DECREE

WITH ADDITIONAL PROVISIONS ON ISSUANCE OF LAND USE RIGHT CERTIFICATES; ON LAND RECOVERY; ON EXERCISE OF LAND USE RIGHTS; ON ORDER AND PROCEDURES FOR COMPENSATION, ASSISTANCE AND RESETTLEMENT WHEN THE STATE RECOVERS LAND; AND ON RESOLUTION OF COMPLAINTS ABOUT LAND

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated 25 December 2001;
Pursuant to the Law on Land dated 26 November 2003;
Having considered the proposal of the Minister of Natural Resources and Environment and of the Minister of Finance;

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1 Governing scope

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2. Current regulations shall apply to the following issues when this Law does not contain any provision

Article 2 Applicable entities:

1. Bodies exercising the function of State administration of land; and bodies, organizations and individuals involved in administration of land.

2. Land users and organizations and individuals involved in land use.

Chapter II

SPECIFIC PROVISIONS ON A NUMBER OF CASES OF EXERCISE OF LAND USE RIGHTS AND ISSUANCE OF CERTIFICATES

Article 3 Land which has been used stably as stipulated in article 50.4 of the Law on Land

1. Land which has been used stably as stipulated in article 50.4 of the Law on Land means land which satisfies one of the following criteria:

(a) The land has been used continuously for a specified main purpose, as from the date of commencing use for such purpose until the time a certificate was issued or until the time there was a decision recovering the land made by the competent State body in a case where a certificate has not been issued;

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2. A determination of the time of commencement of stable land use shall be based on the date of use and purpose of use stipulated in one of the following documents:

(a) Receipt for payment of agricultural land use tax [or] housing and land tax;

(b) Minutes or decision imposing an administrative penalty for use of land or for construction of a building on land;

(c) Effective decision or verdict of a people's court or effective decision of an enforcement agency which was in fact enforced against assets attached to the land;

(d) Decision resolving a land dispute by a competent State body which was effective for execution; minutes of conciliation of a land dispute signed by the parties and a representative of the people's committee of the commune, ward or township (hereinafter referred to as the commune people's committee) where the land is situated;

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(e) Document on registration of permanent residence or long-term temporary residence in a house on residential land; people's identity card or birth certificate on which is recorded the address of a house relating to the parcel of land;

(g) Document on allocation, distribution or issuance of a house or land by a body or organization to which the States assigned management and use of land;

(h) Document on purchase and sale of a house [or] other asset attached to the land or a document on the purchase and sale of land [and/or] assignment of the land use right signed by the parties involved (without requiring certification by any body or organization);

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(k) Declaration on registration of a house and land certified by the commune level people's committee as at the time of such declaration.

3. If the commencement date of land use expressed in the various documents stipulated in clause 2 of this article is inconsistent, then the commencement date from which the land was used stably shall be determined in accordance with the document recording the earliest commencement date of land use.

4. If there are no documents as stipulated in clause 2 of this article or if there is no document expressing the date on which the document was created and the land use purpose, then there must be certification from the commune level people's committee of the commencement date of land use and the land use purpose by collecting opinions from the residents who lived together with the applicant applying for certification of the commencement date of land use in the residential area (hamlet, village or street population group) where the land exists.

Article 4 Point of time for determining financial obligations on lodging an application file for issuance of a certificate, for conversion of land use purpose, or for allocation or lease of land

1. The financial liability to the State of any economic organization, household or individual who was allocated land with payment of land use fees or who was leased land by a competent State body,

shall be determined according to the land policy and price applicable as at the date of issuance of the land allocation or land lease decision; and if the date of handover of land was different from the time stated in such decision, then financial liability shall be determined according to the land policy and price applicable as at the time of actual handover.

2. The financial liability to the State of a land user shall be determined as at the date of lodging an application file in a case where the land user lodged a complete and valid application file for a certificate or for conversion of land use purpose to the competent State body prior to 1 January 2005 (the date on which new land prices were applicable pursuant to Decree 188 of the Government dated 16 November 2004 on price determination methods and price frameworks for all types of land, hereinafter referred to as Decree 188) but the applicant was required to re-submit or amend such application file because the State body delayed the conduct of procedures or provided inappropriate guidance on preparation of the application file, or because declaration forms were amended, or because authority to grant certificates of land use rights or authority to permit conversion of land use purpose was amended.

3. The financial liability of the land user shall be determined in accordance with the land price stipulated by the provincial people's committee as at the date of lodging the application file, where such application file for a certificate or for conversion of land use purpose was submitted to the competent State body on or after 1 January 2005. If the functional body delayed the conduct of procedures or provided incorrect guidance on preparation of the application file, then the person who lodged the file may lodge a complaint about administrative conduct and the public servant responsible shall be disciplined in accordance with article 175 of Decree 181 of the Government dated 29 October 2004 on implementation of the Law on Land (hereinafter referred to as Decree 181), and the financial liability to the State of the person who lodged the application file shall be determined as at the date of lodging the complete and valid file.

4. The land use right registration office or the commune level people's committee which received an application file shall provide written certification of the time of lodging a complete and valid application file pursuant to clause 2 of this article based on the register for receipt of application files or the receipt provided to the applicant, and such office or people's committee shall send its written certification to the tax office as the basis for calculating the financial liability of the land user.

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1. In the case of a family household or individual who cannot afford to pay land use fees to the State as stipulated in article 5.4 of Decree 17-2006-ND-CP of the Government dated 27 January 2006 amending a number of Decrees implementing the Law on Land and amending Decree 187 of the Government dated 16 November 2004 on conversion of State owned companies (hereinafter referred to as Decree 17), and in the case of a family household or individual who is allocated land by the State for resettlement and wishes to have the land use fees recorded as a debt, then the land use fees shall in fact be recorded as a debt at the same time as lodging the application file for a certificate or for conversion of land use purpose or for allocation of land for resettlement. When the land user pays the debt, it must be paid at the land price applicable at the time of payment, and the note on the certificate recording the land use fees as a debt shall be deleted.

2. When paying a debt pursuant to article 17.1 of Decree 198 of the Government dated 3 December 2004 on collection of land use fees (hereinafter referred to as Decree 198), the land user shall pay such debt at the land price applicable as at the time of grant of his or her certificate; but when paying land use fees debts pursuant to article 5.4 of Decree 17 and in a case where the land use fees were recorded as a debt prior to the date on which this Decree takes effect, then the land user shall pay the land use fee debt on the basis of the debt acknowledged and recorded on his or her certificate.

3. The Ministry of Natural Resources and Environment and the Ministry of Finance shall provide guidelines on the order and procedures for recording land use fees as debts and for paying such debts.

Article 6 Additional procedures for an application file for conversion of land use purpose when the assets attached to the land are public property

In the case of assets attached to land being public property under the management of a central State body [or] State owned enterprise, then the people's committee of the province or city under central authority (hereinafter referred to as the provincial people's committee) shall only be permitted to make a decision on conversion of the land use purpose after it has written agreement from the Ministry of Finance on conversion of the use function of such property to another use function.

Article 7 Exemption/reduction of land use fees applicable to persons who contributed to the revolution

Land use fees shall be exempted or reduced for persons who contributed to the revolution in accordance with the law on preferential treatment for such persons.

Article 8 Issuance of certificates of land use right for agricultural production land

1. If a final plan for merger of land by exchanging parcels of agricultural production land has been completely performed, then the people's committee of the district, town or provincial city (hereinafter referred to as the district people's committee) shall recover the certificates previously issued for all the parcels of land and issue a new certificate for each parcel of land in compliance with article 48.3 of the Law on Land.

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3. The Ministry of Natural Resources and Environment shall provide guidelines on issuance of the certificates stipulated in clause 2 of this article.

Article 9 Issuance of certificates where agricultural land is used for the purpose of constructing a farm in a rural area

1. When a land user is granted a certificate for farm land in a rural area, the land user shall not be required to pay land use fees for conversion of land use purpose from agricultural production or from forestry, aquacultural or salt production to another agricultural land type in the following circumstances:

(a) Construction of a glass house or other type of building servicing cultivation purposes including forms of cultivation other than directly on land;

(b) Construction of a stable or shed for cattle, poultry and other types of animals as permitted by law;

(c) Construction of a plant or animal seed nursery;

(d) Construction of a barn or store for agricultural products, plant protection agents, fertilizer, or agricultural production machinery and tools used on the farm.

2. Upon conversion of land use purpose from land for planting annual crops other than land which is specialized land for wet rice cultivation, or from land for planting perennial crops, land for aquaculture or land for forestry production being plantation forests to another type of agricultural land pursuant to sub-clauses (a), (b), (c) and (d) of clause 1 of this article, or upon conversion from specialized land for wet rice cultivation to construction of a rice seed variety nursery, the farmland user must register the land use conversion pursuant to article 36.2 of the Law on Land.

Article 10 Issuance of a certificate where land is used by a community of citizens or by a religious establishment

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2. The order and procedures for issuance of certificates to religious establishments shall be implemented the same as the order and procedures applicable to organizations stipulated in article 137 of Decree 181.

