The formation and development of the ownership regime through the constitutions of Vietnam

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THE FORMATION AND DEVELOPMENT OF THE OWNERSHIP

REGIME THROUGH THE CONSTITUTIONS OF VIETNAM

Nguyen Quang Duc1
PhD Candidate, School of Law, Vietnam National University, Hanoi

Bui Thuy Hien

Smile Vietnam Consulting Co., Ltd.

Abstract

The paper is to answer the question “What is the rule of the movement of the ownership regime in 
Vietnamese constitutions? Why?” Accordingly, the paper has fingered out that the ownership regime 
in Vietnam (on the policy scale) has developed in two contradictory directions, which is now continuing
to diversify. The current direction is seen to be consistent with the demand of the market economy
and the international trade integration of Vietnam. The study aims to emphasize the characteristics of
the ownership regime in each period and explain why the ownership regime has such a developing
tendency. The specific contents of the ownership regime are analyzed on the basis of the provisions
of the Constitutions, laws and documents of the Communist Party of Vietnam. It is explained by the
features of Vietnam’s institution in which every major policy is basically initiated from the political will
of the Communist Party and such is highly likely to continue to be the mainstream trend in the future.

Keywords: The ownership regime, Constitution of Vietnam, development tendency.
1. Introduction

The development of ownership regime necessitates ongoing research on the progress of constitution
and policy in the world. A country vigorously transforming into market-driven economy, Vietnam, is not
the exception of this up growth. The current study aims to answer the question: Which rules and reasons

are seen in the development of the ownership regime in Vietnam’s constitutions? It is supposed to base

on the two contradictory trends of national policy (defined by the Constitution) developments: (1) The
1946 Constitution to the 1980 Constitution: the narrowing trend of ownership regime (eliminating private
ownership found); and (2) The 1992 Constitution to the 2013 Constitution: the diversification one.

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as the reform of poverty and global economy integration are seen as the influencing impacts of the
ownership regime in each period. Based on the findings, recommendations are given to propose the
development trend of the ownership regime in Vietnam’s constitution and to suggest the suitable one
for future constitutional amendments.

2. The formation and development of the ownership regime in the period of the 1946 Constitution to 
the 1980 Constitution

2.1. The characteristics of the ownership regime in this period

The diversity of the ownership regime is seen to diminish in this period, which is divided into two
sub-phases, namely from the 1946 Constitution to the 1959 Constitution and since the1980 Constitution.

Four main characteristics of the ownership regime in the first mentioned sub-phase are summarized
as follows. Firstly, the ownership subjects were diverse. There were different economic sectors with 
certain equally legal positions at that time of the Democratic Republic of Vietnam. Besides a number
of state-owned or nationalized economic establishments, private enterprises existed and participated
in the economic relations that seem to be governed by the elements of the market economy. Secondly, 
the ownership objects were diverse. Production means, consuming goods, movable estate, real estate,

technical know-how were not restricted to be objects of ownership relations. Thirdly, the ownership 
relations were reportedly impacted by the feudal-colonial property regime on land. It is explained by
the featured agricultural economy in which the majority of property relations formed was related to
the land, with the exception of some large cities accommodating industrial facilities and commercial
and production activities. Fourthly, the nature of ownership regime was diverse. Besides the state 
ownership, capital ownership, collective ownership, community ownership; private ownership of land
and agricultural production materials was prevalent in this period as the characteristics of Vietnam’s
semi-colonial feudal economy.1

After the collapse of the US-backed government in the South (1975), the Communist Party,
as the victor, determined that the people’s democratic revolution was completed in Vietnam and
set out the task of developing a socialist regime on a national scale. It was concretized in the 1980
Constitution in which the ownership regime, thereby, was changed as follows. Firstly, ownership 
relations were formed on the basis of centralized planning mechanism. The property transfer was
only seen in between state-owned enterprises and collective organizations. It can basically be said
that the transformation of ownership took place in a one-way direction: the private ownership shifted
to state ownership or collective ownership; State ownership moved to collective ownership. Secondly, 
the nationalization degree of ownership relations grew. Centralized planning was considered to be
in the golden age with the rapid increase in the state ownership form. The ownership regime was
classified as simplest of its forms. The contractual relationship in which only state and collective
economic organization participated was seen as the proof of its monotony. This fact existed even in
retail business, where the system of state and collective trade organizations was organized in all fields
and at all levels from the central to provincial ones.2

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2.2. The formation of the ownership regime in the 1946 Constitution

The 1946 Constitution is highly appreciated by Vietnamese academics in general. It recognized a
wide range of civil rights as human values committed by the State including political freedoms (ideology,

association, protest and election) and property rights, business freedom.1 Private property is considered 
as a natural and inviolable right of human, and is therefore required to be specified in all issues related
to the establishment, transfer and protection of ownership. The law, hence, is supposed to stipulate
measures against private property infringement and restrict sanctions that are likely to harm it.

