Abstract of juris Doctor dissertation: Residential land use right donation in accordance with current Vietnamese laws

VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

TRAN THI MINH

RESIDENTIAL LAND USE RIGHT DONATION
IN ACCORDANCE WITH CURRENT VIETNAMESE
LAWS

Major
Code

: Economic Law
: 9 38 01 07

ABSTRACT OF JURIS DOCTOR DISSERTATION

Hanoi, 2019


The work has been implemented at:
GRADUATE ACADEMY OF SOCIAL SCIENCES
VIETNAM ACADEMY OF SOCIAL SCIENCES
Supervisor: Associ.Prof.Dr. Nguyen Thi Nga

Reviewer 1: Prof.Dr. Hoang The Lien
Reviewer 2: Associ.Prof.Dr. Doan Hong Nhung
Reviewer 3: Dr. Tran Quang Huy

The dissertation has been defended at the Academy-level Doctor
Dissertation Assessment Council, Vietnam Academy of Social Sciences,

477 Nguyen Trai, Thanh Xuan, Hanoi.
At ……….. : ……., of ……../……./2019

The Dissertation is available for reference at:
- Library of Graduate Academy of Social Sciences
- National Library of Vietnam


INTRODUCTION
1. Rationale
Significantly being one of methods of transferring land use right
(LUR) from one user to another basing on the equal relationship in the legal
status between transferor and transferee, they go beyond the designation or
enforcement of the State as the representative owner of the land. In fact,
LUR donation may vary from donors such as close relatives (parents,
children), acquaintances to organizations, communities or the State ... Land
use right as subject of such donation is also very diverse. The legal basis for
donated asset is also extremely complicated, which requires thorough study
of the legal system, not only the civil law on property donation, the land law
on LUR donation but also relevant laws such as: the law on marriage and
family, the law on notarization and authentication, the law on registration ...
Among LUR donation, the residential LUR donation is most
complicated because of its nature, characteristics, role and useful value of
residential land use right. With complexity of subject, object, legal
foundation of residential land use right, etc. and the vibrant development of
real estate market, land in general, especially residential land in urban areas,
sub-central areas, areas where the speed of urbanization is high, residential
land is increasing and become more valuable to legal land user.
Considering the above mentioned complexity, the topic of “Land use
right donation in accordance with current Vietnamese laws” is chosen for

study in an effort to improve the law on LUR donation in general and the
law on residential LUR donation in particular.
2. Objectives and tasks of study
2.1. Objectives of study
The dissertation aims at clarifying theoretical perquisites on
residential LUR donation and the law on residential LUR donation. On such
theoretical foundation, provisions of the positive law as well as the practice
of enforcing the law on residential LUR donation are studied in order to find
a dialectical relationship between theory, law and practice of LUR donation
to find and provide recommendations for solutions to improve the law on
residential LUR donation.
2.2. Tasks of study
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To fulfill the forgoing objectives, tasks of study include the
following basic issues:
Firstly, develop scientific concepts on residential land use right,
residential LUR donation, the law on residential LUR donation. Also
analyze and study in depth characteristics theoretically of residential LUR
donation and its legal characteristics on residential LUR donation in
Vietnam by analyzing elements impacting and governing the law on
residential LUR donation; develop criteria for assessing the appropriateness
of the law on residential land use right and thereby set out the requirements
of improving the law on residential LUR donation;
Secondly, analyze actual situation of current law on subjects,
objects, forms, conditions, rights and obligations of relevant parties in the
relationship of residential LUR donation. Basing on reality of disputes,
resolving disputes over residential LUR donation, restrictions and obstacles
in current laws and difficulties in practical arbitration for disputes over LUR

donation on the basis of finding causes of such reality for proposing
appropriate solutions of remedy are also indicated in the dissertation.
Thirdly, propose orientations and solutions on amendments and
supplements, and especially instruction for enforcing provisions of the law
on residential LUR donation in order to improve the law on residential LUR
donation in the context of market economy and the trend of international
integration.
3. Objects and scope of study
3.1. Objects of study
Current theoretical and practical issues on the law on residential
LUR donation are studied in the dissertation. Legislations on donating asset
in general and real estate as land in particular in some countries in the world
are also studied.
3.2. Scope of study
- Study provisions of the Civil Code 2015 , the Land Law 2013 and
guiding documents for enforcing the Civil Code 2015 and the Land Law
2013 on asset donation and residential land use right donation; some
institutions of other laws are used with the purpose of analyzing, comparing
to clarify the study.

