Abstract
According to the Constitution of Vietnam, the State can exert compulsory land use rights for national defense and security, and for socioeconomic development for public interests. However, Vietnamese law has no specific guidance for the definition or interpretation of “socioeconomic development for public interests.” As a result, some provincial governments abuse their power to acquire land for development that is not genuinely intended for public purposes, causing difficulties for the livelihoods of the land users. In some extreme cases, there are conflicts between the land users and the provincial governments. This situation evokes a need to review the theoretical background about keeping a balance between public and private interests in cases of compulsory land acquisition Phan (Phan HT (2009) In: Phan HT, The law of compulsory acquisition of land—striking a balance between public and private interests in the United Kingdom and Viet Nam. VDM Verlag Dr. Müller, Germany, p 106–107). In reviewing the existing literature, first, an examination is made of comparative legal philosophies in western countries. Various legal concepts and traditions related to property rights are considered. Second, some practical cases of compulsory land acquisition are considered. Given the discussion, a solution on how to more appropriately balance the rights of land users against the interests of the State is presented. Thus, land law as it relates to compulsory acquisition may be improved in a manner that respects democratic principles of land management in Vietnam and enables sustainable development.
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Notes
- 1.
Articles 19 and 20, Constitution 1980.
- 2.
Article 53, Land Law 1987.
- 3.
Article 17 and 18 Constitution 1992.
- 4.
Articles 2 and 3 Land Law 1993.
- 5.
“Land used for development projects of new urban areas, concentrated residential areas and other residential areas already decided by competent State agencies” (Item 2a, Article 1, Decree 22/1998/NĐ-CP dated April 24th, 1998, of the Government on compensation for losses when the State recovers land for use in national defense and security purposes, national interests and public interests).
- 6.
See Clause 2, Article 36, Decree 181/2004/NĐ-CP, dated October 29th, 2004, of the Government on detailing the implementation of a number of articles of the Land Law; Clause 3, Article 2, Decree 17/2006/NĐ-CP, dated January 27th, 2006, of the Government on amending and supplementing a number of articles of decrees guiding the implementation of the Land Law; Article 34—40 Decree 84/2007/NĐ-CP, dated May 25th, 2007, of the Government providing additional regulations on issuance of land use right certificates, land acquisition, implementation of land use rights, order and procedures for compensation, support and resettlement when the State acquires land and resolves complaints about land.
- 7.
Clause 3, Article 54, Constitution 2013.
- 8.
The constitutions of 1980, 1992, and 2013 of Vietnam.
- 9.
Town and Country Planning Act, 1990. c. 8, s. 226(1a).
- 10.
Housing Act, 2004. c. 34, s. 99(1).
- 11.
Clause 1, Article 146, Land Law Land Law, 2013.
- 12.
Clause 3, Article 146, Land Law Land Law, 2013.
- 13.
Clause1, Article 16, Law Law 2013.
- 14.
Article 62, Land Law Land Law, 2013.
- 15.
Article 73, Land Law Land Law, 2013 indicates that civil law is applied in the case of needing land for production and business projects, not applied for compulsory land acquisition
- 16.
Article 2, Law on Complaints 2011, and Article 3, Law on Administrative Proceedings 2015.
- 17.
This shows that there are still major differences between Vietnamese laws and the laws of advanced countries elsewhere in the world. For instance, there was the Kelo U.S. Supreme Court case in the USA in 2005, where the people sued the local government because they assumed the purposes of land acquisition was for “a commercial project”, which was unfair to them (Kelo v. New London, n.d.). Although the people eventually lost the case, at least they were heard in several courts. This lawsuit also “tolled the warning bells” to experts and scientists worldwide on the situation of people’s land being taken for private enterprises.
- 18.
Subsection 13, Answer No. 02/GĐ-TANDTC dated September 19th, 2016, of the Chief Justice of the Supreme People's Court on answering a number of issues of administrative procedures and civil procedures.
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Phan, H.T. (2023). Establishing Legal Norms in Vietnam for Compulsory Land Acquisition for Purposes of Economic Development: The Balancing of Public and Private Interests. In: Mookherjee, D., Pomeroy, G.M., Huong, L.T.T. (eds) Urban Transformational Landscapes in the City-Hinterlands of Asia. Advances in 21st Century Human Settlements. Springer, Singapore. https://doi.org/10.1007/978-981-19-8726-7_6
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