THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 85-CP
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Hanoi ,December
17, 1996
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DECREE
PRESCRIBING THE IMPLEMENTATION OF THE ORDINANCE ON THE
RIGHTS AND OBLIGATIONS OF THE DOMESTIC ORGANIZATIONS WITH LAND ASSIGNED OR
LEASED BY THE STATE
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
Pursuant to the Land Law of July 14, 1993;
Pursuant to the Ordinance on the Rights and Obligations of the Domestic
Organizations with Land Assigned or Leased by the State of October 14, 1994 and
the Ordinance Amending and Supplementing a Number of Articles of the Ordinance
on the Rights and Obligations of the Domestic Organizations with Land Assigned
or Leased by the State of August 27, 1996;
At the proposal of the General Director of the General Land Administration,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- This Decree
provides for the implementation of the Ordinance on the Rights and Obligations
of the Domestic Organizations with Land Assigned or Leased by the State of
October 14, 1994 and the Ordinance Amending and Supplementing a Number of
Articles of the Ordinance on the Rights and Obligations of the Domestic
Organizations with Land Assigned or Leased by the State of August 27, 1996;
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Article 2.- Land used
for public purposes includes:
1. Land used for the construction of public
works as defined in Point c, Clause 1, Article 1 of the Amending and
Supplementing Ordinance of August 27, 1996.
2. Land used for the construction of
hydro-electric power plants, transformer stations, hydro-electric reservoirs,
power transmission lines, oil and gas pipelines, hydrometeorological stations,
observatory stations of various kinds in service of research and public
services, irrigation works, national parks, sanatoriums, physical and sport
training establishments.
3. The use of land for other kinds of works
serving public interests and non-profit public works in localities shall be
stipulated by the People�s Committees of the
provinces and cities directly under the Central Government.
4. Other special cases shall be decided by the
Prime Minister.
Article 3.-
1. The area of land to be
assigned to State enterprises, enterprises of political and social
organizations, defense and security enterprises, collective economic
organizations, stock companies, limited liability companies for agricultural
production, forestry, aquaculture and salt production shall comply with the
investment projects (the economic and technical feasibility studies) which have
been ratified by the competent State agency.
2. The term of land assignment to organizations
stipulated in Item 1 of this Article is 20 years for annual tree planting,
aquaculture and salt production, and 50 years for planting perennial trees.
With regard to the land assigned prior to January 1st, 1996, the term shall be
counted from January 1st, 1996; if the land is assigned after January 1st,
1996, the land use term shall be counted from the date of the assignment.
3. In cases where the land is assigned to
domestic economic organizations for the construction of dwelling houses to be
sold to Vietnamese citizens, the land assignment term shall be stable over
along time, and the land shall be recovered only in cases provided for in
Articles 26 and 27 of the Land Law. If the land is assigned for infrastructure
construction to lease the land use right associated with that infrastructure,
the land assignment term shall be determined by the investment project already
ratified by the competent State agency but must not exceed 50 years. If the
land assignment term exceeds 50 years, it shall be decided by the Prime
Minister but in no case shall exceed 70 years.
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Article 4.-
1. The land use levy shall
be paid according to the land price determined by the People�s Committees of the provinces and cities directly under
the Central Government on the basis of the land price brackets promulgated by
the Government.
2. In cases where the land is allowed for
auction by the competent State agency, the land use levy shall be determined
according to the auction result but must not be lower than the price bracket
set by the State.
3. The land use levy must be remitted to the
State budget according to modalities defined by the Ministry of Finance.
Article 5.-
1. The land rent shall be
defined by the Ministry of Finance on the basis of the land price brackets
promulgated by the State.
2. The land rent shall be paid annually; in case
of payment by installment over many years or if it is paid for the whole land
lease duration, a discount shall be made in accordance with the regulations of
the Ministry of Finance.
3. The land rent must be remitted to the State
budget and shall be accounted for in the production and business costs.
Article 6.-
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2. When the land is leased by the competent
State agency, the lessee shall have to sign a contract with the Land
Administration Service.
Article 7.-
1. Organizations with land
assigned or leased by the State shall be granted certificates of the land use
right in accordance with the provisions of law.
2. Organizations with land assigned or leased by
the State shall have to abide by the provisions of law on the transfer of the
land use right, pay taxes on the transfer of the land use right, pay the land
use levy and the land rent, pay compensations for ground clearance, protect the
environment, use the land for the right purposes and shall not harm the legitimate
interests of other land users in the neighborhood.
Chapter II
RIGHTS AND OBLIGATIONS
OF DOMESTIC ORGANIZATIONS WHICH ARE ASSIGNED LAND BY THE STATE WITHOUT HAVING
TO PAY THE LAND USE LEVY
Article 8.-
1. Domestic organizations
which are assigned land by the State without having to pay the land use levy
shall have the right to use the land in accordance with the assigned purposes.
