Pham Diem
State and Law Institute of Vietnam
Not long after its emergence after the colonial regime was overthrown in the August 1945 Revolution, the Democratic Republic of Vietnam had its first Constitution passed in 1946, which clearly stated: “The Vietnamese citizens’ private ownership of property is guaranteed” (Article 12).
Besides, the young republic then promulgated numerous legal documents, abolishing the ownership of production means by French colonialists, reactionaries and feudal landlords while building a new economic foundation and material bases to ensure the existence and development of the new political institution as well as the success of the war of resistance against the French colonialists.
Among such documents were the September 22, 1945 Decree dissolving trade union organizations organized by colonialist and feudalist rulers throughout Vietnam; the November 15, 1945 Decree abrogating the colonialists’ right to own the Haiphong - Wu nam (China) railways line; the January 22, 1950 Decree prescribing the State’s right to distribute mineral resources in the country; the May 30, 1950 Decree prescribing the property requisition during the war time. In fact, the Democratic Republic of Vietnam state placed enterprises, mines, communications system, post, mineral resources under the State’s ownership.
Particularly, the Land Reform Law, promulgated on December 19, 1953, constituted a legal basis for carrying out a vast land reform to abolish the land ownership by feudal landlords and establish the laboring people’s ownership right to land under the motto “Land to the tillers.”
On the basis of the 1946 Constitution, the Democratic Republic of Vietnam state also promulgated a number of legal documents to protect citizens’ lawful ownership. For instance, the May 22, 1950 Decree amended a number of regulations and institutions in civil law; the February 20, 1952 Decree promulgated the regulations on procedures for registration of purchase, sale, donation and exchange of houses and land.
After the war of resistance against the French colonialists was crowned with success in 1954, northern Vietnam was liberated and embarked on the socialist construction. A socialist transformation of industry and commerce was carried out, aiming to establish step by step two principal forms of ownership of production means: the entire-population ownership (namely the State ownership) and the collective ownership (by cooperatives).
The country’s second Constitution, passed in 1959, clearly and specifically defined the ownership regime, the ownership forms and the roles of such ownership forms. It stated in Article 11: “There exist in the Democratic Republic of Vietnam during the transitional period the following principal forms of ownership of production means, namely the form of ownership by the State, i.e. by the entire population, the form of ownership by collectives, i.e., the form of ownership by the collectives of laborers, the form of ownership by individual laborers and the form of ownership by nationalist capitalists.”
Under its Article 12, “The State-run economy belongs to the entire-population ownership, playing the leading role in the national economy and being prioritized by the State for development. Mines, rivers, forests, non-reclaimed land, and other natural resources, which are prescribed by law as belonging to the State, shall all belong to the entire-population ownership.”
Meanwhile, Article 13 stated: “The cooperative economy belongs to the collective ownership of the laboring people. The State especially encourages, guides and assists the development of the cooperative economy.”
For individual laborers, Article 15 prescribed: “The State protects, according to law, the ownership of production means by handicraft workers and other individual laborers. The State shall guide and assist the handicraft workers and other individual laborers in improving their labor and encourage them to organize production cooperatives and trade cooperatives on the principle of voluntariness.”
According to Article 16 of the Constitution, “the State protects, according to law, the ownership of production means by nationalist capitalists; the State shall guide them in carrying out activities beneficial to the national welfare and the people’s livelihood, contributing to the development of the national economy in line with the State’s economic plans; the State shall encourage and guide the nationalist capitalists to follow the path of socialist transformation in the form of joint state-private enterprises or other forms.”
The State, under Article 18, also protects the citizens’ ownership over their lawful properties, including their dwelling houses and other privately owned articles.
