Chương IV Nghị định 181/2004/NĐ-CP: Giao đất, cho thuê đất, chuyển mục đích sử dụng đất, thu hồi đất, trưng dụng đất

Chapter IV

LAND ASSIGNMENT, LAND LEASE, LAND USE PURPOSE CHANGE, LAND RECOVERY, LAND REQUISITION

Article 30.- Grounds for land assignment, land lease, land use purpose change

Grounds for deciding on land assignment, land lease, permission for land use purpose change shall include:

1. The land use demands reflected in the following documents:

a) Investment projects of organizations using investment capital sources from the State budget, which have been approved by competent State agencies, or foreign-invested projects already granted investment licenses by competent State agencies;

b) Documents appraising the demands for land use for execution of investment projects of economic organizations which do not use State budget capital sources or which are not foreign-invested projects. The provincial/municipal Services of Natural Resources and Environment shall assume the prime responsibility for, and coordinate with the concerned Services, departments and branches in, appraising the land use demands on the basis of examining the investment project dossiers according to law provisions on investment;

c) The projects on construction of religious establishments, already approved by the provincial/municipal People's Committees;

d) The applications of households or individuals for land assignment, land use purpose change with certifications by the People's Committees of the communes, wards or townships where exists the land demanded for use, for case of applying for assignment of agricultural land within the land assignment limits or assignment of land for construction of dwelling houses;

e) The population communities' applications for land assignment with certifications by the People's Committees of the communes, wards or townships where exists the land demanded for use.

2. The good observance of the land legislation by applicants for land assignment or land lease for cases where the land assignment or land lease applicants have been previously assigned or leased land by the State for execution of production, business or service investment projects. On the basis of the self-declarations by the land assignment or land lease applicants about the entire acreages, the use of land previously assigned or leased by the State and their self-remarks on their observance of the land legislation, the provincial/ municipal Services of Natural Resources and Environment of the localities where exists the land, for which the land assignment or land lease procedures are being carried out, shall have to contact the provincial/municipal Services
of Natural Resources and Environment of the localities where exists the land which was previously assigned or leased in order to verify the land users' observance of the land legislation in the course of execution of projects to which the State assigned or leased land.

3. The detailed land use plannings or detailed land use plans, the urban construction plannings or rural population quarter construction plannings, which have been already approved by competent State agencies.

In cases where the detailed land use plannings or the detailed land use plans are not yet available, the land use plannings or land use plans already approved by competent State agencies shall serve as bases therefor.

Article 31.- Competence to assign land, lease land, permit land use purpose change and recover land

1. The competence to assign land, to lease land, to permit land use purpose change shall comply with the provisions of Article 37 of the Land Law.

The provincial/ municipal People's Committees shall assign land to the land fund development organizations for management.

2. The competence to recover land shall comply with the provisions of Article 44 of the Land Law.

Where land is recovered for assignment or lease to religious organizations or establishments, overseas Vietnamese, foreign organizations or foreign individuals and the to be-recovered land is being used by households, individuals or jointly by organizations, households and individuals, the provincial/ municipal People's Committees shall decide to recover the entire land areas. Basing themselves on the provincial/municipal People's Committees' decisions on recovery of the entire land areas, the People's Committees of rural districts, urban districts, provincial capitals or towns shall decide on the recovery of specific land area from each household, individual.

3. Where overseas Vietnamese, foreign organizations and/or foreigners use land for execution of investment projects but have to change the land use purposes due to the adjustment of the investment projects already approved by competent State agencies, the provincial/ municipal People's Committees shall permit the land use purpose change.

Article 32.- Competence to adjust land assignment, land lease decisions with regard to the land assigned or leased before the Land Law took implementation effect

The State agencies competent to assign land, lease land, defined in Article 37 of the Land Law, shall be the agencies competent to decide on adjustment for cases where the land users had been given land assignment or land lease decisions before the Land Law took implementation effect (July 1, 2004)

Article 33.- The durations of using the land assigned or leased by the State

1. The durations of using the land assigned or leased by the State shall be calculated from the dates of issuance of the land assignment or lease decisions by competent state agencies.

Where the land had been assigned or leased before October 15, 1993 but the land assignment decisions or the land lease contracts failed to clearly state the land assignment or lease duration, the land assignment or land lease duration shall comply with the provisions of Clauses 2 and 3 of Article 68, Article 71, Article 78, Clause 5 of Article 84, Clause 3 of Article 86, Clause 1 of Article 87, of this Decree and be calculated from October 15, 1993.

2. The land users may continue using the land for the remaining duration of the time limits stated in the land assignment decisions or land lease contracts.

