What is possession with a legal basis and possession without a legal basis? What does the law say about the right to possess in Vietnam?
What is possession according to the law?
Pursuant to the provisions of Article 179 of the 2015 Civil Code of Vietnam on the concept of possession, possession means that an entity holds and controls a property directly or indirectly as holder of rights to such property. Possession includes possession of owners and possession of non-owners. However, the possession of non-owners may not be the basis for establishment of ownership, except for the cases prescribed in Articles 228, 229, 230, 231, 232, 233 and 236 of the 2015 Civil Code of Vietnam.
Pursuant to the provisions of Chapter XII of the 2015 Civil Code of Vietnam, possession is classified as follows:
- Possession in good faith: means the possession that the possessor has bases to believe that he/she has the right to the property under his/her possession.
- Possession not in good faith: means that the possession that the possessor knew or should have known that he/she has no right to the property under his/her possession.
- Continuous possession of property: is possession of property which occurs over a period of time without dispute relating to such property or with dispute but no effective judgment or decision on settlement of such dispute is issued, including the case when the property is delivered to another person for possession.
- Overt possession: Possession of property shall be deemed to be overt possession when it occurs in a transparent manner, without concealment; when property currently being possessed is used in accordance with its functions and usage and is preserved and retained by the possessor as if it were his or her own property.
In addition, each possessor shall be presumed in good faith. If a person believes that such possessor is not in good faith, he/she must prove it. If there is a dispute over the rights to a property, the possessor of such property shall be presumed to have those rights. The disputing person must prove that the possessor have no right.
When the possession is violated by another person, the possessor is entitled to, personally or through a court or a competent authority, compels the violator to terminate his/her violation, make restitution, return the property and compensate for any damage.
What is possession with a legal basis and possession without a legal basis? What does the law say about the right to possess in Vietnam? (Image from the Internet)
What is possession with a legal basis and possession without a legal basis?
Possession with a legal basis is specified in Article 165 of the 2015 Civil Code of Vietnam as follows:
Possession with a legal basis
1. Possession with a legal basis is the possession of a property in any of the following cases:
a) The owner possesses the property;
b) A person is authorized by the owner to manage the property;
c) A person to whom the right to possession has been transferred through a civil transaction in accordance with the provisions of law;
d) A person who discovers and keeps derelict property, property with unidentified owners, property which has been let drop on the ground, left over out of inadvertence, buried or sunken in accordance with this Code and/or relevant laws.
dd) A person who discovers and keeps stray domestic animals, poultry or raised aquatic animals in accordance with this Code and/or relevant laws;
e) Other cases as prescribed by law.
2. A possession of property which does not comply with the provisions of Clause 1 of this Article is a possession without a legal basis.
Thus, when falling into the cases specified in Clause 1, Article 165 of the 2015 Civil Code of Vietnam, it is considered to be possession with a legal basis, the rest is possession without a legal basis.
What does the law say about the right to possess in Vietnam?
Pursuant to the provisions in subsection 1, Section 1, Chapter XIII of the 2015 Civil Code of Vietnam on the right to possess, as follows:
Right to possess of owners: Where an owner possesses its own property, such owner may do all things to keep and manage the property in accordance with his or her wishes provided that it is not contrary to law or social morals to do so.
- Right to possess of persons managing property under authorization of owner: When an owner authorizes another person to manage his or her property, the authorized person shall exercise the right to possess such property within the scope, in the manner and for the duration determined by the owner. However, a person authorized to manage property is not able to become the owner of the property delivered as prescribed in Article 236 of the 2015 Civil Code of Vietnam.
- Right to possess of persons to which property is delivered through civil transactions: Where an owner delivers property to another person through a civil transaction which does not include the transfer of ownership rights, the person to whom the property is delivered must undertake the possession of such property in a manner consistent with the purpose and content of the transaction. At the same time, the person to which the property is delivered has the right to use such property and is entitled to transfer the right to possess and use the property to another person if the owner so agrees. However, the person to whom the property is delivered is not able to become the owner of that property as prescribed in Article 236 of the 2015 Civil Code of Vietnam.
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