So, unlike the 1946 Constitution and the legislation in the 1945-1954 period, the 1959 Constitution advocated the abolition of private ownership of production means as well as the exploitation of man by man while supporting the public ownership of production means in two forms of entire-population ownership and collective ownership. Yet, such provisions in the 1959 Constitution could not be materialized in the 1954-1975 period when the country was divided into two with two different political regimes. In order to implement the policy of national unity in the anti-US imperialist war of resistance for national salvation, the State ignored the absolute public ownership of production means while, to some extent, still protecting the ownership of land and production means by individual peasant households and other individual laborers. That spirit was manifest not only in the 1959 Constitution but also in other legal documents such as the June 29, 1960 Decree of the Government Council on policy regarding lease of private houses in provinces, cities and provincial towns; the July 29, 1964 Decree of the Government Council prescribing the Regulation on lease of houses in cities and provincial towns; the June 3, 1963 Circular guiding the strict observance of legislation on private ownership of production means in the countryside.
Following the victorious war of resistance against the US imperialists, Vietnam was reunified and the whole country has advanced to socialism. In the newly liberated South, the socialist transformation of private economic sectors was carried out swiftly and absolutely. The ownership regime in Vietnam during this period was recognized in the 1980 Constitution, which absolutely reaffirmed the public ownership of production means. It stated in its Article 18: “The State carries out a revolution in the relations of production, guides, uses and transforms the non-socialist economic sectors, establishes and consolidates the regime of socialist ownership of production means, aiming to build a national economy with two principal ownership forms: the State-run economic sector belonging to the entire-population ownership and the cooperative economic sector belonging to the collective ownership by laboring people. The State-run economy shall play the leading role in the national economy and be given priority for development.”
The 1980 Constitution determined the scope and nature of the State ownership (the entire-population ownership), which had not been fully prescribed in the previous Constitution.
Under Article 19 of the 1980 Constitution, “land, forests, mountains, rivers, lakes, mines, natural resources lying underground, in the seas and continental shelf, industrial, agricultural, forestrial, fishery and trade enterprises run by the State, banks and insurance organizations, public facilities, systems of railways, land roads, river ways, sea routes, airways, dykes and important water works, defense service establishments, systems of information and communications, radio and television, cinematography, scientific and technical research institutions, cultural and social establishments and other properties, which are prescribed by law as being of the State, shall all belong to the entire-population ownership.”
Regarding the collective ownership by labor collectives, Article 23 prescribed: “The State guides and assists the cooperative economy to develop. The property of cooperatives and other collective organizations of the laboring people shall be protected according to law by the State. Cooperatives do business according to plan orientations and tasks of the whole country and localities, ensuring the constant development of production and the consolidation of socialist relations of production, increasing incomes and improving the life of cooperative members, fulfilling the obligations towards the State and at the same time increasing accumulation for the cooperatives.”
Regarding the private ownership, Article 27 stated: “The State protects citizens’ ownership over their lawful income, reserve properties, dwelling houses, daily-life means, production tools used for permitted individual labor. The law protects citizens’ right to property inheritance.
So, in the spirit of the 1980 Constitution, there existed in Vietnam in this period three basic ownership forms:
- The entire-population ownership (the State ownership) of the production means.
- The laboring people’s collective ownership of production means.
- The private ownership of lawful incomes, daily-life means, consumption means.
With a view to concretizing the 1980 Constitution’s provisions on ownership regimes, the Socialist Republic of Vietnam state promulgated a number of specific legal documents such as the November 6, 1982 Decision of the Council of Ministers on stepping up the assignment of land and forests to collectives and people for tree planting and forestation; the Ordinance on Protection of Industrial Property adopted by the State Council (now the National Assembly Standing Committee) on February 11, 1989, the Land Law of 1987, the Ordinance on Inheritance of September 10, 1990, the Ordinance on Dwelling Houses of March 26, 1991.
Panoramically, the Vietnamese legislation on ownership regimes during the period from the 1946 Constitution to the 1980 Constitution was characterized with the following prominent points:
First, the ownership regimes were prescribed largely in the Constitutions, particularly with the inheritance institutions being defined more and more clearly. Besides, they were also mentioned here and there in various legal documents issued mostly by executive bodies.
