MINSTRY OF EDUCATION AND TRAINING MINSTRY OF JUSTICE HANOI UNIVERSITY OF LAW NGUYEN VINH DIEN THE LAW ON COMPENSATION FOR LAND RECOVERY BY THE STATE Specialty: Economic law Code: 9380107 Summary of Doctoral thesis on law HANOI - 2019 The work has been completed at Ha Noi Law University Supervisors: Assoc Dr Nguyen Quang Tuyen Dr Tran Quang Huy Reviewer 1: Reviewer 2: Reviewer 3: The Thesis was defended at the Doctoral Thesis Evaluation Council at University level, meeting at Ha Noi Law University at date ./ /2019 The Thesis can be found at National Library of Vietnam and Library of Ha Noi Law University INTRODUCTION The need for research In Vietnam, the compensation regime, when the state acquires land, is one of the basic legal provisions of the land law This legal regulation was created with the purpose of protecting the lawful rights and interests of land users when the State recovers land, creating a legal basis for land recovery for national defense and security purposes, socio-economic development for the sake of the nation and the public However, in reality, the application of the compensation regime when the State recovers land faces many difficulties and challenges This is because it affects the practical interests of the people in general and of land users in particular There is not in all cases that the implementation of the law on compensation when the State recovers land also treats and resolves harmoniously the interests of the state, investors and the interests of owners and occupants of the land to be acquired Disagreement of people having land recovered for compensation, support and resettlement plans when the State recovers land from many causes, including the basic cause is the provisions of law Current compensation when the State recovers land is not in line with the practical requirements even though this regulation is often amended and supplemented The 2013 Land Law was promulgated on the basis of reviewing and evaluating the appropriate and unsuitable regulations of the 2003 Land Law to make necessary amendments and supplements However, until now after a period of implementation, the 2013 land law has revealed certain inadequacies, including the provisions on compensation when the state recovers land Land acquisition and compensation when the state acquires land is still a hot issue Disputes and complaints have arisen from the practice of applying the compensation regime when the State recovers land accounting for the largest number (70%) in disputes and complaints about land Complaints about land acquisition and compensation when the state recovers land arise in localities throughout the country In many cases, people whose land is acquired not believe in the compensation policy that the local authorities apply, not trust the settlement of complaints at the grassroots level, leading to large complaints to central agencies The content of disagreements between the person whose land is recovered and the competent state agencies is not outside the basic issues of compensation regulations when the State recovers land such as the basis of land recovery, compensation price, types of land to be compensated, supported, and resettled In these disagreements and claims, land compensation is always the most central, sensitive and complicated issue Because all rights of people whose land is acquired are always attached to land, derived from the land and are the basis of other compensation and support benefits On the other hand, land is a valuable asset, a living space, a means of production and is associated with spiritual and religious life, so most of the land users not want to be revoked, leading to life have been turned upside down, interests have been affected, and thus aroused opposition to land acquisition Moreover, land-use of people is often volatile; Meanwhile, the state management of land is not strict, the database of land, land registration, and land-attached assets are still limited, which is also the cause of long and complicated complaints It can be said that where there is land acquisition, there are complaints about the land These complaints show that current regulations of law not meet practical requirements, not effectively protect the legal rights and interests of people whose land is acquired, and hinder economic development - social, potentially causing political - social instability The amendments and supplements of the 2013 land law, obviously, still reveal many inadequacies and have not played an important role in ensuring the legitimate interests of people whose land is acquired and ineffective The problem of ensuring the harmonization of interests of the state, investors, and people whose land is recovered, has not "cooled" the lawsuits and has not promoted all the positive effects in ensuring the use of land resources and promote socio-economic development, ensure political security and social order and safety The above issues pose an urgent need to continue systematically and adequately researching the theoretical and practical laws on compensation when the State recovers land, especially compensation law to assess comprehensively, find the cause of the existence to have effective solutions to contribute to perfecting the law on compensation when the State recovers land and improving the enforcement efficiency in practice With that in mind, the doctoral candidate chooses to study the topic "The law on compensation for land recovery by the State" as a doctoral thesis in jurisprudence Research scope - Content limitations i) studying and understanding the regulations on compensation when the State recovers land for national defense and security purposes; socio-economic development for the national and public interests of the 2013 land law and its implementing documents; ii) study and assess the status of the law on compensation for land when the State recovers land without mentioning the issue of compensation for damage to properties attached to land; support issues, resettlement, etc - Spatial limitation The thesis studies the practical implementation of the law on compensation when the State recovers land nationwide - Time limitation The thesis limits the legal research on compensation when the State recovers land from 2003 (the year of promulgation of the 2003 Land Law up to now) The scientific and practical meaning In terms of theory: the thesis contributes to clarify some theoretical issues related to land acquisition and the law on compensation when the state recovers land On that basis, the thesis contributes to strengthening and completing the theoretical basis for compensation when the State recovers land and the law on compensation when the State recovers land in Vietnam In practical terms: the inadequacies are pointed out in the current regulations on compensation when the State acquires land and the recommendations of the thesis can be considered and referenced in amendments, supplements, completing the 2013 land law in the coming time; At the same time, it contributes to improving the efficiency of law enforcement on compensation when the State recovers land from competent state agencies and people whose land is recovered The thesis is a useful reference not only for lawmakers, for the contingent of state officials on land but also as a valuable reference for legal training institutions in our country New contributions of the thesis - Systematize, supplement, develop and deepen the theoretical basis of compensation when the State acquires land and the law on compensation when the State acquires land in Vietnam - Clarify the concept and characteristics of compensation when the State recovers land; purpose and meaning of compensation when the State recovers land; identify damages when the state acquires land; benefits and basis of dealing with benefits arising when land is recovered by the state; Factors affecting the formulation and improvement of the law on compensation when the State acquires land - Assessing the status of land compensation law when the State recovers land in our country today, thereby pointing out the inadequacies of the current law as well as the actual situation of application; causes of inadequacies and limitations - Provide directions and specific solutions to improve the law and improve the efficiency of enforcement of the law on land compensation when the State recovers