Phần thứ hai Bộ luật Dân sự 2015: Quyền sở hữu và quyền khác đối với tài sản

PART TWO

OWNERSHIP RIGHTS AND OTHER PROPERTY-RELATED RIGHTS

Chapter XI

GENERAL PROVISIONS

Section 1. Rules for establishing and exercising ownership rights and other property-related rights

Article 158. Ownership rights

Ownership rights comprise the rights of an owner to possess, use and dispose of the property of the owner in accordance with law.

Article 159. Other property-related rights

1. Other property-related rights mean rights of entities directly hold or control the property belonging to ownership rights of another entity.

2. Other property-related rights include:

a) Right to adjacent immovable property;

b) Usufruct right;

c) Surface rights.

Article 160. Rules for establishing and exercising ownership rights and other property-related rights

1. Ownership rights and other property-related rights shall be established and exercised if they are prescribed in Code and relevant laws.

Other property-related rights shall remain valid although the ownership right have been transferred, otherwise provided by this Code or relevant laws.

2. Each owner is entitled to perform all acts on his willpower to the property but it is not contrary to the provisions of the law, damage or adversely affects national interests, ethnicity, public interests, rights and legitimate interests of other people.

3. Each holder of other property-related rights is entitled to perform all acts within the scope prescribed in this Code and relevant laws but it is not contrary to the provisions of the law, damage or adversely affects national interests, ethnicity, public interests, rights and legitimate interests of the owner or other people.

Article 161. Time of establishing ownership rights and other property-related rights

1. The time of establishing ownership rights and other property-related rights shall be determined as prescribed in this Code and relevant laws; if there is no relevant regulations of law, the agreement of the parties shall prevail; if there is no either relevant regulations of law or agreement of the parties, the time of establishing ownership rights and other property-related rights shall be the time when the property is transferred.

The time when the property is transferred is the time when the obligee or his/her legal representative possesses the property.

2. In case where the property which has been not transferred arise yield or income, such yield or income shall belong to the transferor, unless otherwise agreed.

Article 162. Bearing risks of property

1. Each owner shall bear all risks of the property under his/her ownership, unless otherwise agreed or unless otherwise prescribed by this Code or relevant laws.

2. Each holder of other property-related rights shall bear risks of the property within his/her right scope, unless otherwise agreed with the owner of the property or unless otherwise prescribed by this Code or relevant laws.

Section 2. PROTECTION OF OWNERSHIP RIGHTS AND OTHER PROPERTY-RELATED RIGHTS

Article 163. Protection of ownership rights and other property-related rights

1. No one may be illegally restricted in or deprived of his/her ownership rights or other property-related rights to his/her property.

2. In case of extreme necessity for reasons of national defense, security or national interests, the State shall affect a compulsory purchase or requisition with compensation of the property of organizations or individuals in accordance with the market prices.

Article 164. Measures for protection of ownership rights and other property-related rights

1. Each owner or holder of other property-related rights is entitled to self-protect and prevent anyone from infringing his/her rights by measures in accordance with regulations of law.

2. Each owner or holder of other property-related rights shall have the right to request a court or another competent authority to compel the person infringing upon their rights to return the property and terminate the acts of illegally obstructing the exercise of their ownership rights or other property-related rights, and to request compensation for any damage.

Article 165. 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.

Article 166. The right to reclaim property

1. Owners and/or holders of other property-related rights shall have the right to request the persons possessing, using or receiving benefits from the property without a legal basis to return such property.

2. The owner of a property has no right to reclaim such property that is in the possession of a holder of other property-related rights.

Article 167. The right to reclaim movable property not subject to ownership right registration from bona fide possessors

Owners may reclaim movable property not subject to ownership right registration from bona fide possessors in cases where such bona fide possessors have acquired such property through unindemifiable contracts with persons who have no right to dispose of the property; in case of indemifiable contracts, the owners may reclaim the movable property if such movable property has been stolen, lost or other cases of possession against the owners' will.

Article 168. The right to reclaim movable property subject to ownership right registration or immovable property from bona fide possessors

Owners may reclaim their movable property subject to ownership right registration and immovable property, except for cases prescribed in Clause 2 Article 133 of this Code.

Article 169. The right to request the prevention of acts of illegally obstructing the exercise of ownership rights and other property-related rights

When exercising their ownership rights or other property-related rights, the owners or holders shall have the right to request persons committing acts of illegally obstructing the exercise of their lawful ownership rights or possession rights to terminate such acts or request a court or another competent authority to compel such persons to terminate their violations.

Article 170. The right to request compensation for damage

Owners or holders of other property-related rights are entitled to request persons infringing upon their ownership rights or other property-related rights to compensate for any damage.

Section 3. RESTRICTIONS ON PROTECTION OF OWNERSHIP RIGHTS AND OTHER PROPERTY-RELATED RIGHTS

Article 171. Rights and obligations of owners and holders of other property-related rights in emergency circumstances

1. An emergency circumstance is a circumstance where in order to avert a danger actually and directly threatening the interests of the State or of a collective, or the legitimate rights or interests of their own or of other persons, a person has no alternative but to take an act which would cause lesser damage than the damage to be prevented.

2. In an emergency circumstance, the owner and holder of other property-related rights to a property must not hinder another person from using his/her own property or hinder another person from causing damage to such property in order to prevent or abate the greater danger or damage that threatens to happen.

3. The causing of damage in an emergency circumstance is not the act of infringing upon ownership rights or other property-related rights. The owner or the holder of other property-related rights shall be compensated for damage in accordance with the provisions of Article 595 of this Code.

Article 172. Obligations to protection of the environment

When exercising ownership rights and/or other property-related rights, the owner or the holder must comply with the provisions of law on environmental protection; if he/she causes environmental pollution, the owner shall have to terminate the acts which cause the pollution, to take measures to remedy the consequences and to compensate for damage.

