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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
17/2006/ND-CP
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Hanoi,
January 27, 2006
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DECREE
AMENDING AND
SUPPLEMENTING A NUMBER OF ARTICLES OF THE DECREES GUIDING THE IMPLEMENTATION OF
THE LAND LAW AND DECREE No. 187/2004/ND-CP ON TRANSFORMATION OF STATE COMPANIES
INTO JOINT-STOCK COMPANIES
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on
Organization of the Government;
Pursuant to the November 26, 2003 Land Law;
At the proposal of the Minister of Natural Resources and Environment and the
Minister of Finance,
DECREES:
Article 1.- Scope of amendment and
supplementation
This Decree provides for amendment and
supplementation of a number of articles of the Government’s Decree No.
181/2004/ND-CP of October 29, 2004, on the implementation of the Land Law
(referred to as Decree No. 181/2004/ND-CP), Decree No. 182/2004/ND-CP of
October 29, 2004, on handling of administrative violations in the land domain
(referred to as Decree No. 182/2004/ND-CP), Decree No. 197/2004/ND-CP of
December 3, 2004, on compensation, support and resettlement upon land recovery
by the State (referred to as Decree No. 197/2004/ND-CP), Decree No.
198/2004/ND-CP of December 3, 2004, on collection of land use levies (referred
to as Decree No. 198/2004/ND-CP), and Decree No. 187/2004/ND-CP of November 16,
2004, on transformation of state companies into joint-stock companies (referred
to as Decree No. 187/2004/ND-CP).
Article 2.- To amend and supplement a number
of articles of Decree No. 181/2004/ND-CP
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“2. The good observance of land law by
applicants for land allocation or land lease in cases where such applicants
were previously allocated or leased land by the State for execution of
production, business or service investment projects. Based on the land
allocation or land lease applicants’ self-declarations about the entire areas
and the use of land previously allocated or leased by the State and their
self-remarks on the observance of land law, the Services of Natural Resources
and Environment of the provinces or centrally run cities where exists the land
for which land allocation or land lease procedures are being carried out shall
contact the Services of Natural Resources and Environment of the provinces or
centrally run cities where exists the allocated or leased land in order to
verify land users’ observance of land law in the course of execution of
projects to which the State has allocated or leased land.
Where land allocation or land lease applicants
are non-state economic organizations, they must declare the entire areas and
use of land which has been allocated or leased by the State to them and other
economic organizations being co-owners.”
2. To add Clause 4 to Article 30 as follows:
“4. The investment ratio for a unit of land area
shall be calculated as equal to the total capital invested on land divided by
the total land area of the project. Provincial/municipal People’s Committees
shall base themselves on local practical situation to set the minimum
investment ratio for a unit of land area, suitable to each kind of project and
each geographical area of investment, which shall serve as a basis for project
evaluation and evaluation of land use demands of the investment project.”
3. To add Points e and f to Clause 2 of
Article 36 as follows:
“e/ Using land for execution of investment
projects on mineral exploration or exploitation according to the provisions of
law on investment and law on minerals; using land as ground for relocation of
production, business or service establishments at environmental protection
requirements or under plannings, which cannot be arranged in industrial parks,
hi-tech parks or economic zones.
f/ Using land for execution of infrastructure
investment projects for public services, including works of traffic, power,
irrigation, water supply and drainage, environmental sanitation,
communication, petrol and oil pipelines, gas pipelines, educational, training,
cultural, scientific and technical, medical, physical training and sport
facilities, and marketplaces.”
4. To amend Clause 7 of Article 36 as
follows:
“7. Land already allocated for use for defense
and security purposes, for national interests, public interests, for
construction of industrial parks, or for use as ground for non-agricultural
production and/or business activities must not be used for the purposes of
building or dealing in dwelling houses or residential land, except cases where
the competent state agencies defined in Article 37 of the Land Law permit the
change of land use purposes and such change complies with the bases of land use
purpose change, defined in Article 31 of the Land Law.”
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“d/ Where land is put up for auction but there
is no bidder or where the auction has been held at least twice but fails, or
where only one investor formulates projects of application for allocation or
lease of a certain land area for execution of investment projects in
compatibility with plannings;
e/ Where land is used for execution of
investment projects on construction of dwelling houses for resettlement,
construction of dwelling houses for rent or purchase by poor people and
low-income earners, or construction of official-duty houses;
f/ Where residential land is allocated to
officials or public servants who move to other working places under competent
agencies’ decisions;
g/ Where land for which compensation or
ground clearance has not been made.”
6. To amend Clause 1 of Article 63 as
follows:
“1. If state enterprises currently using land
allocated or leased by the State are equitized, they may choose the form of
land allocation with collection of land use levies or land lease.”