(i) Private property rights guaranteed: Article 12, the 1946 Constitution writes “The right to 
private property is guaranteed”. It was the first time that the private ownership was committed in

the highest legal document if the 1946 Constitution is considered as the first constitution of modern
Vietnam. In spite of the great expectation of the backward society just escaping from the colonial
rule, the 1946 Constitution was unfortunately not implemented in a large part of the country, which
was then still occupied by the French and where laws enacted before 1945 remained in effect. The
meetings of the first National Assembly could not be organized so legal documents on ownership
were not particularly issued during this period. The opportunity to be specified of the property right
recognized in the first Constitution was not given to the legal institution. Remarkable legal documents
regarding ownership are Decree No. 519-TTg of October 29, 1957 on the conservation of antiquities
relics; Decree No. 410-TTg of September 6, 1957 on ten incentive policies for production in the
mountainous area. These documents contained a number of provisions on the protection of property
rights to antiquities relics and trees in rural areas.2

It shows, on the other hand, a close relationship between ownership and privacy. That is, other
civil freedom shall be protected if these rights are both guaranteed. Effective protection of privacy
and property rights is also a guarantee of freedom of religion, press and politics (prescribed in Articles
of 10 and 11, the 1946 Constitution). Private property without guarantee, therefore, shall result in an
immediate threat to all other rights.

(ii) Limiting sanctions that damage private property right: Private property is basically a human

right to be automatically entitled and committed by the State. The right, thus, is usually not stipulated
in a Constitution which is considered as a contract exerting power of the government. Private

properties of individuals, organizations or of a country are all exclusion comparable. The distinction
of ownership by subject does not hold significant legal value or generalization.3 From such a thought, 
and regarding ownership regime, the 1946 Constitution can be seen as owning only one provision that
does not obscure the legal meaning of the ownership regime. In addition, the concise design helped
to limit the sanctions that may allow the public authority to damage private property, the shortcoming
that the later Constitutions have demonstrated.

1 Vu Cong Giao, ‘A survey of policy orientation and development through Vietnamese constitutions and suggestions on 
the activities of Rosa Luxemburg Institute in Vietnam in the period of 2015-2020’ < />uploads/sites/5/2014/07/Vu-Cong-Giao_Vietnamese-Report-of-Findings_online-version_final.pdf> accessed 25
March 2018.

2 Hoang Ngoc Thinh (n 1) 46.

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(iii) Land ownership - the basis of private ownership in the 1946 Constitution: After successful

August Revolution, the 1946 Constitution affirmed the status of the Vietnamese people for the
first time with land ownership in the highest law of the State. The Land Reform Law, enacted on
19 December 1953, was the legal basis for implementing the slogan “the plowmen own fields”.1
In this period, Vietnam’s economy and society were characterized wartime economy, of which rural
economy comprises the main part. The State of Vietnam promulgated the 1946 Constitution to regulate
and protect not only the civil rights of the Democratic Republic of Vietnam but also the private
ownership and other property rights. The State allowed the freedom to buy, sell and transfer land,
creating conditions for entities to effectively exploit and use land.2 It can be said that the ownership 
regime in Constitution by this time was focused on ensuring the people’s right to land ownership.

2.3. The inheritance and development of the ownership regime in the 1959 Constitution

2.3.1. The inheritance of the ownership regime in the 1959 Constitution

Vietnam’s economic direction during this period was to transform its backward economy into
a socialist one with modern industry and agriculture and advanced science and technology. The
fundamental aim of the economic policy was to continuously develop the productive forces in order
to raise the material and cultural standards of the people (Article 9). The 1959 Constitution defined
the ownership regime, economic sectors, and economic management principle as the economic
policy of the socialism state but suitable to the conditions of the country at war time. The common
ownership of production means was established along with the socialism production relation. The
1959 Constitution, therefore, stipulated four ownership forms in terms of production means, including
ownership by the whole people; collective ownership; ownership by individual working people; and
ownership by the national capitalists. The State was reported to compulsorily purchase, requisite or
confiscate for the common interests and with appropriate compensation. During the years of resistance
war against the US, Vietnam’s economy developed under the subsidy mechanism in which production
and consumption materials were distributed under plan so individuals had the right to ownership of
consumer materials to serve their daily needs.3

Moreover, in order to create a legal basis for different entities of economic sectors during their
production activities, the State recognized and protected the ownership of individual workers and the
ownership of capitalists over the production means they were allowed to do business with.4

2.3.2 The development of the ownership regime in the 1959 Constitution

(i) The institutionalization of the ownership regime

Compared to the 1946 Constitution, Chapter II of the 1959 Constitution is a completely new
chapter modeled after the constitution of socialist countries. In addition to regulating the State
economy to play a leading role in the national economy, the 1959 Constitution stipulated that the
1 Dang Thi Phuong, ‘The past and current regulations on the land ownership regime in Vietnam’ (2014) 12(85) Vietnam

Journal of Social Science 82.

2 Nguyen Minh Doan, ‘Ownership regime in Vietnamese constitutions and current development trend of ownership 
regime in Vietnam’ in Nguyen Dang Dung, Pham Hong Thai, Vu Cong Giao, Constitution: theoretical and practical
issues (Hanoi VNU Publisher 2011) 554.

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state leads all economic activities under a unified plan. In detail, the Constitution specified that the
State protects the right of peasants to own land and other production means (Article 14); the right of
handicraftsmen and other individual working people to own production means (Article 15); the right
of national capitalists to own production means and other capital (Article 16); the right of citizens
to possess lawfully earned incomes, savings, houses, and other private means of life (Article 18);
citizen right to inherit private property (Article 19).1 Article 11, the 1959 Constitution stipulated that 
“In the Democratic Republic of Vietnam, during the present period of transition to socialism, the

main forms of ownership of means of production are state ownership, that is, ownership by the whole 
people; cooperative ownership, that is, collective ownership by the working masses; ownership by 
individual working people; and ownership by the national capitalists”.