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- Learn about regulatory documents of previous periods, prescribing
donation of real estates in general and residential land use rights in particular
to compare to the current law on residential LUR donation;
- Learn reality of disputes over LUR donation in general and
disputes over residential LUR donation in particular in the last 7 years (from
2011 to now);
4. Methodology and method of study

To implement this dissertation, the legal method and MarxistLeninist theoretical methods, Ho Chi Minh ideology about the state and the
law, dialectical materialism and historical materialism, dialectic materialism
method and viewpoints of the Communist Party of Vietnam are applied by
the candidate. The specific methods of study used in the dissertation are
analytic - synthetic method, comparative method, inductive method,
interpretation, ... At the same time, it also relies on statistical data, annual
reporting reviews of the Ministry of Natural Resources and Environment, the
Supreme People's Court and localities as well as information on the Internet.
5. New findings of the Dissertation
The Dissertation topic is expected to provide new findings as
followings:
First: It clarifies and analyzes in depth a number of theoretical issues
on land use right, residential LUR donation and the law on residential LUR
donation.
Second: It assesses reality of the law on residential LUR donation
and its activities taken place in Vietnam.
Third: Reality of disputes over residential LUR donation is studied,
finding out causes of such disputes, thereby proposing orientations and
solutions for legal improvement for resolving disputes over residential LUR
donation.
Forth: It is to propose orientations and solutions for improvement of
the law on residential LUR donation; also some solutions for overcoming
previously occurred difficulties and shortcomings on residential LUR
donation.
Fifth: The dissertation is an intensive scientific research, valuable in
terms of both theory and practice, as basis for developing next studies.
6. Scientific significance of the Dissertation
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Study outcomes of the dissertation will be important and intensive
knowledge on residential LUR donation. The dissertation topic is reference
material for researchers and lecturers to give lectures on the land law and the
civil law and also for agencies to apply laws on addressing disputes related
to residential LUR donation. Conclusions and ideas presented in this topic
can help state competent authorities improve the institution on residential
LUR donation. In addition, this dissertation is also significant for
propaganda, education and application of the law on residential LUR
donation.
7. Structure of the dissertation
In addition to: Commitments, Acknowledgement, Abbreviations,
Forewords, Table of contents, List of reference materials, Appendixes and
main content of the Dissertation are divided into four chapters:
Chapter 1: Literature review associated with the Dissertation topic
Chapter 2: Theory on residential LUR donation and the law on
residential LUR donation
Chapter 3: Reality of the law on residential LUR donation in
Vietnam
Chapter 4: Orientation, requirements and solutions for legal
improvement, enhancing effectiveness of enforcing the law on residential
LUR donation in Vietnam.

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CHAPTER 1
LITERATURE REVIEW ASSOCIATED WITH THE DISSERTATION
TOPIC
1.1.
Situation of the topic study

Reviewing outstanding works related to the topic shows outcomes of
studies as follows:
Firstly, regarding the asset ownership and use right in the human
relation, with its economic significance of determining which asset belong to
whom, this relation is simply a social relation if it was established and
existed in a society where the state and laws were not available. When the
same are available in the society, the ownership relation is governed by laws,
i.e. with laws, rights and obligations of subjects in such ownership relation
are stipulated by the State, thereby the ownership relation becomes a legal
relation. On other words, ownership becomes ownership right when rights of
the assets’ owner are recognized and protected by law. Due to difference in
land ownership in Vietnam, land use right is not only one of three
ownerships in which State is representative, but split from the ownership and
becomes private ownership of a land use right holder.
Secondly, for the nature of asset donation, most of foreign or
domestic studies provide a common consideration: donating assets,
including personal property and real estates, even in different features or
characteristics of each asset, with different forms and demands of donation,
amounts to a common nature that is the transferring of asset ownership from
asset owner to other person who is in consent and there is not compensation.
Thirdly, there are many studies about asset donation contracts,
including asset donation contracts in general and land (land use right)
donation contracts in particular. Accordingly, content of an asset donation
contract or a land use right donation contract mentions parties’ rights and
obligations in the land use right transfer relation and analyzes, assesses legal
regulations toward such parties’ rights and obligations in such relation.
Some other studies suggest that the rights and obligations of parties in the
asset donation relation are the legal consequences arising from the contract.
In particular, which rights, obligations each party has and to what extent they
are depend entirely on the agreement of the parties on issues such as object