Article 173. Obligations to respect and ensure social order and safety

When exercising ownership rights and/or other property-related rights, the owner or the holder must respect and ensure social order and safety and must not abuse his/her ownership rights to cause social disorder or unsafety, causing damage to the State interests, public interests or legitimate rights and interests of other persons.

Article 174. Obligation to respect building regulations

When constructing a project, the owners and holders of other property-related rights must comply with the law on construction, ensure safety. It may not build beyond the height and distance specified by the law on construction and infringes the legitimate rights and interests of owners of adjoining and surrounding immovable properties.

Article 175. Boundaries between immovable properties

1. The boundaries between adjoining immoveable properties shall be determined in accordance with the agreement of the owners or in accordance with a decision of the competent authority.

The boundaries may also be determined in accordance with customary practice or according to boundaries which have existed for thirty (30) or more years without dispute.

The land user may not encroach upon the boundary or change the boundary markers, including boundaries being canals, irrigation ditches, trenches, gutters or boundaries of rice fields. Each entity must respect and maintain the common boundaries.

2. A person having land use rights may use the airspace and the sub-surface according to the vertical dimensions of the boundaries around the land as prescribed by law and may not interfere with the use by other persons of the adjoining land.

A land user may only plant trees and performs other activities within the area covered by its land use rights and according to the defined boundaries. If the roots and branches of trees extend beyond the boundaries, such person must clip and prune the parts of the trees beyond the boundaries, except as otherwise agreed.

Article 176. Boundary markers separating immovable property

1. An owner of adjoining immoveable property may only erect boundary stakes and fences and build separating walls on the area covered by its land use rights.

2. Adjoining land users may agree to the erection of boundary stakes and fences, the building of separating walls and the planting of trees on the boundary for use as boundary markers between the immoveable properties, and the boundary markers shall be under the multiple ownership of such persons.

Where a boundary marker is erected on the boundary by only one party with the consent of the owner of the adjoining immoveable property, such boundary marker shall be multiple ownership property and the construction expenses shall be borne by the party having erected the marker, unless otherwise agreed. If the owner of the adjoining immoveable property does not give consent and has legitimate reason, the owner having erected the boundary stake or fence or built the separating wall must remove it.

3. With respect to boundary markers which are common house walls, the owner of the adjoining immoveable property may not cut out a window or air ventilating hole or drill the wall in order to install building structures, except with the consent of the owner of the adjoining property.

Where houses are separately built, but with adjoining walls, an owner may only drill and install building structures up to the space between the adjoining walls.

With respect to trees which are common boundary markers, the parties have equal obligations to protect the trees, and the fruits from the trees shall be distributed equally, unless otherwise agreed.

Article 177. Safety guarantee with regard to trees or constructions posing risks of causing damage

1. Where there is a danger that a tree or a construction will collapse onto an adjoining immoveable property, the owner must cut down the tree or repair or demolish the construction at the request of the owners of adjoining immovable property or a competent authority. If such person does not cut down the tree or demolish the construction, the owner of an adjoining immoveable property may request a competent authority to procure that the tree be cut down or the structure be demolished. The expenses for cutting down the tree or demolishing the construction shall be borne by the owner of the tree or the structure.

2. When digging a well or a pond or constructing underground structures, the owner of the project must do so at the distance away from the boundaries provided by the law on construction.

When constructing a hygiene construction work, a storehouse of hazardous materials and other construction works likely to cause environmental pollution, the owner of that property must build it a distance far from the markers and in reasonable location, ensure hygiene and safety and do not affect the owners of other immovable properties.

3. If damage is caused to the owners of adjoining or neighboring properties prescribed in Clauses 1 and 2 of this Article, compensation must be made.

Article 178. Installing doors and windows opening onto adjacent immovable property

1. A house owner may only install entry and exit doors and windows opening onto adjacent houses or opposite houses and common walkways in accordance with the law on construction.

2. The underside of awnings above entry and exit doors or the underside of awnings of windows opening onto common walkways must be at least two point five (2.5) meters above the ground.

Chapter XII

POSSESSION

Article 179. Concept of possession

1. Possession means that an entity holds and controls a property directly or indirectly as holder of rights to such property.

2. Possession includes possession of owners and possession of non-owners.

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 this Code.

Article 180. Possession in good faith

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.

Article 181. Possession not in good faith

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.

Article 182. Continuous possession

1. 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.

2. The non-continuous possession shall not be treated as the basis for presuming status and rights of possessors prescribed in Article 184 of this Code.

Article 183. Overt possession

1. 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.

2. The overt possession shall not be treated as the basis for presuming status and rights of possessors prescribed in Article 184 of this Code.

Article 184. Presuming status and rights of possessors

1. 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.

2. 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.

3. A person possessing in good faith, continuously and overtly shall be eligible for prescriptive periods for enjoying the rights and enjoy the yield and income derived from the property as prescribed in this Code and relevant laws.

Article 185. Protection of possession

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.

Chapter XIII

OWNERSHIP RIGHTS

Section 1. Contents of ownership rights

Sub-section 1. RIGHT TO POSSESS

Article 186. 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.

Article 187. Right to possess of persons managing property under authorization of owner

1. 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.

2. A person authorized to manage property is not able to become the owner of the property delivered as prescribed in Article 236 of this Code.

Article 188. Right to possess of persons to which property is delivered through civil transactions

1. 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.

2. 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.

3. The person to whom the property is delivered is not able to become the owner of that property as prescribed in Article 236 of this Code.

Sub-section 2. RIGHT TO USE

Article 189. Right to use

Right to use means the right to exploit the usage of, and to enjoy the yield and income derived from, property.

The right to use may be transferred to another person upon an agreement or as prescribed by law.