land in our country CHAPTER LITERATURE REVIEW AND THEORETICAL BASIS Literature review Firstly, constructions have been developed with the concepts of land acquisition, the concept of requisition, expropriation, and expropriation; concept of compensation when the State recovers land, support when the State recovers land; resettlement concept; differentiate and compare compensation when the state recovers land with compensation in civil, labor, and state liability compensation; distinguish between land acquisition and expropriation and expropriation The above concepts are mainly developed, analyzed and compared by the authors on the basis of analysis and access to land law in 2003, civil law in 2005 However, the current land law in 2013 has enacted and came into effect, the 2015 civil code takes effect from 01/01/2017, so it is necessary to approach and build these concepts on the basis of 2013 land law research, civil code 2015 Secondly, previous researches have studied a number of theoretical issues about compensation for damages when the state acquires land, which is the theory of compensation when the state acquires land on the basis of the entire land ownership regime, the preeminent nature of our state is that of the people, by the people and for the people; Factors governing the law on compensation when the state acquires land These studies are important for the author to refer to and inherit in the course of his thesis research However, these researches have not approached thoroughly from the theory of material and property rights to answer the question why land is owned by the entire people, the state is the representative of the owner, the state only granting land use rights to land users for stable, long-term rather than giving land ownership, but why the state must pay compensation when reclaiming land Thirdly, these researches that identify losses upon land acquisition must be compensated as actual and visible damages, including damage to the acquired land, damage to properties attached to the acquired land withdrawal, damage due to loss of jobs, damage due to relocation, relocation of houses However, there are actual damages but not currently prescribed by law to compensate such as environmental impacts, cultural space, spiritual life, beliefs, religions of the local communities Therefore, it is necessary to have further research on land acquisition Fourthly, these researches show a number of shortcomings in the content of the law and the reality of the application of regulations on compensation, support, and resettlement when the State recovers land However, most of these works studied the regulations on compensation when the state acquired land and the reality of application under the 2003 land law and documents guiding the implementation of the 2003 land law In 2013, and the implementing instructions were issued in the spirit of inheriting the 2003 land law with many amendments and additions but still revealed many limitations that need to be further completed Fifthly, at different scales and levels, many projects have proposed solutions to improve the efficiency of enforcement and improve the law on compensation when the State recovers land Most of the recommendations were based on the analysis of the limitations of the 2003 land law and the 2003 implementing laws on land law Accordingly, a number of recommendations were agreed and wrote in 2013 Land Law However, 2013 Land Law and documents guiding the implementation of 2013 Land Law were issued but the actual number of disputes and complaints related to compensation when the state acquires land is still very hot and the number of complaints has not decreased This has the potential to take advantage of bad forces to cause political instability, social order, and safety Therefore, this issue also needs to continue researching and proposing complete solutions CHAPTER THEORY OF COMPENSATION IN LAND ACQUISITION BY THE STATE AND LEGISLATION ON COMPENSATION FOR LAND ACQUISITION IN VIETNAM 2.1 Theory of compensation in land acquisition by the state 2.1.1 Concept and characteristics of land acquisition 2.1.1.1 The definition of Land acquisition: Land acquisition is the decision of the State to reclaim land use rights of a person who is given land use rights by the State when falling into the cases and in the order and procedures prescribed by law 2.1.1.2 Characteristics of land acquisition Firstly, land acquisition is done by the state Only the state is the only agency to carry out land recovery of land users; Secondly, land acquisition is an imperative administrative decision; Thirdly, land acquisition is carried out in cases prescribed by law, except for these cases, the State may not recover land; Fourthly, the land acquisition must be made in writing according to the order and procedures prescribed by law; Fifthly, the consequences of land acquisition will end the land use right, cause the people who have land recovered certain damages and establish the state's responsibility for these damages 2.1.2 The concept, characteristics, purpose and meaning of compensation when the state acquires land 2.1.2.1 The concept and characteristics of compensation when the state acquires land * The concept of compensation when the State recovers land: Compensation when the State recovers land is the state's return of land use right value, compensation for property losses associated with land and other losses to the State people whose land is recovered for use for national defense and security purposes, socio-economic development for the sake of the nation and the public * Characteristics of compensation when the state acquires land Firstly, land acquisition is done by the state Only the state is the only agency to carry out land recovery of land users; Second, land acquisition is a compulsory administrative decision; Thirdly, land acquisition is carried out in cases prescribed by law, except for these cases, the State may not recover land; Fourthly, the land acquisition must be made in writing according to the order and procedures prescribed by law; Fifthly, the consequences of land acquisition will end the land use right, cause the people who have land recovered certain damages and establish the state's responsibility for these damages 2.1.2.2 Distinguish compensation when the state recovers land from a number of other compensation cases, including discrimination between compensation when the state recovers land and compensation for damage outside contract; with requisition compensation, expropriation, and with the state's liability under the state's liability law From the comparison of the above types of compensation, we see that compensation when the state acquires land has not solved the following issues: (i) The compensation In compensation for non-contractual damages, compensation for land requisition, and compensation for state responsibility, the compensation to be compensated is in whole and in fact This means the person affected shall have any damages if there are grounds to prove that they will be compensated Meanwhile, damages that are compensated when the State recovers land include damage to land, remaining costs of investment in land, assets, losses of production and business, and damage to expenditures fee of transport Other damages are intangible and other actual losses not compensated, such as loss of income, loss of employment (ii) The price of compensation Land use rights when being damaged in the above-mentioned compensation cases are all property and valuable assets of land users In essence, the land use right is damaged when it is requisitioned, requisitioned, or damage is caused by the official on duty and when the state recovers the land without any difference, it loses the land use right However, the price of land and the price of land for compensation are different, which makes no sense Accordingly, if the State buys land, the price of land is determined according to the market price, compensation for land requisition and compensation for state responsibility is also determined at market price but compensation when the State collects land The land is recovered not at market price but at specific land prices 2.1.2.3 Methods of compensation for land when the State recovers land i) Compensation by new land allocation This is considered a "land-for-land" method, ie, when the