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of donation, term, method of contract performance and other agreements.
Accordingly, content of a donation contract includes specific terms about
object of donation, parties’ rights and obligations and agreements such as
violation-related liabilities, methods of contract performance guarantee, etc.
but all must not be contrary to laws.
Fourthly, some studies in Vietnam are specially about land use right
donation. Scientific outcomes the candidate can inherit from these studies
are:
First, to a certain extent, theoretical premises for land use right
donation, land use right donation contract, such as concept, characteristics
and nature of land use right donation, classification of land use right
donation contract with some other types of contracts, history of
establishment and development of the law on land use right donation.
Second, reality of such legislations about land use right donation,
land use right donation contract as regulations on subject of land use right
donation; regulations on object of land use right donation; regulations on
form, content of land use right donation; regulations on parties’ rights and
obligations on land use right donation; regulations on conditions of land use
right donation and conditional land use right donation and relevant
regulations, is initially studied and clarified by analyzing positive law’s
provisions, integrated with actual situation of arbitration on disputes over
land use right donation contracts at courts. Difficulties, obstacles and
barriers in enforcement practice of the law on land use right donation and
resolving disputes over land use right donation have also been pointed out in
some aspects of subjects, objects, forms of contract, etc. and causes of that
situation are also identified.
Third, some studies provide numerous solutions, both theoretically,

legally and practically, to speed up improvement of the law on land use right
donation.
Therefore, during studying the topic, achievements and scientific
values of the above mentioned studies are inherited by the author, which are
foundation for continuous studies both in theory and practice.
1.2. Open issues to be settled thoroughly
While studying transactions on land use right on the background of
people’s land ownership regime in which the State acts as the representative
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owner in Vietnam, acquisition of theoretical and legal foundations on land
use right donation in countries around the world - where private land
ownership are prevailed, will only present the most general problem of
donation but fail to identify specific problems on land use right donation.
Previous studies about land use right donation in Vietnam also show that
most of these studies are about the period before the Civil Law 2015 and the
Land Law 2013 were promulgated. After this period, these studies’ materials
are mainly presented in the form of articles published on domestic journals,
reflecting the individual aspects of land use right donation such as: asset
donation contracts, land use right and housing donation contracts. It is more
notable that there is not any separate, intensive and comprehensive research
on residential LUR donation.
It is affirmed objectively that a comprehensive, focused and
intensive study on residential LUR donation with theoretical foundation of
theories, suppositions, placed in the relationship of impact, governed by the
context of political, economic, social, historical and international integration,
a review and assessment of the legal system governing land use right
donation, in associated with alternative relations with different specialized
laws ... is in fact not available. For that reason, in this dissertation, the author

has studied some following intensive issues:
First, theoretically, it is necessary to clarify nature of residential land
and method for identifying residential land, including residential land and
construction works on such land, which is determined as integral to the
residential land and as basis for determining object to whom the land use
right is donated. It is also to clarify basis for identifying how residential land
use right of a household is differed from other lands of organizations or
enterprises. Time of legal residential land use right and land-attached assets
arisen for purpose of residence is basis for classifying the land use right to be
donated. Especially they are significant for determining whether the assets to
be donated as object in the donation contract is invalid or not.
Second, it is theoretical and practical foundation of legal governing
toward residential LUR donation. With which elements are the law on
residential LUR donation governed? What is criteria for evaluating a legal
system governing effectively residential LUR donation in the socioeconomic life?
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Third, under the aspect of laws and their actual enforcement: Studies
about the law on residential LUR donation must be integrated into the legal
system that gives direct and alternative impacts and governing them, such as
the Law on Real Estate Business, the Land Law, the Housing Law, the
Construction Law, the Civil Code, the Notary Law, the Law on Civil Status,
The Law on Marriage and Family ... clarify the degree of governing and
adjustment of each specific law toward each issue directly related to the right
to donate residential land use rights, such as: subject, object, condition,
scope of donation; rights and obligations of parties in the donation
relationship, processes, procedures and responsibilities of the public agency
system in appraising, permitting, inspecting and supervising the donation
process and handling any violation.

Fourth, legal and practical issues of residential LUR donation
contracts, once performed, are coping with difficulties and obstacles,
detailing:
- It is to determine whether the asset as residential land use right and
object in the LUR is only residential LUR or included land-attached asset;
When they are assets integral in the donation relation; When the residential
LUR is object of donation but not for land-attached asset; Whether or not the
issue of partial or whole invalidation in the donation contract has been
proposed when there is a conflict.
- Subject in the residential LUR relation is household including
various members who share the residential LUR, but on the certificate of
LUR, only householder’s name is specified, but not all members sharing the
LUR; Are oversea-Vietnamese, foreigners living and working in Vietnam,
persons without nationality living in Vietnam, enterprises, foreign
organizations investing and working in Vietnam, … beneficiaries of
conditional donation right?
- For object of donation: Whether or not object of donation is
extended in the context of the newly born Land Law together with many
changes on method of determining LUR to eliminate the compulsion of
"assigning" fixed "addresses" to be donated.
- Which consequences have been caused from the fact that LUR
registration is compulsory and land-attached asset registration is not
compulsory? In which case is a LUR donation contract invalidated? When is
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a LUR legal but not permitted for donation? Whether or not is a LUR
beneficiary bound in such donation relation?
- Residential LUR donation is from aspect of an obligatory relation
between a donor and donee arisen in a residential LUR donation contract.

