"A project intended to commemorate the millennial anniversary of Thang Long - Hanoi has not finished land compensation and site clearance yet because land owners do not agree with undervalued prices. If the land had belonged to them, it would have been very different,” said Lawyer Truong Thanh Duc, Deputy General Director of Hanoi-based Maritime Bank.
Duc said inadequacies in the Land Law have driven many situations to a deadlock. The nuisance also comes from law enforcers.
At a recent seminar on "Completing report on reviews of Land Law” held by the Vietnam Chamber of Commerce and Industry (VCCI), many specialists expressed dissatisfaction with impractical regulations of the Land Law 2003, while land ownership is one of the most critical issues related to many shortcomings, even instability.
Ambiguous concept
Dr Tran Quang Huy, lecturer at Hanoi Law University and representative of the law review reporting workgroup, said: “The concept of ‘the entire people’s ownership of land’ provided in the 1992 Constitution is very abstract, because no real entity is called the entire people. Or in other words, the ‘entire people’ means ‘without owner’.”
Moreover, as the land has no owner and has no legality, with the support of authorities and management agencies, the land is used for benefits of specific groups rather than the entire people’s benefits.
Mr Truong Thanh Duc, therefore, said the concept of ‘all-people ownership’ in the 1992 Constitution is ambiguous and the Civil Code then boldly calls it ‘State ownership.’ However, he said, the ‘State ownership’ or ‘all-people ownership’ is only the way of defining, but their nature is not much different.
He points out seven serious land problems: Greatest waste of resources and capital; maximum exploitation for abuse and corruption; greatest number of illegal and unclear transactions; greatest number of complex and urgent complains; greatest number of unfair and wrong verdicts; maximum confidence in skirting the law; and standing against kindness and honesty.
Moreover, according to Mr Duc, both theoretic and practical aspects currently require the diversification of land ownership, including private ownership. If we disregard rooted and fundamental problems, ambiguity and inadequacy will persist no matter how many amendments are made to laws. Indeed, the rights to use land are not different from the right to own it, so why did lawmakers try to parry the concept? The State still allows land users all the rights related to the land like the right to possess, the right to use, and the right to dispose, but it still does not recognise its nature of ownership.
Duc added that it is obvious that land is bought and sold every day but it is not called purchase or sale but transfer. It is very clear that individuals and organisations mortgage land, but they have to write “mortgage the land use rights.”
"Land is a property, but property and property rights are two different things. The Law confuses purchase, sale and mortgage of property with purchase, sale and mortgage of property rights, leading businesses and people to a world of confusion and ambiguity. Amending the Land Law without amending the basis of ownership rights is meaningless,” said Duc.
Where are property rights?
Speaking of problems in the Land Law, Pham Sy Liem, Vice President of the Vietnam Construction Association, said the 1992 Constitution asserts that the State only reclaims land in case of sheer necessity or for the purpose of national security guarantee.
However, the 2003 Land Law broadens the scope, “reclaiming land for the purpose of public utility and economic development.” Now, most land reclamation is intended for “economic development.”
“I have studied laws in many countries, such as the Great Britain, France, Japan, China, and the United States, and no country provides that land is reclaimed for economic development because they respect private property and rights thereof are protected by State laws on private property ownership,” added Liem.
He cited evidence that three years ago or so the French Government was taken to task by the National Assembly after it took back a land plot in downtown Paris to build governmental offices. At that time, the lawmakers demanded the Government explain the action to determine whether it was taken back for public utility purposes.
In Vietnam, based on the provision of “economic development,” land is taken for irrational purposes like building golf courses, Mr Liem said.
Moreover, when land is acquired, landlords shall not be defined as the “subject of damage” and they shall receive compensation for their land. They must be defined as contributors to national development purposes. Or in other words, they should benefit more from such development.
Lawyer Nguyen Minh Thang from Basico Law Company said that although the law provides that the land is owned by the entire people, the vast majority of people who are using the land legitimately are not granted certificates of land use rights. If they want to have the so-called red book (the certificate of land use rights), they will have to angle for authorisation.
“Land is the most important matter of economic life but the Land Law does not do what it should. My family has spent billions of Vietnamese dong but we have not had the red book. Now, we cannot use our land to mortgage,” said Mr Duc.
He added that his family could not obtain the red book even though he had all required documents for it. “Officials repeatedly remind me to give them backhanders for it,” he noted.
Adding to irrationalities of the Land Law, Lawyer Tran Quang Huy said land lessees cannot have the land use rights although they pay for using it and they cannot mortgage the land for bank loans. Meanwhile, a lesser has the rights to mortgage the land although he already receives rentals from the lessees.
Most lawyers advocate the diversification of land ownership, as this is very popular in the world. Hence, in addition to the State ownership, 80 million people and 500,000 enterprises also need to have ownership rights.
Vietnamese