7. To add Clause 7 to Article 84 as follows:
“7. For economic non-business units which can
self-finance their regular activities and are tasked by competent agencies to
build and deal in industrial-park infrastructure, if they are leased land by
the State for investment in construction and commercial operation of
industrial-park infrastructure, they may sub-lease the land after having
invested in infrastructure.”
8. To amend Clause 1 of Article 101 as
follows:
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a/ For cities, provincial towns, new urban
centers of cities or provincial towns, or new urban centers planned for
development into cities or provincial towns, the transfer of land use rights to
households or individuals in form of selling house foundations while houses
have not yet been built is disallowed. Investors may transfer the land use
rights to economic organizations for the land areas on which investment
construction of infrastructure has been completed under approved projects or
under component projects of approved investment projects; economic
organizations being land use rights transferees must use the land for proper
purposes strictly according to construction items and progress stated in such
projects;
b/ For other geographical areas, the transfer of
rights to use land of investment projects on commercial operation of dwelling
houses shall comply with provisions of Point a of this Clause; where exist investment
projects on construction of population-quarter infrastructure, investors must
complete the projects strictly according to their approved contents before they
can transfer the rights to use land associated with such infrastructure to
economic organizations, households or individuals.”
9. To add Article 111a as follows:
“Article 111a.- Rights and obligations of land
users in cases where they are allocated residential land, land for use as
production and/or business ground or land for execution of investment projects
for profit purposes, who are entitled to exemption from or reduction of land
use levies or land rents
1. Persons who are allocated residential land or
leased land by the State for execution of projects on construction and trading
of dwelling houses, who are entitled to land use levy or land rent exemption or
reduction, shall have the rights and obligations provided for by land law like
the cases where they are not entitled to land use levy or land rent exemption
or reduction.
2. Persons who are allocated land by the State
for use as production and/or business ground, or for execution of investment
projects for profit purposes, who are entitled to reduction of land use levies
or land rents, shall have the rights and obligations provided for by land law
like the cases where they are not entitled to land use levy or land rent
exemption or reduction for land of categories with corresponding use purposes.
3. Persons who are allocated land by the State
for use as production and/or business ground, or for execution of investment
projects for profit purposes, who are entitled to land use levy or land rent
exemption, shall have the rights and obligations provided for by land law like
the cases where annual land rents are paid for State-leased land of categories
with corresponding use purposes.
Where projects are in the process of
construction investment but land users become incapable of continuing to
execute the projects, the State shall recover the land; assets already invested
on land shall be handled according to the provisions of Article 35 of Decree
No. 181/2004/ND-CP.
Where projects are completed at the capital
construction stage but investors become incapable of continuing to execute the
projects, they may sell the assets affixed to the land; asset purchasers may
continue executing the projects and must use the land strictly for the approved
purposes.”
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“1. Contracts or papers when land users exercise
their rights to exchange, transfer, lease, sublease, inherit or donate land use
rights, to mortgage, guarantee or contribute capital with land use rights, must
be certified by notaries public, or authenticated by commune, ward or township
People’s Committees, or certified by management boards of industrial parks,
economic zones or hi-tech parks according to the following regulations:
a/ The transfer, lease or sublease of the rights
to use land, mortgage, guarantee or capital contribution with the rights to use
land in industrial parks, economic zones or hi-tech parks must be certified by
management boards of such industrial parks, economic zones or hi-tech parks;
b/ For cases not defined at Point a, Clause 1 of
this Article, certification of notaries public is required for organizations,
overseas Vietnamese, foreign organizations or individuals; certification of
public notaries or authentication of People’s Committees of communes, wards or
townships where exists land is required for households or individuals;
certification of public notaries or authentication of People’s Committees of
communes, wards or townships where exists land is required for participants
being households or individuals and other parties being organizations, overseas
Vietnamese, foreign organizations or foreigners.”
11. To amend Clauses 5 and 6 of Article 130
as follows:
“5. At least twenty (20) days before the
expiration of notification duration, provincial/municipal Services of Natural
Resources and Environment shall have to submit land recovery decisions to
provincial/municipal People’s Committees.
Within five (05) working days after receiving
the submissions, provincial/municipal People’s Committees shall have to
consider, sign and send the land recovery decisions to provincial/municipal
Services of Natural Resources and Environment and People’s Committees of
rural/urban districts or provincial towns or cities. The land recovery
decisions must include contents on recovery of specific land areas of land
plots used by organizations, religious establishments, overseas Vietnamese,
foreign organizations or foreigners, and contents on land recovery applicable
collectively to all land areas used by households, individuals or population
communities.