Article 34.- Continuing to assign land, lease agricultural land; extending the land use duration or recovering land upon the expiry of land use time limits

1. Upon the expiry of land use durations, the households and individuals directly involved in agricultural production, forestry, aquaculture or salt making, that have used the agricultural land assigned or leased by the State, have their use rights recognized by the State or have been transferred the land use rights, may continue using the land with the land use durations prescribed in Clause 1, Article 67 of the Land Law, except for cases where the State issues land recovery decisions as provided for in Clauses 1, 4, 7, 8 and 11 of Article 38 of the Land Law.

2. The extension of the use duration for land categories with definite use durations not falling within the cases prescribed in Clause 1 of this Article shall comply with the following regulations:

a) Within six (6) months before the expiry of the use duration, if having demand to continue using the land, the land users shall file their applications to the State agencies competent to assign or lease land for consideration and settlement under the provisions of Clauses 1, 3 and 4, Article 67 of the Land Law;

b) The extension duration for cases where households, individuals lease agricultural land shall be determined in accordance with the provisions in Clause 1, Article 67 of the Land Law;

c) The extension duration for cases where economic organizations use land for the purposes of agricultural production, forestry, aquaculture, salt making; economic organizations, households, individuals use land as ground for construction of production and/or business establishments; economic organizations use land for execution of investment projects; overseas Vietnamese, foreign organizations and/or individuals use land for execution of investment projects in Vietnam shall be determined according to the supplementary projects already approved by competent State agencies, but must not exceed the duration of land assignment or land lease by the State.

3. Where the land users do not wish to continue using the land or apply for use duration extension as provided for in Clause 2 of this Article or are not permitted by competent State agencies for land use extension, the State shall recover the land under the provisions of Clause 10, Article 38 of the Land Law.

4. Annually, the People's Committees of the level competent to recover land shall direct the natural resource and environment agencies to review the land use duration in order to decide on land recovery applicable to cases prescribed in Clause 3 of this Article.

Article 35.- Handling of land use levies, land rents, assets already invested in land, for cases of land recovery prescribed in Clauses 2, 3, 5, 8, 9, 11 and 12, Article 38 of the Land Law

1. The People's Committees of the level competent to recover land shall set up Valuation Councils to determine the remaining values of the land use levies, land rents, assets already invested in the land, for cases where the land use levies, land rents, asset money invested in the land have not originated from the State budget; the remaining values belong to the ownership of the persons with their land recovered.

Where the land is assigned by the State without the collection of land use levies or the land is leased by the State with land rents being paid annually, or the land is assigned by the State with the collection of land use levies or leased by the State with land rents paid for the whole lease term or the land is leased by the State with land rents being paid for many years and the paid land use levies and/or land rents have originated from the State budget, only the remaining value portions invested in the land and not originating from the State budget shall belong to the ownership of the persons with their land recovered.

2. The remaining values of land use levies, land rents, assets already invested in land, which belong to the ownership of the persons with their land recovered shall be handled according to the following regulations:

a) Where the recovered land lies in urban areas or urban development planning regions, which is assigned to the land fund development organizations, the land fund development organizations shall have to pay the remaining values to the persons with their land recovered; in places where the land fund development organizations are not available, the payment to the persons with their land recovered shall be made by the budget of the level managing the recovered land;

b) Where the recovered land lies in rural areas and is assigned to the commune, district township People's Committees for management or for addition to the public land funds, such commune or district township People's Committees shall have to make payment to the persons with their land recovered;

c) Where the recovered land is assigned or leased to other persons by the State, the land assignees or lessees shall have to make payment to the persons with land recovered.

3. Where the recovered land belongs to the non-agricultural land group eligible for participation in the real estates market, the People's Committees of the level competent to recover the land shall apply form of auctioning the land use right and assets already invested in the land and handle the remaining values of the land use levies, land rents, assets already invested in the land, which belong to the ownership of the persons with land recovered according to the following regulations:

a) If the proceeds from auctions, after subtracting expenses for organization of the auctions, are lower than the remaining values belonging to the ownership of the persons with land recovered, such persons shall be entitled to receive the whole sums of such money;

b) If the proceeds from auctions, after subtracting the expenses for organization of the auctions, are higher than or equal to the remaining values belonging to the ownership of the persons with land recovered, such persons shall be entitled to receive the remaining values belonging to their ownership; the differences shall be remitted into the State budget.

4. Where the land is recovered due to acceptance of the land use right transfer, the transfer money, the remaining value of the assets already invested in land shall be settled like in the case of recovering land assigned by the State with the collection of land use levies as provided for in Clauses 1, 2 and 3 of this Article.