State recovers land, compensation will be made by land to the person whose land is recovered This compensation method brings many benefits to land users ii) Monetary compensation This is a common compensation method nowadays This method is applied when the land fund is no longer available for compensation In many cases, monetary compensation will adversely affect the rights of people whose land is recovered and not best protect the property rights of land users iii) Compensation by resettlement policy Resettlement is the compensation made with residential land in resettlement areas or houses for resettlement to create new houses for people whose land is recovered Compensation by resettlement has advantages such as land compensation method 2.1.2.4 The purpose and meaning of compensation in the case of Land Acquisition by the State Firstly, the compensation when the State recovers land in order to return the lost land use rights to the land users, compensate the land users for their labor achievements and investment results being damage due to land acquisition, thereby contributing to the implementation of the rights of land users recognized and protected by law Secondly, the compensation regime, when the State acquires land, not only guarantees the lawful rights and interests of land users but also contributes to maintaining political stability, social order, and safety, meeting national defense and security requirements Thirdly, through compensation when the State recovers land, it helps cadres and civil servants carry out the compensation work to raise the awareness of serving the people, respect and listen to their opinions and feelings Fourthly, solving the compensation well when the State recovers land contributes to the implementation of great economic and social policies of the Party and the State through harmoniously resolving the interests of the State and land users and investors Fifthly, resolving the compensation well will create a high consensus of the people, the consensus of the society towards the guidelines and policies on socioeconomic development of the party and the state, thereby contributing to Part of increasing the attractiveness of the investment environment in Vietnam Sixthly, to a certain extent, it can be seen that compensation when the state recovers land also contributes to the economic restructuring and career change of farmers 2.1.3 Damage when the state recovers land and the problem of solving benefits arising when the state recovers land 2.1.3.1 Damage when the state recovers land (i) Tangible damage These are direct visible losses, which are quantitative and easily calculated and identified, including damage to land; damage of the remaining land investment costs; damage to moving remains and graves; damage to properties attached to land; damage due to relocation of properties; damage due to home renovation or repair; damage to cattle (ii) Invisible damage These are damages not seen directly, not perceived visually However, these damages not only affect material benefits but also negatively affect the spiritual life of people who have their land acquired and their families Intangible damages that may arise at the time of land acquisition, may also affect long-term life, including loss of life stability, production disruption, lost employment, income is lost or reduced; damage caused by safety corridors when constructing works with safety protection corridors; damage to living space, cultural space, spirituality, religion, religion; Damage to the values of ancient buildings 2.1.3.2 Resolve benefits arising when the state acquires land When land is acquired, there will be benefits of the state, investors, people whose land is acquired and who not have land recovered but will benefit from the 11 CHAPTER THE REALITY OF THE APPLICATION OF LAND COMPENSATION LAW WHEN THE STATE ACQUIRES LAND IN VIETNAM 3.1 General provisions on compensation for land when the State recovers land and practices apply 3.1.1 Scope and subjects of land compensation when the State recovers land Scope and subjects of compensation are land users whose land is recovered for national defense and security purposes; socio-economic development for the sake of the nation and the public 3.1.2 Grounds for land recovery for national defense and security purposes; socio-economic development for the sake of the nation and the public Land acquisition for national defense and security purposes; socio-economic development for the sake of the nation and the public on the basis of: the project belongs to the cases of land recovery stipulated in Articles 61 and 62 of the 2013 Land Law; annual district-level land use plans approved by competent state agencies; land use progress of project implementation The current regulations on urban embellishment and rural residential embellishment projects have not been explained and provided for in the implementing documents, so there are many different interpretations and are easily exploited to recover land private land, affecting the interests of land users, which is prominent to take land to subdivide the sale of land, build houses and commercial areas, services to sell profits to the private 3.1.3 The principles of compensation on land when the State recovers land Compensation for land when the State recovers land must ensure the following principles: Firstly, land users are compensated when they meet all the conditions specified in Article 75 of the Land Law 2013 Secondly, compensation is made by allocating land with the same use purpose as the type of recovered land, if there is no land for compensation, compensation will be made in cash The implementation of the land compensation principle faces the following difficulties: (i) There is no land for compensation or if so, in some cases the value of the land compensated with the recovered land is not equivalent; (ii) The regulation that in the case of no available land, it will be compensated with money is unreasonable; (iii) Due to the strict process of state management of land over each period, especially when the land user arbitrarily changes the land use purpose without permission of the competent authority nor be prevented, dealt with; (iv) The current situation to determine the type of land in many cases cannot be accurate because the land user changes the land use purpose for a parcel of land, leading to the current and frequent changes in land use status short time for each status change Thirdly, the land price used for calculating compensation is the specific land price of the type of land to be recovered decided by the provincial-level People's 12 Committee at the time of land acquisition decision (i) Land prices in general and specific land prices serve as a basis for compensation when the State recovers land in particular, which is not suitable for common land prices in the market, in particular much lower than market prices; (ii) The provision of the difference between specific land prices for compensation when the State acquires land and compensation prices through voluntary land transfer is not appropriate; (iii) There exists a mechanism of "going to night" between the investor, the construction contractor and the person whose land is recovered in case of a person who agrees with the compensation price of land, and some disagree; (iv) The determination of specific land prices is heavily influenced by the will of the State, the consultancy unit determines that the price is not highly independent, people whose land is acquired are not involved in the valuation process; (v) The survey and gathering of information of at least 03 parcels of land similar to the land plot to be priced from winning bid sources, market land prices from the database of land and land prices successfully transacted on real estate trading floors and successful transactions on the transfer market provided by the assignee or transferor when applying the direct comparative pricing method, the deductible valuation method is accurate not high, sources of information gathered dishonestly leading to inaccurate pricing; (vi) The specific land prices in many places decided by the district People's Committees through the authorization mechanism create conflicts in the law enforcement process; (vii) It is not clear which party is responsible in the event that the land price changes at the time