Tiến Sĩ Two land registration systems the land law of việt nam and of sweden

Luận án tiến sĩ bằng tiếng Anh năm 2011
Đề tài: TWO LAND REGISTRATION SYSTEMS THE LAND LAW OF VIỆT NAM AND OF SWEDEN


TABLE OF CONTENTS
ACKNOWLEDGEMENTS 6
LIST OF ABBREVIATIONS . 7
CHAPTER 1. INTRODUCTION . 8
1.1. Background 8
1.2. Purpose 13
1.3. Delimitation .14
1.4. Method 16
1.4.1. Legal dogmatics 17
1.4.2. Comparison 18
1.4.3. Methodology of dialectical and historical materialism 19
1.5. Materials 21
1.6. Outline .22
CHAPTER 2. INTRODUCTION TO LAND REGISTRATION .24
2.1. The need for a land registration system 24
2.2. The central concept and important elements of a system of land registration 27
2.2.1. The concept of a system of land registration 27
2.2.2. Important elements of a system of land registration .35
2.3. The benefits of a system of land registration 45
2.3.1. For the land owner/user and related subjects 47
2.3.2. For the State .48
2.3.3. For society 50
2.4. The requirements of a system of land registration 51
2.4.1. Accuracy and security .52
2.4.2. Clarity and simplicity 53
2.4.3. Timeliness .54
2.4.4. Fairness and accessibility .55
2.4.5. Low cost or cheapness 56
2.4.6. Sustainability 58
SUMMARY 59
CHAPTER 3. THE SYSTEM OF LAND REGISTRATION IN SWEDEN –
RESEARCH AND EVALUATION .61
3.1. Outline of the system of land registration in Sweden 63
3.1.1. The process of setting up the system of landregistration .63
3.1.2. Important reforms to the system of land registration in Sweden .68
3.1.2.1. Land amalgamation to overcome land fragmentation .68
3.1.2.2. Computerization and other new technologiesin the system of land
registration .70
3.1.2.3. Unification of the authority managing the system of land registration.76
3.2. The organization of the system of land registration in Sweden .76
3.2.1. The machinery and the staff 76
3.2.1.1. The machinery 76
3.2.1.2. The staff .80
3.2.2. The procedures for land registration .83
3.2.3. Model and content of registered land information in Sweden 90
3.3. Evaluation of the system of land registration in Sweden .95
SUMMARY 105
CHAPTER 4. THE LAND REGISTRATION SYSTEM AND ITS RELATION
TO THE LAND LAW OF VIỆT NAM .107
4.1. Outline of land registration system in Việt Nam .108
4.1.1. Land registration in the former regimes in Việt Nam .109
4.1.1.1. In feudal periods 109
4.1.1.2. In the French colonial period .114
4.1.1.3. In the South of Việt Nam from 1954 to 1975 .116
4.1.2. Land registration established by revolutionary power (since 1945 in the
North and from 1975 in the whole) .118
4.1.2.1. Before 1980 118
4.1.2.2. From 1980 to 1988 .120
4.1.2.3. From 1988 up to the present .121
4.2. Organizing the system of land registration .126
4.2.1. The machinery and the staff 126
4.2.1.1. The machinery 126
4.2.1.2. The staff .133
4.2.2. Land registration procedures 135
4.2.2.1. Registration unit .135
4.2.2.2. Circumstances for land use right registration and persons responsible
to register land use right .137
4.2.2.3. General procedures for land registration .138
4.2.3. Construction and management of land information after land registration
.145
4.2.3.1. Contents of land information 145
4.2.3.2. Land information management .151
4.2.3.3. Land information supply .154
4.3. Evaluation of the Vietnamese land registrationsystem .156
4.3.1. The machinery 156
4.3.1.1. An agency with unstable unification .156
4.3.1.2. An unstable organization for the implementation of land registration
activity 160
4.3.2. The staff 163
4.3.3. Land registration procedures and land information 177
4.3.3.1. General procedures for land registration .177
4.3.3.2. The land information system .181
4.4. Assessment of activities regarding land registration .187
4.4.1. Land use planning .187
4.4.2. Issue of land use right certificates .199
4.4.3. Determination of land prices .219
SUMMARY 231
CHAPTER 5. HOW VIỆT NAM CAN IMPROVE ITS LAND REGISTRATION
SYSTEM BY STUDYING AND THEN COMPARING ITSELF TO THE
SWEDISH LAND REGISTRATION SYSTEM .234
5.1. The comparison of land registration system between Vietnamese and Swedish
legal frameworks 234
5.2. Some recommendations for improving the Vietnamese land registration system
.243
5.2.1. A general recommendation .243
5.2.2. Some recommendations for improvement of the land registration system
.251
5.2.2.1. For the administrative machinery . 251
5
5.2.2.2. For the staff 256
5.2.2.3. Computerizing the land database and land information system .262
5.2.3. Reorganizing some activities relating to land registration .270
5.2.3.1. Promulgation of the Law on registration ofland use rights and
ownership of real property 270
5.2.3.2. Land use planning 273
5.2.3.3. Issue of land use right certificates 279
5.2.3.4. Determination of land price 282
CONCLUSION .287

CHAPTER 1
INTRODUCTION
1.1. Background
Based on the implementation of the “open-door” policy and the
concurrent acceptance of the market economy, Việt Nam has in recent years
achieved much both in terms of joining the world market and in improving
social life. Under the impact of the process of industrialization and
modernization, there has been a major change in theuse of major resources
such as capital, land and labour with the focus being on industry and services.