(ii) The formation of the ownership by the entire people and collective ownership

The concept of ownership by the entire people appeared more as a result of ideology, philosophy
and political economy than of the tradition of civil law. It is reported that the term of ownership by the
entire people was officially introduced into Vietnam since the 1959 Constitution although its recognition
remained unclear (Article 11). It can be interpreted that the article only listed without defining the types
of ownership, in which the concept of State ownership was defined as that of the entire people. Article
12, the 1959 Constitution began to declare that the state economy, all mineral resources, waters, forests,
undeveloped land, and other resources defined by law as belonging to the State were also the property of
the whole people.

The 1959 Constitution marked the emergence of a different view of private ownership or private
property. Articles 14, 15, 16 of the Constitution affirm that the State protects the ownership of land and
other production means of craftsmen and individual workers, production means and other possessions
of national capitalists. The Constitution also specified the need to renovate those economic sectors
and gradually transform them into state or collective economic sectors.2

For farmers, craftsmen and other individual workers, the State encouraged and created conditions
for cooperatives to establish and families to join their land and materials with cooperatives’ to develop
collective economy based on collective ownership of the workers. For the capitalists, the State conducted
the public-private partnership, developing the economy under the socialist path. Prejudices against
individual business entities remain; however, the law is seen to protect the ownership of the production
means and their assets, and inheritance.

(iii) The formation of State ownership of land (by the entire people)

After land reform, the North conducted agricultural cooperation. According to the Resolution of the
Sixth Central Conference of the Communist Party, the commune members’ land, in principle, must be
fully put into the cooperative and uniformly used. The State left its members a land area not exceeding
5% of the average area per capita in the commune for growing vegetables, planting fruit trees and raising
animals.3 Article 14 and Article 40, the 1959 Constitution respectively recognized that the State by 
law protects the right of peasants to own land and other production means, and the public property of
1 Thai Vinh Thang, ‘Vietnamese Constitutional History’ (Ministry of Justice, 26February 2015) < />

cacchuyenmuc/ctv/news/Pages/nghien-cuu-trao-doi.aspx?ItemID=14> accessed 31 May 2017.
2 Hoang Ngoc Thinh (n 1) 46.

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the Democratic Republic of Vietnam is sacred and inviolable. It is the duty of every citizen to respect and
protect public property. The 1959 Constitution once again affirmed the view of the Communist Party and
the State of Vietnam in implementing the slogan “the plowmen own the field”.1

2.4. The inheritance and development of the ownership regime in the 1980 Constitution

2.4.1 The inheritance content of the ownership regime in the 1980 Constitution

Inheriting the 1959 Constitution, the mechanism of centralized, bureaucratic and subsidiary state
management was clearly and consistently defined in 1980 Constitution. The Constitution asserted
that “The State leads the national economy under unified plans” (Article 33), which also defined 
the principle of collective responsibility and leadership in the state apparatus. In addition, the 1980
Constitution significantly expanded the level of guarantee with economic, social and cultural rights
as stipulated in the Constitution of socialist countries. Specifically, the Constitution stipulated that
education and health care were free of charge, and people are entitled to the right of access to housing,
employment and state assistance to implement these two rights.

The 1980 Constitution, however, no longer recognized that private ownership was a fundamental
right of citizens compared to the 1959 Constitution. Article 27 of the Constitution only stipulated that
“The State protects citizens’ right to ownership of lawfully earned income, savings, housing, living

materials, and production tools used in case of separate labor permitted. The law protects citizens’ 
right to inherit property”. Being aware of the transitional period Vietnam was experiencing at that

time, the State did not recognize the existence of private ownership and the corresponding economic
sectors, considered it as a non-socialist economy and sought to abolish it. The subsidy and collective
ownership is seen to cover most provisions of the 1980 Constitution. Only some of citizen rights
stipulated in the Constitution are reported to be exercised over some types of people. The application
of the right to housing to only citizens who are public officials is a specific example.2

2.4.2 The development of the ownership regime in the 1980 Constitution

(i) Removing the ownership of production means

The private ownership was reaffirmed in the 1980 Constitution with a higher level of denial
for this “non-socialist” economic sector. Article 18, the 1980 Constitution affirmed that the State
implements a national economy with two main components including state economy and collective
economy. Articles 24, 25, and 26 of the 1980 Constitution stated the continued improvement of the
economic components of individual farmers, craftsmen and capitalists in appropriate forms. It, thus,
can be seen that the role of private ownership remained minor in the national economy and in the
legal system. For the same reason, there were virtually no legal mechanisms in Vietnam for the
protection of private ownership, which was considered as non-socialist at this time, but only measures
to renovate and eliminate the types of private ownership regime on production means.3

The 1980 Constitution only stipulated two forms of ownership of land and production means
namely the ownership by the entire people and the collective ownership. The private ownership
1 Dang Thi Phuong (n 6).