of payment and at the time of the decision to recover the land in the case of a decision on land recovery, the decision to approve a compensation plan is cancel Fourthly, the compensation when the State recovers land must ensure democracy, objectivity, fairness, publicity, timeliness and lawfulness 3.1.4 Conditions for compensation for land and cases of non-compensation for land 3.1.4.1 Conditions for compensation of land Firstly, the land user has a land use right certificate; certificate of house ownership and land use right; certificates of land use rights, ownership of houses and other land-attached assets (collectively referred to as certificates) or land eligible for being granted certificates of land use rights and ownership of houses and other properties associated with land under the 2013 land law that have not been granted will also be compensated; Secondly, the conditions for compensation are tied to the financial obligations that land users have fulfilled; Thirdly, residential land, religious and religious establishments will only be compensated for land if the acquired land is not land allocated or leased by the State 3.1.4.2 Cases of no compensation for land acquisition Firstly, the land allocated by the State does not collect land use fees, except where the land is allocated to households and individuals directly engaged in agriculture, forestry, aquaculture or salt production within the prescribed limits Article 129 of the 2013 Land Law; Secondly, land allocated by the State to organizations that use land use levies but are exempted from land use fees; Thirdly, 13 land leased by the State with annual rental payment, land leased by the State with oneoff rental payment for the entire lease period but exempted from land rental, except for cases where households and individuals use it land leased from the implementation of policies toward people with meritorious services to the revolution; Fourthly, land belongs to public land fund of communes, wards and towns; Fifthly, land contracted for agriculture, forestry, aquaculture, and salt production; Sixthly, land allocated by the state for management; Seventhly, the land is ineligible for a certificate of land use right, ownership of houses and other land-attached assets in accordance with the 2013 Land Law, unless the agricultural land has been used Using land before July 1, 2004, land users are households or individuals directly engaged in agricultural production but not have certificates or are not eligible to grant certificates of land use rights or ownership rights housing and other properties associated with the land in accordance with the 2013 land law 3.2 Specific provisions on compensation for land when the State recovers land and practices apply 3.2.1 Compensation for agricultural land Persons whose agricultural land is recovered shall be compensated when all conditions prescribed are met Compensation is made by land or cash depending on the local land fund Compensation practice when recovering agricultural land still has the following shortcomings: Firstly, there is no agricultural land for compensation; Secondly, the price of agricultural land is too cheap, not commensurate with the great and long-term value of agricultural land in our country considering the past, present and future; Thirdly, the current regulations not exclude cases where the State acquires land for socioeconomic development for the sake of the nation and the public but for the benefit of the private sector; Fourthly, the support and vocational training for farmers whose land has been acquired has not brought about clear results; Fifthly, stipulate that households and individuals using agricultural land before July 1, 2004, not have a certificate or are not eligible for the certificate of land use right, ownership of houses and properties Other land-related compensation but provided that agricultural production is directly regulated, there are different interpretations Accordingly, the provisions of "direct agricultural production" are determined at the time, at the time of the notice of land acquisition, tallying, making plans or at the time of land acquisition decision 3.2.2 Compensation for non-agricultural land 3.2.2.1 Compensation for non-agricultural land Persons whose land is recovered shall be compensated when they meet all the conditions prescribed by law by new land assignment If the local land fund is no longer available, they will be compensated in cash 3.2.2.2 Compensation for residential land Regulations on compensation when recovering residential land still have some unreasonable points: Firstly, it stipulates the recovery of residential land but the state only compensates with residential land if the local land fund is still available; If all of the residential land is recovered or the remaining residential land area after the recovery is 14 not eligible for residence under the provisions of the provincial-level People's Committees, the households or individuals have no other residential land or houses in the same area Communes, wards and towns where the residential land is revoked are compensated with residential land or resettlement houses, that is, if any other residential land or dwelling houses exist in the same commune, ward or township Where the residential land is recovered, they will be compensated with residential land, resettlement houses or compensated in cash The right to decide compensation by land, house or cash belongs to the state is not appropriate Secondly, the phrase "residence" in the regulations for households and individuals whose land is recovered on a land where houses are subject to relocation but the land is not eligible for compensation for residential land, If there is no other place of residence in the commune, ward or township where the residential land is recovered, the State shall sell, lease, lease-purchase houses or allocate residential land with collection of land use fees as prescribed This provision is not clear as there are many different interpretations Thirdly, the practice shows that many cases of remaining agricultural land are not small and fragmented, unsuitable for agricultural production or barren land leading to inefficient or inefficient agricultural production Suitable for agricultural production when located in residential areas If being controlled by quantity, it will lead to waste when land is not used, used inefficiently, affecting residential land planning and residential area planning Fourthly, in some cases, the person whose land has been acquired has used the land area for long-term housing and currently has a house or has a land use right certificate, but it has not been determined and compensation for residential land affects their rights Fifthly, land acquisition is closely related to resettlement The current regulations as well as the current situation of resettlement still reveal many shortcomings and fail to meet the legitimate interests of people whose land is subject to resettlement 3.2.3 Compensation for some other cases 3.2.3.1 Compensation for the remaining land investment costs In no case in which the State acquires land, land users are also compensated for land but only when they meet all the conditions prescribed However, the process of land use, land users have invested in land to use according to certain needs and purposes, thereby increasing the value and use-value of the land parcel These investments are legal investments, i.e investments suitable for the purpose of land use In essence, this is a "refund" for land users who have invested in the land However, the "refunded" amount is not the whole amount but only the remaining value of the investment after subtracting the time of exploitation, land use, and the invested cost Practicing the application of regulations on compensation of remaining investment expenses faces the following difficulties and obstacles: Firstly, it is very difficult for the owner of the land to be recovered to have documents proving the costs of investment in the land; in many cases, it is impossible to have records and documents to prove it; Secondly, the process of land management in our country in many localities has not implemented closely leading to the wrong use 15 of land, thereby investing in the land for the wrong purposes but not being prevented and treated 3.2.3.2 Compensation