article 18, the 1980 Constitution affirmed that the State implements a national economy with two main components including state economy and collective economy Articles 24, 25, and 26 of the 1980 Constitution stated the continued improvement of the economic components of individual farmers, craftsmen and capitalists in appropriate forms It, thus, can be seen that the role of private ownership remained minor in the national economy and in the legal system For the same reason, there were virtually no legal mechanisms in Vietnam for the protection of private ownership, which was considered as non-socialist at this time, but only measures

to renovate and eliminate the types of private ownership regime on production means.3

The 1980 Constitution only stipulated two forms of ownership of land and production means namely the ownership by the entire people and the collective ownership The private ownership

1 Dang Thi Phuong (n 6).

2 Nguyen Minh Doan (n 7) 46-47.

3 Hoang Ngoc Thinh (n 1) 46-47.

of land and production means was not recognized; the State only protected the private ownership

of houses and assets used to meet the residential needs instead These stipulations are reportedly aimed to accomplish the goal of completing the socialist infrastructure for 20 years (until the end of the twentieth century) and to develop a comprehensively developed socialism, the goals set by the Communist Party in the Fourth National Congress (1976).1

The Constitution stated that individuals and households did not have the right to own land, but were entitled to the right to use and exploit land, and transfer properties on land In the case of

no property present on the land, people have no right to transfer of the use of land, including the inheritance of land use rights In the case when the person assigned with land dies, the land use right shall be transferred to the person currently using the same land of the deceased Civil exchanges on land were banned during this period since the State allocated land to cooperatives and production enterprises On the other hand, due to the socialist reform policy in the South that brought households and individuals into production enterprises and cooperatives, the civil transactions mainly dealt with the daily necessities of individuals and families.2

(ii) Protection of personal property rights

The concept of personal property formed under the influence of the constitutional regulations on restricting the private ownership on production means and the protection of citizen’s right to lawful income, saving and housing is the feature of legal system in this period This concept is seen to explain somewhat the contradiction between the categories since these mentioned assets are naturally owned

by the individual meaning private property Legal science considers the personal property as the socialist legal institution in which the legal provisions govern the relationship between entities arising from the possession, use and disposition of property for the purpose of living and consumption of these entities In brief, personal property differs from private ownership in the object of the ownership relationship and the purpose of the entities involved in the ownership relationship.3

The period of 1960-1986 recorded a number of institutions and legal provisions on personal property and its protection although not yet complete, such as Circular No 48-TTg of June 3, 1963

on the ownership of cattle; Circular No 228-TTg of May 22, 1975 on deposits of business owners

at the State Bank; Decision No 55/CP of February 23, 1980 on the ownership of cars of individuals, Decision No 39/CP of February 9, 1979 on management of gold, silver and gems The objects of private ownership relations were assets satisfying the daily consumption of citizens such as houses, trees, money and lawful foreign currencies Most of these documents have regulations requiring owners not to use property for illegal business, or not to commit activities that may affect security and social order The measures of private property protection were paid little attention to in legal system.4

(iii) Thoroughly enforcing the entire people’s ownership of land

Until the 1980 Constitution, it seemed that the socialist revolutionary ideology of production relations had been publicly expressed in the Constitution since the scope of the entire people’s

1 Vu Cong Giao (n 2).

2 Nguyen Minh Doan (n 7) 557.

3 Hoang Ngoc Thinh (n 1) 47.

4 ibid.

ownership extended to all important national economic resources Article 19, the 1980 Constitution

stipulated that “Land, forests, mountains, lakes, mines, natural resources in the ground, in the seas

and continental shelves and other properties belonging to the State prescribed by law are owned by the entire people” This provision removed the previous forms of land ownership and established

a single form of land ownership namely the ownership by the entire people of which the State is the owner Although the 1980 Constitution specified that the land was owned by the entire people; the State, in fact, implemented the recovery, registration and statistics recording of land, aiming to establish its ownership Land users were supposed to exist as before The 1987 Land Law consisted

of six chapters and 57 articles defining the principles of land use, rights and obligations of land users

Article 1, the 1987 Land Law stated that “Land is owned by the entire people, managed by the State”

It was the legal basis for completing the land law system in which the State clearly performed the role of representing the ownership of the entire people under the provisions of the 1980 Constitution After a period of implementation, the land ownership including three forms is reported to be no longer suitable The regulation of collective ownership form on land, for example, seemed to create unreasonable, wasteful and ineffective land usage

3 The formation and development of the ownership regime in the period of the 1992 Constitution to the 2013 Constitution

3.1 Characteristics of the ownership regime in this period

Fundamental changes were seen in the economy of this period when the renovation policy of the Communist Party and State of Vietnam was used to implement a multi-sector economy, freeing up all potentials in society to develop the economy of the country The institutionalization of this approach, especially in terms of ownership regime, is reported to be much slower than changes in the economy Ownership regime included some characteristics2 as follows:

Firstly, the private ownership of production means considered as private property as well as

the private enterprises, joint ventures among private entities are reported to exist in Vietnam’s economy from 1986 to 1992, though not yet recognized by the Constitution and legal system Some important principles of the market economy such as business freedom, private ownership of production means had not been institutionalized until the 1992 Constitution The Corporate Law, the Private Enterprise Law, the Bankruptcy Law, and the Civil Code were respectively enacted relating to the ownership regime