Article 190. Right to use of owners

The owner has the right to use property in conformity with his/her wishes provided that this will not cause damage to or adversely affect the interests of the State or the public or the legal rights and interests of other persons.

Article 191. Right to use of non-owners

A non-owner shall have the right to use a property as agreed with the owner or as prescribed by law.

Sub-section 3. RIGHT OF DISPOSAL

Article 192. Right of disposal

Right of disposal means the right to transfer ownership rights, renounce ownership rights, right to use, or destruct the property.

Article 193. Conditions for disposal

Disposal of property must be performed by a person with legal capacity in accordance with law.

Where the law provides formalities and procedures for disposal of property, such formalities and procedures must be complied with.

Article 194. Right of disposal of owners

Owners shall have the right to sell, exchange, give, loan, bequeath, renounce or ownership rights, right to use, destruct or implement other forms of disposal in conformity with the law on property.

Article 195. Right of disposal of non-owners

A non-owner of property shall only have the right to dispose of the property pursuant to authorization from the owner or in accordance with provisions of the law.

Article 196. Restrictions on right of disposal

1. The right of disposal shall only be restricted in cases where the law so provides.

2. Where a property for sale is an historic or cultural relic as prescribed in law on cultural heritage, the State shall have the right of first refusal to purchase.

Where a natural or juridical person has the right of first refusal to purchase certain property in accordance with law, upon the sale of such property, the owner must grant such right of first refusal to purchase to such person.

Section 2. FORMS OF OWNERSHIP

Sub-section 1. THE PEOPLE’S OWNERSHIP

Article 197. Property under the people’s ownership

Land, water resources, mineral resources, resources in the waters, airspace and other natural resources and the assets invested and/or managed by the State belong to the entire people with the representation and centralized management of the State.

Article 198. Exercise of right of owner with respect to the people-owned property

1. The State of the Socialist Republic of Vietnam is a representative that exercises the rights of the owner with respect to the people-owned property.

2. The Government shall manage centrally and ensure the appropriate, efficient and economic use of the people-owned property.

Article 199. Possession, use and disposal of the people-owned property

The possession, use and disposal of the people-owned property shall be performed within the scope and in accordance with the procedures provided by law.

Article 200. Exercise of the people ownership rights with respect to property invested in enterprises

1. Where the people-owned property is invested in an enterprise, the State shall exercise the rights of the owner with respect to such property in accordance with the law on enterprises, management and use of state capital investing in business at enterprises and relevant laws.

2. Enterprises have the right to manage and use capital, land, natural resources and other property invested by the State in accordance with the relevant laws.

Article 201. Exercise of the people ownership rights with respect to property allocated to regulatory agencies and units of armed forces

1. Where property in the category of the people-owned property is allocated to a regulatory agency or unit of the armed forces, the State shall exercise the right to inspect the management and use of such property.

2. The regulatory agency or unit of the armed forces shall manage and use the property allocated by the State for the correct purpose in accordance with law.

Article 202. Exercise of the people ownership rights with respect to property allocated to political organizations, socio-political organizations, and socio-political professional organizations, social organizations and socio-professional organizations

1. Where property in the category of the people-owned property is allocated to a political organization, socio-political organization or socio-political professional organization, social organization or socio-professional organization, the State shall exercise the right to inspect the management and use of such property.

2. The political organization, socio-political organization or socio-political professional organization, social organization or socio-professional organization has the right to manage and use the property allocated to it by the State for the correct purpose, within the scope and in accordance with the methods and procedures provided by law, and consistent with the functions and duties of such organization as provided in its charter.

Article 203. Rights of natural and juridical persons with respect to use of property in category of the people-owned property

Natural and juridical persons may use land and extract aquatic resources, natural resources and other properties in the category of the people-owned property for the correct purpose and effectively and must fulfill all of their obligations to the State in accordance with law.

Article 204. Property in category of the people-owned property not having been allocated to natural and juridical persons for management

With respect to property in the category of the people-owned property which has not been allocated to a natural and juridical person for management, the Government shall organize protection, investigation and survey, and formulation of zoning in order to make such property available for use.

Sub-section 2. PRIVATE OWNERSHIP

Article 205. Private ownership and property under private ownership

1. Private ownership means the ownership by a natural person or a juridical person.

2. The quantity and value of a property under lawful private ownership shall not be restricted.

Article 206. Possession, use and disposal of property under private ownership

1. An owner has the right to possess, use and dispose of property under his or her ownership for the purpose of satisfying the needs of daily life, consumption or business activities and other purposes in accordance with law.

2. The possession, use and disposal of property under private ownership must not cause damage to or adversely affect the interests of the State or the public or the legal rights and interests of other persons.

Sub-section 3. MULTIPLE OWNERSHIP

Article 207. Multiple ownership and types of multiple ownership

1. Multiple ownership means ownership of property by more than one owner.

2. Multiple ownership comprises ownership in common and joint ownership.

Article 208. Establishment of multiple ownership rights

Multiple ownership rights shall be created as agreed by the owners or in accordance with provisions of the law or in accordance with customary practice.

Article 209. Ownership in common

1. Ownership in common is multiple ownership whereby each owner's share of the ownership rights with respect to the multiple ownership property is specified.

2. Each of the owners in common has rights and obligations with respect to the multiple ownership property corresponding to its share of the ownership rights, unless otherwise agreed.

Article 210. Joint ownership

1. Joint ownership means multiple ownership whereby each owner's share of the ownership rights with respect to the multiple ownership property is not specified.

Joint ownership includes divisible joint ownership and indivisible joint ownership.