The open-door policy was implemented by the Communist Party and the Vietnamese
State at the end of 1986 in accordance with the Communist Party’s guidelines as laid down in
the 6
th
nationwide representatives’ assembly
1
. At this assembly, besides the recognition of
mistakes and defects in earlier guidelines and policies, the Communist Party made an
innovative change in its economic thinking. It established entirely new guidelines for
developing a multi-sector commodity-based economy coupled with an extension of
international cooperation. Some typical quotes are: “ regarding the economy with its multi-sector structure as a special characteristic of thetransitional period”, “ The direction for
renewing the mechanism of economic management was by way of the abolition of the system
based on administrative subsidies”, “ needed to have policies on extending the exchange of
goods and abolishing both the closed-door policy and the partition of the market”,
“ enlarging and enhancing the effects of the international economy”, “ trying to establish
economic relations with developed countries, international organizations and foreign
individuals”, “ encouraging foreign investments , need to have policies and methods in
order to create favourable conditions for foreigners and overseas Vietnamese doing business
in Việt Nam”
2
. This opened a period of renewal in Vietnamese history.
On July 28, 1995, Việt Nam officially became the seventh member of the Association
of South-East Asian Nations (ASEAN). At the beginning of March, 1996, Việt Nam
participated in the Asia – Europe Meetings (ASEM) from their establishment. On November
14, 1998, Việt Nam took part in the Asia – Pacific Economic Cooperation (APEC). And on
November 7
th
, 2006, the General Council of the World Trade Organization (WTO) approved
the Protocol (WT/ACC/VNM/48) on the Accession of Việt Nam by way of a unanimous vote
1
The 6
th
nationwide representative’s assembly of the Communist Party took place between the 15th
and the 18th, December, 1986.
2
Cited from the Documents of the 6
th
nationwide representative’s assembly.
9
of all 149 members of WTO, finishing the eleven-year process of negotiation regarding Việt
Nam’s accession. On November 29, 2006, the NationalAssembly of Việt Nam ratified the
Protocol
3
.
Living conditions have improved. The average per capita income increased from
below 200 USD/person in 1990 to 1024 USD/person in 2008. The number of poor households
(according to the national standard) decreased fromover 60% in 1990 to 13,8% in 2008
4
.
The rules that relate to land have, after a series of amendments, become
crucial to the above process. Land users now have greater rights to land. Land
use rights and the properties attached to land havebecome a huge source of
capital that the State and the people use for investing, developing businesses,
enlarging co-operative relationships and attractingforeign investment to Việt
Nam.
However, as the State has had not much experience in managing this
new market, the real estate market in general and the market in land use rights
in particular has developed spontaneously and outside the State’s control,
leading to some negative impacts on the socio-economic situation. Many
changes are occurring, but the State has not properly regulated them yet.
Within no more than fifteen years, the real estate market, especially the undeveloped
land and residential housing markets, passed through three waves of “boom” (the price of
land and residential housing increased continuously; many transactions were engaged in,
pushing land prices higher and higher in a way thatthe State could not control) and relative
“slump” (the real estate market became quiet even though land and residential housing prices
did not decrease) : "boom" from the end of 1993 to 1996, from the end of 2000 to 2004 and
from the end of 2006 to 2008; “slump” from 1997 to 1999, from the end of 2004 to 2006
and from 2008 up to the present, this last being mainly due to the world economic crisis.