This approach aims at determining rights and obligations of subjects and
legislations on parties’ rights and obligations in a residential LUR donation
contract.
- Is the time of establishing the transfer of residential LUR from
donor to donee as prescribed by current law appropriate with practice?
Under laws, it is required to determine time of transferring
residential LUR between participatory parties, and avoiding default
(disputes) due to changed land prices, or due to change in goodwill of
participatory parties. Is time of “unifying goodwill” between participatory
parties in the donation relation considered as time of transferring residential
LUR to donee?
- Care must be taken to prevent illegal transactions in order to disperse
assets and avoid performing obligations to other entities through donation
transactions.
Fifth, with actual issues arisen in the contrary and negative direction,
demonstrated with subjects’ violations when fulfilling the transaction of
residential LUR donation, resulting in their consequences towards the
economy and society, objective indispensability of continuous improvement
of the law on residential LUR donation in particular and the law on LUR
donation in general is focused among other specialized laws and other
relevant laws. To make the law highly predictable and feasible, requirements
and criteria are especially proposed and set up in the dissertation for a legal
system of residential LUR donation that is effective and appropriate with
economic and social conditions of the country, with market economy
institutions and adapting to integration trends.

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CHAPTER 2

THEORY ON RESIDENTIAL LAND USE RIGHT
DONATION AND THE LAW ON RESIDENTIAL LAND USE RIGHT
DONATION
2.1. Theory on residential LUR donation
2.1.1. Concept of asset donation
2.1.1.1. Concept of asset
The asset is land use right, a type of asset expressed in the form of
"Right" protected by Vietnamese law, valuated in cash and fully entitled to
be transferred in civil or commercial exchange; it has right to dispose of this
asset according to goodwill and purpose of person with asset ownership.
2.1.1.2. Concept of asset donation
(1) Donation is an expression of asset ownership holder’s goodwill
regarding transferring his/her asset ownership to another person; (2) Asset
must be in the possession of the donor; (3) The donor must be still alive at
the time of donation exercise; (4) The donation must be made through a
written contract; (5) The donation must be subject to the consent (approval)
of the donee; and (6) The donor does not require the donee to compensate
him/her for any material benefits. In this regard, some views of scientists
also show agreement.
2.1.2. Theory on residential LUR donation
2.1.2.1. Concept and features of land use right
Land use right is a right toward an asset belonging to ownerships
of organizations, households and individuals arisen with decision of land
allocation, land lease, LUR recognition by competent state agencies or from
LUR transfer transactions. The possession, use and disposition of land use
rights must comply with the conditions and procedures prescribed by law.
2.1.2.2. Concept and features of residential land use right
Residential land is planned and recognized as land for residence,
used for major purpose of housing and other construction works in service of
life by competent state agencies.

There are 33,123,078 hectares of land throughout the country, of
which 31,010,279 hectares have been used for various purposes (including

10


land for residence in both urban and rural areas), accounting for 93.62% of
the total natural land area.1
A residential land use right is a special asset, valuated in cash on the
basis of the market price and in accordance with the law, the goodwill of the
owner as the State, it is allowed to involve in civil transactions.
2.1.2.2. Concept and features of residential LUR donation
“LUR donation is a right of land user (donor) who accordingly has
right to discuss and assign the his/her LUR to another subject (donee)
without any demand of compensation, though a written civil contract with
consent of donee according to provisions of the Civil Law and the Land
Law”
Firstly, there are LUR donation transactions legally established and
complied with provisions of the land law, the civil law and other relevant
ones, but they are of two different types of donation: ordinary residential
LUR donation and conditional residential LUR donation.
Secondly, object of donation is not only land use right but also landattached assets.
Thirdly, subject of donation is not only one possessing the
residential LUR but it belongs to use right of various subjects.
2.1.2.3. Roles of residential LUR donation
Together with recognizing other rights of transferring land use right
in current land law, it shows that LUR donation in general and residential
LUR donation in particular are essentially significant in socio-economic life.
2.3. Theory on the law on residential LUR donation
2.3.1. Concept and features of the law on residential LUR

donation
From the process of synthesis, studies ad experience review from
practice of legislative application, the law on residential LUR donation can
be defined as follow: The law on residential LUR donation is a total of legal
provision promulgated by the State, which specifies the subjects, objects,
rights and obligations of parties, form and validity of donation transactions,
processes and procedures that competent state agencies must carry out and
the guarantee by state institutions to ensure that the residential LUR