2. Joint owners have equal rights and obligations with respect to the multiple ownership property.

Article 211. Multiple ownership between communities

1. Multiple ownership between a community is the ownership by a family line, hamlet, village, tribal village, mountainous hamlet, ethnic hamlet, religious community or other community of property which is formed in accordance with customary practice, which is jointly contributed to and raised by the members of the community or which was given to the whole community, and property which is obtained from other lawful sources for the purpose of satisfying the common lawful interests of the entire community.

2. Members of a community shall jointly manage, use and dispose of multiple ownership property in the interests of the community as agreed or in accordance with customary practice, but not inconsistent with the law or social morals.

3. Multiple ownership property by a community is indivisible joint property.

Article 212. Multiple ownership between family members

1. Property of family members living together includes property that they contributed or made together and other properties whose ownership rights are established in accordance with this Code and relevant laws.

2. The possession, use and disposal of multiple ownership property by family members shall be conducted as mutually agreed. With respect to disposal of an immovable property, a movable property required registration, or a property being the primary income of the family, the agreement between all family members being adults with full legal capacity is required, unless otherwise prescribed by law.

If there is no agreement, the regulations on ownership in common prescribed in this Code and relevant laws shall apply, except for the case prescribed in Article 213 of this Code.

Article 213. Multiple ownership between husbands and wives

1. Multiple ownership between a husband and wife is divisible joint ownership.

2. A husband and wife jointly create and develop their marital property through their efforts and have equal rights to possess, use and dispose of such property.

3. A husband and wife shall discuss, agree on or authorize each other in relation to the possession, use and disposal of the marital property.

4. The marital property may be divided as agreed or pursuant to a decision of a court.

5. If a husband and wife select the regulations on property under agreement as prescribed in law on marriage and families, the marital property shall apply those regulations.

Article 214. Multiple ownership in apartment buildings

1. The areas, equipment and furnishings which are for common use in an apartment building prescribed in the Law on Housing are under multiple ownership of all owners of the apartments in the apartment building and are indivisible, unless otherwise provided by law or unless all of the owners reach some other agreement.

2. The owners of the apartments in an apartment building have equal rights and obligations with respect to the management and use of common areas and equipment prescribed in Clause 1 of this Article, unless otherwise agreed or prescribed by law.

3. Where an apartment building is destroyed, the rights of the owners of the apartment building shall be exercised in accordance with law.

Article 215. Mixed multiple ownership

1. Mixed multiple ownership means ownership of property in respect of which owners from different economic sectors contribute capital for the purpose of conducting production and business for profit-making purposes.

2. Property which is formed from sources being capital contribution by owners, lawful profits derived from production and business activities or other lawful sources in accordance with law is mixed multiple ownership property.

3. The possession, use and disposal of property under mixed multiple ownership must comply with the provisions of Article 209 of this Code and other relevant laws relating to capital contribution; to the organization and operation of production and business activities; to the administration and management of property; and to the liability for property and distribution of profits.

Article 216. Management of multiple ownership property

The owners of multiple ownership property shall manage jointly such property in accordance with the principle of unanimity, unless otherwise agreed or otherwise provided by law.

Article 217. Use of multiple ownership property

1. Each owner in common has the right to exploit, and to enjoy the yield and income derived from, the multiple ownership property in proportion to its share of the ownership rights, unless otherwise agreed or otherwise provided by law.

2. Joint owners have equal rights to exploit and to enjoy the yield and income derived from, the multiple ownership property, unless otherwise agreed.

Article 218. Disposal of multiple ownership property

1. Each owner in common has the right to dispose of its share of the ownership rights.

2. Disposal of joint property shall be implemented as agreed by the owners of the property or as provided by law.

3. Where an owner of multiple ownership property sells its share of the ownership rights, the other owners of the property have the right of first refusal to purchase such share.

Such owner may sell such share to other persons if no other owner purchases within three months in the case of immoveable property, or within one month in the case of moveable property, from the date on which the other owners received notice of the sale and the conditions of the sale. The notice must be made writing and conditions for sale applying to other owners in common shall be similar to those applying to non-owners in common.

In the case where there is a sale of a share of the multiple ownership rights in breach of this regulation on priority purchase right, within the time limit of three months from the date of discovery of the breach, any one of the multiple owners has the right to request a court to transfer to it the rights and obligations of the purchaser; and the party at fault which caused damage shall be liable to compensate for damage.

4. Where one of the owners of immovable property renounces its share of the ownership rights or where such person dies without leaving an heir, its share of the ownership rights shall belong to the State, except in the case of multiple ownership between communities where the share of ownership rights shall belong to the remaining members.

5. Where one of the owners of movable property renounces its share of the ownership rights or where such person dies without leaving an heir, its share of the ownership rights shall belong to the remaining members.

6. Where all owners renounce their ownership rights with respect to multiple ownership property, the ownership rights shall be established as prescribed in Article 228 of this Code.

Article 219. Division of multiple ownership property

1. Where multiple ownership property is divisible, each owner has the right to request the property to be divided. If the property must be maintained within a certain period of time as agreed by all owners or as prescribed by law, each owner only has the right to request the property to be divided upon expiry of that period. Where the property is not able to be divided in kind, it shall be valued in terms of money for the purposes of division, unless otherwise agreed.

2. Where a person requests one of the owners of multiple ownership property to fulfill a payment obligation and such owner does not have private property or sufficient private property to make the payment, the requesting person has the right to request that the multiple ownership property be divided in order to receive monetary payment and such person shall be entitled to participate in the division of the property, unless otherwise provided by law.

If the shares of ownership rights are not able to be divided in kind or if such a division is opposed by the remaining owners, the requesting person has the right to request the owner with the obligation to sell to sell its share of ownership rights in order to fulfill the payment obligation.