Although real estate transactions take place all over the country, most of
them are illegal, thus creating an unofficial market that is outside the State’s
control. This is for many reasons, including the following: the documentation
3
The Resolution No.71/2006/QH11 of the National Assembly dated November 29, 2006 on ratifying
the Protocol of Việt Nam’s Accession to WTO.
4
The Government’s Periodic Report on the implementation of human rights in Việt Nam, Information
Portal of the Vietnamese Government, dated April 24, 2009,
http://www.chinhphu.vn/pls/portal/docs/PAGE/VIETNAM_GOVERNMENT_PORTAL/NEWS_REP/
HD_CUACHINHPHU/NAM2009/THANG04/BAO%20CAO%20NHAN%20QUYEN.HTM.
Retrieved [20101018 20:11].
10
relating to most real properties is lacking so dealings with them cannot be
brought within the scope of lawful transactions (the simplest case being the
lack of a certificate of land use right); the capacity of the competent authorities
regarding land management remains weak and full of shortcomings, while there
is also an overlap in competence between the various agencies which leads to
evasion of responsibility and the relaxation of both discipline and management;
land use planning – a management tool as well as a source of information that
affects the development of the real estate market – is patchy and lacks both
viability and stability; finally, although it is not publicly admitted, there are
many opportunities for such negative phenomena as corruption and speculation
in land. Moreover, financial policies regarding land prices and the financial
obligations of land users have not shown yet their effects on regulating and
supporting the development of the real estate market. In general, the
development of the real estate market has not met yet the demands of society,
especially the demand for residential homes for low-income people.
All of the above has created a confused real property market in Việt
Nam. Though it is close to its inception, this has already led to much inequality
and to disorder in the life of the people and in economic development as a
whole. In this context, the problem of how to manage the real estate market and
effectively exploit real property and correctly orientate its development has
become a pressing one.
A number of solutions had been put forward by the Communist Party
and the State in their guidelines and policies withthe following fundamental
ideas as key:
“ Setting up a public, united and transparent mechanism and process
of real estate registration in order to create conditions for cleaning up and
giving legal safety to real estate transactions; onthat basis, it can positively
impact business and investment ”
5
;
5
Cited from the Resolution No.16/2007/NQ-CP of the Government dated February 27, 2007 on
promulgating action programs of the Government in order to implement the Resolution enacted by the
10
th
Central Committee of the Communist Party at the fourth Assembly about some main guidelines
11
“ Continuing to improve the legal system, mechanism and policies for
the circulation of rights to use land and other real estate in the market regime
in order that they can really become a capital resource for production and
business Modernizing the system of management of cadastral files and real
properties. Developing synchronously the services of legal consultants and
notaries and the organization of assessments, auctions and registration of land
transactions in order to create a safe and convenient environment for
transactions in the real estate market in general and the land use right market
in particular”
6
.
One of the tools used is land registration, and onething which needs to
be done is the modernization of the system of land registration and land/real
estate information supply in general.
Improving land registration and the issue of land use right certificates in
particular will ensure that land and other real properties become lawful and
officially sanctioned commodities which can be the subject of transactions in
the real estate market. Successful establishment ofthe land registration system
and the provision of a system of real estate information supply on the basis of
the application of information technology will playan important role in
simplifying administrative procedures; making the real estate market more and
more transparent with full, clear information on real properties; guaranteeing
legal safety for parties in transactions; limiting disputes regarding land and real
estate; and assisting the State in both managing the real estate market and
preventing lose of tax.
The policies of the Communist Party and the Vietnamese Government
have led to a number of attempts at reform and modernization of the land
registration system based on the use of informationtechnology, better updating
changes in land use and supply of land information in some localities: the state
can treat these experiences as the basic for wider and more general reform.
and policies for the quick and stable development of economy after Việt Nam becomes a member of
WTO.
6
Cited from Section II.2 and II.3, Resolution No.21-NQ/TW dated January 31, 2008 of the 10
th
Central
Committee of the Communist Party at the sixth Assembly on continuing to improve the market
economy system according to the socialist orientation.