5. Where the to be-recovered land has been leased, mortgaged, guaranteed or contributed as capital with the land use right by the persons with land to be recovered, the interests of the land lessees, mortgagees, guarantees or receivers of capital contributed with the land use right shall be settled under the provisions of Article 65 of this Decree.

Article 36.- Recovery of land and management of recovered land funds

1. The State shall recover land for use for defense, security purposes, for national interests, public interests in the following cases:

a) Using the land for defense or security purposes;

b) Using the land for construction of working offices, non-business works with land assigned by the State without the collection of land use levies;

c) Using the land for construction of offices of foreign organizations with diplomatic functions;

d) Using the land for construction of public works not for business purposes;

e) Using the land for renovation, development of urban centers and rural population quarters;

f) Using the land for development of protective forests, special-use forests;

g) Using the land for religious establishments;

h) Using the land for construction of cemeteries, graveyards.

2. The State shall recover land for use for economic development purposes in the following cases:

a) Using the land for investment in construction of industrial parks defined in Article 90 of the Land Law, hi-tech parks defined in Article 91 of the Land Law, economic zones defined in Article 92 of the Land Law;

b) Using the land for execution of investment production, business, service or tourist projects of Group A under the provisions of the legislation on investment, which have been approved or permitted for investment by competent State agencies but cannot be invested in industrial parks, hi-tech parks or economic zones;

c) Using the land for execution of investment projects with sources of official development assistance (ODA) capital;

d) Using the land for execution of projects with 100% foreign investment capital, which have already been approved or permitted for investment by competent State agencies but cannot be invested in industrial parks, hi-tech parks or economic zones.

3. All cases of land recovery prescribed in Clauses 1 and 2 of this Article must be included in detailed land use plannings, plans; detailed urban construction plannings or rural population quarter construction plannings, which have been already approved by competent State agencies.

4. The recovered land areas prescribed at Points d and e of Clause 1 and Clause 2 of this Article shall be assigned to the land fund development organizations for management, for cases where the land use plannings or plans have been publicized but the investment projects are not available yet; assigned or leased to investors, for cases where the investment projects are available, but the investors must use the land for the right assignment or lease purposes.

5. The State shall recover land in the cases prescribed in Clauses 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Article 38 of the Land Law and assign the land to the commune People's Committees for management if the recovered land lies in rural areas, or to the land fund development organizations for management if the recovered land lies in urban areas and regions with urban development planning.

6. The State shall not recover land for use for economic development purposes for projects not prescribed in Clause 2 of this Article or in cases where investors are transferred or leased the land use rights, or receive capital contributed with the land use rights of the current land users.

In case of receiving the land use right transfer or capital contributed with the land use rights for use of land for production and/or business purposes, which entails the land use purpose change, the land use right transferees must be allowed to change the land use purposes under the provisions of Clause 1, Article 36 of the Land Law or to register the land use purpose changes under the provisions of Clause 2, Article 36 of the Land Law.

In cases of renting land of the current land users, the land lessees must not change the land use purposes.

7. The use purposes must not be changed for the land already assigned for use for defense or security purposes, for national interests, public interests, construction of industrial parks, for use as ground for non-agricultural production and/or business into the purpose of building dwelling houses for business.

8. The settlement of complaints about land recovery in the cases prescribed in Clauses 1 and 2 of this Article shall comply with the provisions of Articles 162, 163 and 164 of this Decree.

The settlement of disputes over land use right in the cases prescribed in Clause 6 of this Article shall comply with the civil law provisions.

Article 37.- Land requisition for definite terms

1. Where the State declares the state of emergency under law provisions on emergency state, war emergency state, natural disasters, fire or other emergency cases, which seriously threaten the properties of the State and/or organizations, the properties and lives of people and require land use, the Government, the provincial/municipal People's Committees and the rural district, urban district, provincial capital or town People's Committees are competent to requisition land.

The land requisition decisions must clearly state the land requisition purposes and duration.

2. If the land requisition duration expires while the land requisition purposes have not yet been attained, the State agencies which have requisitioned the land shall decide to extend the land requisition duration; the extension duration shall not exceed the land requisition duration.

3. The State agencies which have requisitioned the land shall have the responsibility to return the land and pay compensations for damage, if any, caused to the persons with land requisitioned, upon the attainment of the land requisition purposes or upon the expiry of the land requisition duration; the damage compensations shall be made within six (6) months after the expiry of the land requisition duration.

Where the land requisition affects the life-ensuring incomes of the persons with land requisitioned, the compensations must be made within three (3) months in lump sum for the damage caused by the requisition.