Article 220. Termination of multiple ownership

Multiple ownership shall terminate in any of the following circumstances:

1. The multiple ownership property has been divided;

2. One of the owners of the multiple ownership property is entitled to enjoy the property in its entirety;

3. The multiple ownership property no longer exists;

4. Other cases as provided by law.

Section 3. CREATION AND TERMINATION OF OWNERSHIP RIGHTS

Sub-section 1. CREATION OF OWNERSHIP RIGHTS

Article 221. Basis for establishing ownership rights

Ownership rights are created with respect to property in any of the following cases:

1. Through labour, lawful production and business activities, or creation of subjects of intellectual property rights;

2. Transfer of ownership rights as agreed or pursuant to a decision of a competent authority;

3. Receipt of yield and/or income;

4. Formation of new objects through merging, mixing or processing;

5. Inheritance of property;

6. Acquisition in accordance with law on objects of which owner is unidentified, buried or sunken objects; lost or mislaid objects, stray poultry or livestock or aquaculture stock.

7. Possession and gain from property prescribed in Article 236 of this Code;

8. Other cases as provided by law.

Article 222. Establishment of ownership rights with respect to property earned from labour and lawful business and production activities or creation of subjects of intellectual property rights

Workers and persons conducting lawful business and production activities have ownership rights with respect to property earned from labour and the lawful business and production activities from the time when such property is earned.

Person conducting creation activities has ownership rights to the property gained from those activities as prescribed in the Law on intellectual property.

Article 223. Establishment of ownership rights under agreements

A person to which property has been transferred through a contract of sale and purchase or by a gift, exchange or loan or another contract of transfer of ownership rights has the right to own such property as provided by law.

Article 224. Establishment of ownership rights with respect to yield and income

An owner or a user of property has ownership rights with respect to the yield and income derived from such property as agreed or in accordance with law from the time when such yield and income are derived.

Article 225. Establishment of ownership rights in case of merger

1. Where property of more than one owner is merged to form an indivisible object and it is not possible to determine whether the property which is merged is a primary object or an auxiliary object, the newly formed object shall be the multiple ownership property of such owners. If the property which is merged consists of a primary object and an auxiliary object, the newly formed object shall belong to the owner of the primary object from the time when the new object is formed. The owner of the new property must pay the value of the auxiliary object to its owner, unless otherwise agreed.

2. Where a person merges the moveable property of another person with his/her own moveable property, even though he/she knew or should have known that such property was not his/her own and he/she did not have the consent of the owner of the property which was merged, the owner of the property which is merged shall have one of the following rights:

a) Request the person having merged the property to deliver the new property to it and to pay the value of the property;

b) Request the person having merged the property to pay the value of the merged property and to compensate for any damage if the owner of the property which is merged does not wish to take the new property.

c) Other rights as provided by law.

3. Where a person merges the moveable property of another person with his/her own immoveable property, even though he/she knew or should have known that such property was not his/her own and he/she did not have the consent of the owner of the property which was merged, the owner of the property which is merged shall have one of the following rights:

a) Request the person having merged the property to pay the value of the merged property and to compensate for any damage;

b) Other rights as provided by law.

4. Where a person merges the immoveable property of another person with his/her own moveable property, the owner of the immovable property has the right to request such person to demolish the illegally merged property and compensate for any damage, or retain the property and pay the value of the merged property to such person, unless otherwise agreed.

Article 226. Establishment of ownership rights in case of mixing

1. Where the property of more than one owner is mixed to form a new indivisible object, the new object shall be the multiple ownership property of such owners from the moment of mixing.

2. Where a person has mixed the property of another person with its own property, even though it knew or should have known that such property is not its own and it does not have the consent of the owner of the property which has been mixed, the owner of the property which has been mixed may:

a) Request the person having mixed the property to deliver the new property to it and pay such person the value of the property of such person;

b) If the owner of the property which has been mixed does not wish to take the new property, request the person having mixed the property to pay the value of the property of the owner and to compensate for any damage.

Article 227. Establishment of ownership rights in case of processing

1. An owner of raw materials which are processed to form a new object is also the owner of the newly formed object.

2. A person using raw materials under the ownership of another person for processing who acts in good faith shall become the owner of the new property, but must pay the value of the raw materials to the owner and compensate it for any damage.

3. Where a person processes raw materials not in good faith, the owner of the raw materials has the right to request that the new object be delivered to it. Where the raw materials are owned by more than one person, such persons shall become the owners of the newly formed object in proportion to the value of the raw materials owned by each person. The owners of the raw materials processed not in good faith may request the person carrying out the processing to compensate for any damage.

Article 228. Ownership rights are established with respect to abandoned objects and objects the owner of which is not able to be identified

1. An abandoned object is an object in respect of which the owner has renounced its ownership rights.

A person finding an abandoned object which is moveable property shall have the right to own such property, unless otherwise prescribed by law. If the found object is immoveable property, it shall belong to the State.

2. A person finding an object the owner of which is not able to be identified must inform or deliver the object to the people's committee or police station of the nearest commune in order that a public announcement may be made notifying the owner to reclaim the object.

The delivery of the object must be recorded, specifying the surnames, given names and addresses of the finder and the receiver and the condition, quantity and volume of the property delivered.

The people's committee or police station of commune which received the object must notify the finder of the results of their inquiries in order to determine the owner.

Where the object, the owner of which is not able to be identified, is moveable property, if the owner of the object is still not able to be identified after one year from the date of the public announcement, such property shall be under the ownership of the finder in accordance with law.

Where the object is immoveable property, if the owner is still not able to be identified after five years from the date of the public announcement, such property shall belong to the State. The finder shall be entitled to enjoy a monetary reward in accordance with law.

Article 229. Establishment of ownership rights with respect to buried or sunken objects which are found

1. A person finding an object which is buried or sunken must notify and return to the owner; if the owner is not able to be identified, he/she must inform or deliver the object to the people's committee or police station of the nearest commune or a competent authority in accordance with regulations of law.