12
Certainly, the amendment of the law governing the establishment and
operation of the land registration system is an important problem which needs
to be resolved. A number of regulations have been promulgated relating to the
adjustment of the organization, functions and obligations of the land
registration machinery together with the establishment of the land use right
registration office; the unification of the certificate evidencing the rights to use
land and to own a residential home or other assets attached to land; the
digitalization of cadastral data which is currentlyarchived in a paper form
which will be linked to new processes relating to registration and the update of
changes in land use; finally, a draft law on real estate registration which will
unify the registration requirements for all types of real property has also been
prepared.
However, these changes have not really shown their effects yet. Some
regulations were drafted or promulgated with a viewto certain purely local
benefits, not to the general benefit of the State and the people. The existence of
many legal provisions leading to different orders and procedures in land
registration activity - precisely because of the lack of united regulations - leads
to overlaps, contradictions and the separation of the managerial competences of
the various authorized agencies, together with incoherence and a lack of
completeness in the land/real estate information system. The registration of
land and other real properties involves records being archived at three
administrative levels which makes the land registration machinery even more
cumbersome, while many essential elements which need to be registered have
not yet even been regulated (for example, a mechanism for the registration of
easements is still entirely lacking). There is a lack of information about land
use planning, land prices and the definition of thetrue legal status of land and
real properties; as well as of regulations on the specific process of setting up
the land information system, dealing with and updating registered data and
managing, digitalising and providing access to realestate information.
13
These problems show there are still many shortcomings in the
Vietnamese land registration system because the lawregulating has still not
fully dealt with them.
In order to reform and modernize the land registration system pursuant
to the Communist Party’s policies, research on and appraisal of the current
situation of the land registration system needs to be engaged so that one can
truly grasp the shortcomings of the system. Once this is done, solutions can be
enacted and implemented.
Many research projects have been carried out. However, most of them
focus on technical solutions regarding the computerization of the management
and operation of land registration activity. Some researches on legal aspects
aim at the real estate market as a whole with little focus on land registration.
Such research as does concentrate on the registration system mainly pays
attention to the problem of real property ownershipin general and does not
focus on the fact that land management should be a foundation for the
management of all other types of real property. Further, they do not determine
the essential factors of a land registration systemwith a view to setting up an
effective system, especially so far as concerns information supply.
What I choose to focus on is evaluating the Vietnamese land registration
system and determining the factors indispensable for its working. In doing this,
I examine useful examples in other registration systems and the Swedish
system in particular is studied for reasons which will be explained later in this
chapter. The title of my research is thus “Two land registration systems – The
land law of Việt Nam and of Sweden”.
1.2. Purpose
Bearing in mind the demand for the modernization ofthe land
registration and the real estate information systemwith a view to assisting the
State in managing and making the real estate marketmore and more
transparent, this research has two aims.
14
First, it defines the fundamental issues of any land registration system,
highlights the benefits of an effective system and the requirements for it, as
well as the factors which can be considered as its indispensable pillars.
Legislators should pay attention to these issues when reforming the land
registration system.
Secondly, the research evaluates the current situation of the Vietnamese
land registration system by way of an analysis of the legal provisions regulating
it and their implementation. This will allow me, and perhaps other researchers,
to make some recommendations and generally create abody of opinion in
favour of the modernization of the land registration system.
Under this second head, the research intends to: (i) expand knowledge
of the land registration system, its necessity and benefits; (ii) determine the
requirements and key factors and the relationship between these factors when
setting up a land registration system; (iii) give an overview of the existing land
registration system in Việt Nam, its achievements and the shortcomings that
need to be overcome; (iv) study foreign examples and compare them with the
Vietnamese situation; (v) draw lessons and recommendations for the reform of
the land registration system that Việt Nam is aiming to implement.
1.3. Delimitation
In this research, land registration is treated as being divided into two
main areas of activity: one is the cadastre with its concomitant technical
features and the other is title registration (or land registration) with its more
legally oriented characteristics. Both involve professional activities
implemented manually or through processing softwareon the basis of the
specific processes and files, maps, drawings and registers produced in various
ways.
However, the research will not focus on technical aspects relating to the
operation of the land registration system. It aims to analyse the legal provisions
regulating the system and excludes from its scope the norms, process and
procedures guiding more specialized agencies when carrying out their specific