Pham Diem
State and Law Institute of Vietnam
An ownership form is the external reflection of contents of a given ownership regime. As Vietnam is in the process of building the socialist-oriented market economy, its ownership regime is, of course, characterized by various types and various forms of ownership.
According to Vietnam’s 1992 Constitution, there exist in the country three basic forms of ownership: the entire-people ownership, the collective ownership and the private ownership.
Such constitutional provision has been concretized in Vietnam’s Civil Code, which has classified the following principal forms of ownership:
- The ownership by the entire people.
- The ownership by political organiza-tions, socio-political organizations, social organizations, socio-professional organizations (or political-social-professional organizations for short).
- The collective ownership.
- The private ownership.
- The mixed ownership.
- The common ownership.
1) Ownership by the entire people
This form of ownership has been prescribed in the Civil Code from Article 205 thru Article 213.
Under the Constitution and the Civil Code, the objects of the entire-people ownership are the land, forests and mountains, rivers and lakes, water sources, underground natural resources, resources from the sea, continental shelf and air space, the capital and property invested by the State in enterprises and facilities in the branches and fields of economy, culture, social welfare, sciences, technology, foreign affairs, national defense and security, and other properties specified by law which all belong to the State and come under the ownership of the entire people. These constitute major production means decisive to socio-economic development, security and defense protection of the country.
Regarding the subject of the entire-people ownership, as in the Socialist Republic of Vietnam, the State is a state of the people, by the people and for the people, which is assigned by the people to exercise their powers, it ex officio becomes the subject of the entire-people ownership. For this reason, the entire-people ownership is also labeled as the State ownership.
Article 206 of the Civil Code has stipulated:
“1. The State of the Socialist Republic of Vietnam exercises the right of the owner with respect to the property under the ownership of the entire people.
2. The Government exerts the unified management over the property under the ownership of the entire people and ensures its efficient and economical use for the right purpose”.
The State may transfer the property under the entire-people ownership to State-owned enterprises, organizations or individuals for use for the performance of State-assigned tasks. The State has set up central and local State management agencies to directly decide on the transfer and use of State property within the scope of their law-prescribed functions and powers.
2) Ownership by political-social- professional organizations
The form of ownership has been prescribed in the Civil Code from Article 214 thru Article 216 and Article 223 thru Article 225.
In the political system of the Socialist Republic of Vietnam, political-social-professional organizations have existed together with the State. They include the Communist Party of Vietnam, Ho Chi Minh Communist Youth Union, Vietnam Women Union, Vietnam Labor Confederation, Vietnam Fatherland Front, various professional or trade associations, etc., which naturally need certain material foundations and properties for operation. Therefore, such political-social-professional organizations have the capacity as owners of their own properties, have the power to possess, use and dispose of such properties according to law provisions and their own statutes. They are owners in legal relations on ownership and act in the name of such organizations but not in the name of the State. To become the subjects of ownership in civil law relations, such organizations must be the voluntary and unified organizations of laborers of the same benefits, the same social class or the same profession, which are organized and operate according to their own statutes formulated by their members and not contrary to the State’s laws.
The management, use and disposition of properties by such organizations must comply with law provisions and conform to their own operation objectives prescribed in their statutes. The subjects of ownership by political-social-professional organizations have been defined differently.
For example, Article 46 of the Statute of the Communist Party of Vietnam has stipulated: “The Political Bureau uniformly prescribes the principles and regimes for management of finance and properties of the Party.” Meanwhile, Article 25 of the Statute of Vietnam Labor Confederation has stated: “Vietnam Labor Confederation is the owner of all properties of Vietnam Trade Union. The management of finance and properties of the trade union system shall comply with the separate regulations of Vietnam Labor Confederation and conform to law.”
The objects of ownership by political-social-professional organizations are their material foundations, working facilities, various funds formed from their members’ contributions, properties donated for common use, properties with ownership transferred by the State,...
3) Collective ownership
This form of ownership is actually the ownership by cooperatives, which has been specified in the Civil Code from Article 217 thru Article 219.
In the current multi-sector commodity economy of Vietnam, cooperatives have existed in diversified forms, covering agricultural cooperatives, forestry cooperatives, transport cooperatives, construction cooperatives, service cooperatives, etc. Cooperatives are owners of their properties. The State and law respect the cooperatives’ right to independence, autonomy, self-responsibility in respect to their properties. The State protects the properties and interests of cooperatives with a view to ensuring their equality in production and business, does not interfere in their management and activities. The collective ownership by cooperatives does not mean the common ownership according to every member’s contributions; hence, the property, capital of each cooperative member cannot be singled out from the common property of the cooperatives. Cooperatives distribute regular profits brought about by the entire cooperative members to their members by modes prescribed in their statutes or decided by the entire cooperative members’ congresses.
The objects of the collective ownership are the properties of cooperatives, including production means and contributed capital of cooperative members, assorted funds set up by the cooperatives, capital from the State’s support or other sources in accordance with law provisions, and earned profits.
4) The private ownership
This private ownership, which constitutes a form of ownership by each individual over his/her means of subsistence, means of production and means of consumption, has been affirmed in Article 58 of the 1992 Constitution: “Citizens have the right to own their lawful incomes, savings, dwelling houses, means of subsistence, means of production, capital and other properties in enterprises or other economic organizations.” It has been further prescribed in the Civil Code from Article 220 thru Article 222.