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of land and production means was not recognized; the State only protected the private ownership
of houses and assets used to meet the residential needs instead. These stipulations are reportedly
aimed to accomplish the goal of completing the socialist infrastructure for 20 years (until the end of
the twentieth century) and to develop a comprehensively developed socialism, the goals set by the
Communist Party in the Fourth National Congress (1976).1

The Constitution stated that individuals and households did not have the right to own land,
but were entitled to the right to use and exploit land, and transfer properties on land. In the case of
no property present on the land, people have no right to transfer of the use of land, including the
inheritance of land use rights. In the case when the person assigned with land dies, the land use right
shall be transferred to the person currently using the same land of the deceased. Civil exchanges on

land were banned during this period since the State allocated land to cooperatives and production
enterprises. On the other hand, due to the socialist reform policy in the South that brought households
and individuals into production enterprises and cooperatives, the civil transactions mainly dealt with
the daily necessities of individuals and families.2

(ii) Protection of personal property rights

The concept of personal property formed under the influence of the constitutional regulations on
restricting the private ownership on production means and the protection of citizen’s right to lawful
income, saving and housing is the feature of legal system in this period. This concept is seen to explain
somewhat the contradiction between the categories since these mentioned assets are naturally owned
by the individual meaning private property. Legal science considers the personal property as the
socialist legal institution in which the legal provisions govern the relationship between entities arising
from the possession, use and disposition of property for the purpose of living and consumption of
these entities. In brief, personal property differs from private ownership in the object of the ownership
relationship and the purpose of the entities involved in the ownership relationship.3

The period of 1960-1986 recorded a number of institutions and legal provisions on personal
property and its protection although not yet complete, such as Circular No. 48-TTg of June 3, 1963
on the ownership of cattle; Circular No. 228-TTg of May 22, 1975 on deposits of business owners
at the State Bank; Decision No. 55/CP of February 23, 1980 on the ownership of cars of individuals,
Decision No. 39/CP of February 9, 1979 on management of gold, silver and gems. The objects of
private ownership relations were assets satisfying the daily consumption of citizens such as houses,
trees, money and lawful foreign currencies. Most of these documents have regulations requiring
owners not to use property for illegal business, or not to commit activities that may affect security and
social order. The measures of private property protection were paid little attention to in legal system.4

(iii) Thoroughly enforcing the entire people’s ownership of land

Until the 1980 Constitution, it seemed that the socialist revolutionary ideology of production

relations had been publicly expressed in the Constitution since the scope of the entire people’s
1 Vu Cong Giao (n 2).

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ownership extended to all important national economic resources.1 Article 19, the 1980 Constitution 
stipulated that “Land, forests, mountains, lakes, mines, natural resources in the ground, in the seas

and continental shelves and other properties belonging to the State prescribed by law are owned by 
the entire people”. This provision removed the previous forms of land ownership and established

a single form of land ownership namely the ownership by the entire people of which the State is
the owner. Although the 1980 Constitution specified that the land was owned by the entire people;
the State, in fact, implemented the recovery, registration and statistics recording of land, aiming to
establish its ownership. Land users were supposed to exist as before. The 1987 Land Law consisted
of six chapters and 57 articles defining the principles of land use, rights and obligations of land users.
Article 1, the 1987 Land Law stated that “Land is owned by the entire people, managed by the State”. 
It was the legal basis for completing the land law system in which the State clearly performed the
role of representing the ownership of the entire people under the provisions of the 1980 Constitution.
After a period of implementation, the land ownership including three forms is reported to be no
longer suitable. The regulation of collective ownership form on land, for example, seemed to create
unreasonable, wasteful and ineffective land usage.

3. The formation and development of the ownership regime in the period of the 1992 Constitution to 
the 2013 Constitution

3.1. Characteristics of the ownership regime in this period

Fundamental changes were seen in the economy of this period when the renovation policy of the
Communist Party and State of Vietnam was used to implement a multi-sector economy, freeing up all
potentials in society to develop the economy of the country. The institutionalization of this approach,
especially in terms of ownership regime, is reported to be much slower than changes in the economy.
Ownership regime included some characteristics2 as follows:

Firstly, the private ownership of production means considered as private property as well as

the private enterprises, joint ventures among private entities are reported to exist in Vietnam’s
economy from 1986 to 1992, though not yet recognized by the Constitution and legal system.
Some important principles of the market economy such as business freedom, private ownership of
production means had not been institutionalized until the 1992 Constitution. The Corporate Law,
the Private Enterprise Law, the Bankruptcy Law, and the Civil Code were respectively enacted
relating to the ownership regime.

Secondly, private ownership of production means was on thrive. According to the Ministry

of Planning and Investment, for just over eight years since the promulgation of the 1990 Private
Enterprise Law (effective in 1991) and the 1990 Companies Law (effective in 1991), there were 421
joint-stock companies nationwide with the capital of VND 5,231,057 billion; 2,227 limited liability
companies with the capital of VND 13,099,332 billion; 26,639 private enterprises with the capital of
VND 5,995,876 billion; and tens of thousands of business households and small business households
registered under Decree No. 66-HDBT of March 2, 1992. This development is noted as a bold mark
in the formation and development of property laws.

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Thirdly, it is worth noticing that the ownership regime became much more diverse than that in all

previous periods. This diversity was not only derived from Vietnam’s socialist-oriented multi-sector

economy but also due to its integration into the world economy. Entities with a unique organizational
structure and ownership regime such as joint venture enterprises, 100% foreign invested enterprises,
BOT and BTO enterprises are reported to appear in the economy for the first time.

Fourthly, the diversity in the object of ownership relations is seen in the addition of more types

of rights. For example, the origin of goods, the names of businesses, inventions were additionally
considered to be objects of ownership relations.

