IMPROVING THE LAW ON LAND DISPUTE RESOLUTION FROM THE PRACTICE OF THE PEOPLE’S COURT OF HỒ CHÍ MINH CITY
Nguyễn Trọng Tuấn
PhD, Faculty of Law, Nguyễn Tất Thành University
Phạm Thị Huyền Nga
Graduate student, Faculty of Law, Nguyễn Tất Thành University
ABSTRACT
Based on theoretical issues on land disputes and the law on resolving land disputes through courts, evaluating the effectiveness of handling land dispute cases at the People’s Court. The authors point out the current legal situation regarding land dispute resolution in Hồ Chí Minh City and propose solutions to improve the law on resolving land disputes from the practice of the People’s Court of Hồ Chí Minh City.
Keywords: land disputes, Court, Law on Land.
I. OVERVIEW OF LAND DISPUTE RESOLUTION AT THE COURT
- Concept of land dispute resolution at the Court
According to Clause 24, Article 1 of the 2013 Law on Land: “Land disputes are disputes over the rights and obligations of land users between two or more parties in land relations”. In this context, land dispute resolution at the Court refers to the activities of the Court in resolving land disputes according to civil or administrative procedural laws.
Specifically, the Court resolves under civil procedures for land disputes regarding properties attached to land and disputes over land use rights where the land user has a Land Use Rights Certificate or any of the documents stipulated in Article 100 of the 2013 Law on Land and Article 137 of the 2024 Law on Land, or does not have any of the documents stipulated in Article 100, and the dispute has undergone mediation at the Commune People’s Committee but failed, and there is a request for the Court to resolve it.
- Jurisdiction to resolve land disputes at the Court
The State encourages parties to resolve land disputes through self-negotiation or mediation at the grassroots level. When land disputes cannot be resolved independently, the parties shall submit the dispute to the Commune People’s Committee where the dispute is located for mediation.
If mediation is unsuccessful, the parties shall submit a petition to the next competent authority, either the People’s Committee or the People’s Court, to resolve the land dispute under the provisions of the 2013 Law on Land. For land disputes where the disputant holds a Land Use Rights Certificate or any of the documents stipulated in Article 100 of the 2013 Law on Land, and disputes over properties attached to land, the Court shall resolve the dispute (Clause 1, Article 203).
This means that for land disputes where the disputant holds a Land Use Rights Certificate, a certificate of house ownership and land use rights, a house ownership certificate, a construction works ownership certificate, a certificate of land use rights, house ownership and other properties attached to land, or any of the documents stipulated in Article 100 of this Law, and disputes over properties attached to land, they fall within the jurisdiction of the Court. The resolution procedure follows the civil procedures prescribed in the 2015 Code of Civil Procedure.
For land disputes where the disputant does not hold a Land Use Rights Certificate or any of the documents stipulated in Article 100 of the 2013 Law on Land, the disputant shall choose one of two dispute resolution forms stipulated in Clause 2, Article 203: (i) submitting a petition for dispute resolution to the competent People’s Committee; or (ii) filing a lawsuit at the competent People’s Court under civil procedural law provisions.
Therefore, for land disputes where the disputant does not hold a Land Use Rights Certificate (now known as the certificate of land use rights, house ownership, and other properties on land) or any of the documents stipulated in Article 100, the disputant can choose, but only one of the two resolution forms as mentioned above (Lê Thị Bích Chi, 2021).
With regulations on jurisdiction to resolve land disputes, the 2013 Law on Land has facilitated disputants with more choices in selecting the authority to resolve land disputes.
- Procedure for resolving land disputes at the Court
To file a lawsuit for a land dispute case at the Court and have the Court accept and resolve it, the parties must meet 2 conditions, including (i) the party must belong to the case where the Court has jurisdiction to resolve the land dispute; (ii) the case has undergone mediation at the Commune People’s Committee in instances required by law (Phòng PBGDPL, 2021). The resolution of land disputes at the Court is conducted according to the general provisions of the Code of Civil Procedure.
Upon receiving a petition for resolving a land dispute, the Court will review, process, and accept the petition. According to Article 195 of the 2015 Code of Civil Procedure, after receiving the petition and accompanying materials and evidence, if the case falls under the Court’s jurisdiction, the Judge will immediately notify the petitioner and estimate the advance court fee for them to proceed with the payment procedures if they are required to pay the advance court fee. In cases where the petitioner is exempted from or not required to pay the advance court fee, the Judge must accept the case upon receiving the petition and accompanying materials and evidence.
Preparation and trial, according to Article 203 of the 2015 Code of Civil Procedure, the preparation period for a trial of a land dispute case is 04 months, and complex cases can be extended by no more than 02 months (total of 06 months); if the case does not fall under circumstances for temporary suspension or case dismissal, the Court will proceed to trial. After the first-instance judgment, the disputing parties have the right to appeal if there are grounds as prescribed (Khắc Niệm, 2020).