2. Economic organizations which are assigned
land by the State to use for agricultural production, forestry, aquaculture and
salt production are eligible for the rights stipulated in Clause 1 of this
Article and also the following rights:
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b/ To mortgage assets attached to that land
under their ownership at Vietnamese banks to borrow capital for the development
of production and business in accordance with the provisions of law.
Article 9.- Domestic
organizations which are assigned land by the State without having to pay the
land use levy shall have the following obligations:
1. To refrain from using land for the wrong
purposes.
2. To refrain from re-assigning, transferring or
leasing the land use right.
3. Organizations using land for agricultural
production, forestry, aquaculture and salt production shall not be allowed to
leave the land uncultivated; if they are allowed by the competent State agency
to use that land for other purposes, they must shift to the form of land lease
or land assignment with payment of the land use levy.
4. Organizations using land as stipulated in
Points a, b and c, Clause 1, Article 1 of the Amending and Supplementing
Ordinance of August 27, 1996, shall not be allowed to contribute as capital to
joint ventures or mortgage the value of the land use right.
5. To fulfill financial obligations on the use
of land in accordance with the provisions of law.
6. To submit to the land recovery decision
issued by the competent State agency.
7. To return to the State the unused land or the
land used for wrong purposes.
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RIGHTS AND OBLIGATIONS
OF DOMESTIC ECONOMIC ORGANIZATIONS WHICH ARE ASSIGNED LAND BY THE STATE AND
SUBJECT TO THE LAND USE LEVY
Article 10.- Domestic
economic organizations which are assigned land by the State and subject to the
land use levy include: State enterprises, enterprises of political and social
organizations, defense and security enterprises, collective economic
organizations, stock companies, limited liability companies which are allowed
to build and trade in dwelling houses or to invest in infrastructure
construction and business in accordance with the business licenses granted by
the competent State agency.
Article 11.- Economic
organizations which are assigned land by the State and subject to the land use
levy shall have the right:
1. To transfer the land use right when selling
dwelling houses attached to it to Vietnamese citizens.
2. To transfer the land use right attached to
the infrastructures already built thereon to Vietnamese citizens for use as
dwelling houses.
3. To lease the land use right attached to the
infrastructures already built thereon.
4. To mortgage the value of the land use right
at Vietnamese banks to borrow capital for the development of production and
business.
5. To contribute the value of the land use right
as their capital to joint ventures with domestic organizations and/or
individuals.
6. State enterprises, enterprises of political
and social organizations, defense and security enterprises shall also have the
right to contribute the value of the land use right as their capital to joint
ventures with foreign organizations and/or individuals in accordance with the
provisions of law.
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Article 12.- Domestic
economic organizations which are assigned land by the State and subject to the
land use levy shall have the obligations:
1. To pay the land use levy in full and on
schedule as provided for.
2. To strictly observe regulations on the
construction of projects already ratified by the competent authority.
3. To return land to the State upon the expiry
of the assignment term, including the public land associated with technical
infrastructures already built thereon without compensation.
4. To submit to the State�s regulation of the
price difference resulting from the State infrastructure investment in the area
when transferring or leasing the land use right in accordance with the
provisions of law.
5. To execute decisions on the recovery of land
issued by the competent State agency in accordance with the provisions of law.
Chapter IV
RIGHTS AND OBLIGATIONS
OF DOMESTIC ORGANIZATIONS WITH LAND LEASED BY THE STATE
Article 13.- Domestic
economic organizations with land leased by the State shall have the right:
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2. State enterprises, enterprises of political
and social organizations, defense and security enterprises shall, within the
land lease term, be entitled to contribute the value of the land use right as
their capital to joint ventures with domestic and foreign organizations and/or
individuals under the investment projects already ratified by the competent
State agency. The value of the land use right to be contributed to the joint
venture shall be the land lease price agreed upon by the parties for the whole
duration of the joint venture.
3. If the properties attached to the leased land
are allowed by the competent State agency to be transferred, the properties
receiving party shall be entitled to continue to rent the land in accordance
with the provisions of law.
4. To sub-lease the land use right attached to
the infrastructures in export processing zones or industrial parks as provided
for in Chapter VI of this Decree.
5. To be given priority to re-rent the land when
the lease term expires if they so request.
Article 14.- Economic
organizations with land leased by the State shall have the obligations:
1. To use the land for the right purpose;
2. To pay the land rent in full and on schedule
as provided for;
3. No to be allowed to re-assign or transfer the
leased land use right;
4. Not to be allowed to sub-lease the land,
except for cases stipulated in Clause 3, Article 11 and Clause 4, Article 13 of
this Decree;
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6. To submit to land recovery decisions issued
by the competent State agency;
7. To return land to the State upon the expiry
of the land lease term. If the land is leased for investment in infrastructure
construction and business, upon the completion of the investment project, the
leased land and the infrastructures thereon must be returned to the State
without compensation.