3. Land used by a religious establishment for the purposes of agricultural production, forestry production, non-agricultural business production, land which is used for charitable activities and land comprising the land stipulated in article 99.1 of the Law on Land (including land which the religious establishment received by way of assignment or donation prior to 1 July 2004) and which the commune people's committee certifies is not subject to dispute shall be issued with a certificate, and shall be permitted to be used in accordance with the use regime applicable to such purpose the same as applies to a family household or individual, and shall be permitted to be subject to conversion of land use purpose pursuant to a decision of the provincial people's committee; in the case of land used for agricultural production purposes, forestry production, non-agricultural business production, and/or for charitable purposes by the religious establishment and which is not land which the State allocated without collection of land use fees, then such land may be assigned or donated, and the land use right may be leased or mortgaged or guaranteed in accordance with the law on land.

Article 11 Issuance of a certificate where the land use right has been assigned but the stipulated transfer procedures have not yet been conducted

1. In a case where the current land user acquired the land use right from an assignment, inheritance or donation of the land use right or of the house associated with the residential land use right (hereinafter referred to as the assignee) prior to 1 July 2004, and has not been issued with a certificate but has a document on the assignment of the land use right signed by the assignor (without certification of the assignment from any competent body), then such land user shall not be required to conduct procedures for assignment of the land use right, and shall have the right to submit an application file for a certificate pursuant to article 135.1 or 136.1 of Decree 181.

2. The following provisions shall apply in a case of assignment of the land use right or of a house associated with residential land where the parties completed a contract or document on the assignment but the assignor failed to submit the certificate or one of the documents referred to in clauses 1 and 5 of article 50 of the Law on Land (hereinafter referred to as land use rights documents) in order to conduct assignment procedures:

(a) In order to be granted a certificate, the assignee of the land use right shall file an application file including a request for issuance of a certificate and the contract or document on the assignment, and the place of lodging the application file shall be as stipulated in article 122 of Decree 181.

(b) The land use right registration office shall rely on the contract or document on assignment of the land use right to provide a written notice to the assignor and to post list] the notice at the headquarters of the commune people's committee in the place where the land exists regarding carrying out procedures to issue a certificate to the assignee and to cancel all documents on the land use right which were not handed over to the assignee in a case of an assignment of the whole of the land; or [a notice] regarding carrying out procedures to issue a certificate to the assignee and to amend or issue a new certificate in the case of an assignment of a part of the land; if the address of the assignor is unknown, then the notice shall be published in three consecutive additions of a local newspaper and the applicant for the issuance of the certificate shall bear those costs.

(c) If within a time-limit of thirty (30) days as from the date of the notice or as from the initial date of publication of the notice regarding carrying out procedures for issuance of a certificate to the assignee, there is no application to resolve a dispute, then the procedures for issuance of the certificate shall be implemented in accordance with article 135 or 136 of Decree 181 or in accordance with the law on residential housing; the competent people's committee shall issue a certificate, and also issue a decision rescinding the previously issued certificate to the assignor if the assignor does not hand in the old certificate; if the assignor hands in the old certificate, then the people's committee shall amend or issue a new certificate in accordance with guidelines of the Ministry of Natural Resources and Environment.

If there is an application to resolve the dispute, then the land use right registration office shall guide the applicant to lodge such application with the State body authorized to resolve land disputes stipulated in articles 135 and 136 on the Law on Land.

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If the named applicant for a certificate dies before the certificate is handed over, then the land use right registration office shall be responsible to report to the district people's committee to cancel the certificate which was signed and to notify the heir to amend the application file in accordance with article 151.1(a) of Decree 181 in order for the heir to be issued with a certificate.

Article 13 Issuance of a certificate where the land use right heir is a foreigner or a Vietnamese residing overseas ineligible to purchase residential housing attached to the residential land use right

1. In a case where all the heirs of a land use right or of a land use right plus assets attached to the land (in this article both referred to as the land use right) are foreigners or Vietnamese residing overseas ineligible to purchase residential housing attached to the residential land use right in Vietnam pursuant to article 121.1 of the Law on Land and article 126.2 of the Law on Residential Housing (in this article all referred to as ineligible entities) then their heirs shall not be issued with a certificate but shall have the right to assign or donate the land use right which they inherited in accordance with the following provisions:

(a) In the case of assignment, the order and procedures for assignment of the land use right shall be implemented in accordance with article 148 of Decree 181, and the heir shall sign a land use right assignment contract in the capacity of assignor.

(b) In a case of donation, the donee must be an eligible entity as stipulated in article 113.6 of the Law on Land and article 126.2 of the Law on Residential Housing; and the order and procedures for donating the land use right shall be implemented in accordance with article 152 of Decree 181, and the heir (the person who inherited the land use right) shall sign a contract or undertaking to donate in the capacity as donor. If the heir does not assign or donate the land use right which he or she inherited, then such heir or his or her proxy pursuant to a power of attorney shall lodge a file on the inheritance with the land use right registration office in order for the latter to update the cadastral register and to monitor it.

2. If one or more of the heirs is within the category of eligible entities (i.e. eligible to purchase residential housing attached to the residential land use right in Vietnam) but one or more of the other heirs are ineligible, and if the estate has not yet been divided amongst the heirs, then such heirs or their proxies shall file a written application regarding the inheritance with the land use right registration office in order for the latter to update the cadastral register and to monitor it.

Certificates shall be issued to eligible heirs after division of the estate is completed, and the divided portions of any ineligible heirs shall be dealt with in accordance with clause 1 of this article.

3. Heirs in the cases stipulated in clauses 1 and 2 of this article shall be permitted to provide written authority to others to superintend or to temporarily use the land and to discharge the obligations owing under the Law on Land and other relevant laws.

Article 14 Issuance of a certificate where land was used by a family household or individual prior to 15 October 1993 and there are none of the documents stipulated in article 50.1 of the Law on Land

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(a) A certificate shall be issued if at the time of conducting procedures for grant of the certificate the land is located in an area which already has approved land use zoning or detailed urban construction master planning or rural residential construction master planning (hereinafter all referred to as zoning) and the use of the land is consistent with such zoning and there is not yet a decision on recovery of the land although the land is in the category which the law stipulates must be recovered.

In the case of land which has a house on it, the land user shall not be required to pay land use fees for the area of residential land currently in use, which however must not exceed the quota of residential land to be allocated to each family household and individual to build their own housing as stipulated in articles 83.2 and 84.5 of the Law on Land as at the date of issuance of the certificate. Land use fees must be paid in respect of any area of land outside the quota at the rate stipulated in article 8.3(a) of Decree 198.

In the case of land which has buildings other than residential housing on it, a determination must be made of the area of agricultural land and the area of non-agricultural land, and the land user shall not be required to pay land use fees for the non-agricultural land.

The provisions of clause 2 of this article shall apply to the area of land determined to be agricultural land.

(b) If there is no approved zoning as at the time of conducting the procedures for grant of the certificate, then the land user shall be granted a certificate pursuant to sub-clause (a) above.

(c) If the land had been used since prior to the time when the zoning was approved but as at the time of grant of a certificate the land use is inconsistent with such approved zoning and a competent State body has not yet issued a document on its intention to recover the land in accordance with article 49 of this Decree, then the land user shall be granted a certificate in accordance with sub-clause (a) above.

(d) If the land had been used since prior to the date on which the zoning was approved but as at the time of grant of the certificate the land use is inconsistent with the approved zoning and a competent State body has in fact issued a document on its intention to recover the land in accordance with article 49 of this Decree, then the land user shall not be issued with a certificate but shall be permitted to continue to use the land in its current status until there is a decision on recovery of the land.

(e) In a case where zoning is amended by a competent State body and the whole or part of the parcel of land is consistent with the amended zoning, or in a case where the zoning is rescinded pursuant to a decision of a competent State body, then the land user shall be granted a certificate in accordance with sub-clause (a) above.

2. Issuance of a certificate shall be regulated as follows in a case where a family household or individual is currently using agricultural land but does not have any of the documents stipulated in article 50.1 of the Law on Land and the land has been used stably since prior to 15 October 1993 and does not fall within any of the cases stipulated in clause 4 of this article, and the commune people's committee certifies that the land is not subject to dispute:

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(b) A family household or individual not directly engaged in agricultural production shall be granted a certificate in the form of land leased from the State for the area of land currently being used. In the case of agricultural land on the same parcel of land with a house but which is not recognized as residential land, the family household or individual currently using such land shall be granted a certificate the same as the case stipulated in sub-clause (a) above.

3. In the case of a parcel of land with a garden or pond which was being used prior to 18 December 1980 and for which a certificate was granted pursuant to article 45.2 of Decree 181, and thereafter this parcel of land was split from a parcel of land without any of the land use right documents stipulated in clauses 1, 2 or 5 of article 50 of the Law on Land, then the residual area of land after the split shall also be granted a certificate pursuant to article 44.2 of Decree 181.

4. A family household or individual shall not be entitled to the grant of a certificate for an area of land which they were using since prior to 15 October 1993 if at the time of commencement of land use they committed one of the following breaches (except for the case stipulated in clause 5 of this article):

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(b) Breach of the detailed construction surface master planning as approved and publicly notified by the competent body applicable to any area of land assigned to an organization or a community of citizens to manage.

(c) Trespass on or illegal occupation of the safety corridor of public construction works as announced and demarcated.

(d) Trespass on or illegal occupation of a road, roadside or pavement for which construction marking lines have been drawn.

(dd) Trespass on or illegal occupation of land used for public purposes, of specialized use land, of land belonging to organizations, of unused land, or any other breach which was deliberately committed despite written notification to stop the breach.

5. Any family household or individual currently using land in the cases stipulated in clause 4 of this article but where the use is consistent with the zoning as at the time of grant of the certificate, shall be granted a certificate and must pay land use fees at the rates stipulated in sub-clauses (a), (b) and (c) of article 15.1 of this Decree.