Where land areas being used by households or
individuals are included in the recovered land plots, within ten (10) working
days after receiving the land recovery decisions from provincial/municipal
People’s Committees, People’s Committees of rural/urban districts or provincial
towns or cities shall decide on recovery of specific land areas used by households,
individuals or population communities.
6. After obtaining land recovery decisions of
provincial/municipal People’s Committees, land fund development organizations
or People’s Committees of rural/urban districts or provincial towns or cities
shall have to formulate and submit plans on compensation or ground clearance.
Within fifteen (15) working days after receiving
the submissions, provincial/municipal People’s Committees shall have to
consider, sign and send decisions on approval of compensation or ground
clearance plans to land fund development organizations or People’s Committees
of rural/urban districts or provincial towns or cities.”
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13. To amend Clause 3 of Article 163 as
follows:
“3. Within forty five (45) days after receiving
settlement decisions of presidents of People’s Committees of rural/urban
districts or provincial towns or cities, if complainants disagree with such
decisions, they may initiate lawsuits at people’s courts or lodge their
complaints with provincial/municipal People’s Committees.
Where complaints are lodged with
provincial/municipal People’s Committees, presidents of provincial/municipal
People’s Committees shall have to settle such complaints within the time limits
set by the Law on Complaints and Denunciations. Complaint-settling decisions of
provincial/municipal People’s Committee presidents shall be final, which must
be published and sent to complainants and other persons with related interests
and obligations.”
14. To amend Clause 3 of Article 164 as
follows:
“3. Within forty five (45) days after receiving
settlement decisions of provincial/municipal People’s Committee presidents, if
complainants disagree with such decisions, they may initiate lawsuits at
people’s courts.”
Article 3.- To amend Clause 7, Article 7 of
Decree No. 182/2004/ND-CP as follows:
“7. Sanctioning forms and levels shall be
determined on the basis of the nature and seriousness of violations,
consequences of administrative violations, personal backgrounds of persons
committing administrative violations, and extenuating and aggravating
circumstances. Extenuating and aggravating circumstances shall apply according
to the provisions of Articles 8 and 9 of the Ordinance on Handling of
Administrative Violations.”
Article 4.- To amend and supplement a number
of articles of Decree No. 197/2004/ND-CP
1. To amend and supplement Point b, Clause 1
of Article 3 as follows:
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2. To amend and supplement Clause 1 of
Article 9 as follows:
“1. Land prices for compensation calculation are
land prices according to use purposes set and announced by provincial/municipal
People’s Committees; compensation shall not be made at prices of land with use
purposes to be changed; where such prices do, at the time of issue of land
recovery decisions, not match actual market prices of land use rights transfer
under normal conditions, provincial/municipal People’s Committees shall decide
on proper specific land prices.”
3. To add Clause 3 to Article 28 as follows:
“3. Where households or individuals having land
recovered are ranked as poor households according to the poverty line published
in each period by the Ministry of Labor, War Invalids and Social Affairs, they
shall receive supports for getting rid of poverty; the support levels and time
shall be specified by provincial/municipal People’s Committees which, however,
must be between 3 years and 10 years after the land recovery is completed.”
4. To amend Article 29 as follows:
“Households and individuals directly engaged in
agricultural production, that have over 30% of agricultural land areas
recovered but are not compensated with corresponding agricultural land by the
State, shall receive supports for job change or job creation according to the
following regulations:
1. They shall be allocated land with collection
of land use levies at locations which can be used as ground for non-agricultural
production or service-provision; land areas to be allocated shall be prescribed
by provincial-level People’s Committees, based on the land fund and recovered
land area of each household or individual; prices of to be-allocated land shall
be equal to those of corresponding agricultural land plus expenses for
investment in infrastructure on land which, however, must not be higher than
land prices at the time of land recovery, set and announced by provincial-level
People’s Committees;
2. In special cases where land provided for in
Clause 1 of this Article is unavailable, family members who are still of the
working age shall receive supports for job change training; specific support
levels shall be set by provincial-level People’s Committees to suit local
practical situation; supports for job change training shall be given mainly in
form of job learning at job-training establishments.”
5. To add Clause 3 to Article 36 as follows:
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a/ If they are households or individuals
directly engaged in agricultural production but not compensated by the State
with agricultural land corresponding to the recovered agricultural land, the
resettlement shall be associated with allocation of land for use as ground for
non-agricultural production or service-provision as specified in Clause 1,
Article 29 of this Decree;
b/ If they are households or individuals engaged
in non-agricultural production or service-provision, resettlement must be
associated with job creation from non-agricultural production or
service-provision; in special cases where land is unavailable for associating
resettlement with job creation from non-agricultural production or
service-provision, households or individuals shall receive supports for job
change training according to the provisions of Clause 2, Article 29 of this
Decree.”