II. PRACTICAL RESOLUTION OF LAND DISPUTES AT THE PEOPLE’S COURT OF HO CHI MINH CITY
- Situation of land dispute resolution at the People’s Court of Ho Chi Minh City
In recent times, civil disputes related to land use rights and properties attached to land have increased in both quantity and complexity. According to statistics on the Supreme People’s Court’s electronic information page, from January 1st 2021 to January 1st 2023: The People’s Court of Ho Chi Minh City issued 1558 decisions and judgments; The People’s Court of Hà Nội issued 648 decisions and judgments; The People’s Court of Đà Nẵng City issued 130 decisions and judgments (Nguyễn Quốc Hưng, 2023).
Among them, land dispute cases in Ho Chi Minh City always account for the majority of civil dispute cases, land disputes in Ho Chi Minh City, and have the highest rate compared to the whole country, with 70% of the resolved complaints, denunciations, and disputes related to land.
- Current situation of land dispute resolution at the People’s Court of Hồ Chí Minh City
Although the 2013 Law on Land provides a definition of land disputes in Clause 24, Article 3, and this regulation is maintained in Clause 47, Article 3 of the 2024 Law on Land: “Land disputes are disputes over the rights and obligations of land users between two or more parties in land relations”, this regulation still does not specify the signs or methods to determine what constitutes undisputed land, nor does it explain what land relations are.
This unresolved issue in the 2013 Law on Land has created barriers in mortgaging land use rights of households (Thụy Châu, 2023). Currently, in practice, to determine undisputed land, the mortgagor must have a confirmation from the Commune People’s Committee where the land is located about the land being undisputed. According to Article 202 of the 2013 Law on Land, land disputes must undergo a mediation procedure at the Commune People’s Committee where the land is located before filing a lawsuit at the Court. Therefore, the Commune People’s Committee where the land is located will proactively grasp the legal status of the land use rights, whether it is disputed or not.
However, as Huỳnh Thị Kim Thoa (2023) pointed out, “the downside of this situation is the formation of a ‘begging’ mechanism and the abuse of power by local officials, which is considered a custom that needs to be abolished, especially during the phase of building a legal system compatible with the current digital economy policy” (p.482).
Regarding disputes over land use rights and properties attached to land in cases of multiple co-owners and users: When a plot of land has multiple co-users, and multiple co-owners of houses and other properties attached to the land, the Land Use Rights Certificate, house ownership certificate, and certificate of properties attached to land must list all the names of the co-users and co-owners of houses and other properties attached to the land, and a certificate must be issued to each individual.
In cases where one of the co-users wishes to transfer land but does not meet the conditions to subdivide the plot, even if the transferor and transferee both agree to transfer a part of the land and have handed over the land, and despite having received the full transfer payment, if one party does not agree on co-ownership, the Court will not recognize the ownership rights of the parties.
For example, in Judgment No. 47/2021/DS-PT on “Dispute over property ownership, land use rights transfer contract” by the People’s Court of Hồ Chí Minh City: The plaintiff (landowner and land user) signed a contract to transfer land use rights (including properties attached to the land) to the defendant. In reality, the plaintiff only transferred to the defendant a portion of the land with a total area of 106.21m2, while the remaining land with a width of 2.67m and a length of 24.7m still belonged to the plaintiff.
However, the defendant, after being issued a house ownership and land use rights certificate, used the entire land as collateral for another person’s loan at a bank. As a result, the plaintiff filed a lawsuit requesting recognition of the portion of the land with a width of 2.67m as their own property.
Currently, in the process of resolving the case, the People’s Court of Hồ Chí Minh City has identified two viewpoints on resolving the case:
– Viewpoint 01: The transfer transaction between the two parties violates legal prohibitions, and the contract subject matter cannot be performed, rendering the land transfer contract between the parties entirely void.
– Viewpoint 02: When the parties agreed to the transfer and carried out the transaction of transferring a portion of the land, they were aware that partial transfer could not be notarized and could not subdivide the plot, but they still agreed to proceed. If one of the parties does not agree to co-own the certificate, the other party disputes at the Court, and the Court has the authority to recognize co-ownership. If the Court does not recognize co-ownership, it could harm the transferee.
- Some limitations in the legal provisions when resolving land disputes at the Court
From the practical resolution of land disputes at the People’s Court, the author identifies the following limitations:
First, according to Clause 2, Article 203 of the 2013 Law on Land, the law has expanded the jurisdiction of the People’s Court in resolving disputes where land users do not have documents on land use rights. This transfer of most of the jurisdiction to resolve land disputes to the Court places a significant burden on the Court. Currently, land disputes account for the majority of civil cases, and this type of case heavily relies on information from the management agencies where the property is located.
Meanwhile, there is no interconnected data system between the management agencies. Additionally, the civil procedural laws to resolve these types of cases are very complex, and the Court is facing numerous challenges regarding staffing issues. Therefore, the difficulties faced by the Court are considerable.