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1. A certificate shall be granted pursuant to the following provisions to any family household or individual currently using land without one of the documents stipulated in article 50.1 of the Law on Land but the land was used from 15 October 1993 up until prior to 1 July 2004, and the land use is not within the cases stipulated in article 14.4 of this Decree, and the land is certified by the commune people's committee as not being subject to a dispute and as being consistent with the approved zoning (but such certification shall not be required if there is no approved zoning as at the time of conducting the procedures for issuance of the certificate):

(a) For land with housing, the family household or individual must pay land use fees at the rate stipulated in article 8.3(a) of Decree 198 for the land area in use which must not exceed the quota on land to be allocated for residential housing as stipulated in articles 83.2 and 84.5 of the Law on Land as at the time of grant of the certificate; and the land user must pay land use fees at the rate stipulated in article 8.3(b) of Decree 198 for any area of land exceeding such quota.

(b) If the family household or individual is currently using land with construction works other than housing on it, then a determination must be made of the area of agricultural and the area of non-agricultural land based on actual use status. The land user shall pay land use fees for the non-agricultural area at the rate stipulated in article 8.3(a) of Decree 198; and the land price to be used when calculating the land use fees payable shall be the price of land of the same type used for non-agricultural purposes.

(c) The provisions of article 14.2 of this Decree shall apply to the land area determined to be agricultural land.

2. In the case of any family household or individual who used land in the period from 15 October 1993 up until prior to 1 July 2004, and there are none of the documents stipulated in article 50.1 of the Law on Land for the entire parcel or any part of the parcel of land, and if such land is certified by the commune people's committee as not subject to a dispute but the land use is inconsistent with the approved zoning in the case of any locality for which there is such zoning, or if at the time of commencement of the land use there was a breach as stipulated in article 14.4 of this Decree, then such family household or individual shall not be entitled to the grant of a certificate for the entire or any part of the parcel of land but may temporarily continue to use the land in its actual status up until the time the competent State body issues a decision to recover it.

3. The State shall not recognize a land use right nor grant a certificate and shall recover the entire area of land in the case of trespass or illegal occupation, or in the case of allocation or lease of land contrary to authority from 15 October 1993 onwards.

Article 16 Issuance of a certificate where land was allocated contrary to authority prior to 1 July 2004 but the land user has paid land use fees in order to use the land

In the case of land which was allocated contrary to authority and for which the current land user has documents proving the payment of land use fees to a body or organization in order to use the land prior to 1 July 2004, and which the commune people's committee now certifies as not being subject to dispute and consistent with zoning, the current land user shall be granted a certificate as follows:

1. If the land has been used stably since prior to 15 October 1993, the current land user shall be granted a certificate for the allocated land area without having to pay land use fees.

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(a) For the allocated land area being agricultural or non-agricultural land but not residential land, the current land user shall be granted a certificate without having to pay land use fees.

(b) For the land area allocated for use as residential land within the residential land quota stipulated in articles 83.2 or 84.5 of the Law on Land, the current land user shall be granted a certificate without having to pay land use fees; for any residual land area with a house on it, the current land user shall be granted a certificate and must pay land use fees at the rate stipulated in article 8.3(a) of Decree 198; with respect to any residual land area which has a house on it and which is determined as being agricultural land in accordance with its current actual use status, and if the land user requests permission to use such area for non- agricultural purposes, then the land user shall be granted a certificate and must pay land use fees at the rate stipulated in article 5.2 of Decree 17.

Article 17 Provision on minimum area of a parcel of land permitted to be separated, and on issuance of a certificate for a land area less than the minimum area

1. A provincial people's committee shall regulate the minimum area of a parcel of land permitted to be separated for each type of land, consistent with the specific conditions within its locality.

2. The current land user shall be granted a certificate for a parcel of land currently in use with

less than the minimum area stipulated by the provincial people's committee where the land otherwise satisfies the conditions for issuance of a certificate; and the regulations of the provincial people's committee shall apply to the construction of residential housing or other buildings on such parcel of land.

3. A certificate shall not be issued in a case where a parcel of land is separated into a number of parcels of land one of which has a land area less than the minimum area regulated by the provincial people's committee.

4. A notary office shall not be permitted to notarize, and a commune people's committee shall not be permitted to certify the transfer of land use rights in the case of separation of a parcel of land into one or more parcels of land one of which has a land area less than the minimum area stipulated by the provincial people's committee.

Article 18 Issuance of a certificate where there is a disparity between the actual land area as measured and the measurements recorded on a land use document

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2. If the actual land area as measured in accordance with such technical standards is greater than the measurements recorded on the land use document, then the issue shall be resolved as follows:

(a) If the present boundary of the parcel of land has not changed since the time the land use right document was obtained and there is no dispute with adjacent land users and the actual land area measurements were made as at the time of grant of the certificate, then a certificate shall be granted in accordance with the actual land area as measured and the land user shall not be required to pay land use fees in respect of any area in excess of the area recorded on the land use right document.

(b) If the present boundary of the parcel of land has changed since the time of obtaining the land use right document and the disparity between the actual land area as measured and the measurements recorded on the land use document are certified by the commune people's committee of the locality where the land exists to be due to reclamation of waste land or due to receipt of an assignment from the previous land user, and if the land has been used stably and is not subject to dispute, then a certificate shall be granted for the whole of the actual land area as measured and financial obligations with respect to the excess area of land must be discharged in accordance with the Law on Land.

(c) If the present boundary of the parcel of land has changed from the time when the land use right document was obtained and the excess of the actual land area as measured over the land area recorded on the land use document is certified by the commune people's committee to be the result of trespass or illegal occupation, then the issue shall be dealt with in accordance with articles 14.5 and 14.4, or article 15.2 of this Decree.

Article 19 Issuance of a certificate where a parcel of land is divided or consolidated

1. An application file for division or consolidation of a parcel of land shall comprise:

(a) Request for permission to divide or consolidate the parcel of land made by the land user, if division or consolidation is requested by the land user and results from the receipt of an assignment of land use rights pursuant to sub-clauses (j) and (k) of article 99.1 of Decree 181.

(b) A certificate or one of the land use right documents stipulated in clauses 1, 2 and 5 of article 50 of the Law on Land; there must also be one of the types of documents stipulated in article 140.1 of Decree 181 if the division or consolidation of the parcel of land is as a result of receipt of an assignment as stipulated in sub-clauses (k) and (l) of article 99.1 of Decree 181.

2. A division or consolidation of a parcel of land at the request of the land user shall be implemented as follows:

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(b) On the date of receipt of a complete and valid application file or at the latest on the next

business day, the Department of Natural Resources and Environment or the Office of Natural Resources and Environment (both hereinafter referred to as the NRE body) shall be responsible to forward the application file to its subsidiary land use rights registration office to prepare the cadastral file.

(c) If consolidation of the parcel of land does not require land measurements, then on the same day as a complete and valid application file is received or on the next working day at the latest, the land use rights registration office shall make extracts of the land map and of the cadastral file and send them to the NRE body of the same level.

If division or consolidation of the land parcel requires land measurements, then the land use rights registration office shall conduct such land measurements of the newly divided or newly consolidated parcel of land within seven (7) working days from the date of receipt of a complete and valid application file, and then make extracts of the land map and of the cadastral file and send them to the NRE body of the same level.

(d) Within three working days from the date of receipt of the extract of the land map and of the cadastral file, the Office of Natural Resources and Environment shall submit a report to the district people's committee for its consideration and for signing a certificate of land use right for the new land parcel; or the Department of Natural Resources and Environment shall sign a certificate of land use rights for the new land parcel if such Department has authority, otherwise it shall make a submission to the provincial people's committee to sign a certificate for the new land parcel.

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(e) Immediately on receipt of the signed certificate or on the next business day at the latest, the Office of Natural Resources and Environment shall be responsible to hand the original certificate for the new parcel of land to the land user; and to forward to its subsidiary land use rights registration office a copy of the new signed certificate and the original of the revoked certificate or one of the documents on land use right referred to in clauses 1, 2 and 5 of article 50 of the Law on Land; and shall file a notice on change of land use with the land use right registration office under the Department of Natural Resources and Environment in order for the latter to amend the original cadastral file.

3. The NRE body shall also be responsible to conduct division pursuant to sub-clauses (b), (c), (d), (dd) and (e) of clause 2 above in a case where division of a parcel of land is necessary due to the State recovering a part of the land, and in this case the NRE body shall rely on and comply with the decision on recovery of the land.

Article 20 Land use and issuance of a certificate in the case of a construction project for an urban zone, for a rural residential area, or for a production and business area with a number of different land use purposes

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(a) The investor shall not have to pay land use fees or rent with respect to an area of land used for public purposes;

(b) The investor shall be permitted to select either the form of paying land use fees pursuant to Decree 198 or the form of paying rent pursuant to Decree 142-2005-ND-CP of the Government dated 14 November 2005 on collection of land and water surfaces rent with respect to each area of land consistent with the use purpose certified in the investment project.

2. In the case of an area of land for implementation of a construction project for an urban zone, for a rural residential area, or for a production and business area which includes a number of land areas with different land use purposes, then a certificate shall be issued for each parcel of land in compliance with the approved detailed construction master planning and the law on land.

Article 21 Revocation of certificates which were illegally issued

1. If there is a written conclusion made by an investigative body or inspectorate that a certificate was unlawfully issued, then the State body authorized to issue certificates shall consider the conclusion and if it is correct, issue a decision revoking the previously issued certificate.