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donation is carried out in practice.
Studies about the law on residential LUR donation in relation with
other laws on asset donation and the law on asset donation in general show
that they are featured as follows:
- The law on residential LUR donation is a part of the system of
legal provisions on LUR donation, asset donation
- The law on residential LUR donation is specified on various
documents.
- The law on residential LUR donation assures and respects freedom,
mutual agreement between relevant parties during establishment and
implementation of donation transaction but limited to the law.
2.3.2. Legal structure for regulating residential LUR donation
The legal system regulating residential LUR donation relation is
structured as follows:
First, legal norms for objects and conditions of the donation
transaction
Second, legal norms for regulating subjects of the residential LUR
donation

Third, legal norms regulating rights and obligations of parties in
residential LUR donation
Fourth, legal norms regulating forms and validity of residential
LUR donation
Fifth, legal norms regulating order and procedure for implementing
residential LUR donation
2.3.3. Elements affecting the law on residential LUR donation
The law is developed basing on the State’s will but also governed by
elements of a civil society. In Vietnam, the land law in general and the law
on transferring land use right in particular (of which is residential LUR
donation) are governed and affected by such elements as guidelines, policies
of the Communist Party of Vietnam; land ownership; social and cultural
elements; international integration in economy.

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CHAPTER 3
REALITY OF THE LAW ON RESIDENTIAL LUR DONATION
IN VIETNAM
3.1. Reality of the law on objects, conditions of residential LUR
donation and obstacles in practice
3.1.1. Content of the law regulating the residential land use right –
Objects and conditions of residential LUR donation
In the current land law, specific conditions for residential LUR when
involving in land use right donation is not specified, but general conditions
for all transactions of LUR transfer. Accordingly, a type of LUR –
residential LUR when becoming an object of donation transaction, one of
LUR transfer transaction, must satisfy and comply with such general
conditions. In detail, residential LUR to be donated must satisfy the

following conditions: Firstly, it is granted with LUR certificate; Secondly, it
is not in dispute; Thirdly, the LUR certificate is not distrained to ensure
judgment execution; Fourth, it is within the land use term.
3.1.2. Obstacles and inadequacy arisen in practice when studying
about assets as LURs in the LUR donation and causes
Firstly, general conditions for residential land use as asset to be
donated
Studying 04 general conditions as specified in Article 188 Paragraph
1 of the Land Law 2013 indicates that there are still many unclear, not really
appropriate points and they have become a barrier in practice. They can be
noticed with some of the following manifestations:
First, the prerequisite that only assets granted with certificates of
land use right and ownership of housing and land-attached assets are
permitted for donation is somewhat rigid and forced.
Second, the condition of “land without dispute” as prescribed at
Clause 1 Article 188 of the Land Law 2013 is quite general and without any
specific regulations to determine or define what is a disputed LUR that is not
permitted for donation.
Third, the condition of “LUR is not distrained to ensure judgment
execution” is also not rational.

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Secondly, determining assets to be donated as LUR in case that
housing and other assets are on the land.
The provisions are not consistent and somewhat not practical which
are causes of inconsistent application in fact of the law on residential LUR
donation. In detail:
First, “surface right” is a new right in the civil laws of Vietnam,

however there are lack of specific provisions in the current laws, which
cause handling residential LUR donation in some cases confused.
Second, studies of the relation between residential LUR and landattached assets such as housing and construction works show that clear and
specific regulations are needed to address the relations of residential LUR
donation in practice.
Thirdly, splitting registration of LUR and land-attached assets with
two different demands according to the current land law has been being
barrier to donation in disputes.
3.2. Reality of the law on subjects donating residential land use
right and obstacles in practice
3.2.1. The content of the law on subjects donating residential land
use right
Since the relation of residential LUR donation is within a civil law,
participatory subject must satisfy general conditions for a subject involving
in a civil transaction. In details:
3.1.2.1. Subject as donor
The forgoing regulations show that if subject is a donor in a
residential LUR donation it is compulsory to consider whether its origin and
establishment must be residential LUR, regardless they are enterprise,
organization, household or individual. On other hand, such residential LUR
donation must subject to proper object as prescribed by the State, then donor
can become subject of such donation.
3.1.2.2. Subject as donee of residential LUR donation
It can be seen that current regulations fail to ensure the effective and
appropriate management and supervision of the transfer of land use rights
and land-attached assets, especially regarding LUR donation, a transfer with
multiple characteristics. This inadequacy and lack of specificity and clarity
are being major barrier for actual transactions of donation.
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3.2.2. Obstacles and inadequacy arisen in fact during studying
about subject in the relation of residential LUR donation and its cause
At present, current legislations are just for listing cases subjects are
not permitted to receive LUR donation or to donate LUR, but not regulations
on specific conditions for subjects in implementing the right of asset
donation.
Owners of land-attached assets that are allocated by the State to
households, individuals with land use levy collection or leased with rent paid
once for the whole period of lease have no right to donate land-attached
assets under their ownership. This is a major omission of the land law, while
recognizing the right to donate assets owned by households and individuals
who use land rented and paid annually, and foreigners and over-sea
Vietnamese people residing in foreign countries are eligible for purchasing,
this right among households and individuals that are allocated land with land
use levy collection and leased land with rent paid once is not recognized.
3.3. Reality of the law on rights and obligations of participatory
parties in the relation of residential LUR donation
3.3.1. Content of the law on rights and obligations of participatory
parties in the relation of residential LUR donation
3.3.1.1. Rights and obligation of donor
Pursuant to general regulations on asset donation contracts, rights
and obligations of LUR donor and donee are prescribed as follows:
* Rights of donor (in case of conditional donation)
- Request donee to implement one or more obligations before or
after the donation.
- Revoke the donated LUR and claim for damage if donee fails to
implement his/her post-donation obligations.
* Obligations of donor
- Deliver the LUR as agreed properly in term of area, class of land,