2. Ownership rights with respect to a buried or sunken object which is found, but which has no owner or the owner of which is not able to be identified, shall be determined, after deducting search and maintenance expenses, as follows:

a) A found object which is an historic or cultural relic shall belong to the State as prescribed in Law on cultural heritage and the finder shall be entitled to enjoy a monetary reward in accordance with law.

b) A found object which is not an historic or cultural relic as prescribed in Law on cultural heritage, and which has a value equivalent up to ten-month base salary provided for by the State, shall belong to the finder; if the value of the found object is more than the equivalent of ten-month base salary provided for by the State, the finder shall be entitled to the value of ten-month base salary plus fifty (50) per cent of the remaining value of the object in excess of the ten-month base salary provided for by the State, with the remaining value belonging to the State.

Article 230. Establishment of ownership rights with respect to objects which other persons have lost or mislaid

1. A person finding an object which another person has lost or mislaid and being aware of the address of the person having lost or mislaid the object must inform or return the object to such person. If the finder is not aware of the address of the person having lost or mislaid the object, it must inform or deliver the object to the people's committee or police station of the nearest commune in order that a public announcement may be made notifying the owner to reclaim the object.

The people's committee or police station of commune which received the object must notify the finder of the results of their inquiries in order to determine the owner.

2. If, after one year from the date of the public announcement of the object having being found, the owner of the object is still not able to be identified or the owner does not claim the object, the ownership rights with respect to such property shall be determined as follows:

a) If the value of lost or mislaid object is up to ten-month base salary provided for by the State, it shall belong to the finder as prescribed in this Code and relevant laws; if the value of the found object is more than the equivalent of ten-month base salary provided for by the State, the finder shall be entitled to the value of ten-month base salary, deducted from preservation expenses, and plus fifty (50) per cent of the remaining value of the object in excess of the ten-month base salary provided for by the State, with the remaining value belonging to the State.

b) A lost or mislaid object which is an historic or cultural relic as prescribed in the Law on cultural heritage shall belong to the State. The finder shall be entitled to enjoy a monetary reward in accordance with law.

Article 231. Establishment of ownership rights with respect to stray domestic livestock

1. A person capturing a stray domestic livestock must take care of it and notify the people's committee of the commune in which such person resides in order that a public announcement may be made notifying the owner to reclaim the stray domestic livestock. After 6 months or after 1 year, with regard to domestic livestock allowed to roam according to customary practice, from the date of the public announcement, the ownership rights with respect to domestic livestock and any offspring born thereof shall belong to the capturer.

2. If the owner reclaims the stray domestic livestock, he/she must pay care remuneration and other expenses for the capturer. During the period of feeding and taking care of the stray domestic livestock, the capturer shall be entitled to half of or 50% of value any offspring born. Such person must compensate for any damage if it intentionally causes the death of the stray domestic livestock.

Article 232. Establishment of ownership rights with respect to stray domestic poultry

1. Where the domestic poultry of a person is lost and captured by another person, the person having captured the stray domestic poultry must make a public announcement notifying the owner to reclaim such poultry. If no one reclaims the stray domestic poultry after one month from the date of the public announcement, it shall be under the ownership of the person having captured it.

2. An owner reclaiming the stray poultry must remunerate the person having captured it for feeding and taking care of the stray domestic poultry and any other expenses incurred. During the period of feeding and taking care of the stray domestic poultry, the person having captured it shall enjoy the benefits from the stray domestic poultry. Such person must compensate for any damage if it intentionally causes the death of the stray domestic poultry.

Article 233. Establishment of ownership rights with respect to aquaculture stock

Where the aquaculture stock of a person moves naturally into the field, pond or lake of another person, the stock shall be under the ownership of the person having such field, pond or lake. Where the aquaculture stock has special marks which make it possible to determine that it is not under the ownership of the person having such field, pond or lake, such person must make a public announcement notifying the owner to reclaim the stock. If no one reclaims the stock after one month from the date of the public announcement, it shall be under the ownership of the person having such field, pond or lake.

Article 234. Establishment of ownership rights due to inheritance

An heir shall have ownership rights with respect to inherited property in accordance with Part Four of this Code.

Article 235. Establishment of ownership rights in accordance with judgment or decision of court or in accordance with decision of another competent authority

Ownership rights may also be created on the basis of an effective judgment or decision of a court or an effective decision of another competent authority.

Article 236. Establishment of ownership rights resulting from prescriptive periods with respect to possession or deriving benefits from property unlawfully

A person unlawfully but in good faith possessing, or deriving benefits from, property continuously and in an overt manner for ten (10) years with respect to moveable property, and for thirty (30) years with respect to immoveable property, shall become the owner of such property from the moment of commencement of possession, unless otherwise prescribed by this Code and relevant laws.

Sub-section 2. TERMINATION OF OWNERSHIP RIGHTS

Article 237. Bases for terminating ownership rights

Ownership rights terminate in any of the following cases:

1. The owners transfers his or her ownership rights to another person;

2. The owner renounces his or her ownership rights;

3. The property is consumed or destroyed;

4. The property is realized in order to fulfill the obligations of the owner;

5. The property is requisitioned;

6. The property is confiscated;

7. Other persons have established ownership rights with respect to property in accordance with this Code;

8. Other bases as provided by law.

Article 238. Transfer of ownership rights by owner

Where an owner transfers its ownership rights to another person through a contract for sale and purchase, by exchange, gift or loan, or through inheritance, the ownership rights of the owner with respect to the property shall terminate from the time when the ownership rights of the transferee arise.

Article 239. Renunciation of ownership rights

An owner may terminate ownership rights with respect to its property by publicly declaring, or by performing certain acts evidencing, its renunciation of the right to possess, use and dispose of such property.