Chapter V
PROVISIONS ON CAPITAL
CONTRIBUTION TO JOINT VENTURES, MORTGAGE OF THE LAND USE RIGHT VALUE
Article 15.- Domestic
economic organizations with land assigned by the State for use for agricultural
production, forestry, aquaculture and salt production shall, within the land
assignment term, be entitled to contribute the land use right value as their
capital to joint ventures according to the following provisions:
1. Joint venture with domestic organizations
and/or individuals:
a/ If the land use purpose does not change, the
joint venture is entitled to continue using such land. The land use right value
to be contributed as capital to the joint venture shall be agreed upon by the
parties, but must not be lower than the land price bracket promulgated by the
State. The joint venture shall also have to fulfill the financial obligations
provided for by the Ministry of Finance.
b/ If the land use purpose is changed, the party
contributing land as capital to the joint venture shall have to shift to the
form of land lease from the State. The land use right value contributed as capital
to the joint venture shall be equivalent to the land rent to be paid to the
State corresponding to the joint venture duration.
2. The contribution of the land use right value
as capital to joint ventures with foreign organizations and/or individuals must
be permitted by the competent State agencies defined in Decree No. 191-CP of
December 28, 1994 of the Government. The party contributing land as capital to
a joint venture shall have to shift to the form of land lease from the State,
record its debt and remit the land rent to the State budget in accordance with
the regulations of the Ministry of Finance.
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The conditions for mortgage shall be agreed upon
by the Bank and the mortgagor but the following principles must be ensured:
1. If the borrowing organization cannot pay the
debt when it is due or has been dissolved before term, the Bank shall be
entitled to request the competent State agency to auction the properties on the
mortgaged land for the payment of debt to the Bank and to decide the assignment
of land to the properties purchaser for continued use;
2. The mortgaging organization and the Bank
accepting the mortgage shall not be allowed to re-assign, transfer or lease the
land use right as stipulated in Clause 2, Article 4 of the Ordinance on the
Rights and Obligations of the Domestic Organizations with Land Assigned or
Leased by the State of October 14, 1994;
3. The mortgage and its removal must be
registered at the Land Administration Service.
Article 17.- With
regard to domestic economic organizations which are assigned land by the State
and subject to the land use levy, if they are allowed by the competent State
agency to enter into joint venture with domestic and/or foreign organizations
and/or individuals, the value of the contributions to joint ventures shall be
agreed upon by the parties and made in accordance with the provisions of law.
Article 18.- Domestic
economic organizations which are assigned land by the State and subject to the
land use levy shall be entitled to mortgage the value of the land use right or
the value of the land use right associated with the properties under their
ownership at Vietnamese banks to borrow capital for production development
according to the following provisions:
1. The value of the land use right to be
mortgaged shall be the land use levy already paid at the land prices set by the
People�s Committees of the provinces or cities
directly under the Central Government on the basis of the land price brackets
promulgated by the Government.
2. The value of mortgaged properties which have
been invested on the mortgaged land shall be agreed upon by the mortgagor and
the Bank.
3. If the borrowing party cannot pay the debt
when it is due or the organization has been dissolved before term, the bank
shall be entitled to request the competent State agency to auction the land use
right and the properties (if any) which have been mortgaged by the borrowing
organization so as to pay the debt for the Bank. The auction winner, after having
paid in full the auction money, shall be assigned land by the State without
having to pay the land use levy.
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Article 19.- The value
of the leased land use right to be contributed as capital to joint ventures
with domestic or foreign organizations and/or individuals by State enterprises,
enterprises of political and social organizations, security and defense
enterprises shall be determined in accordance with the provisions of Clause 2,
Article 13 of this Decree.
Article 20.- Economic
organizations with land leased by the State shall, within the land lease term,
be entitled to mortgage the value of the land use right associated with
properties under their ownership at Vietnamese banks to borrow capital for
production development according to the following provisions:
1. The value of the mortgaged land use right
shall be decided by the Bank and must not exceed the value of the invested
properties on the mortgaged land plus the land rent already paid.
2. When the debt is due or the mortgaging
organization has been dissolved before term and cannot pay the debt, the Bank
shall be entitled to request the competent State agency to auction the
properties on the mortgaged land to pay the bank debt and to decide to lease
the land to the purchaser of the properties.
Chapter VI
PROVISIONS REGARDING
ORGANIZATIONS WITH LAND LEASED BY THE STATE FOR INFRASTRUCTURE CONSTRUCTION AND
BUSINESS IN EXPORT PROCESSING ZONES AND/OR INDUSTRIAL PARKS
Article 21.-
Organizations with land leased by the State for investment in infrastructure
construction and business in export processing zones or industrial parks
include: State enterprises, enterprises of political and social organizations,
defense and security enterprises, collective economic organizations, stock
companies, limited liability companies which have the function of investment in
infrastructure construction and business and have financial capability in accordance
with the provisions of law.
