Pham Diem
State and Law Institute
Land ownership and land use rights constitute a special institution in Vietnamese law and legislation.
1. Land ownership:
In every country, there usually exists private ownership or public ownership of land or both. In Vietnam, the land ownership regime has formed and developed through different historical periods. In the feudal period, the law recognized two forms of land ownership: first, public ownership, whereby the land of every village and commune and all public commons of villages and communes throughout the country fell under the kings’ supreme ownership (namely State ownership); and second, private ownership of land by landlords and farmers.
Following the August 1945 Revolution which gave birth to the Democratic Republic of Vietnam, land in the country was owned by different elements of society, including the State, landlords, the bourgeoisie and farmers. Legally, however, land ownership was not addressed in the country’s first Constitution, which was merely a general political declaration suitable to the nation’s situation at that time, aimed at establishing a new political regime and uniting the people in the struggle against those who threatened the nation’s independence. For such reasons, the 1946 Constitution recognized citizens’ fundamental rights and laid the foundation for the State apparatus without otherwise formulating principles on the economic regime in general and land ownership in particular. Only Article 12 contained provisions on the protection of the property rights of citizens.
In 1954, when the North was fully liberated from the French colonialists with their defeat at Dien Bien Phu, the new Vietnamese State carried out a program of land reform, redistributing land confiscated from feudal and colonial landlords to peasants. Not long after, in 1957-1958, the State carried out a socialist transformation of the private industrial and agricultural sectors and grouped private capitalists and peasants into cooperatives. As a result, there appeared in Vietnam two main forms of ownership of the means of production, including land: State ownership (or ownership by all the people) and collective ownership (ownership by cooperatives), alone with continued private ownership of land by some individual peasant households. This arrangement was recognized in the 1959 Constitution which was the country’s first to dwell on the ownership of means of production and the land ownership. It stated in Article 12: “Mines, rivers, forests, virgin land and other natural resources prescribed by law as being owned by the State all belong to the ownership of all the people.” While, from the 1959 Constitution, ownership of land by all the people had been established, the practical situation then required national unity in the common struggle against US imperialists for the liberation of South Vietnam and national reunification. Therefore, the 1959 Constitution still recognized in Article 11 the private ownership of land and other means of production.
In a nutshell, the principle of ownership of land by all the people was established, although not absolutely, in the 1959 Constitution along with the existence of other forms of land ownership (collective ownership by cooperatives and private ownership by a number of individual peasant families).
By 1980, the picture was different. Ownership of land by all the people was absolutely declared in the 1980 Constitution, the Constitution of the period in which the country was reunified and advanced to socialism. It stated in Article 19: “Land, forests and mountains, rivers and lakes, mines, natural resources lying underground, in the sea areas and continental shelf... all belong to the ownership of all the people.”
According to Article 20, “the State uniformly manages the land under the general planning in order to ensure that land is used rationally and economically. Collectives and individuals that are using land may continue using it and enjoy the fruits of their labor according to the provisions of law. Collectives and individuals using land have the responsibility to protect, improve and exploit the land according to the State’s policies and plans. Land reserved for agriculture and forestry must not be used for other purposes if not so permitted by competent State bodies.”
So, under the 1980 Constitution, there existed only one unique form of land ownership, namely ownership by all the people. The State uniformly managed land under the general plan so as to ensure that land was used rationally, economically and efficiently. Also in this period, the State carried out the socialist transformation of private capital and individual peasant households (largely in newly liberated South Vietnam), refusing to recognize private ownership of land and other major means of production but recognizing the private ownership of lawful incomes and means of subsistence.
The 1992 Constitution, the Constitution of the period of “doi moi” (national renewal), recognized the private ownership of means of production but still insisted that land belongs to the ownership of all the people. It stated: “Land, forests and mountains, rivers and lakes, water sources, natural resources lying underground, wealth in the sea, the continental shelf and airspace,... all belong to the ownership of all the people” (Article 17), and “the State uniformly manages all land according to planning and law and ensures that it is used for proper purposes and with efficiency. The State assigns land to organizations and individuals for long-term stable use. The organizations and individuals have the responsibility to protect, improve, rationally exploit and economically use the land and may transfer their rights to use the land assigned by the State strictly according to the provisions of law” (Article 18). The constitutional provision that land belongs to the ownership of all the people was reinforced in the 1993 Land Law, the first of its kind in Vietnam.