type of land, location, code and land status;
- Complete formalities for the ownership transfer to donee so that a
certificate of land use right and land-attached asset ownership is granted to
donee
- Never request donee to compensate to receive the LUR.
- Notify donee of any defect of the LUR or land-attached assets. If
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donor is aware of any asset’s defect but fails to notify it, donor is responsible
for compensating any damage incurred by donee; otherwise he/she is not
responsible for such compensation of damage.
There is not any specific provision of conditional LUR donation in
the current land law, however LUR donation is a type of special asset
donation, so conditional LUR donation in general and residential LUR
donation in particular must comply with the civil law on conditional
donation.
3.3.3.2. Rights and obligations of donee
* Rights of donee:
- Have the right to agree to accept or not accept the LUR donated.
- Request donor to hand over the LUR properly as agreed in terms of
area, class of land, type of land, location, code and land status;
- Continue to use the land for the proper purpose and for the
remaining land use term;
- Be granted with a certificate of land use right and land-attached
asset ownership;
- Receive donor’s notice about the defects of LUR or land-attached
assets; If donor is aware of any asset’s defect of but fails to notify it, donee
is compensated for any damage incurred.
- In case an obligation must be fulfilled prior to donation, if donee

has fulfilled the obligation and donor has not delivered the asset, donee
reserves right to request donor to refund the liability paid by donee;
* Obligations of donee
- Participate in completing formalities of registration for land use
right reception at a competent state agency in accordance with the land law.
- Perform one or more obligations before or after donation as agreed
with donor.
- Fulfill the financial obligations of the land user after receiving the
land use right.
Notwithstanding the above provisions on rights and obligations,
enforcement in fact shows many restrictions, obstacles and ambiguity. In
details:
Firstly, it is about regulations on the right to refuse to receive LUR
donation. At present, in current legislations there is not any specific
16


provision on method, time of losing the right to refuse to receive donation in
some specific cases.
Secondly, rights and obligations of LUR donor and donee have not
satisfied parties’ demand in the transaction and have not brought into play
the State role in assuring benefits of land owners.
3.3.2. Obstacles and inadequacy arisen in practice when studying
about parties’ rights and obligations in the relation of land use right
donation and causes
Firstly, regulations on conditional LUR donation contract remain
sketchy, so their practical application faces many difficulties for donor,
donee and state agencies.
Secondly, agreement about personal assets of a spouse has been
being consequences of different application to notarization of residential

LUR donation contracts at localities.
3.4. Reality of the law on form and validity of residential LUR
donation transaction
3.4.1. The law on form and validity of residential LUR donation
transaction
Form of residential LUR donation transaction
According to the provisions of the land law, a LUR donation
contract must be made in a written contract in a form consistent with the
provisions of the Civil Code, the land law and relevant legal provisions. In
details:
- A residential LUR donation contract must be made in writing.
- A residential LUR donation contract must be notarized or
authenticated in accordance with legislation.
Validity of residential LUR donation transaction
According to legal provisions, LUR-related transactions only become
valid since the LUR transfer is registered as prescribed by the land law (Article
503 of the Civil Code 2015).
The legal provision that a LUR donation transaction is valid from
the time of registration is not consistent with the reality of civil transactions,
and rights of parties in the transaction are not assured. Many countries
around the world specify that a LUR donation becomes effective right from
the time of representing such donation or in case donee agrees to receive
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asset or the time when the LUR donation contract has been established and
notarized.
3.4.2. Obstacles and inadequacy arisen in practice when studying
the form and validity of residential LUR donation transactions and causes
Firstly, the two processes of notarization-authentication and LUR