Fifthly, the widespread existence of foreign owners in Vietnam featured the ownership regime

in this period. The foreign investment attraction had rapidly increased the number of foreign owners
invested in Vietnam in the form of joint venture enterprises, 100% foreign invested enterprises, BOT
and BTO enterprises with benefits closely associated with the movement of assets and capital.

3.2. The formation and development of the ownership regime in the 1992 Constitution

3.2.1. The inheritance of the ownership regime in the 1992 Constitution

(i) Maintaining the leading role of state ownership and collective ownership

The 1980 Constitution to reform the socialism in the South and build the foundation for socialism
on a national scale was no longer suitable for the renovation process. It was the reason for the
enactment of the 1992 Constitution with the line of socialist-oriented market economy development.
The ownership regime, thus, experienced a reformative change. The 1992 Constitution stipulates
three ownership regimes, namely the ownership by the entire people, collective ownership, and
private ownership, in which the entire people’s ownership and collective ownership constitute the
foundation (Article 15).The important subjects of ownership by the entire people including land and
state capital and assets invested in enterprises were identified in the Constitution. By 2003, two laws
passed by the National Assembly, namely the Land Law and the State Enterprise Law, promulgated

two different provisions relating to two subjects of the ownership by the entire people. While the
Land Law stated that the land was owned by the people of which the State was the representative; the
State Enterprises Law defined that “State enterprises are economic organizations owned by the State

with total charter capital”(Article 1).1

The concept of “ownership by the entire people” is understood as the common ownership of at
least all citizens living in the territory of Vietnam. This legally requires the creation of a mechanism so
that all people (co-owners) have the right to participate in the “disposition” and to “benefit” from this
ownership. Being owned by the whole people is hardly identical with “state ownership”. It requires
a clear definition of: (i) Who is the State (a system of different bodies and structures rather than a
centralized or unified body)?; (ii) “Central State” or “Local State?; and (iii) Who is the representative
of the State entity (governmental, legislative and judicial authorities)?

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Article 17, the 1992 Constitution listed all subjects owned by the entire people, lack of classifications
according to the importance of State’s property. The Constitution put the subject of “land, forests,
mountains, rivers and lakes” in the same degree with “state capital and assets invested in enterprises”
which varied widely in nature, political, economic and social significance. It should be noted that property
owned by the “nation”, “state” or “the whole people” not only brings benefits but also a financial burden
and other obligations to the people as a taxpayer. The issue is seen in terms of not only protection for
these assets but also people’s control over its increase (investment in construction or procurement by
government authorities should be controlled within the statutory limits).1

(ii) Maintaining the ownership by the entire people on land

Absorbing the innovation spirit of the Seventh National Party Congress, the 1992 Constitution and

the 1993 Land Law were respectively adopted to replace the 1980 Constitution and the 1987 Land Law.
The multi-sector economy has been initiated and developed since the 1992 Constitution and the Land
Law of 1993 defined the real estate market, land price regulations, five types of rights for households
and individuals to use land (rights to transfer, assign, lease, inherit and mortgage land use rights). The
2003 Land Law stipulated that the land was owned by the entire people of which the State was the
representative who assigns land households and individuals for stable and long-term use.2

The terms “land” and “parcel of land”, however, are different in their meaning and object;
therefore, the nationalization of specific “parcel of land” did not happen by that time. In other words,
the State, in term of land law, only expanded its control in the use and disposition right. The land users
were supposed to carry out the provisions of changing the purpose of land use or assigning the land
parcel if demanded. The motivation of this land “nationalization” was notably seen as the State policy
of centralizing the relations related to land ownership.3

Furthermore, the regulations on (land) ownership by the entire people remained unclarified,
as did the rights of the entire people as the owner, and responsibilities of the State as the owner
representative. The constitutional regulations, in fact, did not harmonize the interests of the State,
investors and land users. The compensation for people whose land was recovered was reported to
remain unsolved, leading to the wasteful and inefficient use of land and the complicated complaints
and disputes on land. The definition of the (land) ownership by the entire people was questionable
since the right of land users was stipulated in the Land Law in the almost same way with the owner
rights. An effective mechanism failed to be constituted in legal system to handle conflicts between
land accumulation for large-scale concentrated production area and regulations on agricultural land
assignment limit, duration as well as the limit for transfer of agricultural land use rights.

3.2.2. The development of the ownership regime in the 1992 Constitution

(i) Restoring of private property

The ownership right of citizen was restored in the 1992 Constitution in a new spirit and consistent

with economic policies and regulations on citizens’ right to business freedom as stated: “Citizens have 
1 Nguyen Tien Lap (n 22).

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the right to ownership of lawful income, savings, housing, personal possessions, means of production, 
capital and other assets in enterprises or in other economic organizations; the right to use the land 
allocated by the State is provided for in Article 17 and 18. The State protects the citizen’s right to 
bequeath and to inherit” (Article 58). It is noted that the scope of the citizen’s ownership was expanded

since the ownership of the production means had not been recognized in the 1980 Constitution.1
Accordingly, lawful assets in the form of private ownership were not limited in quantity and value.
A lawful owner or possessor had the right to request a court or other authorities to force any person
infringing its ownership rights or right to possess to return the property and to cease the infringement
of its ownership rights or right to possess, and had the right to demand compensation for any damage
(Article 255, the 2005 Civil Code). It can be said that the 1992 Constitution had institutionalized the
Communist Party’s policy in the development of a socialist-oriented market economy with various
forms of ownership of production means including the ownership by the entire people, the collective
ownership, private ownership in which the ownership by entire people and the collective ownership
constitute the foundation. Forms of mixed ownership were seen to be initiated under the requirements
of market economy development in Vietnam.