Prior to the promulgation of the 1992 Constitution, there had simultaneously existed in Vietnam two concepts: the private ownership and the individuals’ ownership. The individuals’ ownership means a form of ownership by citizens of their own means of subsistence, means of consumption brought about by their labor and lawful incomes. Meanwhile, the private ownership means the form of citizens’ ownership of their means of production, that is the ownership of the means of production by individual peasant households or individual handicraft workers. During that period, the State declined to encourage the form of private ownership.
Nowadays, there no longer exists the distinction between the individuals’ ownership and the private ownership and these two concepts have been merged into one, and the State encourages everyone to participate in production and business activities and get rich lawfully. The State protects the private ownership. Under Article 23 of the 1992 Constitution, private properties shall not be nationalized, except for case of necessity for defense and security reasons or for national interests, the State shall make compulsory purchases or requisition with compensations paid to individuals or organizations at market prices.
The subjects of the private ownership are individual citizens. Every individual, whether he/she is an adult or a minor and has full civil act capacity or not, is entitled to own, inherit properties and have other rights over his/her own properties. According to the 1992 Constitution and the Civil Code of Vietnam, the subjects of the private ownership are not only Vietnamese citizens but also foreign individuals and overseas Vietnamese, who invest their capital in production and business in Vietnam.
5) The mixed ownership
According to Article 22 of the 1992 Constitution, “enterprises of all economic sectors are entitled to enter into joint ventures or partnerships with individuals or economic organizations within and without the country according to law provisions.”
The mixed ownership, which has been prescribed in the Civil Code from Article 226 to Article 228, constitutes a form of ownership over properties of different owners in various economic sectors, who have pooled capital for joint production and/or business to earn profits. Typical of this form of ownership are the contribution of capital and/or assets, the purchase of shares at joint-stock companies, the trading of securities at the securities trading centers, which have become a prevailing trend in the Vietnamese economy at present. It is the capital and asset contribution that makes the mixed ownership different from the common ownership and the collective ownership in terms of asset management and administration organization. The management of assets under the mixed ownership is effected under the mechanism of Management Boards each composed of the chairman and members, who are elected in a given order based on the amount of capital and/or asset contributed by each member.
The subjects of the mixed ownership are units organized in a law-prescribed form (companies, enterprises, businesses based on contribution of capital, assets from different economic sectors (inside and outside the country).
The objects of the mixed ownership are assets formed from contributions of various owners, profits lawfully earned from production and/or business activities or from other sources in accordance with law provisions. According to Article 228 of Vietnam’s Civil Code: “ The possession, use and disposition of a property under mixed ownership must comply with the provisions of this Code regarding common ownership and the provisions of the legislation on capital contribution, organization of operation of production and business, management, administration and responsibilities regarding property and distribution of profits.”
6) The common ownership
The common ownership has been prescribed in the Civil Code from Article 229 thru Article 240, being clearly defined in Article 229 as follows: “Common ownership means the ownership of a property by more than one owner. A property under common ownership is a common property.” So, when two or more persons share a property, the ownership over such property is the common ownership and such persons are co-owners.
According to the Civil Code, there are two types of common ownership:
- Common ownership by shares: Under Article 231 of the Civil Code, “common ownership by shares means the common ownership in which each owner’s share of the ownership right to the common property is determined.”
So, in the common ownership by shares, each co-owner knows beforehand the proportion of his/her right to the common property.
Owners of a property under the common ownership, according to Article 235 of the Civil Code, shall jointly manage the common property according to the principle of unanimity, unless otherwise agreed or provided for by law. Meanwhile, under Article 236 of the Civil Code: “Each owner of a property under common ownership by shares shall have the right to exploit the utility of, and enjoy the yields and profits from, the common property corresponding to his/her share in the ownership right.”
- Common ownership by integration: This type of common ownership is defined in Article 232 of the Civil Code: “Common ownership by integration means the common ownership in which each owner’s share of the ownership right to the common property is not determined.”
So, in the common ownership by integration, the co-owners shall have the equal rights to exploit the utility of, and enjoy the yields and profits from, the common property, unless otherwise agreed upon.
Usually, the common ownership by integration shall arise only in the marriage and family relations as seen in Article 233 of the Civil Code, which has clearly stated: “Common ownership by husband and wife is the common ownership by integration. Husband and wife who jointly establish and develop the common property through efforts of each shall have equal rights in the possession, use and disposition of such property. Husband and wife shall discuss, agree or authorize each other to the possession, use and disposition of the common property.”
In short, the ownership regime in Vietnam’s current legislation has testified to a big leap forward in both quantity and quality, as compared to previous periods. It is not only diversified in forms but also rich in new contents. For the first time, the State has recognized and protected the development of the private ownership of means of production. The current forms of ownership in Vietnam reflect a reality that the country is being in the period of shifting to the market economy and step by step integrates in the international community. They also demonstrate the Vietnamese Party’s and State’s policy of bringing into full play all domestic and foreign resources for achieving Vietnam’s objectives of prosperous people, strong country and an equitable and civilized society.-