2. If a State body authorized to issue certificates

3. If any organization or citizen detects that a certificate was unlawfully issued, then it shall be send a recommendation to the State body which issued such certificate and the latter shall consider such recommendation and resolve it in accordance with clause 2 of this article.

4. Issued certificates may only be revoked pursuant to an effective decision or verdict of a people's court in cases outside those stipulated in article 42.2 of Decree 181 and clauses 1, 2 and 3 of this article.

Chapter III

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Article 22 Right to lease assets attached to land leased by the State with payment of annual rent Economic organizations and individuals leasing land from the State with payment of annual rent shall be permitted to lease out assets owned by them and attached to the land; lessees must use the assets on the land in accordance with the purpose specified in the land lease decision of the competent State body.

Article 23 Land use right of an economic organization established as a joint venture between a domestic investor and a foreign investor but converted to an economic organization with 100% foreign owned capital

1. If an economic organization established as a joint venture between a domestic investor and a foreign investor converts to an economic organization with 100% foreign owned capital, then the land contributed as joint venture capital must convert to the form of land leased from the State and [the economic organization] shall select either the form of paying a lump sum rent or the form of paying annual rent.

2. The duration of the land lease stipulated in clause 1 of this article shall be determined as follows:

(a) The duration shall be seventy (70) years as from the date of conversion if the joint venture contribution was land which had been used stably and long-term.

(b) If the joint venture contribution was land which was being used for a [stipulated] term, then the duration of the land lease shall be the residual term of such use for a term.

3. The Ministry of Finance shall provide guidelines on dealing with financial obligations regarding land when a joint venture economic organization converts to the form of an economic organization with 100% foreign owned capital.

Article 24 Land use right of a joint venture economic organization between a domestic investor and a foreign investor or of an economic organization with 100% foreign owned capital when it receives an assignment of an investment project

1. A joint venture economic organization between a domestic investor and a foreign investor, or an economic organization with 100% foreign owned capital (in this article both referred to as a foreign invested economic organization) shall be permitted to receive an assignment of the following investment projects using land from a domestic economic organization:

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(b) An investment project in an economic zone or high-tech zone.

(c) An investment project for [construction of] infrastructure in an urban zone or rural residential area.

(d) An investment project for business and production.

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2. The receipt of an assignment of an investment project using land as stipulated in clause 1 of this article shall be implemented in accordance with the law on residential housing and the following provisions:

(a) If the assignor is a domestic economic organization to which the State allocated land with

collection of land use fees or which received an assignment of a land use right, and the land use fees paid or the sum paid for receiving such assignment was not funded by the State budget, then the value of the land use right shall be included in the total value of the project assignment contract; and the foreign invested economic organization shall conduct procedures to lease land from the State but shall not be required to pay land use fees.

(b) If the assignor is a domestic economic organization to which the State allocated land with

collection of land use fees or which received an assignment of a land use right, and the land use fees paid or the sum paid for receiving such assignment was funded by the State budget, or if the land was leased by the State or allocated by the State without collection of land use fees for the purpose of capital contribution in the form of the land use right, then the value of the land use right shall not be included in the total value of the project assignment contract; and the foreign invested economic organization shall conduct procedures to lease land from the State either in the form of paying a lump sum rent or in the form of paying annual rent.

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3. In the case of a foreign invested economic organization which receives an assignment of a project for construction and commercial operation of residential housing from a domestic economic organization to which the State allocated land for stable and long-term use and which paid land use fees not funded by the State budget, when the economic organization sells the housing it shall not be required to pay the difference between the land use fees and the rent as stipulated in article 81.2 of Decree 181; and the purchaser of the residential housing associated with the residential land use right shall be entitled to stable and long-term land use.

4. The Ministry of Natural Resources and Environment and the Ministry of Finance shall provide guidelines on implementing the provisions in this article.

Article 25 Dealing with a land use right which was contributed as capital to a joint venture economic organization by a State owned enterprise now undergoing equitization

1. In the case of a State owned enterprise to which the State allocated or leased land for which land use fees or rent was not paid; or to which the State allocated or leased land or which received an assignment of the land use right and the payment for such allocation, lease or assignment was funded by the State budget: then the value of the land use right contributed as capital shall not be included in the equitization [value] of the enterprise; and the value of a land use right contributed as capital prior to equitization shall be deemed to be the State owned capital portion contributed to the joint venture economic organization.

2. The value of the land use right contributed as capital shall be included in the equitization [value] of the enterprise in the case of a State owned enterprise to which the State allocated or leased land or which received an assignment of a land use right and the payment for such allocation, lease or assignment was not funded by the State budget.

Article 26 Dealing with the land use right of a non-agricultural co-operative where the land was contributed to the co-operative by its members and was converted to the form of land lease from the State

If a non-agricultural co-operative is currently using land which was contributed to the co-operative by its members and was converted to the form of land lease pursuant to Directive 245-TTg of the Prime Minister of the Government dated 22 April 1996 and Decree 85-CP of the Government dated 17 December 1996 on implementation of the Ordinance on rights and obligations of domestic organizations with land allocated or leased from the State, then such co-operative shall not [no longer] be required to lease land from the State. The co-operative shall have the rights and obligations of a land user stipulated in article 110.2 of the Law on Land, and the Department of Natural Resources and Environment shall be responsible to rescind the land lease contract previously signed and to either amend the issued certificate or to issue a new certificate to the co-operative.

Article 27 Right to select the form of land use in a case of implementation of an investment project for construction of residential housing for lease

1. An investor being a domestic economic organization or a Vietnamese residing overseas shall be entitled to select the form of State allocation of land with collection of land use fees or State lease of land with payment of annual rent in order to implement an investment project for construction of residential housing for lease.

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Article 28 Right to select the form of payment of land use fees or land rent on conversion of land use purpose when an investor receives an assignment of a land use right in order to implement an investment project

1. When an investor receives an assignment of a land use right in accordance with the law on land in order to implement an investment project consistent with land use zoning and plans but must convert the land use purpose after receipt of the assignment, the investor shall be entitled to select one of the following two forms:

(a) Land use in the form deemed to be State allocation of land with collection of land use fees. In this case the investor must pay land use fees in order to convert the land use purpose and shall have the rights and obligations stipulated in clauses 1 and 2 of article 110 of the Law on Land.

(b) Land use in the form of State lease of land. In this case the investor must pay land rent to the State and shall have the rights and obligations stipulated in article 111.1 of the Law on Land; and shall have the rights and obligations stipulated in article 110 of the Law on Land for the period for which the investor paid rent in advance pursuant to clause 2(b) of this article where the investor paid rent for an advance period of five years or more.

2. The sum actually paid by the investor for receipt of the assignment of the land use right shall be dealt with as follows:

(a) It shall be deducted from land use fees on conversion of land use purpose which the investor is required to pay to the State in order to use the land as stipulated in clause 1(a) of this article.

(b) It shall be deemed to be land rent which the investor has paid in advance to the State in order to lease land as stipulated in clause 1(b) of this article.

3. The sum paid by the investor for receipt of the assignment of the land use right stipulated in clause 2 of this article shall be determined on the basis of actual market price for assignment of land use rights in normal conditions but shall not exceed the sum which must be paid as compensation and assistance for land on land recovery by the State.

4. The sum actually paid by the investor for receipt of the assignment of the land use right as referred to in clause 2 of this article shall be accounted for as investment project expenses of the investor.

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6. The Ministry of Natural Resources and Environment and the Ministry of Finance shall provide guidelines on implementing the provisions in this article.

Article 29 Duration of land use applicable to non-agricultural land used stably and long-term prior to 1 July 2004 in accordance with the law on land

With respect to non-agricultural land used prior to 1 July 2004 by an economic organization as a result of allocation to create capital for the construction of infrastructure pursuant to a project; and with respect to non-agricultural business and production land of a household or individual which was not allocated or leased by the State: such economic organization, household or individual shall be permitted to continue to

use such land stably and long-term for non-agricultural purposes, and shall not be required to pay land use fees when permitted to convert use purpose to residential land, and shall be entitled to receive compensation at the residential land price upon land recovery by the State.

Article 30 Duration of land use applicable to land allocated as compensation upon land recovery by the State to a household or individual for use as non-agricultural production or business services land

With respect to land allocated to a household or individual for use as the surface area for non-agricultural production or business services and as compensation upon land recovery by the State pursuant to clauses 4 and 5 of article 4 of Decree 17, such household or individual shall be permitted to use such land stably and long-term for non-agricultural production and business purposes, and shall not be required to pay land use fees when permitted to convert use purpose to residential land, and shall be entitled to receive compensation at the residential land price upon land recovery by the State.

Article 31 Detailed provisions on exercise of right to mortgage and provide a guarantee using a land use right and assets attached to land

1. A guarantee using a land use right and assets attached to land pursuant to the Law on Land means a mortgage using a land use right to a third party borrower in accordance with the Civil Code (hereinafter referred to as a land use right mortgage).

2. Registration of a mortgage using a land use right and assets attached to land applicable to a household or individual granted a certificate shall be conducted as follows:

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(b) Where the application file is lodged with the commune people's committee, then the commune level cadastral officer (who has authority from the district land use right registration office) shall check the file and if it is valid shall conduct registration procedures and sign and seal [the application] on behalf of the commune people's committee on the same day as he or she receives a complete and valid application file or on the next working day at the latest.