Article 22.- The land
leased for infrastructure construction and business must be located in export
processing zones or industrial parks already ratified by the competent State
agency.
Article 23.- The
People’s Committees of the provinces or cities directly under the Central
Government shall consider and ratify the investment in infrastructure
construction and business by domestic organizations prescribed in Article 21 of
this Decree in export processing zones or industrial parks so that they may
plan investment projects and submit them to the competent State agency for
ratification.
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Article 25.-
Organizations leasing land for infrastructure construction and business shall
have to sign a leasing contract with the sub-lessee and register at the Land
Administration Service under the guidance of the General Land Administration.
Article 26.-
Organizations with land leased by the State for investment in infrastructure
construction and business and for sub-lease in export processing zones or
industrial parks shall have the right:
1. To enjoy the rights stipulated in Clauses 3
and 4, Article 13 of this Decree.
2. To benefit from investment results on the
leased land when sub-leasing the land use right.
3. To mortgage the value of the land lots which
have not been sub-leased during the land lease term at Vietnamese banks to
borrow capital for investment in infrastructure construction.
Article 27.-
Organizations with land leased by the State for infrastructure construction and
business and for sub-lease in export processing zones or industrial parks shall
have the obligations:
1. To fulfill the obligations stipulated in
Clause 4, Article 12 and Clauses 1, 2, 3, 5, 6 and 7, Article 14 of this Decree;
2. To maintain the infrastructures during the
lease term.
Article 28.- The land
sub-lessee shall have to use the land for right purpose, shall not be allowed
to re-assign, transfer or sub-lease the land use right. If the properties
associated with the sub-leased land under the land sub-lessee’s ownership are
allowed to be transferred, the properties receiving party shall have to sign a
contract on the sub-lease of the land with the land leasing party.
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PROVISIONS REGARDING
ECONOMIC ORGANIZATIONS WITH LAND ASSIGNED OR LEASED BY THE STATE PRIOR TO
SEPTEMBER 9, 1996
(date when the Amending and Supplementing Ordinance took effect)
Article 29.- If
domestic economic organizations with land assigned by the State prior to
September 9, 1996 which are still using that land and subject to the land use
levy as stipulated in Points a and b, Clause 2, Article 1 of the Amending and
Supplementing Ordinance of August 27, 1996, have not paid the land use levy or
have paid it with money taken from the State budget, they shall now have to pay
the land use levy to the State in accordance with the regulations of the
Ministry of Finance.
Article 30.- If
domestic economic organizations with land leased by the State which are now
subject to the land assignment by the State and the land use levy as stipulated
in Points a and b, Clause 2, Article 1 of the Amending and Supplementing
Ordinance of August 27, 1996, have already paid the land rent to the State with
money not taken from the State budget, such money shall be accounted for in the
land use levy as prescribed by the Ministry of Finance.
Article 31.- Domestic
economic organizations with land assigned by the State which are now subject to
the land lease as stipulated in Clause 3, Article 1 of the Amending and
Supplementing Ordinance of August 27, 1996, shall have to observe the following
provisions:
1. If they have not paid the land use levy or
have paid it with money taken from the State budget, they shall have to pay the
land rent to the State as from January 1st, 1996.
2. If they have paid the land use levy with
money not taken from the State budget, such money shall be accounted for in the
land rent as prescribed by the Ministry of Finance.
3. The People’s Committees of the provinces and
cities directly under the Central Government shall decide the lease of land and
the land lease term to organizations mentioned in Article 31 of this Decree in
accordance with the provisions of law.
Article 32.-
Organizations which are using land known as the residential land lawfully used
by households or individuals, after being allowed by the competent State agency
to use such land for the construction of offices or workshops for production or
business shall not have to shift to the form of land lease but still have to
pay house and land taxes in accordance with the provisions of law.
Chapter VIII
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Article 33.- The
provisions of this Decree regarding limited liability companies and stock
companies shall also apply to private enterprises if they are assigned or leased
land by the State.
Article 34.- The
Minister of Finance, the Governor of the State Bank of Vietnam, the General
Director of the General Land Administration, within the ambit of their
functions and powers, shall have to provide guidance for the implementation of
this Decree.
Article 35.- The
Ministers, the Heads of the ministerial-level agencies, the Heads of the
agencies attached to the Government, the Presidents of the People’s Committees
of the provinces and cities directly under the Central Government and the Heads
of the organizations using land shall have to implement this Decree.
Article 36.- This
Decree shall replace Decree No.18-CP of February 13, 1995 and takes effect from
the date of its signing.
ON BEHALF OF
THE GOVERNMENT
THE PRIME MINISTER
Vo Van Kiet