Completing regulations on disputes over LUR transfer contracts in Vietnam

Disputes over the transfer of land use rights (LURCs) are a common type of dispute in land disputes. This type of disputes is really complicated since the country entered the market economy and was governed by the laws of the market. In essence, this is a dispute over rights and obligations between the transferor of the land use right and the transferee of the land use right when concluding and performing the contract. Disputes over land use right transfer contracts are complicated when the real estate market develops actively and the value of land-related transactions increases. This makes the subjects participating in the land use right transfer transaction to defy the law to perform the transaction contrary to the provisions of the law.

Firstly, the current law lacks specific provisions on "land use right transfer contract".

The contract provisions on land use rights in Article 500 of the Civil Code 2015 only list the relationships of land use right transfer under the current land law. That regulation has not mentioned the legal characteristics of each form of land use right transfer. Clause d, Article 17 of the Law on Real Estate Business 2014, stipulates that real estate business contracts that mention "contracts for the transfer, lease, and sublease of land use rights". However, that regulation still does not clearly define the content of the land use right transfer contract. In addition, this provision only applies to contracts that are governed by the law on real estate business.

The contract is the basis for ensuring the performance of rights and obligations of the parties, resolving disputes, avoiding errors, and limiting risks. For an asset class subject to many legal documents (such as land use rights), the development of a complete and unified concept in the legal document system is an essential element for smooth and effective law application and implementation.

Second, the inadequacy in determining the effective time of the land use right transfer contract

Currently, the issue of the effective time of the land use right transfer contract has been regulated by the Land Law, the Civil Code, the Decree on the registration of secured transactions, which is effective from the time of registration. QSDD. However, the Law on Notarization stipulates that a notarized contract will take effect from the time it is notarized.

So, the effective time of the land use right transfer contract is the time the contract is notarized or the time the land use right is registered at the land use right registration agency. The practical application of this issue is still difficult and unresolved because there are many different interpretations, so the application of the law to solve it is also different, affecting the quality of the case resolution.

Third, is it necessary to stipulate that the form of land use right transfer contract must be notarized and authenticated?

Currently, the number of cases of violations of the form of land use right transfer contracts is increasing. The reason is that people's intellectual level is still low and people's legal awareness is not high. Therefore, they do not understand all the provisions of the law on land, especially the regulations on the transfer of land use rights, which requires a notarized contract to be signed. On the other hand, because at present, the issuance of first-time LURCs has not reached 100%, so most people only make "buying and selling" in the form of handwritten purchase and sale papers, without notarization. Therefore, the current law needs to amend the regulations on the form of land use right transfer contract to reduce the number of cases of violation of the form of the contract.

2. Recommendations

Firstly, perfecting the law on the concept of land use right transfer contract

The Civil Code of 2015 does not have separate provisions on contracts for transfer of land use rights. The 2013 Land Law and its guiding documents also do not have specific provisions on the contract of transfer of land use rights in particular and the transfer of land use rights in general. Laws and codes do not provide a specific definition of land use right transfer contract disputes, which will make it difficult for transaction participants as well as court authorities to adjudicate disputes. Therefore, it is necessary to provide more specific guidance on the issue of land use right transfer, land use right transfer contract disputes, and the validity of land use right transfer contracts.

Second, it is necessary to amend the legal regulations on the form of contract for transfer of LURCs

According to the current law, the contract for transfer of land use right must be made in writing and must be notarized and authenticated. According to current practice, when "agreeing to buy and sell", people usually only make a handwritten purchase and sale paper, both parties sign it and have more witnesses to sign to certify the sale and purchase relationship above. Therefore, the disputes over the contract of transfer of land use right that violate the formality conditions are notarized and authenticated a lot. Therefore, the author boldly proposes a solution: Derived from the position and importance of the land ownership regime, the law needs to amend the regulations on land use right transfer contracts. The land use right transfer contract must be in writing, but notarization is not required.

Third, finalize regulations on determining the effective time of land use right transfer contracts

Currently, the issue of the effective time of the land use right transfer contract has been regulated by the Land Law, Civil Code, the Decree on registration of secured transactions, which is effective from the time of registration of land use right, but the Law on Notary Public The contract is notarized shall take effect from the time it is notarized.

So, the effective time of the land use right transfer contract is the time the contract is notarized or the time the land use right is registered at the land use right registration agency. The practical application of this issue is still difficult and unresolved because there are many different interpretations, so the application of the law to solve it is also different, affecting the quality of the case resolution.

In order for the provisions of law such as the Land Law, the Law on Notary Public, the Civil Code, and the Decree on registration of secured transactions to be consistent with reality and to agree with each other on the effective time of the land use right transfer contract, it is necessary to It is necessary to promulgate the Law on Registration of Secured Transactions and supplement the provisions on the validity of the Law on Notarization in the direction "The contract takes effect from the time of notarization, except for cases in which land use rights transactions are effective from the time it is registered in accordance with the provisions of the Land Law, the Law on Registration of Secured Transactions and the Civil Code in order to facilitate the dispute settlement activities at the Court to be more effective, ensuring the cases resolved according to the legal basis.

CAO THI THUY HUNG (State Legal Aid Center of Dak Nong Province)

Source: Tap Chi Toa An (Court Journal)

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