donation contract registration as prescribed by laws have been making them
overlapped and identical; making the process of establishing donation
transactions prolonged.
Secondly, scope of notarizing real estate mortgage under the Notary
Law has also been being "transformed" in a very flexible manner in practice.
3.5. Reality of the law on orders and procedures for
implementing LUR donation transactions
3.5.1. Content of the law on orders and procedures for implementing
LUR donation transactions
Orders and procedures for implementing LUR donation transaction
are subject to Article 79 of the Decree No.43/2014/ND-CP dated 15/5/2014.
In general, legislations on orders and procedures for LUR donation
are similar to other forms of land use right transfer for land users.
3.5.2. Obstacles and inadequacy arisen in practice of for
implementing residential LUR donation transactions and causes
Firstly, methods of notarization for assets as housing, construction
works attached to land, for which ownership on residential LUR in donation
has not been registered vary from one locality to others.
Secondly, registration, ownership transfer for asset donation show
multiple problems occurred in practice.
3.6. Other obstacles and inadequacy arisen during resolving
disputes over LUR donation
* There are still many inconsistent views about resolving disputes
related to conditional donation contracts
* Disputes over LUR donation in the case of divorce
* Disputes over conditional donation contracts are originated from
contrary views.

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CHAPTER 4
ORIENTATION, REQUIREMENTS AND SOLUTIONS FOR LEGAL
IMPROVEMENT, ENHANCING EFFECTIVENESS OF
ENFORCING THE LAW ON RESIDENTIAL LAND USE RIGHT
DONATION IN VIETNAM
4.1. Orientation for legal improvement, enhancing effectiveness
of enforcing the law on residential land use right donation in Vietnam
4.1.1. Legal improvement subject to the Party’s guidelines and
policies
Improvement of the law on residential LUR donation in particular
and LUR in general must assure to concretize the Party’s views and policies;
accordingly, LUR donation not only brings into play traditional values,
ethics and humanity of East Asian but also respects ownership holder’s right
of asset disposal. Also with the dynamic development of the market
economy, land, especially residential LUR becomes more and more
valuable, they have a "dual effect" in civil and economic life.
4.1.2 Legal improvement must assure consistency in the legal
system related to residential land use right donation
Improvement of the law on residential LUR donation in particular
and LUR in general must be placed in total improvement of the law on asset
donation and real estate donation. Improvement of the law on donation
should be placed in a multi-disciplinary relationship to get a overall, multidimensional and comprehensive view.
4.1.3 Improvement of the law on residential LUR donation must
pertain to legal enforcement
Developing laws must pertain to legal management and
enforcement. Otherwise it may result to impractical laws that not only fail to
reflect fully and honestly the reality, but also cope with difficult for
predicting and preceding the development of social relations.
4.2. Solutions for legal improvement, enhancing effectiveness of

enforcing the law on residential land use right donation in Vietnam
4.2.1. Solutions for improving the law on residential LUR
donation in Vietnam
Firstly, improvement of regulations on conditions for residential
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LUR donation
More specific and detailed regulations on conditions for dispute-free
LUR should be provided; at the same there should have more flexible
regulations on conditions that LUR must be attached with LUR certificate.
In details:
Firstly, conditions for proving asset’s legality on donation should be
loosened. Accordingly, the prerequisite that residential LUR to be donated
must have LUR certificate in accordance with Clause 1, Article 188 of the
Land Law 2013 should be amended; instead, it is necessary to specify that a
land user has right to donate LUR in general and residential LUR in
particular when he/she has a certificate of LUR and housing and landattached ownership or he/she has one of papers issued or decided by a
competent state agency under Article 100 of the Land Law 2013 .
Secondly, it should be specified “land without dispute” to restrict
implementation of donation transaction in practice. Point b clause 1 Article
188 of the Land Law should be amended with: “Such LUR is not subject to a
dispute over ownership that is being handled by a Court”. This amendment
identifies the time when the LUR is disputed is the time of establishing a
transaction via the word "is"; Disputes over ownership that have occurred
and ended are still eligible for donation.
Thirdly, it is necessary to clarify the condition of “land that is not
subject to distrainment to ensure judgment execution” to assure
compatibility between the land law and the law on asset distrainment.
Accordingly, point c clause 1 Article 188 of the Land Law 2013 should be

amended with expanded scope: “Land use right is not distrained to ensure
judgment execution or not distrained to comply with an legally active
administrative decision of a competent state agency”. In addition to, the
regulation about eligibility for housing transaction shows irrationality and
lacks of coherence.
In detail, at point d clause 1 Article 118 of the Housing Law 2014 it
is stipulated that a house to be donated is “not subject to a decision on land
acquisition, a notice of ground clearance or house demolition of a competent
agency”. This condition is recognized only if land is subject to acquisition
by the State, house on land is not donated, but it is not predicted that the
house is also acquired. This is an omission in the Housing Law, which
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should be amended that house to be donated is “not subject to a decision on
land acquisition, a decision on house acquisition, notice of ground clearance
or house demolition of a competent agency”.
Secondly, object of residential LUR, land-attached house and other
assets in donation
Since legal foundation and status of residential LUR with asset as
house and other assets may be different, it is necessary to provide more
appropriate and clear regulations about registration of LUR with asset as
land-attached house, construction works and other asset.
Thirdly, more concrete instructions about donating residential LUR
as common asset of a household are necessary
In the current land law, regulations about household’s using land are
not clear and difficult for application in practice. It is necessary to issue a
document regulating for a case of previous issue of a LUR certificate to a
household that comprises of many members, only name of Household of Mr.
A, or Household of Ms. B is specified on the certificate, but not how many