Land, therefore, belongs to the ownership of all the people under law as an extremely valuable resource of the people, an important means of production, a basic condition of the human living environment, and as a necessity for the construction of economic, cultural, security and defense establishments. Moreover, under a socialist regime, land serves the common interests of the laboring people and the entire society.
In Vietnam, the population constantly swells, and more and more works are built. The cultivated land area shrinks, depriving many people of land and livelihood. Such a situation demands that the State rearrange labor and distribute land in order to best serve the interests of everyone and the entire society.
What is the legal nature of land ownership in Vietnam? The ownership of land by all the people is perceived as a supreme and sacred right of the entire Vietnamese people who are owners of the nation’s land, which cannot be divided to anyone. Therefore, it is totally different from other forms of common ownership. Under Vietnamese law, the State is the representative of the people exercising the ownership rights of the people. In other words, land ownership by all the people is exercised through the State, as provided under the Constitution and the Land Law. Land belongs to the ownership of all the people and is uniformly managed by the State.
The ownership of land by all the people demonstrates not only the nature of a socialist regime but also the historical tradition of land in Vietnam whereby the State is the supreme owner of public lands throughout the country.
2. Land use rights
The State represents the people in exercising the ownership of land by all the people. It has the right to possess, use and dispose of land nationwide under law and planning provisions.
Land use rights mean the land users’ rights to use land. This is a legal concept created by Vietnamese legislators as an aspect of the special regime of land ownership by all the people. This legal concept was expressed in the spirit of the 1992 Constitution (Article 20) and clearly and specifically shaped in the 1993 Land Law, which stated in Article 1: “The State assigns land to economic organizations, people’s armed forces units, State agencies, socio-political organizations, family households and individuals for long-term stable use. The State also leases land to organizations, family households and individuals. The organizations, family households and individuals that are assigned or leased land by the State in this Law are called collectively land users.”
So, under such circumstance where land belongs to the ownership of all the people, how can citizens exercise their rights to the nation’s land so as to be able to efficiently exploit and use land, and meet their production needs and daily-life demands, without negating the overriding ownership of land by all the people and without negating the State’s managerial role in its capacity as owners’ representative? The legal philosophy of “land use rights of land users” has helped settle the above contradiction and harmonize the interests of the nation, the State and the citizens.
Under the Land Law, the legal bases for establishing land use rights include:
- Competent State agencies’ decisions on land assignment (according to Articles 23 and 24); and,
- Competent State agencies’ decisions on land leases (according to Article 80).
Furthermore, the Civil Code (Article 690) has proscribed grounds for the establishment of land use rights:
- Land assignment or land lease by the State to individuals or households, which establishes the latters land use rights; and,
- The land-use-right transfer to individuals or households by others in accordance with the provisions of the Land Law and the Civil Code, which establishes the land use rights of such individuals or households.
According to the Land Law and the Civil Code, the land users land use rights shall include:
- The right to possession, as expressed in their rights to be granted land use right certificates and to be protected by law against other people’s infringement;
- The right to use, as manifested by their rights to exploit benefits of the land, to enjoy the fruits of their labor, results of their investment in the assigned or leased land; and,
- A number of other special rights, depending on the nature of subjects (land users), land categories, or form of land allotment (assignment or lease by the State). More specifically, organizations, households and individuals that are assigned agricultural land, forestry land, salt-making land and/or residential land shall have not only the rights to land possession and use but also a number of special rights: the rights to exchange; transfer (in essence, the trading of land); to sublease; to mortgage; and to inherit. These do not constitute ownership rights but a wide-ranging right which, from the aspect of actual land use, is not much different from an ownership right. The State may assign land of these categories to organizations, households and/or individuals for long-term stable use and recover such land only for special reasons of meeting national and public interests. Upon the expiration of a term of land assignment, the State may extend the land use duration.
So, in fact, persons who are given the rights to use land in these categories have fairly comprehensive rights. Theoretically and legally, the right of disposal is limited, but practically, the rights to possession, use, exchange, transfer, lease, mortgage, and inherit the land use rights are very close to ownership rights.-