Second, regarding mediation provisions in resolving land disputes, according to the 2024 Law on Land, resolving land disputes through mediation is not a mandatory mechanism before the Court considers resolving land disputes. This will increase the number of land dispute cases that the Court must handle. Hence, a comprehensive assessment of this regulation is needed, while also inheriting the 2013 Law on Land; according to which, the implementation of mediation procedures for land disputes at the grassroots level is a mandatory condition for the Court to resolve land disputes.
Third, according to Clause 3, Article 202 of the 2013 Law on Land, which regulates the coordination of mediation for disputes among units, the use of the term “other social organizations” is currently not clearly defined, leading to confusion when organizing mediation in selecting representatives to participate in mediation. On the other hand, who participates from the Vietnam Fatherland Front and other social organizations, and whether it is mandatory or not, is not specified. As a result, the Commune People’s Committee often conducts mediation with incorrect or insufficient participants (Trần Văn Minh, 2020).
III. RECOMMENDATIONS
To improve the law and address some of the issues in resolving land disputes as mentioned above, the author proposes the following recommendations:
First, regarding the jurisdiction of the People’s Court to resolve land disputes where the parties have not been issued certificates or do not have one of the documents on land use rights as stipulated in Article 100 of the 2013 Law on Land, and soon to be Article 137 of the 2024 Law on Land, if the People’s Court is chosen by the disputing parties to resolve the dispute, after the mediation procedure at the Commune People’s Committee where the land is located fails.
Second, to enhance the effectiveness of the mediation procedure for land disputes at the Commune People’s Committee, it is recommended that the law supplement certain regulations in the following direction:
(i) Supplementing regulations regarding the authority responsible for mediating land disputes equivalent to the Commune People’s Committee in areas without commune-level administrative units;
(ii) Supplementing regulations allowing the Commune People’s Committee to organize mediation in absentia, prepare mediation minutes with the confirmation of local social organizations about the absence of the non-participating party despite being invited twice and still absent without a legitimate reason and not accepted by the Commune People’s Committee;
(iii) Supplementing sanctions for cases where one of the parties changes their opinion, does not accept the results of successful mediation organized at the Commune People’s Committee.
Third, providing more specific guidance and regulations on determining the territorial jurisdiction of the Court for inheritance disputes over houses and land use rights. According to the author’s view, inheritance disputes over houses and land use rights are disputes over real estate; therefore, the Court where the real estate is located has jurisdiction to resolve them.
IV. CONCLUSION
Research and the enactment of new mechanisms and policies need to ensure that all parties involved in land relations have clear and transparent rights and obligations. This will contribute to creating a stable legal environment, promoting socio-economic development, and protecting the legitimate rights and interests of parties involved in land disputes. These goals, along with ensuring the harmonization of interests among stakeholders, including the people, investors, and the State in managing and using land, will help minimize waste and negativity, reduce disputes, complaints, and litigation related to land; and ensure land is used more economically, efficiently, and sustainably.
REFERENCES
- Huỳnh Thị Kim Thoa. (2023). Improving legal regulations on land use rights mortgage of households in the digital economy. Journal of Legislative Studies, 10 (2), 482.
- Khắc Niệm. (May 28, 2020). Guidelines for filing a land dispute lawsuit. Retrieved from https://luatvietnam.vn/dat-dai-nha-o/huong-dan-nop-don-khoi-kien-tranh-chap-dat-dai-567-90333-article.html
- Lê Thị Bích Chi. (2021). Jurisdiction of the court to resolve land disputes: Some limitations and recommendations. Journal of Legislative Studies, 23 (2), 471.
- Minh Tuấn. (2020). Obstacles, limitations, recommendations for improving the law on jurisdiction to resolve land disputes according to civil procedural laws. Retrieved from https://tapchitoaan.vn/vuong-mac-bat-cap-kien-nghi-hoan-thien-phap-luat-ve-tham-quyen-giai-quyet-tranh-chap-dat-dai-theo-thu-tuc-to-tung-dan-su?
- Nguyễn Quốc Hưng. (October 1, 2023). Current situation of land disputes in Ho Chi Minh City. Retrieved from https://luatnguyenhung.com/thuc-trang-tranh-chap-dat-dai-hien-nay-tai-tphcm/
- Phòng PBGDPL. (June 16, 2021). Order and procedures for resolving land disputes. Retrieved from https://sotuphap.tayninh.gov.vn/tin-tuc/tr-nh-t–th-t-c-gi-i-quy-t-tranh-ch-p–t-ai-293.html
- Thuỵ Châu. (April 13, 2023). Individuals are not allowed to block notarization. Retrieved from https://plo.vn/ca-nhan-khong-duoc-ngan-chan-cong-chung-post191344.html
- Trần Văn Minh. (2020). Improving regulations on land dispute mediation and some suggestions, recommendations. People’s Court Electronic Journal, 25 (2), 79.
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