for people who are co-using land Practical application of the above regulations encountered some problems: Firstly, how is the compensation process, notification of land acquisition, tallying, plan preparation, approval of plan, decision on land acquisition, compensation, support and resettlement done if someone who is a co-user does not agree; Secondly, the responsibility for payment of compensation has not been clearly defined in the case that the land use right contract is not paid for compensation rights; thirdly, how the right to lodge a complaint or initiate a lawsuit in whole or in part is determined if the land use right does not agree with the recovery and compensation; Fourthly, the resettlement policy for co-users is not clearly defined in cases where all co-users have demand for resettlement; Fifthly, the regulations on the allocation of compensation for land to the co-users are guided by the provincial People's Committees, but in fact the local regulations on this issue are not the same and not to deal with interest when the money is in dispute between co-users 3.2.3.3 Compensation for land in case the actual measurement land area is different from the area stated in the land use right papers Firstly, if the actual measurement area is less than the area stated on the land use right papers, compensation shall be made according to the actual area, not compensation according to the land area written on the papers Secondly, if the actual land area is more than the area stated on the land use right certificate, but this is due to errors in measurement process, the boundaries of the parcel of land not change, there is no dispute not due to encroachment or occupation shall be compensated according to the actual land area; if the actual area is more than the area stated on the land use right papers but the land People's Committee certifies that the land is being used for land use right transfer, reclamation, has been used stably and there is no dispute then To be compensated according to the actual land area Thirdly, if the actual area is more than the area stated on the land use right papers that this area has been acquired through encroachment, it will not be compensated The law stipulates the above, but in practice, it meets some difficulties: Firstly, in case the actual area of residential land and garden land is used more than the area written on the land use right papers but the error is due to measurement, the increased area is not due to encroachment but there is adjacent to the agricultural land where the agricultural land plot is an independent parcel or the increased area is measured into an independent land plot, most of the compensation agencies implicitly assume that this area is due to encroachment of agricultural land or land managed by commune-level People's Committees Secondly, the difficulty in determining the actual time to use the actual area than the paper area is related to determining the type of land and land prices as well as other benefits when making compensation 3.2.3.4 Compensation for land in safety corridors when constructing works with safety protection corridors In fact, the application of the above provision is difficult when the law does not 16 regulate how to restrict the ability of land use, resulting in the arbitrary application of compensation Determining whether or not the ability to use land depends on the agency that makes the compensation is, in many cases, imposing and emotional 3.3 The reasons of the inadequacies, limitations of the law and the implementation of the law on compensation for land when the State recovers land 3.3.1 Objective reasons Firstly, many current regulations on compensation when the State recovers land are not in line with reality and not guarantee the property rights of people whose land is acquired Secondly, the mechanism for determining compensation land prices is heavily imposed by the will of the State, whose land users are not allowed to decide on land prices or participate in substantive land pricing; The consultancy unit's land price results are for reference only, the final decision-making body is still the state Thirdly, the current provisions of the land law in general and the law on compensation when the State recovers land, in particular, bear the will of the State and restrict the rights of land users as owners of land law relations Fourthly, there are two mechanisms of compulsory and voluntary land acquisition attached to compensation at prices decided by the state and agreed on prices along with a number of projects on the basis of land acquisition for development In many cases, the economy and society are in the public interest for many cases Fifthly, causes from the history, process of land management in our country; Land database is not synchronized and incomplete; delaying, not completing the granting of certificates of land use rights, ownership of houses and other land-attached assets 3.3.2 Subjective reasons Firstly, ideology and psychology are attached to the land, sticking to the place of "burying the umbilical cut vegetables" and afraid to change the residence and production of Vietnamese people Secondly, many cases of complaints are not timely, prolonged, inaccurate, or even imposed Thirdly, the handling of "suspended" projects, projects that are behind schedule is not strict and thorough, leading to wasteful land areas while people not have production land Fourthly, the implementation of the stages of land acquisition in many cases is still delayed, does not ensure the rights of people who have land recovered This is because officials who perform the compensation work have not fully fulfilled their responsibilities as well as due to the professional capacity of officials who have not met the requirements of the tasks Fifthly, the awareness of a part of people is not high Sixthly, the mechanism of additional payment for people whose land is recovered in addition to the state price compensation leads to psychological complaints, delayed handing over the ground in order to expect an additional payment, thereby creating a zero justice among those whose land is acquired 17 CHAPTER SOLUTIONS TO PERFECT THE LAW AND IMPROVE THE EFFICIENCY OF IMPLEMENTATION OF THE LAW ON COMPENSATION FOR LAND ACQUISITION BY THE STATE IN VIETNAM 4.1 Orientation to improve the law on compensation for land when the State recovers land Firstly, perfecting the law on compensation when the State recovers land must be based on the Party's views, guidelines and policies on renovation of policies, land law and compensation policies and laws when State land acquisition is expressed in Resolution No 19-NQ/TW; Secondly, improving the law on compensation must ensure the harmonious settlement of interests of people whose land is recovered, of the state and investors; Thirdly, improving the law on compensation when the State recovers land associated with the completion of the land law in general and other relevant laws; Fourthly, refer to foreign laws to contribute to perfecting the law on compensation when the State recovers land 4.2 Solutions to perfect the law on land compensation when the State recovers land 4.2.1 Solutions to the law on grounds of land acquisition Amending and supplementing grounds for land acquisition for socio-economic development in the national and public interests in the direction that the State only acquires land for socio-economic development in the national and public interests if the project owner states That is, we approach in the direction of who is the user of the land after the acquisition and who will actually bring the benefits after the land acquisition, not a project decided by the investment policy investment, investment decision For projects where the investor is a private, the form of land acquisition under Article 73 of the 2013 Land Law will apply 4.2.2 Solutions to perfect the law on the principle of compensation for land when the state recovers land Firstly, it is necessary to specify the land price as the basis for compensation as the market price Secondly, it is necessary to specify the basis for determining the type of land for the land without a certificate on land use rights, but which have been used stably without being encroaching on, illegally occupying or changing the purpose of use Thirdly, it is necessary to promulgate regulations