Secondly, private ownership of production means was on thrive According to the Ministry

of Planning and Investment, for just over eight years since the promulgation of the 1990 Private Enterprise Law (effective in 1991) and the 1990 Companies Law (effective in 1991), there were 421 joint-stock companies nationwide with the capital of VND 5,231,057 billion; 2,227 limited liability companies with the capital of VND 13,099,332 billion; 26,639 private enterprises with the capital of VND 5,995,876 billion; and tens of thousands of business households and small business households registered under Decree No 66-HDBT of March 2, 1992 This development is noted as a bold mark

in the formation and development of property laws

1 Pham Duy Nghia (n 5).

2 Hoang Ngoc Thinh (n 1) 44-46.

Thirdly, it is worth noticing that the ownership regime became much more diverse than that in all

previous periods This diversity was not only derived from Vietnam’s socialist-oriented multi-sector economy but also due to its integration into the world economy Entities with a unique organizational structure and ownership regime such as joint venture enterprises, 100% foreign invested enterprises, BOT and BTO enterprises are reported to appear in the economy for the first time

Fourthly, the diversity in the object of ownership relations is seen in the addition of more types

of rights For example, the origin of goods, the names of businesses, inventions were additionally considered to be objects of ownership relations

Fifthly, the widespread existence of foreign owners in Vietnam featured the ownership regime

in this period The foreign investment attraction had rapidly increased the number of foreign owners invested in Vietnam in the form of joint venture enterprises, 100% foreign invested enterprises, BOT and BTO enterprises with benefits closely associated with the movement of assets and capital

3.2 The formation and development of the ownership regime in the 1992 Constitution

3.2.1 The inheritance of the ownership regime in the 1992 Constitution

(i) Maintaining the leading role of state ownership and collective ownership

The 1980 Constitution to reform the socialism in the South and build the foundation for socialism

on a national scale was no longer suitable for the renovation process It was the reason for the enactment of the 1992 Constitution with the line of socialist-oriented market economy development The ownership regime, thus, experienced a reformative change The 1992 Constitution stipulates three ownership regimes, namely the ownership by the entire people, collective ownership, and private ownership, in which the entire people’s ownership and collective ownership constitute the foundation (Article 15).The important subjects of ownership by the entire people including land and state capital and assets invested in enterprises were identified in the Constitution By 2003, two laws passed by the National Assembly, namely the Land Law and the State Enterprise Law, promulgated two different provisions relating to two subjects of the ownership by the entire people While the Land Law stated that the land was owned by the people of which the State was the representative; the

State Enterprises Law defined that “State enterprises are economic organizations owned by the State

with total charter capital”(Article 1).1

The concept of “ownership by the entire people” is understood as the common ownership of at least all citizens living in the territory of Vietnam This legally requires the creation of a mechanism so that all people (co-owners) have the right to participate in the “disposition” and to “benefit” from this ownership Being owned by the whole people is hardly identical with “state ownership” It requires

a clear definition of: (i) Who is the State (a system of different bodies and structures rather than a centralized or unified body)?; (ii) “Central State” or “Local State?; and (iii) Who is the representative

of the State entity (governmental, legislative and judicial authorities)?

1 Nguyen Tien Lap, ‘The regime ownership by the entire people and land tenure’ Tia sang (Hanoi, 19 October 2010)

<http://tiasang.com.vn/-dien-dan/che-do-so-huu-toan-dan-va-van-de-so-huu-dat-dai-ky-i-3571> accessed 28 January 2016.

Article 17, the 1992 Constitution listed all subjects owned by the entire people, lack of classifications according to the importance of State’s property The Constitution put the subject of “land, forests, mountains, rivers and lakes” in the same degree with “state capital and assets invested in enterprises” which varied widely in nature, political, economic and social significance It should be noted that property owned by the “nation”, “state” or “the whole people” not only brings benefits but also a financial burden and other obligations to the people as a taxpayer The issue is seen in terms of not only protection for these assets but also people’s control over its increase (investment in construction or procurement by government authorities should be controlled within the statutory limits).1

(ii) Maintaining the ownership by the entire people on land

Absorbing the innovation spirit of the Seventh National Party Congress, the 1992 Constitution and the 1993 Land Law were respectively adopted to replace the 1980 Constitution and the 1987 Land Law The multi-sector economy has been initiated and developed since the 1992 Constitution and the Land Law of 1993 defined the real estate market, land price regulations, five types of rights for households and individuals to use land (rights to transfer, assign, lease, inherit and mortgage land use rights) The

2003 Land Law stipulated that the land was owned by the entire people of which the State was the representative who assigns land households and individuals for stable and long-term use.2

The terms “land” and “parcel of land”, however, are different in their meaning and object; therefore, the nationalization of specific “parcel of land” did not happen by that time In other words, the State, in term of land law, only expanded its control in the use and disposition right The land users were supposed to carry out the provisions of changing the purpose of land use or assigning the land parcel if demanded The motivation of this land “nationalization” was notably seen as the State policy

of centralizing the relations related to land ownership.3

Furthermore, the regulations on (land) ownership by the entire people remained unclarified,

as did the rights of the entire people as the owner, and responsibilities of the State as the owner representative The constitutional regulations, in fact, did not harmonize the interests of the State, investors and land users The compensation for people whose land was recovered was reported to remain unsolved, leading to the wasteful and inefficient use of land and the complicated complaints and disputes on land The definition of the (land) ownership by the entire people was questionable since the right of land users was stipulated in the Land Law in the almost same way with the owner rights An effective mechanism failed to be constituted in legal system to handle conflicts between land accumulation for large-scale concentrated production area and regulations on agricultural land assignment limit, duration as well as the limit for transfer of agricultural land use rights

3.2.2 The development of the ownership regime in the 1992 Constitution

(i) Restoring of private property

The ownership right of citizen was restored in the 1992 Constitution in a new spirit and consistent

with economic policies and regulations on citizens’ right to business freedom as stated: “Citizens have

1 Nguyen Tien Lap (n 22).

2 Dang Thi Phuong (n 6).

3 Nguyen Tien Lap (n 22).