family members have legal LUR.
Fourthly, more concrete and detailed regulations are necessary for
determining implementation of donation conditions
Regulations on LUR contract in general and residential LUR
contract in particular are still sketchy in some conditions, so practical
applications are difficult even for donor, donee and state agencies.
Fifthly, it is necessary to supplement a regulation guiding the
implementation of responsibility of returning the land use right if the
contract becomes invalid and LUR will not be returned to the faulty party
unless the invalid contract is caused by the fact that donee is not permitted to
receive donation or where the continuous land use of donee will affect the
interests of the State
Sixthly, it is to amend regulation on effective time of LUR donation
contract
The candidate proposes to amend clause 1 Article 459 of the Civil
Law 2015 as follows: “Real estate donation must be made in writing and
notarized or authenticated by a competent state agency". At the same time,
the type of conditions for LUR donation registration is specified in Clause 3,
Article 188 of the Land Law 2013; and the provisions of Point a, Clause 3,
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Article 167 of the 2013 Land Law, regarding notarization or authentication
of LUR transfer transactions, including LUR donation transactions are kept
unchanged.
Secondly, it is necessary to be more careful in publishing legal
precedent of LUR donation
Analysis of legal precedent No.14/2017/AL of the Supreme Court at
the Chapter 3 thereof show that they are not close and comply properly with
legislation.

4.2.2. Solutions for enhancing effectiveness of enforcing the law
on residential land use right donation in Vietnam
Firstly, speed up issuance of certificate of LUR and land-attached
house and other asset ownership.
Secondly, in the process of resolving disputes about LUR donation,
it is necessary to strengthen effectiveness of coordination mechanism
between court agencies, land management agencies and civil status
management agencies.
Thirdly, promote the mediation factor in the process of resolving
disputes over LUR donation.
Fourthly, in the process of resolving LUR donation disputes, there
should be a combination of judgments based on legal grounds and actual
land use to assess whether a donation relationship between subjects is
available or not.
Fifthly, strengthen the supervision of the State and mass
organizations for resolving disputes.
4.2.3. Some other solutions
Firstly, improve the professional quality, ideology and performance
of staff fulfilling the state management tasks and resolving land disputes.
Secondly, promote the propagation and dissemination of law
education.
Thirdly, ensure infrastructure and facilities satisfactorily for working
conditions for state agencies enforcing law and resolving disputes.

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CONCLUSION
Residential LUR is significantly meaningful for each land user,
which is space for existence, for life development by human. Residential

land (residential LUR) is also a place where people reunite and return to
origin of the moral tradition of “Fatherland, ancestral land”. On the other
aspect, LUR is a major source of capital for business investment activities,
which is the most reliable source of security in credit relationship for loans.
Firstly, views , arguments, doctrines from preceding studies should
be inherited in the dissertation when studying residential LUR donation. At
the same time, it identifies key and central issues to be focused on are
theoretical premise issues, legal grounds and enforcement practices for the
right of donating land use rights - a type of non-agricultural land in our
country.
Secondly, theoretical premise issues on asset donation, LUR
donation and residential LUR donation are clarified, focusing on specialty of
this type of land, which is basis for identifying necessity and objective
demand of legal regulation on residential LUR donation; identifying legal
adjustment mechanism and factors affecting and governing the law on
residential LUR donation.
Thirdly, the positive law on residential LUR donation is identified
thoroughly and profound via regulations on subjects, objects, rights and
obligations, forms and validities of transactions, processes and procedures
for donating residential land use. The issue of the law on residential LUR
donation is studied generally in the civil law, the land law, the housing law,
the notary and registration law and other relevant laws... which make the
study more comprehensive, complete and general.
Fourthly, gaps in laws, obstacles in practice, barrier to establishment
and fulfillment of residential LUR donation transaction are detected more
thoroughly, more specifically and more accurately through analyzing the
inadequacies and restrictions of the positive law, embarrassment and
problems of competent authorities in the process of conducting notarization
and registration and especially difficulties and complexities of disputes over
donation contracts, which have been causing headaches for Court officials

and enforcement agencies.
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