that prohibit “night-shifting” activities between investors, construction contractors and people whose land is acquired to pay in addition to the compensation as prescribed or if paying In addition, payment is made equally for all people whose land is acquired to ensure fairness in the process of compensation implementation Fourthly, it is necessary to specify that the land price determined by the consultancy unit must be publicized before submitting it to the land price determination agency as a basis for compensation and representatives of land recovered persons who are involved in the price determination process Land as a member of an agency (council) that determines land prices In case the representative of the land user is recovered, the consultancy unit and land price determination agency not agree on the land price, hire a consultancy unit outside the province to determine Fifthly, stipulating the survey and collection of information when determining 18 land prices from the source of winning bid prices, market land prices from the database of land and land prices successfully traded on real estate trading floors and successful transactions in the market must approach and collect the true prices of these transactions Sixthly, issuing regulations that prohibit provincial-level People's Committees from authorizing district-level People's Committees to decide on specific land prices as a basis for compensation, which provincial-level People's Committees shall decide land prices on the basis of participation Price evaluation by the district-level People's Committee proposed Seventhly, it is necessary to stipulate that in case of compensation by land, the land to be compensated must have the value and profit value equivalent to the recovered land plot 4.2.3 Solutions to perfect the law on conditions of compensation for land when the State recovers land Firstly, stipulating conditions for compensation for land without papers on land use rights based on the time of land use commencement, grounds for establishing land use rights, not compulsory land be used stably and continuously Secondly, in the case that land users believe that the land is used stably, there is no dispute but the commune People's Committee thinks that the land is not used stably and does not confirm “as a stable land user, no dispute ”leads to non-compensated land users, it is required that this dispute must be resolved by a court on the basis of consultation with people living in the place where the land is located Origin and process of land use In case over 70% of people have their opinions confirmed on the time, origin and process of land use, such as those who have their land recovered, the commune-level People's Committees must certify to those whose land is recovered in order to be compensated 4.2.4 Solutions to perfect the law on determination of damage when the State recovers land Firstly, stipulating that in case of land acquisition leading to a land parcel being divided which limits the usability, this is damage and the State is responsible for calculating and compensating Secondly, stipulating that the people whose land is recovered will be compensated with money to "buy" land in cemeteries and graveyards managed by people to place graves Thirdly, stipulating that the person whose land is recovered is unstable, production is delayed, income is lost or reduced due to land acquisition is damage and the State is responsible for compensation Fourthly, the provisions on compensation for livestock not only aquatic but also cattle, poultry, bees, and silkworms are also compensated if any damage occurs, including complete loss of animals farming, pet value reduction, travel costs and damage on the move Animals that have to be harvested early resulting in damage are also compensated Fifthly, stipulates that all assets that must be dismantled, moved, and installed, whose dismantlement, relocation and installation are due to land acquisition, lead to damage Sixthly, for perennial trees, it is necessary to specify that the damage is not only calculated according to the market price of the tree at the time of recovery but also the 19 damage caused by the loss of use-value, the long-term profit value of the tree Depending on the type of perennial tree, determine the period of time that the tree can be profitable to calculate compensation until the tree is no longer profitable Seventhly, it is necessary to study and improve the law on compensation when the state recovers land in the direction that the damage is compensated in whole and reality Eighthly, it is necessary to specify the damages and compensation levels for organizations, households, individuals, overseas Vietnamese, foreign-invested enterprises when their land is acquired to stop or terminate production and business activities Ninthly, it is necessary to promulgate regulations defining the damage and compensation for damage to living space, cultural space, spirituality, religion, religion caused by land acquisition 4.2.5 Solutions to perfect the law on the identification and harmonization of benefits between the state, investors, people whose land is recovered and who benefit from land acquisition Firstly, it is necessary to stipulate that all losses suffered by the owner of the acquired land and the damages that the land user has not been recovered but suffered from the land acquisition will be considered for compensation Secondly, in order to harmonize the interests of the parties and establish the responsibilities of investors, there should be a regulation to force the investor to commit to taking children of people whose land is recovered to work at establishments and enterprises Need labor if the employee meets the qualifications, qualifications and other requirements that investors require Thirdly, stipulating the method of joint investment and business capital contribution between the investor and the person whose land is recovered by the recovered land itself, the remaining land is not recovered but adjacent to the recovered land if continued continue to maintain state form of land recovery for private to implement socio-economic development projects for national and public benefits according to current regulations Fourthly, the government's regulations on land acquisition rights to apply the "redundancy" method to create a land fund will regulate the interests of those who not have land recovered but benefit from land acquisition 4.2.6 Solutions to improve the law on compensation in specific cases 4.2.6.1 Perfect the law on compensation for the remaining land investment costs when the State recovers land Regulations on the lowest and highest levels shall be compensated for each type of land in each economic region and type of urban area, serving as a basis for provincial-level People's Committees to specify in each locality 4.2.6.2 Improve the law on compensation when agricultural land is recovered Firstly, the regulation does not recover agricultural land to carry out privateinvested projects such as projects on building new urban areas and new rural residential areas; embellishment of urban centers and rural population quarters; concentrated agricultural, forestry and aquatic product production and processing zone; projects associated with the construction of adjacent houses, condominiums, plots for sale of plots, trade and service areas, except where land users contribute land to implement projects and distribute profits above basis of calculating the land use right value in the total investment value or the land user agrees to receive 20 compensation after he/she has been approached the right to contribute capital with the land use right to the project but refuses the right to contribute land or adopting a voluntary land transfer mechanism Secondly, stipulating that the person having land recovered is entitled to refuse to receive the land if the compensation land is not equal to or better than the parcel of land acquired Thirdly, it is necessary to stipulate that the people who have land lost their jobs and destabilized due to the land acquisition are the damages they have suffered, so the state is obligated to pay compensation Fourthly, instead of stipulating that the state pays an amount for training and changing jobs so that this money can not be used effectively, not spent for training