3. Registration of a mortgage using a land use right and assets attached to land applicable to a household or individual not yet granted a certificate but having one of the documents stipulated in clauses 1, 2 or 5 of article 50 of the Law on Land shall be conducted by the district land use right registration office. Such office shall conduct registration procedures within five working days at the latest from the date it receives a complete and valid application file.

4. The Ministry of Natural Resources and Environment shall provide guidelines on the procedures for registration of mortgages stipulated in clause 2(b) of this article.

Article 32 Land for an investment project implemented by a Vietnamese residing overseas or foreign organization or individual for construction of residential housing for sale or lease

1. Vietnamese residing overseas and foreign organizations and foreign individuals (in this article all referred to as foreign investors) shall be permitted to lease land from the State in the form of payment of a lump sum rent or to participate in a State held land auction applicable to land for an investment project for construction of residential housing for sale or lease. The amount of the lump sum rent payment for land use in this case shall equal the amount of land use fees payable if residential land had been allocated with collection of land use fees or shall equal the successful auction bid.

2. The duration of the land lease in the case stipulated in clause 1 of this article shall be seventy (70) years which may be extended on request a number of times, each extension not to exceed seventy (70) years; and the foreign investor shall not be required to pay rent for any extended duration. When the foreign investor sells housing forming part of the project for construction and commercial operation of residential housing, then the purchaser of housing associated with a residential land use right shall be entitled to stable and long-term land use and shall not be required to pay the monetary difference between leased land and stable and long-term land use.

3. The Ministry of Natural Resources and Environment shall provide guidelines on land lease procedures, on land use right auction procedures, and on procedures for grant of certificates pursuant to this article.

Chapter IV

SPECIFIC PROVISIONS ON A NUMBER OF CASES OF RECOVERY OF LAND AND PAYMENT OF COMPENSATION AND ASSISTANCE WHEN THE STATE RECOVERS LAND

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Upon recovery of land in areas bordering between provinces and cities under central authority, the provincial people's committees shall stipulate the land price based not only on the economic, social and infrastructure conditions in such area but also on the general economic, social and infrastructure conditions and the ability of each locality to attract investment to such area.

Article 34 Recovery of land to implement projects for important economic development, for residential areas, or for economic development in urban areas and rural residential areas

1. The State shall recover land to implement the following important economic development projects:

(a) Important national projects for which the National Assembly decides the investment policy.

(b) Important projects for which the Prime Minister approves the investment policy.

2. The State shall recover land to implement the following projects for residential areas (including residential area infrastructure projects and housing projects), commercial centres and high class hotels:

(a) Projects in existing urban areas included in approved land use zoning or detailed urban construction master planning where investment in each such project has been approved by the chairman of the provincial people's committee.

(b) Projects in expanded areas of existing urban areas or in new urban areas included in approved land use zoning or detailed urban construction master planning.

(c) Projects in existing, expanded or new rural residential areas included in approved land use zoning or detailed rural residential construction master planning.

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Article 35 Recovery of land to construct concentrated business zones with the same land use regime

1. Various concentrated business zones with the same land use regime as stipulated in articles 40.1 and 90.1 of the Law on Land comprise:

(a) General commercial and services zones where various trading activities are carried out by many business entities.

(b) Tourism zones with infrastructure and types of business in common and where there are many business entities participating (excluding eco-tourism areas).

(c) Outdoor entertainment zones used by people of all ages with many types of entertainment for large numbers of people provided by many business entities.

(d) Cattle and poultry breeding zones where technological methods are applied, where there is complete infrastructure and where there are many investors participating.

2. The business zones stipulated in clause 1 must satisfy the following conditions:

(a) They are included in approved land use zoning or detailed land use planning.

(b) The investment policy has been approved by the Prime Minister, there is an investment decision by the chairman of the provincial people's committee, or they are included in the approved overall master plan for socio-economic development of the province or city under central authority.

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3. Investment projects in the business zones stipulated in clause 1 of this article fall within the category for which land shall be recovered for allocation or lease to investors in accordance with the law on land.

4. The land use provisions applicable to industrial zones in article 84 of Decree 181 and article 2.7 of Decree 17 shall also apply to land use for a project for the construction of a business zone referred to in clause 1 of this article.

Article 36 Recovery of land used by the management board of a high-tech or economic zone to reallocate or lease out

The management board of a high-tech or economic zone shall be responsible to recover land which it has re-allocated or leased out pursuant to article 91.2 or 92.2 of the Law on Land in the following circumstances:

1. The person to whom the management board re-allocated or leased land is not permitted to extend after expiry of the duration or term of the allocation or lease.

2. The land user being an organization is dissolved, declared bankrupt, transfers to another location, reduces its [land] need or no longer needs the land and the land use fees paid were funded by the State budget.

3. The land user voluntarily returns the land pursuant to article 38.8 of the Law on Land.

4. The land user commits a breach of the law on land stipulated in clauses 3, 4, 5, 6, 9, 11 or 12 of article 38 of the Law on Land.

Article 37 Recovery of land or extension of land use duration in a case stipulated in article 38.12 of the Law on Land

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2. State bodies authorized to allocate or lease land including management boards of a high-tech or economic zones shall only be permitted to extend land use duration with approval from the State body managing the investment, applicable to land allocated or leased by the State in order to implement an investment project but the land was not used or is behind schedule as stipulated in article 38.12 of the Law on Land, when the investor’s difficulties were due to a natural disaster, accident, war, economic or financial crisis or some other event of force majeure which directly affected the project implementation schedule.

Article 38 Recovery of agricultural land belonging to the public land fund of a commune, ward or Township

District people's committees shall issue decisions recovering agricultural land belonging to the public land fund of a commune, ward or township in order to use it for non-agricultural purposes in accordance with approved land use zoning and detailed land use planning.

Article 39 Recovery of land where the current land user does not have the right to assign or lease out the land use right, or mortgage or provide a guarantee using the land use right

The State shall recover land and allocate or lease it to an investor if the investment project is in the category where the investor must reach agreement with the current land user on assignment or lease of the land use right or on a mortgage or guarantee using the land use right, but the current land user does not have the right to so assign, lease, mortgage or guarantee the land use right pursuant to the Law on Land.

Article 40 Recovery of land which is in the category which the State must recover when the investor of its own initiative proposes, and is permitted, to reach agreement with the land user but then fails to reach agreement

1. In the case of land for an economic development project which is in the category which the State must recover, but the provincial people’s committee has provided written approval to the investor’s proposal that the investor itself reach agreement with the land users of land within the scope of the project regarding receipt of an assignment or lease of the land use right or on capital contribution using the land use right, if after 180 days have expired from the date of such written approval some land users still do not agree with the investor, then the competent people’s committee shall issue a decision recovering the land on which agreement has not yet been reached; and compensation, assistance and resettlement shall be implemented in accordance with law.

2. Any disputes and complaints in the circumstances referred to in clause 1 shall be resolved as follows:

(a) Disputes about contractual agreements on land use rights between land users and investors shall be resolved by the people’s court in accordance with civil law.

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Article 41 Responsibility of all level people’s committees in cases where investors reach agreement with land users of land not in the category which the State must recover

1. People’s committees shall have the following responsibilities, within the scope of their assigned functions and powers:

(a) To direct the provision of written material on policies, laws and application files regarding reaching agreement.

(b) To preside over negotiations for agreement between investors with land users if one or both parties so request.

(c) To direct conduct of procedures for assignment, lease or capital contribution using land use rights.

2. All level people’s committees and other State bodies may not issue land recovery decisions or take unlawful measures to interfere in negotiations for agreement between investors with land users with respect to land not in the category which the State must recover.

Article 42 Right to self invest in land currently being used and in the category which the State must recover for an investment project for production and business purposes or for construction and commercial operation of residential housing

1. Where land users (or the land users and adjacent land users) apply to invest in their land which is in the category which the State must recover for an investment project for production and business purposes or for construction and commercial operation of residential housing, they shall have the right to self invest in the land or to select organizations and individuals to contribute capital to formulation of an investment project if they satisfy the following conditions:

(a) They have an area of land currently being used in compliance with the approved land use zoning and detailed construction master planning, and it is suitable for the scale of the approved construction works.

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(c) They have the capability to implement the investment project and to satisfy the requirements and schedule of the project as approved.

2. The Ministry of Natural Resources and Environment shall preside over co-ordination with the Ministry of Planning and Investment to provide guidelines on investment in land currently being used and in the category which the State must recover for an investment project for production and business purposes or for construction and commercial operation of residential housing.

Article 43 Assistance for agricultural land intermingled with residential areas and for gardens and ponds adjacent to residential land in residential areas upon recovery by the State

Agricultural land intermingled with residential areas and gardens and ponds adjacent to residential land in residential areas shall be eligible for land assistance pursuant to article 10.2 of Decree 197-2004-ND-CP of the Government dated 3 December 2004 on compensation, assistance and resettlement when the State recovers land (hereinafter referred to as Decree 197) as follows:

1. The area of land eligible for land assistance shall be all of the agricultural land, garden and pond on the same parcel of land containing housing but not recognized as residential land and located in the following areas:

(a) Within the administrative boundaries of a ward.

(b) Within the residential area of a township or within the rural residential area already delimited by approved zoning; if the residential area of a township or rural residential area does not yet have approved zoning, then the boundary of the outermost parcel of land containing housing in such residential area shall be used to determine eligibility for land assistance.

