Difficult access to land because of inadequate laws, lack of consistency

Inadequate with property on the suspended projects

At the Workshop on Laws and Practices on Land Access of Enterprises in Vietnam organized by the Vietnam Chamber of Commerce and Industry (VCCI) in Hanoi on June 27, Ms. Nguyen Thi Thu Trang, Head of the Legal Department, VCCI supposes that the land is a very special legal regime. Vietnam is moving towards land under the ownership of the entire people. The obstacles and inadequacies therefore arise. The relationship between the Land Law and other related laws has improved in recent years but not as expected and makes it difficult for enterprises to access land during the investment process.

Regarding these shortcomings, representatives of VNPT said that under Clause 1 of Article 64 of Land Law 2013, "suspended projects" will be handled on the principle that the State will recover both land and attached assets which have been invested after the extension of 24 months for the project to be suspended. This is contrary to the Constitution of 2013 and the Investment Law of 2014 stipulating that the State is committed to protect the assets of investors during the investment process. Concerned with this view, Prof. Dang Hung Vo said that this provision in Land Law 2013 is unconstitutional. "For the “suspended projects", the law for the extension of 24 months, after 24 months is still "hanging" for the State to recover land and assets on land. At the same time, Resolution 19 of the Party Central Committee on land issues, for suspended projects, the solution is high tax or penalty, but the Law does not go in this direction for recovering land and property on land. Land can be recovered because land is owned by the entire people, but the property invested by the investor cannot be confiscated, because the Constitution states that the State does not nationalize the legal property of anyone. Therefore, it is necessary to fix suspended project regulations. It is best to return to the sanctions of Resolution 19 above", Mr. Dang Hung Vo said.

Representatives of Viettel Group said that during the process Viettel undertakes to receive the transfer of land use rights or to be allocated land by the State with the collection of land use fees to create infrastructure for the security and defense tasks combined with production and business activities of the Group. When applying for a land use right certificate for the Group, it is difficult for the specialized agency of the land field in the locality where the land is located to prove that the source of land use fee transfer money has no Budget source in accordance with Circular 92/2007/TT-BTC. However, Circular 92/2007/TT-BTC, based on the Land Law 2003, has now expired, replaced by the Land Law of 2013. Therefore, Viettel Group requested the Ministry of Finance to revise Circular 92/2007/TT-BTC on the confirmation of the origin of transfer money/non-budget land use levy to comply with Land Law 2013.

Sharing some inadequacies related to land legislation, Mr. Nguyen Hong Hai, Deputy Director of the Department of Civil-Economic Legislation, Ministry of Justice, said that the Land Law 2013 did not specify the land law. The form of land accumulation has made it difficult for people and businesses to implement models of land accumulation for agricultural production.

Difference in bidding procedures

Mr. Nguyen Hong Hai also said that the Law on Procurement 2013 regulates the cases, order and procedures for bidding for projects. Land Law 2013 regulates the cases of auctioning land use rights. However, the Law on Land and the Law on Procurement do not have uniform regulations on whether the case was bidding for the project, whether the auction of land use rights and if auctioned land use rights, then bidding project or not. In addition, under the provisions of Articles 117 and 118 of the Land Law 2013, the allocation or lease of land for the purpose of implementing economic development projects through the auction of land use rights without the form of tendering to select investors for use as a basis for land allocation or land lease. However, under the Investment Law, the results of selection of project investors using land are the basis for compiling land allocation documents. These inconsistencies make it difficult for enterprises to access land, therefore, it is recommended to review and adjust accordingly the agreement between the two laws.

Quoted Article 70 of the Land Law 2013, the representative of the EVN Group also said that according to the current regulations, only compulsory ground clearance is conducted in cases where land is recovered but not complied with the compensation plan promulgated by the competent authority. In the case of compensation and assistance for site clearance not related to land acquisition, there will be no legal basis for the site clearance and construction. Currently, for power grid projects in general, especially overhead power transmission lines with a voltage of 220kV or less, Decree 14/2014/ND-CP dated 26 February, the design must ensure a safe distance for the households to live and work normally under the power corridor (except for the line with the 500kV voltage, they must move). Thus, for households located in the safety corridors of overhead power transmission lines of 220kV or less, they are not subject to land recovery. However, the fact that the compensation for the site clearance, the majority of households do not accept the compensation plans because the compensation is low, do not want to stay in the corridor for fear and leads to not handing over the land for construction to the investors. However, local authorities do not have the legal basis to organize the construction, leading to many projects being delayed by EVN.

In order to address the inadequacies of access to land, it is known that the first directive of the Government in 2018, Directive No. 01/2018/CT-CP is also an indicator related to the need for inadequate reviews, the problem is related to land legislation, which shows that the Government attaches great importance to this issue. According to experts, the completion of the Land Law and related land legislation is very important, not only for the economic development in general but also for the development and survival of enterprises in particular.