purposes, changing jobs, and seeking employment The state exercises responsibility for organizing training, changing jobs and finding jobs for farmers, unless they refuse to train, change jobs and seek jobs 4.2.6.3 Improve the law on compensation when residential land is recovered Firstly, it is necessary to stipulate that in the case of land acquisition, the state must pay compensation by residential land Where the state has sought residential land for compensation but the person whose land is recovered does not agree with the land parcel selected by the state, the compensation will be made in cash Secondly, it is necessary to stipulate that when the residential land is recovered but the land is ineligible for compensation for land but compensation for properties attached to land in the case of relocation is sold or leased by the State , lease-purchase of houses or allocation of residential land with land use levy collection according to sale prices, rent prices, rent-purchase prices, residential land prices for calculating land use levies set by provincial-level People's Committees if land users are acquired There are no other parcels of land or houses under their use or ownership right in the same area of commune, ward or town Thirdly, the regulations on households and individuals to change the land use purpose to residential land for the remaining agricultural land area will not be recovered if the remaining agricultural land area is small, fragmented is not suitable suitable for agricultural production, not in the agricultural land planning but in residential land planning, residential area planning regardless of local land allocation quota Fourthly, solutions to improve the law on resettlement are associated with compensation for land upon recovery of residential land: (i) amending regulations on resettlement areas to build synchronous infrastructure by stipulating that resettlement areas must build adequate technical infrastructure systems and social infrastructure systems according to provisions of construction law; (ii) it is necessary to stipulate in principle that resettlement areas must be built to ensure adequate technical infrastructure system, social infrastructure system and ensure that resettled people can have a living live better or equal to the old place of residence; (iii) specifies that the people whose land is recovered are subject to resettlement only to comply with the decision of land acquisition and hand over the recovered land to the State when the technical infrastructure system and the public system The social infrastructure process in the resettlement area has been completed The system of technical infrastructure works and the system of social infrastructure works in the resettlement area is considered completed when it is checked and put into use; (iv) provide for the supervision of resettled people on the process of constructing 21 infrastructure of resettlement areas and resettlement houses from the commencement of construction to completion; (v) there should be provisions on post-resettlement in the direction that the state is responsible and must ensure and commit to postresettlement issues such as the quality of resettlement facilities, production land, jobs, business conditions, quality of life, cultural space, spirituality 4.2.6.4 Improve the law on compensation when land is acquired by co-users of land Firstly, supplement specific provisions on compensation for joint owners for properties associated with the land Secondly, it is necessary to specify the order and procedures for recovery and compensation for land use co-ownership; rights of complaints, denunciations, and lawsuits of co-owners and co-owners Thirdly, it is necessary to specify the co-users, co-owners to receive compensation, support and housing and resettlement or authorize others to receive these benefits Fourthly, it is necessary to specify the support policy for co-users and coowners of the property, but the land acquisition does not affect or destabilize life, production, loss of jobs or move accommodation Fifthly, the need for resettlement regulations for co-users and co-owners If cousers and co-owners cannot reach agreement on the land recipient or recipient, they may request the court to divide their common property in accordance with civil law and civil procedures Sixthly, it is necessary to specify the right to propose, lodge a complaint, denunciate and initiate a lawsuit in case of co-use and co-ownership disagree with the administrative decision or administrative act arising during the process indemnify Seventhly, it is necessary to specify the responsibilities of agencies implementing land acquisition and compensation in case of not correctly and fully identifying co-owners and co-owners resulting in damage to co-users and co-owners The remaining property is not compensated Eighthly, it is necessary to stipulate a dispute between co-users and co-owners on how to distribute compensation and pay interest within the court's jurisdiction After a court decision has taken legal effect, the land acquisition agency will pay for each person according to the court's decision The compensation amount will be deposited in the bank according to a certain period of time The amount of interest will be paid to the co-users and co-owners corresponding to the compensation amount calculated from the date the co-owners and co-owners hand over the ground to the State; Interest rates belong to the State as of the date the State hands over the ground 4.2.6.5 Improve the law on compensation in case the actual measuring area is different from the area stated in the land use right certificate Firstly, the regulations on the basis of determining the type of land that the State manages for the increased land area in comparison with the documents on land use rights have been used for a long time by the land users but in reality, the management agencies The state does not carry out any regulatory activities Secondly, limiting the power and willpower of the agency conducting land acquisition through consultation with the population community where the land is located to determine the origin, time and process of land use for The land area is further increased by consultation with people living in the same hamlet, village, 22 neighborhood, collective area knowing the origin and process of land use to determine the origin of the increased land area 4.2.6.6 Improve the law on compensation for safe corridor land when constructing works with safety protection corridors Firstly, there should be specific regulations on how to "restrict the ability of land use" due to the construction of safety corridors; Secondly, regulations on compensation responsibilities when recovering land for constructing works with safety corridors reduce land-use value; Thirdly, there should be regulations on compensation for corridor land used before planning, maps or the use rights have been lost but not yet compensated 4.3 Solutions in improving the effectiveness of the implementation of the law on compensation for land when the State recovers land Firstly, completing the granting of certificates of land use rights, ownership of houses and other land-attached assets; complete the exchange, re-issue of certificates of land use rights, ownership of houses and other land-attached assets Secondly, completing the certification of ownership of land-attached assets Thirdly, speeding up the building of the national land database Fourthly, promote transparency and transparency in the planning process, land use plan, and process of land acquisition and compensation Fifthly, establish and promote mechanisms to ensure compliance with the order and procedures for recovery and provisions on compensation, support and resettlement policies, specifically: (i) Provide training to officials in charge of compensation work when the State acquires land in the field of laws and regulations in this area; (ii) Raise the awareness of cadres who perform the work of compensation on land value under the current conditions to understand the value of land, understand the thoughts and aspirations of people losing land; (iii) Strengthening inspection and examination of compliance with regulations on order and procedures for land acquisition and the application of law in compensation when the State recovers land to promptly detect