2. In the case of a garden and pond actually being used on the same parcel of land containing a separate house, or a house built alongside a canal or highway not in the areas stipulated in clause 1 of this article, the area of land eligible for monetary assistance on each parcel of land shall not exceed five times the quota on allocated land stipulated in articles 83.2 and 84.5 of the Law on Land as at the date of the decision recovering the land.

3. In the case of areas of agricultural parcels of land adjacent to the boundaries of the areas stipulated in clause 1 of this article, the area of land eligible for monetary assistance on each parcel of land shall not exceed five times the quota on allocated land stipulated in articles 83.2 and 84.5 of the Law on Land as at the date of the decision recovering the land.

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Article 44 Land compensation and assistance upon recovery by the State of land used prior to 15 October 1993 where there are no documents on the land use right

1 Land compensation and assistance shall be paid as follows in the case of recovery by the State of land used prior to 15 October 1993 where there is no certificate and none of the documents stipulated in article 50.1 of the Law on Land and the commune people's committee certifies the land is not subject to dispute:

(a) Where the land currently being used has housing on it and is not within one of the cases of land use stipulated in article 14.4 of this Decree, then the land user shall be paid compensation for the area of land actually being used but such area for which compensation shall be paid must not exceed the quota on allocated residential land stipulated in articles 83.2 and 84.5 of the Law on Land as at the date of the decision recovering the land. Land compensation and assistance shall be paid in respect of the area of land in excess of such quota, and the area of any garden and pond on the same parcel of land containing the housing but not recognized as residential land, in accordance with the provisions on agricultural land intermingled with residential areas.

(b) Where the land is currently being used for a non-agricultural purpose (other than residential land) and is not within one of the cases of land use stipulated in article 14.4 of this Decree, then the land user shall be paid compensation for the area of land actually being used. If there is an area on the same parcel of land currently being used for an agricultural purpose then land compensation and assistance shall be paid for such area in accordance with the provisions on agricultural land.

(c) Where the land is currently being used for an agricultural purpose but the land user is a family household or individual directly engaged in agricultural production, then the land user shall be paid compensation for the area of land actually being used but not to exceed the quota on allocation of agricultural land stipulated in article 70 of the Law and Land and in article 69.1 of Decree 181.

(d) Where the land currently being used is within one of the cases of land use stipulated in article 14.4 of this Decree, or the agricultural land area exceeds the quota on allocation of agricultural land stipulated in article 70 of the Law and Land and in article 69.1 of Decree 181, then the land user shall not receive land compensation; if the land currently being used has housing on it and the land holder whose land is recovered has no other accommodation, then assistance shall be paid or a resettlement house provided in accordance with regulations of the provincial people's committee.

2. In the case of a parcel of residential land with a garden or pond which was being used prior to 18 December 1980 and for which a certificate was granted pursuant to article 45.2 of Decree 181, and thereafter this parcel of land was split from a parcel of land without any of the land use right documents stipulated in clauses 1, 2 or 5 of article 50 of the Law on Land, then the residual area of land after the split shall, where the commune people's committee certifies such land is not subject to dispute, receive land compensation and assistance for residential land within the limit stipulated in article 45.2 of Decree 181.

Article 45 Land compensation and assistance upon recovery by the State of land used since 15 October 1993 where there are no documents on the land use right

1 Land compensation and assistance shall be paid as follows in the case of recovery by the State of land used since 15 October 1993 up to 1 January 2004 where there is no certificate and none of the documents stipulated in article 50.1 of the Law on Land and the commune people's committee certifies the land is not subject to dispute:

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(b) Where the land is currently being used for a non-agricultural purpose (other than residential land) and is not within one of the cases of land use stipulated in article 14.4 of this Decree, then the land user shall be paid compensation for the area of land actually being used but land use fees payable at the rate stipulated in article 8.3(a) of Decree 198 shall be deducted from the compensation monies. The land price for calculating land use fees shall be the price of land of the same type used for non-agricultural purposes. If there is an area on the same parcel of land currently being used for an agricultural purpose, then land compensation and assistance shall be paid for such area in accordance with the provisions on agricultural land.

(c) Where the land currently being used is within the group or types of agricultural land and the current land user is a family household or individual directly engaged in agricultural production, then the land user shall be paid compensation for the area of land actually being used but such area for which compensation shall be paid must not exceed the quota on allocation of agricultural land stipulated in article 70 of the Law and Land and in article 69.1 of Decree 181.

(d) Where the land currently being used is within one of the cases of land use stipulated in article 14.4 of this Decree, or the agricultural land area exceeds the quota on allocation of agricultural land stipulated in article 70 of the Law and Land and in article 69.1 of Decree 181, then the land user shall not receive land compensation; if the land currently being used has housing on it and the land holder whose land is recovered has no other accommodation, then the issue shall be resolved in accordance with article 14.2 of Decree 197.

2. In a case of trespass or illegal occupation or allocation or lease of land contrary to authority on or since 1 January 2004, the person guilty of such trespass or illegal occupation or the person to whom the land was allocated or leased contrary to authority shall not receive compensation for the land when it is recovered.

Article 46 Land compensation and assistance upon recovery by the State of land allocated contrary to authority prior to 1 January 2004, but fees have been paid in order to use the land and a certificate has not yet been granted

Land compensation and assistance shall be paid as follows in the case of land allocated contrary to authority prior to 1 January 2004, but fees have been paid in order to use the land and a certificate has not yet been granted:

1. Current land users who have used the land since prior to 15 October 1993 shall be entitled to land compensation for the area and type allocated.

2. Land users who have used the land since prior to 15 October 1993 up until prior to 1 July 2004 shall be entitled to land compensation and assistance as follows:

(a) They shall be entitled to land compensation and assistance for the allocated land area which is agricultural land [or] non-agricultural land not being residential land; and for the land area which is residential land within the quota stipulated in articles 83.2 or 84.5 of the Law on Land.

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Article 47 Land compensation and assistance upon recovery by the State of land in a case where the actual land area as measured is different from the area recorded on the land use document

Land compensation shall be paid as follows in the case of land recovered by the State where the actual land area as measured is different from the area recorded on the land use document:

1. Where the actual land area as measured is less than that recorded on the land use document, compensation shall be made in accordance with the actually measured area.

2. Where the actual land area as measured is greater than that recorded on the land use document because the earlier survey was inaccurate or because the land user did not declare the full area upon registration but the boundaries of the whole of the parcel of land are clearly marked, there is no dispute with adjacent land users and land use has not resulted from trespass or illegal occupation, then compensation shall be made in accordance with the actually measured area.

3. Where the actual land area as measured is greater than that recorded on the land use document and there is certification by the commune people's committee where the land is situated that the surplus area results from reclamation of waste land or assignment from the previous land user, and the land has been used stably and long-term and is not subject to dispute, then compensation shall be made in accordance with the actually measured area.

4. Compensation shall not be made for the surplus area where the actual land area as measured is greater than that recorded on the land use document and such increase resulted from trespass or illegal occupation.

Article 48 Compensation in the form of residential land when the State recovers agricultural land

Any family household or individual directly engaged in agricultural production who has more than thirty (30) per cent of his or her agricultural land recovered by the State without compensation in the form of equivalent agricultural land and who does not wish to receive compensation in the form of land as the surface area for non-agricultural production or business services pursuant to article 4.4 of Decree 17, shall receive compensation in the form of allocation of residential land with collection of land use fees in a resettlement area or in a residential area in accordance with zoning.

The provincial people's committee shall stipulate the amount of allocated land based on the capability of the land fund and the amount of land recovered from each family household or individual.

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Chapter V

ORDER AND PROCEDURES FOR RECOVERY OF LAND, AND FOR PAYMENT OF COMPENSATION AND ASSISTANCE AND FOR RESETTLEMENT WHEN THE STATE RECOVERS LAND

Article 49 Determination and publication of the land recovery policy

1. A determination of the land recovery policy (where land is recovered pursuant to zoning) or issuance of written approval for an investment location (where land is recovered pursuant to a project) shall be based on the following grounds:

(a) Land use zoning and land use plans, or urban construction master planning or rural residential construction master planning as approved by the competent State body in accordance with law.

(b) The need for land use as expressed in the investment application file in accordance with the law on investment and the law on construction.

In the case of an investment project using State budget capital, the need for land use shall be determined on the basis of the decision of the competent body approving the project; in the case of an investment project using non-State budget capital, the need for land use shall be determined on the basis of the written evaluation of the need for land use made by the Department of Natural Resources and Environment in accordance with article 30.1 of Decree 181; and in the case of a project for construction of a religious establishment, the need for land use shall be determined on the basis of the decision of the provincial people's committee.

(c) The circumstances in which land will be recovered as stipulated in article 36.1(a), (b), (c), (d), (e), (g) and (h), and article 36.2(a), (c) and (d) of Decree 181, and article 2.3 of Decree 17, and articles 34 and 35 of this Decree.

2. The provincial people's committee or the district people's committee shall issue a written document on the land recovery policy or written approval for an investment location as stipulated in clause 1 above.

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Article 50 Preparation of cadastral files for areas of land to be recovered

1. Based on the written document from the provincial people's committee stipulated in article 49.2, the Office of Natural Resources and Environment shall instruct the land use right registration office to prepare the cadastral file for an area of land to be recovered (or the NRE Office shall itself directly prepare the cadastral file if the locality does not have a land use right registration office) as follows:

(a) Amend the land map to comply with the current status and make an extract of the land map (if the locality already has regular land maps) or carry out cadastral measurements (if the locality does not yet have regular land maps).