However, the possession, use and disposition of properties in the form of private ownership must
not damage or affect the interests of the State, the public interests, the legitimate rights and interests of
others. Individuals were not allowed to own the property defined by law as belonging to the State, or
falling under the ownership of the entire people (Article 17). The recognition of long-term existence of
the private ownership regime, individual economic sectors, small owners, private capitalist, the rights to
business freedom of citizens, the introduction of insurance have contributed significantly to the creation
of more jobs, the increase in income for workers, and the legitimate enrichment among citizens.2 A 
completely different perspective on the private ownership regime was shown in the 1992 Constitution.

Private ownership of production means and other assets was considered a component of a
state-controlled, multi-sector economy. The enactment of 1995 Civil Code, which adjusted the ownership
relations, marked a significant point in the legal system of Vietnam since the 1992 Constitution.3

It is shown as the Vietnam’s laws on private ownership stepped up when the country entered a
market economy. It is demanding to finalize the legal system of ownership in general and the form
of private ownership in particular in an economy where private ownership continuously played an
increasingly important role. In other words, the law of ownership associated with the economic and
socio-political changes of a country is a clear reflection of that country’s policy.

(ii) Restoring the right to use land of individuals and organizations

Among the individual property rights, the right to use land plays the most important role, and
is a great asset of the majority of farmer households. The State allowed individuals and households
to exercise the rights to exploit, use, transfer, lease, exchange and inherit land use rights. Land use
rights were recognized by the State as particularly important economic value goods of individuals,
households and other entities.4

1 Nguyen Minh Doan (n 7) 558.
2 ibid.

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The (amended and supplemented) 1992 Constitution consistently affirmed that land was owned
by the entire people, of which the State was the owner representative. It was what the Communist
Party agreed at the Fifth and Sixth Conference of the 11th Central Executive Committee besides
introducing new guidelines and orientations related to the State management in land use plan. It also
unanimously determined that the land use right was a special property and goods but not a property

right. Land users who were allocated or leased land by the State for stable and long-term use had a
number of rights (conversion, transfer, lease, inheritance, gift, and mortgage) in accordance with the
law. Land users were entitled to receiving compensation when the State recovered the land, as well
as required to take responsibilities to register the land use right, ensure the rightful land use purpose
and comply with the State’s decision of land recovery. The State did not recognize the reclaiming of
land allocated by the State to others during the implementation of land policies; did not raise the issue
of adjusting agricultural land allocated to households and individuals. Instead, the State continued
to allocate and lease agricultural land to households and individuals for an extended definite term;
expand the limit of agricultural land use right assignment in accordance with specific conditions of
each region, in each period, creating favourable conditions for the process of land accumulation and
concentration, forming agriculture production zones.

(iii) Focusing on the protection of property rights

It is noted that the law, since 1986 up to now, pays great attention to the ownership regime. The
concept of private ownership has also experienced a fundamental change: private ownership of the
production means was recognised and protection measure was stipulated. Civil Codes introduced a
number of property protection measures that the legal systems of many countries have acknowledged
and used effectively. Chapter XV, Part II of the 2005 Civil Code or Section 2, Chapter XI, Part II of
the 2015 Civil Code have stipulated the right of the owner to reclaim his/her belongings if illegally
seized or rights to request other entities to stop illegal acts of exercising property rights, the right to
legal possession, and the right to claim damages caused by others to their properties. The protection
of property rights by criminal means has also significantly changed. The approach of criminal law
that considered socialist property infringements, namely State and collective ownership, more serious
than those to private property, has no longer remained. It marked not only a matter of legislative
techniques but a reflection of the new view of State on private property and a non-discriminatory
approach regarding different forms of ownership.1

3.3. The inheritance and development of the ownership regime in the 2013 Constitution

3.3.1 The inheritance of the ownership regime in the 2013 Constitution

Institutionalizing the views of the Communist Party of Vietnam and inheriting the reasonable
contents of Article 15 and Article 43, the 1992 Constitution; constitutional regulations on the goals of
economic development in the 2013 Constitution can be summarized as follows:

Firstly, it emphasizes sustainable development of the economy together with progress in social,

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Secondly, it highlights the construction of an independent and sovereign economy which shall

promote its internal resources, international cooperation, and the industrialization and modernization of
the country (Article 50). The nature and structure of the economy play a determinative role in the country
development (Article 51). It can be seen that the 2013 Constitution has inherited and developed contents
expressing the motivation and goals of developing a socialist-oriented market economy in Vietnam,
which was previously detailed in Articles of 15, 16, 19, 20, 21, 22, 23 and 25 of the 1992 Constitution. It
affirms the development of a socialist-oriented market economy with multiple forms of ownership and
multiple sectors in the economic structure; different economic sectors are equally treated to cooperate and
compete in accordance with the law.