With respect to property the renunciation of which may harm social order or security or cause environmental pollution, the renunciation of ownership rights must comply with the law.

Article 240. Property in respect of which other persons have established ownership rights

When a person has, in accordance with Article 228 through 233 of this Code, lawfully established ownership rights with respect to an object the owner of which is not able to be identified; a buried or sunken objects; a lost or mislaid object or stray domestic livestock, poultry or aquaculture stock, the ownership rights of the person formerly having the property shall terminate.

When the ownership rights of a possessor or a person benefiting from property have been created in accordance with Article 236 of this Code, the ownership rights of the person who formally had the property shall terminate.

Article 241. Realization of property in order to fulfill obligations of owner

1. Ownership rights with respect to property shall terminate when such property is realized in order to fulfill the obligations of the owner pursuant to a decision of a court or another competent authority, unless otherwise provided by law.

2. Property which the law provides is not able to be seized may not be realized in order to fulfill the obligations of the owner.

3. The ownership rights with respect to property realized in order to fulfill the obligations of the owner shall terminate at the time when the ownership rights of the recipient of such property arise.

4. The realization of land use rights shall be carried out in accordance with the law on land.

Article 242. Destroyed property

When property is destroyed, the ownership rights with respect to such property shall terminate.

Article 243. Property which is compulsorily acquired

Where property is compulsorily acquired as prescribed by law, the ownership rights of the owner shall terminate from the time when the decision of the competent authority becomes legally effective.

Article 244. Confiscated property

Where property of an owner is confiscated and paid into the State Budget due to the owner committing a crime or an administrative offence, the ownership rights of the owner with respect to such property shall terminate from the time when the judgment or decision of the court or the decision of the competent authority becomes legally effective.

Chapter XIV

OTHER PROPERTY-RELATED RIGHTS

Section 1. Right to adjoining immovable property

Article 245. Right to adjoining immovable property

Right to adjoining immovable property means a right to be exercised on an immovable property (hereinafter referred to as obliged immovable property) to serve the exploitation of another immovable property under ownership of another person (hereinafter referred to as entitled immovable property).

Article 246. Bases for establishment of right to adjoining immovable property

The right to adjoining immovable property shall be established according to natural terrain, as prescribed by law, according to agreement or will.

Article 247. Effect of right to adjoining immovable property

The right to adjoining immovable property shall take effect to every natural and juridical person and it is transferred concurrently with the transferred immovable property, unless otherwise prescribed by law.

Article 248. Rules for exercising right to adjoining immovable property

The right to adjoining immovable property shall be exercised as agreed by the parties. If the parties fail to agree, the rules below must be followed:

1. Ensure the appropriate exploitation of the entitled immovable property in conformity with the use purposes of both entitled and obliged immovable property;

2. Do not abuse the right to the obliged immovable property;

3. Do not obstruct or hassle the exercising of right to the entitled immovable property.

Article 249. Change of exercising right to adjoining immovable property

In case the change of use or exploitation of the obliged immovable property leading the change of exercising of right to the entitled immovable property, the owner of the former immovable property must notify the owner of the latter immovable property within an appropriate period. The owner of the obliged immovable property must enable the owner of the entitled immovable property to adapt to such change.

Article 250. Obligation of owners relating to draining of rainwater

An owner of house or construction works must install water drain pipes in order that the rainwater from its roof does not run onto any adjoining immoveable properties.

Article 251. Obligation of owners relating to draining of waste water

An owner of house or construction work must install underground drains or water drainage channels to discharge waste water to the prescribed location in order that the waste water does not run and spill onto any adjoining immoveable properties or onto public streets or public places.

Article 252. Rights relating to supply and drainage of water through adjoining immoveable property

Where, due to the natural location of immoveable property, the supply and drainage of water must pass through another immoveable property, the owner of the immoveable property through which the water flows must provide an appropriate channel for the supply and drainage of water and may not hinder or prevent the flow of water.

The person using the water supply and drainage channel must minimize to the lowest possible extent any damage to the owner of the immoveable property through which the water flows when installing the water channel. If damage is caused, compensation must be made. Where water flows naturally from a higher position to a lower position and causes damage to the owner of the property through which the water flows, the person using the water supply and drainage channel shall not be liable to compensate for any damage.

Article 253. Rights relating to irrigation and water drainage in cultivation

A person having the right to use land for cultivation has the right to request neighboring land users to provide a reasonable and convenient water channel for irrigation and drainage. A person having been so requested has the obligation to grant such request. If the person using such water channel causes damage to neighboring land users, compensation must be made.

Article 254. Right of passage

1. An owner of immoveable property which is surrounded by immoveable properties of other owners such that there is no exit has the right to request one of the owners of adjoining immoveable properties to provide it with a passage to a public road on their land.

The passage shall be opened in the adjoining immoveable property which is deemed to be the most convenient and reasonable, taking into consideration the special characteristics of the location, the interests of the immoveable property which does not have an exit, and what will cause the least damage to the immoveable property through which the passage is created.

The owner of the immovable property eligible for the passage must compensate for the obliged immovable property, unless otherwise agreed.

2. The location and the length, width and height of the passage shall be agreed by the owners in order to ensure convenient passage and minimize inconvenience to the parties. If there are any disputes regarding the passage, the parties may request the authorized State body to resolve.

3. Where immoveable property is divided into more than one portion for different owners or users, upon division, necessary passages must be provided, without compensation, to persons in the interior as provided in Clause 2 of this Article.

Article 255. Right to install electricity transmission cables and communication cables through other immoveable properties

An owner of immoveable property has the right to install electricity transmission cables and communication cables in a reasonable manner through the immoveable property of other owners, but must ensure the safety and convenience of such owners. If damage is caused, compensation must be made.