(b) Finalize the cadastral file and make an extract of it (the land register) to send to the organization in charge of compensation and site clearance.

(c) Draw up a list of parcels of land to be recovered, specifying the code numbers of the land maps and of the parcels of land, the names of the land users, the area of parcels of land with the same use purpose in common, and the use purposes.

2. When cadastral measurements of land need to be taken, the district people's committee shall provide written notification to the land user who shall be responsible to co-operate in order to facilitate verification of the current status of the parcel of land.

3. The expenses of amending the land map and making an extract of it, and of finalizing the cadastral file and making an extract of it shall be paid by the investor in the case of recovery of land pursuant to a project, and by the land fund development organization in the case of recovery of land pursuant to zoning.

Article 51 Preparation, evaluation and approval of overall plans for compensation, assistance and resettlement

1. The organization in charge of compensation and site clearance (with participation of a representative of the investor) shall prepare an overall plan for compensation, assistance and resettlement (hereinafter referred to as the overall plan) based on the existing data supplied by the Office of Natural Resources and Environment, and submit one copy set to the Department of Finance or Office of Finance (hereinafter both referred to as the financial body) for its evaluation. The overall plan shall contain the following items:

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(b) General data on land of different types and grades in the case of agricultural land, and the code numbers of the land maps and of the parcels of land; estimated value of assets on land.

(c) General data on the number of households, of household members and of employees in the area of land to be recovered; specifying the number of employees who will have to change jobs and the number of households which will have to be resettled.

(d) Proposed amounts of compensation and assistance to be paid; proposed resettlement site and area or proposed resettlement housing, and the proposed method of resettlement.

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(e) A list of all works to be relocated, the size of such works, and the proposed new site: to include State works, works of organizations, works of religious establishments, and works of the residential community.

(g) The number of graves to be relocated and the proposed new site.

(h) Total estimated budget for implementing the plan.

(i) Funding source for implementing the plan.

(k) Schedule for implementing the plan.

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3. Within a maximum of seven (7) working days from the date of receipt of a submission from the financial body, the people's committee which issued the land recovery policy or approval for the investment location shall be responsible to issue a decision approving the overall plan.

Article 52 Notification of land to be recovered

1. After the overall plan has been approved, the organization in charge of compensation and site clearance shall be responsible to notify land users of the reason for land recovery, of the proposed amount of compensation and assistance to be paid, of the proposed resettlement site, of the proposed measures for changing trades and creating jobs, and of the time for relocation and handover of the recovered land as set out in the overall plan.

2. Land users shall have rights stipulated in laws to make observations, proposals or requests to the organization in charge of compensation and site clearance on the matters notified as stipulated in clause 1 of this article.

Article 53 Decision recovering land

1. A decision recovering land shall be issued as follows:

(a) The Natural Resources and Environment body shall be responsible to make a submission to the same level people's committee to issue a decision recovering land, within twenty (20) days from the date of the notification stipulated in article 52.1.

(b) Within a time-limit of no more than five business days from the date of receipt of a submission from the same level Natural Resources and Environment body, the people's committee shall be responsible to consider and make a decision recovering land.

(c) If an area of land to be recovered includes both parcels of land within the recovery authority of the provincial people's committee and parcels of land within the recovery authority of the district people's committee, then the provincial people's committee shall issue a general decision recovering all the parcels of land within such area and shall also issue specific decisions recovering each parcel of land within its recovery authority.

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2. A decision recovering land shall comprise [two types]:

(a) General decision of the provincial people's committee recovering all parcels of land within one area, stating the total area of the land to be recovered, the names and addresses of the land users, and a list of all the parcels of land to be recovered.

(b) Specific decision recovering one parcel of land within the recovery authority of either a provincial people's committee or a district people's committee, setting out the name and address of the land user; the code number of the land map, of the extract of the land map and of the parcel of land; the type of land and the area of the land (calculated in accordance with the cadastral file or official land area data re-verified during the course of preparation of the compensation and site clearance plan).

3. A decision recovering land must be sent to the land user whose land is to be recovered, and must be posted at the headquarters of the commune people's committee in the place where the land exists for the entire period of time from the date of the decision until completion of the process of land recovery.

Article 54 Resolution of complaints about land

1. Complaints about land shall be resolved in accordance with article 138 of the Law on Land, articles 63 and 64 of this Decree, and the provisions on resolution of complaints in Decree 136.

2. Pending a decision resolving a complaint, the decision recovering the land must continue to be complied with. Execution of the decision recovering the land shall cease after there is a decision of a competent State body resolving a complaint which concludes that recovery of the land was unlawful; and the body which issued the decision recovering the land must issue a further decision rescinding the former decision and pay compensation for loss caused by it. If the State body authorized to resolve a complaint concludes that recovery of the land was legally correct, the person whose land was recovered must comply with the decision recovering the land.

Article 55 Declaration, inventory and verification of origin of land

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1. The person whose land is to be recovered shall make a declaration on the standard form provided by the organization in charge of compensation and site clearance; and the declaration shall contain the following items:

(a) Area and type of land (use purpose), origin, the time of commencement of land use, and the type of document on land use.

(b) Quantity of housing (and its type and grade) and other buildings constructed on the land, and the period for which they have been used; quantity and type of perennial trees; quantity and type of annual trees, the area they cover, and the output and yield of the annual crop; area under aquacultural or salt production and the output and yield.

(c) Number of household members (based on registration of permanent residency or long-term temporary residency), and number of employees affected by the land recovery (for an agricultural area, the number of persons directly engaged in agricultural production, or in forestry, aquacultural or salt production on the land to be recovered; and for a non-agricultural area, the number of persons who have a labour contract signed with a hirer who has business registration); and the wishes of the land user regarding resettlement and change of trade (if any).

(d) The number of graves to be relocated.

2. The organization in charge of compensation and site clearance shall check the contents of the declaration and organize an inventory of the land and assets attached to it, and verify the origin of the land, in accordance with the following order and procedures:

(a) Check on site the area of the land if there is any contradiction or complaint about data on the land area; and check and count any damaged assets and compare them with the contents in the declaration. This check must be attended by the land user and a representative of the commune people's committee where the land is situated; and the results of the check must be signed by the person directly conducting it, by the land user (or his or her proxy), by the owner of any damaged assets (or his or her proxy), by the commune cadastral officer, by the representative of the Office of Natural Resources and Environment, and by the representative of the head of the organization in charge of compensation and site clearance.

(b) Work with the land use right registration office and the commune people's committee where the land is situated to verify the origin of the land; and to verify the cases entitled to payment of compensation and assistance, and resettlement.

Article 56 Preparation, evaluation and approval of a [specific] plan for compensation, assistance and resettlement

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1. Preparation of the [specific] compensation plan:

(a) The organization in charge of compensation and site clearance shall be responsible to prepare this plan within a maximum of sixty (60) days from the date of completion of the measurement, check and count.

(b) The compensation plan shall contain the following items:

- Name and address of the land user whose land is to be recovered.

- Area, type and grade of land (in the case of agricultural land); position and origin of the recovered land; volume, quantity and percentage residual value of assets damaged.

- Grounds for calculating the amount of monetary compensation and assistance such as the land price, price of housing and building works,

- The amount of monetary compensation and assistance.

- Arrangements for resettlement.

- Relocation of State

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2. Obtaining opinions on the compensation plan:

(a) The compensation plan must be posted [listed] at the headquarters of the commune people's committee in the place where the land exists and in residential areas to enable the person whose land is recovered and other affected persons to contribute their opinions.

(b) Such posting must be recorded in writing and the minutes signed by a representative of the commune people's committee, by a representative of the commune level Vietnam Fatherland Front, and by a representative of the person whose land is recovered.

(c) The period for posting the plan and for receiving opinions shall be at least twenty (20) days from the first day of posting.

3. Finalization of the compensation plan:

(a) On expiry of the period for posting the plan and for receiving opinions, the organization in charge of compensation and site clearance shall be responsible to collate the opinions in writing by specifying the number of opinions for, against, and different from the plan; and to finalize the plan and send it together with a summary of the opinions to the financial body for its evaluation.

(b) If there are many opinions against the plan, then the organization in charge of compensation and site clearance shall provide a clear explanation or consider and amend the plan prior to sending it to the financial body.

4. Evaluation, and submission for approval of the compensation plan:

(a) The financial body shall be responsible to evaluate the plan and submit it to the same level people’s committee for approval, within fifteen (15) days at the latest from the date it receives the plan.

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5. Approval of the compensation plan:

(a) The same level people’s committee shall be responsible to consider and approve the plan within fifteen (15) days at the latest from the date of receipt of the submission from the financial body.

(b) If a plan is approved by a district people’s committee and includes a land price for calculating the amount of monetary compensation and assistance which is different from the land price stipulated and announced by the provincial people’s committee, then the district people’s committee must report the matter to the provincial people’s committee and may only approve the plan after the provincial people’s committee approves such land price [in the plan].

Article 57 Public notification of a [specific] plan for compensation, assistance and resettlement

The organization in charge of compensation and site clearance shall, within three days from the date of receipt of an approved plan, co-ordinate with the commune people's committee to publicly notify and post [list] the decision approving the plan at the headquarters of the commune people's committee and in residential areas in the place where the recovered land exists; and to send the decision to the person whose land is recovered specifying the amount of compensation and assistance to be paid; and specifying any new housing allocated or the resettlement housing, the time and place for payment of the compensation and assistance monies, and the time for handing over the recovered land to the organization in charge of compensation and site clearance.