Thirdly, the 2013 Constitution continues to assert that the State economy plays a leading role,

which is supposed to necessarily ensure the socialist orientation of the economy and to unify the
provisions on political and economic institutions of the Constitution. However, during the process
of revising the 1992 Constitution, there was a different view that demanded on implementing the
social policy, regulating the economy and creating the favorable condition for other sectors, thereby
enhancing the welfare and social security.1 It originated from the concern that the leading role regulation 
of the State economy somehow leads the State to nurturing a number of stagnant, low-performing and
corruptive economic sectors. It is worth noticing that the Communist Party of Vietnam in this regard

is somewhat clearly determining that the State economy does not lead the other economic sectors, but
first and foremost supports the direction and regulation of the economy.2

Regarding the above provisions of the 2013 Constitution, in recent years, barriers and
discrimination between economic sectors have been seen to significantly decrease with the provision
of general policies for different types of businesses including state-owned enterprises, private
enterprises and foreign-invested enterprises; between domestic investors as well as international
investors; thereby creating a fair competitive environment under the rules of market economy and
international practices. It is figured out, however, that equality between state-owned enterprises
and private enterprises was still not seen in land, credit, investment opportunities, information,
human resources and project bidding. In the law on investment remain differences in treatments for
domestic enterprises and foreign-invested enterprises in terms of project operation limits, between
the domestic organizations, individuals and foreign organizations and individuals and Vietnamese
abroad in terms of leasing land, land allocation with land use fees. Regulations on contract
performance or distribution are found obstacles in trading, hence creating corporate monopolies
associated with state one.3

1 Nguyen Phu Trong, ‘Speech to closing ceremony of the 8th Party Central Conference, Session XI’ (the 8th Party 
Central Conference, Hanoi, 9 October 2013)
< />nghi-bch-trung-uong/khoa-xi/phat-bieu-cua-tong-bi-thu-nguyen-phu-trong-be-mac-hoi-nghi-lan-thu-8-ban-chap-hanh-trung-uong-dang-khoa-xi-586> accessed 25 July 2019.

2 The 9th Central Committee of the Communist Party, ‘Enhancing the Communist Party’s leadership and power, 
promoting the strength of the entire nation, strengthening the comprehensive renovation process, soon bringing the
country out of the underdeveloped state (The 10th National Party Congress, Hanoi, 25 April 2006)<http://www.
chinhphu.vn/portal/page/portal/category1/NuocCHXHCNVietNam/ThongTinTongHop/noidungvankiendaihoidang?
categoryId=10000715&articleId=10038386> accessed 16 February 2018.

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3.3.2. The development of the ownership regime in the 2013 Constitution

Compared to the 1992 Constitution, the 2013 Constitution owns the following new regulations:

(i) Regarding the ownership

The nature of Vietnam’s economy has been reflected in the 2013 Constitution; that is, the right to
business freedom (Article 33) and the inviolability of the organization’s assets and individuals (Article
32). The 2013 Constitution stipulates that “everyone” instead of “citizens” in the 1992 Constitution 
enjoys the right of business freedom and protects property rights. This amendment has expanded the
scope of subjects and rights of owners in accordance with domestic and international practices.

The 2013 Constitution also recognizes and respects the private property rights and the right to
inherit lawful income, savings, housing, chattel, production means and funds in enterprises or other
economic organizations (Article 32) and protects the right to intellectual property (Article 62). Private
possessions of individuals, organizations of investment, production, and business are protected by
the law and are not subjected to nationalization (Article 51).Thus, with the amendments in Article
32 and Article 33, the 2013 Constitution strengthens the government’s policy on the right to business
freedom and lawful ownership of property of all organizations and individuals in the country and
abroad. It is believed to be an important legal basis for investors while stabilizing the investment
environment in Vietnam.

(ii) Regarding the ownership forms

The 2013 Constitution continues to recognize and protect the multiple forms of ownership in
Vietnam (Article 51), which constitute the legalization of the ownership forms in the 2015 Civil
Code. Accordingly, this Civil Code specified forms of ownership as including: ownership by the
entire people, common ownership and private ownership, instead of six ownership forms stipulated
in the 2005 Civil Code including state ownership, private ownership, collective ownership, common
ownership and ownership of political organizations, socio-political organizations and ownership of

professional social organizations. This change is considered consistent with the provisions of the
2013 Constitution and Vietnam’s practices.1

Besides, it is also suggested that regulation be applied to only two forms of ownership, namely
common ownership and private ownership since the ownership by the entire people actually belongs
to the common ownership. However, the drafting committee of the Civil Code 2015 at the beginning
said that the ownership by the entire people (of which the State is the owner representative) is regulated
to a number of special assets such as land, natural resources. Considering entire people ownership, a
specific form of common ownership, is thus believed to trivialize the political, economic and defense
position of the ownership of the entire people.2

These arguments persisted at every occasion of constitutional or civil law amendments in
Vietnam, probably due to the inconsistent approaches taken by legislators and theorists. Theoretically,
there seems to be an implicit dogmatic conception of “the ownership by the entire people” norm
(an objective necessity in a socialist society) which, on the other hand, simply trivializes it with the
1 Thu Phuong, ‘Ownership regime supposed to be suitable for the reality’ Tin tuc (Hanoi, 10 February 2015) <https://baotintuc.

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concept of “State ownership” without marked effort to make it transparent.1 It is also the reason for 
the 2015 Civil Code to step further in clarifying the form of ownership by the entire people. In detail,
while the Civil Code 2005 stipulates that “Property in the form of State ownership includes land,

...” (Article 200), the 2015 Civil Code does “Land, water resources, mineral resources, resources 
in the waters, airspace and other natural resources and the assets invested and/or managed by 
the State belong to the entire people with the representation and centralized management of the 
State”(Article 197). Considering that these two forms are explained in the same way, the change

from state ownership to ownership by the entire people has contributed to clarifying the content
and nature of this type of ownership.