and rectify and handling violations; (iv) Handle in accordance with the law for violations arising in the recovery and compensation work; (v) Promoting the people's mastery, especially that of the people whose land is acquired and restricting the subjective imposition of compensation agencies through public consultation mechanism.; (vi) Strictly punish and resolutely land acquisition for "suspended" projects Sixthly, strengthening the propagation and education of land law in general and compensation law when the State recovers land in particular for the people Seventhly, manage and supervise regularly and strictly the use of land to prevent and promptly handle land users who arbitrarily change land use purposes, especially arbitrarily changing purposes from land types to residential land; acts of encroaching on, occupying land, using land for wrong purposes and acts of investing in illegal land Eighthly, settle quickly, accurately, definitely and lawfully complaints and denunciations related to compensation when the State recovers land 23 CONCLUSION Based on the research results of chapters of the thesis, the author draws some basic conclusions as follows: To recover land to serve national defense and security purposes; Socioeconomic development for the sake of the nation and the public is an indispensable objective The State reserves the right to recover land to use for these purposes on the grounds prescribed by law However, land acquisition will cause losses for people whose land is acquired; At the same time, it creates a relationship of interests that need to be resolved between the state, investors, and people whose land is recovered Although the land is owned by the entire people, the land use rights belong to the land users and are the property of the land users Therefore, the state is responsible for compensating damages, providing assistance to people whose land is recovered and resolving harmoniously the relationship of interests arising between the state, investors, and people who are recovered land and those who benefit from land acquisition The 2013 Land Law was promulgated on the basis of reviewing and evaluating the appropriate and unsuitable provisions of the 2003 Land Law to make necessary amendments and supplements However, up to now, the 2013 Land Law and its implementing documents have revealed certain inadequacies, have not met the requirements of reality, and have not yet effectively protected legal rights and interests of people whose land is recovered, hindering socio-economic development, potentially causing socio-political instability The inadequacies expressed in the regulations on the basis of land acquisition; compensation land price; identify the origin and type of land when compensation; identify damages and pay compensation for damages incurred when the State recovers land; the principle of "land for land" is not feasible; inadequacies in compensation of remaining land investment costs; inadequacies in compensation for land use rights, co-ownership of assets, etc The 2013 Land Law is valid for years, but the above shortcomings need to be amended and supplemented to meet practical requirements; become an effective tool for the state to manage land and use land resources effectively; making an important contribution to ensuring the rights of land users when land is acquired The completion of the land law in general, compensation when the State recovers land, in particular, is based on the following directions: i) Based on the Party's views, guidelines, and policies on land policies and laws collectively, pay compensation when the State recovers land in particular; ii) Ensure the harmonization of the interests of people whose land is acquired, the state and investors; iii) perfecting the law on compensation when the State recovers land associated with the completion of the land law in general and other relevant laws; iv) refer to foreign laws in improving compensation law when the state acquires land Based on the orientation of improving the law on compensation when the 24 State recovers land, the dissertation has proposed the following two groups of solutions: - Solutions to improve the law on land compensation when the State recovers land including i) Solutions to improve the law on land acquisition bases; ii) Solutions to improve the law on compensation principles when land is acquired; iii) solutions to perfect the law on conditions of compensation for land when the State recovers land; iv) a solution to improve the law on determining losses when the state acquires land; v) Complete solutions to the law on identifying and harmonizing the benefits of the state, investors, people whose land is recovered and who benefit from the land acquisition; vi) legal improvement solutions in specific cases - Solutions to improve the effectiveness of land compensation law enforcement when the State acquires land including i) Completing the issuance of certificates of land use rights, ownership of houses and other attached assets on land; complete the renewal, re-grant of certificates of land use rights, ownership of houses and other landattached assets; ii) Speeding up the process of issuing certification of property rights attached to land; iii) Completing the construction of the national land database; iv) promoting openness and transparency in the planning process, land use plan and process of land acquisition and compensation; v) Establishing and promoting mechanisms to ensure compliance with the order and procedures for land acquisition and regulations on compensation, support and resettlement policies; vi) Strengthening the propagation and education of land law in general and compensation law when the State recovers land in particular for people, thereby creating people's consensus when the state recovers land; vii) Managing and supervising regularly and strictly the use of land to prevent and promptly handle land users who arbitrarily change land use purposes, especially arbitrarily changing land use purposes from land users type of land to residential land; acts of encroaching on, occupying land, using land for wrong purposes and acts of investing in illegal land; viii) Handling quickly, accurately, completely and legally complaints and denunciations related to compensation when the State recovers land LIST OF PUBLISHED WORKS RELATED TO THE THESIS Nguyen Vinh Dien (co-author) (2015), "The Procedures for land acquisition and site clearance according to the 2013 Land Law", State and Law Journal, (No 2), p 42 - 49 Nguyen Vinh Dien (co-author) (2015), "Singapore's land and real estate law policies and some suggestions for Vietnam", Democratic and Legal Journal, (No 11), p 58 - 64 Nguyen Vinh Dien (2017), "Determining damages and compensation when the state recovers land", Democratic and Legal Journal, (No 11), p 59 - 64 Nguyen Vinh Dien (2017), "Inadequacies in the law on resettlement policies when the State recovers land in accordance with the 2013 land law", International conference on Policies and Legislation on resettlement: From theory to practice, Organized by Hue Law University and Queensland Business University (Australia), December 14, 2017, Thua Thien Hue, p 40 - 50 Nguyen Vinh Dien (2018), "Compensation for land acquisition by the State for national defense and security purposes; socio-economic development for the nation and public interest”, Legislative Research Journal, (No 22), p 50 - 55 Nguyen Vinh Dien (2019), "Improving the law on compensation for co-ownership of land, co-ownership of properties associated with land when the State recovers land for national defense and security purposes; Socio-economic development for the nation and public interest”, Legal and Practical Journal, (No 39), p 17 - 24 ... of land users iii) Compensation by resettlement policy Resettlement is the compensation made with residential land in resettlement areas or houses for resettlement to create new houses for people... provincial-level People''s Committees from authorizing district-level People''s Committees to decide on specific land prices as a basis for compensation, which provincial-level People''s Committees shall decide... principle that resettlement areas must be built to ensure adequate technical infrastructure system, social infrastructure system and ensure that resettled people can have a living live better or equal