6. To amend Clause 2 of Article 48 as
follows:
“2. To be-deducted funds for the organization of
compensation, support and resettlement shall not exceed 2% of the projects’
total funds for compensation and support; specific levels shall be decided by
provincial-level People’s Committees to suit local practical situation,
depending on the scale, nature and characteristics of projects of each type;
spending, payment and settlement shall comply with the provisions of law.
District-level land fund development organizations
or councils for compensation, support and resettlement may, when performing the
work of compensation, support and resettlement for various projects in
localities, balance to be-deducted fund of each project to suit practical
situation but must ensure that the total fund for the organization of
compensation, support and resettlement for a project shall not exceed 2% of the
total fund for compensation, support and resettlement of such project.”
Article 5.- To amend and supplement a number
of articles of Decree No. 198/2004/ND-CP
1. To amend and supplement Clause 2 of
Article 4 as follows:
“2. Land prices for calculation and collection
of land use levies are land prices based on the allocated-land use purposes,
set and announced by provincial/municipal People’s Committees; where at the
time of land allocation, such prices are not close to actual market prices of
land use right transfer under normal conditions, provincial/municipal People’s
Committees shall decide on suitable specific land prices.”
2. To amend and supplement Point a, Clause 2
of Article 6 as follows:
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Where households or individuals are permitted by
competent state agencies to convert garden or pond land, which is not
recognized as residential land, or agricultural land into land for
non-agricultural production and/or business purposes, the land use levies shall
be collected at a level equal to the difference between the land use levies
calculated at prices of land for non-agricultural production/business purposes
and those calculated at agricultural land prices.”
3. To amend and supplement Clause 4 of
Article 11 as follows:
“4. Land use levy exemption or reduction shall
not apply in cases where land use rights are put up for auction to allocate
land with collection of land use levies; where land lease is changed to land
allocation with collection of land use levies for use for production and/or
business purposes, except cases where the change to land allocation with
collection of land use levies helps the subjects be entitled to land use levy
exemption provided for in Article 12 of Decree No. 198/2004/ND-CP.”
4. To add Clauses 4 and 5 to Article 15 as
follows:
“4. For households or individuals that are
permitted to convert garden or pond land within the same land plots where exist
dwelling houses in population quarters, which is not recognized as residential
land, or to convert agricultural land into residential land, they shall have to
pay land use levies according to the provisions of Article 6 of this Decree,
and for households or individuals using land and granted land use right
certificates but have to pay land use levies according to the provisions of
Article 8 of this Decree, if they are incapable of paying land use levies to
the State, the payable land use levies shall be booked as debts in their land
use right certificates; such debt amounts shall be calculated at land prices at
the time of grant of land use right certificates.
Where households or individuals make land use
right transactions (transfer, lease, mortgage, pledge, capital contribution
with land use rights), donate land use rights to non-heirs according to the
provisions of the civil law (except cases defined at Point c, Clause 2, Article
110 of the Land Law), or are compensated with land upon land recovery by the
State, they shall have to pay the debts to the State. Land use right
registration offices under natural resources and environment sections of localities
where exists the land shall have to write off debts in land use right
certificates if households or individuals have fully paid the land use levy
debts to the State.
Land use right transactions related to land with
land use right certificates being inscribed with debts payable to the State
shall not legally valid.
5. Economic organizations which are allocated
land by the State with collection of land use levies for investment shall pay
the land use levies according to the land allocation progress stated in
approved investment projects.”
5. To amend and supplement Clause 1 of
Article 17 as follows:
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Article 6.- To amend Point b, Clause 1,
Article 19 of Decree No. 187/2004/ND-CP as follows:
“b/ If equitized enterprises choose the form of
land allocation, the land use right value must be included in the value of such
equitized enterprises at land prices set and announced by provincial/municipal
People’s Committees; if such prices do not match actual market prices of land
use right transfer under normal conditions at the time of equitization,
provincial/municipal People’s Committees shall decide on suitable specific land
prices. The order and procedures for land allocation, payment of land use
levies and grant of land use right certificates shall comply with the current
provisions of land law.”
Article 7.- Implementation provisions
This Decree takes effect 15 days after its publication
in “CONG BAO.” To annul previous regulations which are contrary to those of
this Decree.
Ministers, heads of ministerial-level agencies,
heads of Government-attached agencies, and presidents of provincial/municipal
People’s Committees shall have to implement this Decree.
The Ministry of Natural Resources and
Environment and the Ministry of Finance shall guide the implementation of this
Decree.
ON BEHALF OF
THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
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