(iii) Regarding the economic sectors

Firstly, it is noted that the collective economy, individual economy, small owner, private

capitalist economy, household economy or foreign-invested economy which law and specific
government policies define are not specifically stipulated in the 2013 Constitution. Such provisions
are said to be consistent with the nature of the basic law, ensuring the generality and high stability
of the Constitution when the structure of the economy may change. Secondly, the 2013 Constitution 
does not identify the “State economy”, an economic system based on the ownership by the entire
people on production means (including the state budget and other economic-financial resources of
the State) with “State enterprises” which are considered as a part of the State economy. It is believed
to eliminate the misunderstandings about the leading role of the State economy as well as the role of
state-owned enterprises. In addition to the provisions of inequality, discrimination between economic
sectors and enterprises, the current law has not clearly defined the strict and transparent mechanism
of enforcing, monitoring the business management processes and procedures. It is what the legal
system is demanding to finalize besides protecting enterprises of all economic sectors from being
discriminated against and treated with inequality in reality.2

4. Conclusion

The study shows that the movement of the ownership regimes in Vietnamese constitutions
evolves in two contradictory cycles: (i) the gradual elimination process of the private regime in the
period of the 1946 Constitution to the 1980 Constitution; and (ii) the diversification process of the
ownership forms in the 1992 Constitution to the 2013 Constitution.

The first cycle, starting with “ownership is as an inviolable sacred right” stipulated in the 1946

Constitution, is explained by the idea of moving towards freedom after centuries of being ruled. The
ownership regime in the Constitutions of 1946, 1959 and 1980 has changed significantly based on the
premise of ideas, political tendencies and the dependence on the leading role of the Communist Party

of Vietnam. Concerning constitutional techniques, ownership regime was regulated into a chapter
in the Constitutions of 1959 and 1980 instead of a brief one Article 12 of the 1946 Constitution.
Regarding the content, the ownership regime in the 1946 Constitution was guaranteed for the first
time in the highest legal document, bringing great expectations for an outdated society that had just
escaped from colonial rule, restoring human rights with particular emphasis on private property as
1 Nguyen Tien Lap (n 22).

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a natural human right since birth. From the 1959 Constitution, issues related to ownership were
identified as one of the main principles of Marxism-Leninism, so the ownership regime was supposed
to bear the characteristics of the transition period from people’s democracy to socialism. As a result,
the diversity of ownership forms was narrowed down; production materials were almost excluded
from private ownership. Private ownership of the production means was virtually nonsense although
there were no regulations to eliminate or claim ownership of this object as illegal. By the 1980
Constitution, the degree of nationalization and state ownership became even higher and the time
was considered the golden age of central planning. In summary, the evolution of the ownership
regime in the Constitutions before the Doi Moi (Renovation reform) period is seen as the process
of gradual elimination of the private system and the strong establishment of the public regime for
important production means. The paralysis of the economy and spiral of poverty were reported as
the consequences creating a premise for the Doi Moi and seemingly reversing the progress of the
ownership regime in the later constitutions.

The second cycle is seen as the period when the renovation policy of the Communist Party and

the State of Vietnam began to be brought to life in order to enable all potentials in society to develop
the country’s economy. The institutionalization of this approach, especially in terms of ownership, is
reported to be much slower than changes in the economy.

From 1986 to 1992, the private ownership of production means existed as a non-recognized
ownership form in the Constitution. By the 1992 Constitution, some important principles of the
market economy such as business freedom, private ownership of production means started to be
institutionalized, boldly marking the formation and development of property laws. The ownership
regime in this period became much more diverse than in all previous periods, which was not only
derived from a multi-sectors economy but also from international economy integration. Different types
of rights were seen as the objects of property relations and the widespread existence of foreign owners
in Vietnam was the feature of ownership regime in this period. The opening of foreign investment
attraction has rapidly increased the number of foreign owners in Vietnam with benefits closely tied to
the movement of assets and capital they invest in Vietnam.

The 2013 Constitution belongs to the development stage of modern constitutionalism which
demands respect and protection of property, the public interest with property, the interests of individuals
and the society in the equal and non-discriminative manner. It is accepted that in the current context,
it is not possible to effectively implement the public regime of production means and social assets.
Creating favourable conditions for economic sectors to be equal and competitive on the basis of law
has been focused instead. It questions the clarification regarding the handling between public interests
and private interests in the constitution and laws of the country.

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reforms in the future, which are: continuing to promote equity among owners, developing mixed
ownership forms and determining the role of ownership entities in the ownership by the entire people
and introducing new legal concepts to solve theoretical and practical problems in the country.

References

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1986)

Dang Thi Phuong, ‘The past and current regulations on the land ownership regime in Vietnam’ (2014)
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Hoang Ngoc Thinh, ‘The development of private ownership through Vietnam’s constitutions’ (1999)
6 Law Journal of Hanoi Law University

Nguyen Dang Dung, Trinh Quoc Toan, Dang Minh Tuan., Scientific commentary on the 2013

Constitution of the Socialist Republic of Vietnam (National Politics Publisher 2016)

Nguyen Minh Doan., ‘Ownership regime in Vietnamese constitutions and current development trend of
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Nguyen Tien Lap, ‘The regime ownership by the entire people and land tenure’ Tia sang (Hanoi, 19 
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