Article 256. Termination of easements over adjoining immoveable property

An easement over adjoining immoveable property shall terminate in the following circumstances:

1. The entitled immovable property and the obliged immovable property belong to ownership rights of a person;

2. The use and exploitation of the immovable property do not arise the needs of enjoying rights;

3. Upon agreement of contracting parties;

4. Other bases as provided by law.

Section 2. USUFRUCT RIGHT

Article 257. Usufruct right

Usufruct right means the right to use a property, under ownership of another entity, and enjoy its yield or income in a specific period of time.

Article 258. Bases for establishment of usufruct right

The usufruct right shall be established as prescribed by law, according to agreement or will.

Article 259. Effect of usufruct right

The usufruct right shall be established from the time of transfer of the property, unless otherwise agreed or otherwise prescribed by law.

The established usufruct right shall take effect to every natural and juridical person, unless otherwise prescribed by law.

Article 260. Time limit of usufruct right

1. The time limit of usufruct right shall be agreed by the parties or prescribed by law provided that its maximum length is the full life of the first usufructary being natural person or the period of time for which the first usufructary being juridical person exists as long as it does not exceed 30 years.

2. The usufructary has the right to lease the usufruct right within a specific period of time prescribed in Clause 1 of this Article.

Article 261. Rights of usufructary

1. On his/her own or permit another person exploit, use and enjoy yield and/or income from the object of the usufruct right.

2. Request the owner of the property perform obligation to repair the property as prescribed in Clause 4 Article 263 of this Code; if the usufructary performs the obligation on behalf of the owner of property is entitled to request the owner to refund the expenses.

3. Lease the usufruct right to the property.

Article 262. Obligations of usufructary

1. Receive property under current conditions and register it if required by law.

2. Exploit the property for appropriate purposes.

3. Preserve property as if it is his/her own property.

4. Maintain and repair property periodically to ensure the normal use; restore the status of the property and remedy the bad consequences of property due to his/her poor performance of obligations in line with technical requirements or by custom of property preservation.

5. Return the property to the owner of the expiration of usufruct time limit.

Article 263. Rights and obligations of property owner

1. Dispose property without any change of the usufruct right which has been established.

2. Request a court to deprive usufruct right from a usufructary who seriously breaches his/her obligations.

3. Do not obstruct or hassle or otherwise violate the legitimate rights and interests of the usufructary.

4. Perform obligation to repair property to ensure that there is no significant decline leading the property cannot be used or lost all its utility and value.

Article 264. Right to enjoy yield and income

1. Each usufructary has ownership right to the yield and income derived from the property being the object of the usufruct right during its effective period of time.

2. If the usufruct right cease to exist before the harvest time of yields and income, the usufructary shall, upon the harvest time, be entitled to enjoy the value of yield and income received corresponding the time that person is entitled to such usufruct right.

Article 265. Termination of usufruct right

The usufruct right shall terminate in any of the following cases:

1. The time limit of usufruct right has expired;

2. As agreed by the parties;

3. The usufructary becomes the owner of the property being the subject of the usufruct right;

4. The usufructary waives or fails to exercise the usufruct right during a time limit prescribed by law;

5. The property being subject of the usufruct right no longer exists;

6. Pursuant to a decision of a court;

7. Pursuant to other provisions of law.

Article 266. Returning property upon termination of usufruct right

The property being subject of usufruct right must be returned to the owner upon the termination of usufruct right, unless otherwise agreed or otherwise prescribed by law.

Section 3. SURFACE RIGHTS

Article 267. Surface rights

Surface rights mean an entity's rights to the ground, water surface, space thereon and earth bowel of the land whose land use rights belong to another entity.

Article 268. Bases for establishment of surface rights

Surface rights shall be established by law, according to agreement or will.

Article 269. Effect of surface rights

Surface rights shall take effect from the point of time when the holder of land use rights transfer ground, water surface, space thereon and earth bowel of the land to the holder of surface rights, unless otherwise agreed or otherwise prescribed by law.

Surface rights shall take effect to every natural and juridical person, unless otherwise prescribed by relevant laws.

Article 270. Time limit of surface rights

1. The time limit of surface rights shall be established by law, according to agreement or will provided that it does not exceed the time limit of land use rights.

2. If the agreement or will does not mention the time limit of surface rights, each party is entitled to terminate any time provided that it provides a written notification to the other party within 6 months.

Article 271. Contents of surface rights

1. Each holder of surface rights has the right to exploit and use ground, water surface, space thereon, the water and the earth bowel of the land whose land use rights belong to another entity for construction, planting or cultivation provided that it is not contrary to the provisions of this Code, the law on land, construction, planning, resources, minerals and other provisions of relevant laws.

2. The holder of surface rights has the ownership rights to every property derived as prescribed in Clause 1 of this Article.

3. If part of the whole of surface rights is transferred, the transferee shall inherit the surface rights according to conditions and within the scope in proportion to the part or the whole transferred surface rights.

Article 272. Termination of surface rights

The surface rights shall terminate in any of the following cases:

1. The time limit of surface rights has expired;

2. The holder of surface rights and the holder of land use rights shall be the same;

3. The holder of surface rights waives his/her rights;

4. Surface rights of land use rights are appropriated as prescribed in law on land;

5. As agreed by the parties or as prescribed by law.

Article 273. Realization of property upon termination of surface rights

1. Upon the termination of surface rights, its holder must return ground, water surface, space thereon and earth bowel of the land to the holder of land use rights, unless otherwise agreed or otherwise prescribed by law.

2. The holder of surface rights must realize the property under ownership upon its termination, unless otherwise agreed.

If the holder of surface rights must realize the property under ownership upon its termination, the ownership of such property shall be transferred to the holder of land use rights from the termination time, unless the latter holder refuse such property.

If the holder of land use rights refuses the property while the property is required to be realized, the holder of surface rights must pay the property realization expenses.

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