Article 58 Making payment of compensation and assistance monies, and conducting resettlement

1. The organization in charge of compensation and site clearance shall, within five days after the date of sending notice of the approved plan to the person whose land is to be recovered, make payment of the compensation and assistance monies. If the person entitled to receive payment of such monies authorizes another to accept payment, then he or she must provide a written power of attorney as stipulated by law.

2. In a case of resettlement, the organization in charge of compensation and site clearance shall handover a house or residential land together with a certificate of residential land use right [and/or] a certificate of ownership of residential housing to the person to be resettled, prior to conducting site clearance. If there is a written agreement between the organization in charge of compensation and site clearance and the person to be resettled, signed by both parties, for handover and receipt of a house or residential land after site clearance, then such agreement shall be implemented.

3. If the person whose land is to be recovered refuses to receive payment of compensation and assistance monies [and/or] refuses to receive housing or land for resettlement, then the organization in charge of compensation and site clearance shall remit the monies into an escrow bank account and retain the housing or land for resettlement in its original condition as the basis for resolving any complaint in the future.

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(a) If compensation, assistance and resettlement

(b) In a case of late payment or late receipt of compensation and assistance monies, article 9.2 of Decree 197-2004-ND-CP and article 4.2 of Decree 17-2006-ND-CP shall apply.

(c) If the decision approving the plan was made prior to the effective date of Decree 197-2004- ND-CP but the compensation, assistance and resettlement monies have not been paid and the land price increases to higher than the approved price, then the land price shall be amended pursuant to article 9.2 of Decree 197-2004-ND-CP and article 4.2 of Decree 17-2006-ND-CP.

Article 59 Time for handover of recovered land

The person whose land is recovered must conduct handover to the organization in charge of compensation and site clearance within a time-limit of twenty (20) days as from the date on which such organization completes payment of the compensation and assistance monies pursuant to the approved method in the approved plan.

Article 60 Enforced recovery of land

1. Enforced recovery of land pursuant to article 39.3 of the Law on Land may only take place when the following conditions have been satisfied:

(a) The provisions on the order and procedures for land recovery and for payment of compensation, assistance and resettlement as stipulated in articles 49 to 59 inclusive of this Decree have been correctly implemented.

(b) Thirty (30) days have expired from the date as stipulated in article 59 on which the person whose land is recovered should have handed over the land to the organization in charge of compensation and site clearance, and such person has failed to so handover the land.

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(d) There is an effective decision on enforcement issued by the provincial people's committee in accordance with law.

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2. If the person whose land is recovered fails to comply with the decision on enforcement within fifteen (15) days from the date of direct receipt of the decision on enforcement or from the date of public posting [listing] such decision as stipulated in clause 1(dd) above, then the commune people's committee shall direct the enforcement agency to compulsorily recover the land in accordance with law.

Article 61 Resolution of complaints about a decision on compensation, assistance and resettlement, or about a decision on enforcement

Complaints about a decision on compensation, assistance and

Article 62 Separation of items regarding compensation, assistance and resettlement into a separate subproject and responsibilities to organize compensation, assistance and resettlement in the case of investment projects of ministries and branches

1. Depending on the size of any one area of land to be recovered for implementation of an investment project, the body authorized to approve such investment project may issue a decision separating the items regarding compensation, assistance and resettlement into a separate sub-project for independent implementation.

2. A provincial people's committee shall be responsible to direct the organization of land recovery and of compensation, assistance and resettlement in the case of an investment project for which the State recovers land, and such project belongs to a ministry, ministerial equivalent body, Government body, economic group, corporation or centrally run professional unit (hereinafter all referred to as ministries and branches).

Ministries and branches with investment projects shall be responsible to co-ordinate with the provincial people's committee and the organization in charge of compensation and site clearance; and to ensure adequate funding for payment of compensation, assistance and resettlement in accordance with law.

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ADDITIONAL PROVISIONS ON RESOLUTION OF COMPLAINTS ABOUT LAND

Article 63 Order for resolution of a complaint about an administrative decision or administrative act of the chairman of a district people's committee

1. Any person with related rights and interests who disagrees with an administrative decision or administrative act during land administration of the chairman of a district people's committee as stipulated in article 162 of Decree 181-2004-ND-CP shall have the right to lodge a complaint with the district people's committee within a time-limit of ninety (90) days as from the date of such decision or act.

2. The chairman of a district people's committee shall be responsible to resolve a complaint within the time-limit stipulated in the Law on Complaints and Denunciations. The decision of a chairman of a district people's committee resolving a complaint shall be publicly announced and sent to the complainant and any other persons with related rights and interests.

3. Any complainant who disagrees with the decision of a chairman of a district people's committee resolving a complaint shall have the right to lodge a further complaint with the provincial people's committee or to institute proceedings in the people’s court within a time-limit of forty-five (45) days as from the date of receipt of such decision.

The chairman of a provincial people's committee shall be responsible to resolve a complaint within the time-limit stipulated in the Law on Complaints and Denunciations. The decision of the chairman of a provincial people's committee resolving a complaint shall be referred to as the second decision and shall be publicly announced and sent to the complainant and any other persons with related rights and interests.

4. Any body which receives a complaint must record it in a register for monitoring resolution of complaints.

Article 64 Order for resolution of a complaint about an administrative decision or administrative act of the chairman of a provincial people's committee

1. Any person with related rights and interests who disagrees with an administrative decision or administrative act during land administration of the chairman of a provincial people's committee as stipulated in article 162 of Decree 181-2004-ND-CP shall have the right to lodge a complaint with the provincial people's committee within a time-limit of thirty (30) days as from the date of such decision or act.

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3. Any complainant who disagrees with the decision of a chairman of a provincial people's committee resolving a complaint shall have the right to institute proceedings in the people’s court within a timelimit of forty-five (45) days as from the date of receipt of such decision.

4. Any body which receives a complaint must record it in a register for monitoring resolution of complaints.

Article 65 Resolution of a complaint about an administrative decision or administrative act in the land sector outside the cases stipulated in articles 63 and 64 of this Decree

The provisions in the Law on Complaints and Denunciations shall apply to resolution of a complaint about administrative decisions or administrative acts of the following: staff and officials of the people's committee of a commune, ward or township; of an Office of Natural Resources and Environment; of the Office of a people's committee of a district, town or provincial city; of a Department of Natural Resources and Environment; of the Office of a people's committee of a province or city under central authority; and to administrative decisions of a Department of Natural Resources and Environment and to administrative acts during land administration of the chairman of a district people's committee or of the chairman of a provincial people's committee outside the cases stipulated in articles 63 and 64 of this Decree.

Chapter VII

IMPLEMENTING PROVISIONS

Article 66 Time for uniformly conducting all land use right transactions with certificates

1. As from 1 January 2008, a land user must have a land use right certificate before being permitted to exercise the right to convert, assign, lease out, sub-lease out or donate the land use right, or to exercise the right to mortgage and provide a guarantee using the land use right, except for the case stipulated in clause 2 of this article.

2. If prior to 1 November 2007 a land user lodges an application file for the grant of a certificate correctly in accordance with law but has not yet received such certificate and has one of the documents referred to in clauses 1, 2 and 5 of article 50 of the Law on Land, then such land user shall still be permitted to exercise the right to convert, assign, lease out, sub-lease out or donate the land use right, or to exercise the right to mortgage and provide a guarantee using the land use right.

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1. This Decree shall be of full force and effect fifteen (15) days from the date of its publication in the Official Gazette.

2. The following are hereby repealed:

(a) The following provisions in Decree 181-2004-ND-CP of the Government dated 29 October 2004 are hereby repealed: articles 36.1(dd); 36.2(b); 42.3; 48.2; clauses 1 to 4 inclusive of article 80; articles 81, 130, 145, 163, 164, 165 and 184.

(b) The following provisions in Decree 197-2004-ND-CP of the Government dated 3 December 2004 are hereby repealed: clauses 6 and 8 of article 8; articles 41, 42, 47, 49, and paragraph 2 of article 50.2.

(c) The references to article 145 [of Decree 181] in the following provisions in Decree 181 2004- ND-CP of the Government dated 29 October 2004 shall be replaced by the corresponding reference in article 19 of this Decree: article 116.3; and sub-clauses (b) and (c) of article 117.1.

(d) The following provisions in of Decree 17-2006-ND-CP of the Government dated 27 January 2006 are hereby repealed: clauses 13 and 14 of article 2; and paragraphs 1, 2, and 3 of article 5.4. (Article 15.4 of Decree 198-2004-ND-CP of the Government dated 3 December 2004 has already been added to by the provisions in article 5.4 of Decree 17-2006-ND-CP).

Article 68 Responsibility for implementation

1. Ministers, heads of ministerial equivalent bodies and Government bodies and chairmen of people's committees of provinces and cities under central authority shall be responsible for the implementation of this Decree.

2. If there are any difficulties during implementation of this Decree, the Ministry of Natural Resources and Environment and the Ministry of Finance shall provide guidelines within their authority or submit the issue to the Prime Minister for amendment and additions.

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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER




Nguyen Tan Dung

Nghị định 84/2007/NĐ-CP bổ sung quy định về cấp Giấy chứng nhận quyền sử dụng đất, thu hồi đất, thực hiện quyền sử dụng đất, trình tự, thủ tục bồi thường, hỗ trợ, tái định cư khi Nhà nước thu hồi đất và giải quyết khiếu nại về đất đai