Second, due to war circumstances when human and material resources were required to be concentrated therefor, due to the highly centralized planning and State-subsidized economic mechanism and due to the limited perception of socialism, economy, the law-governed state and the civic society, the then ownership regimes were principally inclined to curb the private ownership while promoting the public ownership of production means. Hence, almost no attention was paid to the regulation of the private ownership of production means by law.
Since 1986, Vietnam has started embarking on a cause of “doi moi” (national renewal), building the socialist-oriented market economy, the law-governed state and a civic society. In such a new circumstance where have appeared many new perceptions, the ownership regimes prescribed in the Vietnamese legislation have witnessed a substantial change and a big leap. This has been expressed in the 1992 Constitution, the Constitution of the “doi moi” period, particularly the 1995 Civil Code, the first Civil Code of the Socialist Republic of Vietnam, and in other legal documents.
Article 15 of the 1992 Constitution has outlined the economic regime, the ownership regime in the market economy in Vietnam: “The State adopts the consistent policy of developing the socialist-oriented market economy. The multi-sector economic structure with diversified forms of production and business based on the regimes of the entire-population ownership, the collective ownership and the private ownership, of which the entire- population ownership and the collective ownership constitute the foundation.”
This has been further concretized in Article 16 of the said Constitution: “Promoting all production capacity, all potentials of various economic sectors, including the state economic sector, the collective economic sector, the private individual economic sector, the private capitalist economic sector, the state capitalist economic sector and the foreign-invested economic sector, in various forms.”
Regarding the State ownership, Article 17 has stated: “The land, forests, mountains, rivers, lakes, water sources, underground natural resources, resources in the seas, the continental shelf and the air spaces, the capital and assets invested by the State in factories, projects of economic, cultural, social, scientific, technical, diplomatic, defense and security domains as well as various branches, and other assets which are prescribed by law as being of the State, all belong to the entire- population ownership.”
Particularly, Article 22 has stipulated: “Production and business establishments of all economic sectors must fulfill all obligations towards the State, are equal before law and have their capital and lawful properties protected by the State.”
According to Article 25, “the State encourages foreign organizations and individuals to invest capital, technologies in Vietnam in accordance with Vietnamese laws as well as international laws and practices, guarantees foreign organizations’ and individuals’ lawful ownership over their capital, assets and other benefits. Foreign-invested enterprises shall not be nationalized. The State encourages and creates favorable conditions for overseas Vietnamese to invest in the country.”
The 1992 Constitution’s institutions on ownership regimes have been concretized in the 1995 Civil Code and a number of other legal documents. In the Civil Code, the ownership regimes have been prescribed right in Part Two, comprising 7 chapters with 113 articles from Article 172 thru Article 284, prescribing the fundamental principles of the ownership rights, various types of property, forms of ownership, contents of ownership rights, grounds for establishment and termination of ownership rights and ownership right protection.
In short, Vietnam’s legislation on ownership regimes has seen a big qualitative leap forwards as clearly manifest in the following striking features:
First, the ownership regimes have been not only recognized in the Constitution but also prescribed in a concentrated, specific and comprehensive manner in a code, the 1995 Civil Code. Besides, many important and specialized issues in the ownership regimes have been dealt with in separate legal documents promulgated by the legislative body (such as the Land Law, the Law on Dwelling Houses, the Inheritance Law, the Law on Transfer of the Land Use Rights, the Law on Intellectual Property,...).
Second, the Vietnamese legislation has, for the first time, recognized the multi-forms of ownership, including the state ownership, the collective ownership, the private ownership, the capitalist ownership, the foreign ownership in Vietnam. All economic sectors in different forms of ownership are equal before law and protected by the State.
Third, the legislation has touched upon and regulated in a comprehensive and specific manner major elements of the ownership regimes, namely, different kinds of property, different forms of ownership, the contents of ownership right, the grounds for establishment, termination and protection of the ownership rights,...-