Improving Vietnam's Anti-Corruption Laws based on examining various criminal cases involving the all

IMPROVING VIETNAM'S ANTI-CORRUPTION LAWS BASED ON EXAMINING VARIOUS CRIMINAL CASES INVOLVING THE ALLOCATION OF LAND USE RIGHTS TO CORPORATIONS

 

Lê Cao^[1]

 

ABSTRACT: In Viet Nam, land is considered as a crucial resource. The Land Law stipulates that land belongs to the entire people with the State acting as the owner’s representative and uniformly managing land. During the management process, the State has granted land use rights to enterprises to use for business activities. In recent years, some serious violations have happened, such as land being allocated and used in contravention of the law. As a result, major criminal cases have been investigated and tried with enormous losses to the State. The issues of loss, waste and corruption in land management activities, especially in the activity of granting land use rights to enterprises is a serious issue and it is of concern to society. Therefore, in this article, the Author will present the problems of the law by showing some economic and corruption cases related to the activities of granting land use rights to enterprises. Also, giving a number of recommendations to improve the law in the field of anti-corruption and land sector in Vietnam.

 

Keywords: corruption; anti-corruption, granting land use rights to enterprises.

 

1. Statement of the problem

 

In accordance with the current laws of Vietnam, land is collectively owned by the people, represented and managed by the state^[2]. Due to the unique nature of the collective land ownership system, the state exercises the right of representation as the landowner through various forms. Regarding the rights and responsibilities vested by the state, Article 17 of the 2013 Land Law specifies that the state delegates the right to use land to individuals through three forms: the decision to allocate land without charging for land use, the allocation of land with charges for land use; the decision to lease land with annual rental charges, or lease land with a one-time charge for the entire lease period; and the recognition of the right to use land. For businesses, depending on the specific circumstances, they may be allocated land that is collectively owned by the people and represented by the state as the owner for usage. Accordingly, businesses can utilize land through state allocation, land leasing, and recognition of land use rights. In practice, there have been cases of illegal land use rights transfer to businesses, leading to serious criminal cases being initiated, investigated, prosecuted, and adjudicated, especially in recent years. In the scope of this article, the author draws direct legal support from practical experience for some related cases. Simultaneously, through the practice of resolving cases by litigation agencies, the author examines each typical criminal case, summarizing legal violations associated with the allocation of land use rights to businesses. The aim is to make recommendations for improving relevant laws related to this research topic.

 

2. The practical implementation of regulations on allocating land use rights to businesses viewed through typical criminal cases.

 

Granting land use rights to businesses needs to comply with legal provisions; however, not always is this activity carried out correctly. Consequently, over the years, in various localities and different sectors, there have been serious legal violations leading to significant criminal cases that have been initiated, investigated, and prosecuted.

 

Case No. 1: The case of the former Chairman of the People's Committee of Da Nang City and accomplices

 

This is a case in which two former Chairmen of the People's Committee of Da Nang City and many officials of Da Nang City were convicted of “Violating regulations on the management and use of state property causing losses and wastefulness” [Article 219 of the Penal Code] and “Violating regulations on land management” [Article 229 of the Penal Code] according to the first-instance criminal judgment No. 20/2020/HS-ST, dated January 13, 2020, of the People's Court of Hanoi and the appellate criminal judgment No. 158/2020/HS-PT, dated May 12, 2020, of the Supreme People's Court in Hanoi.

 

According to the mentioned judgments, the group including Mr. Tr.V.M (Chairman of the People's Committee of Da Nang from 2006 to 2011) and Mr. V.H.C (Chairman of the People's Committee of Da Nang from 2011 to 2014) directed other defendants, who were subordinate officials, to carry out the allocation of land, land leasing, and sale of public property without auctioning the land use rights. They imposed land use rights at a price not in accordance with the market price, reduced 10% of the land use fees, and changed the land use purpose from production and business to residential, contrary to legal regulations^[3]. Some documents signed by the former leaders of Da Nang City with these contents include Official Letter No. 131/UBND-QLĐTh dated January 11, 2007; Official Letter No. 1717/UBND-QLĐTh dated April 8, 2007; Official Letter No. 3531/UBND-QLĐTh dated July 11, 2007; Decision No. 8712/QĐ-UBND dated November 1, 2007; Decision No. 6644/QĐ-UBND dated August 28, 2009. This case has revealed typical violations when applying the law in the process of land allocation to individuals and businesses, specifically the following misconduct:

 

(1) First group of violations: 22 houses and pieces of public land in Da Nang City were transferred without auctioning land use rights as stipulated in Decree No. 14/1998/NĐ-CP dated March 6, 1998. The handling (sale of houses and transfer of land use rights) did not follow the rearrangement process, handling of state-owned houses and land; the process and procedures for determining the selling price of assets on land, transferring land use rights were not in line with the regulations in Decision No. 09/2007/QĐ-TTg, Circular No. 34/2005/TT-BTC, and Circular No. 83/2007/TT-BTC of the Ministry of Finance, reduced land use fee by 10% and changed the name of the recipient of land use rights contrary to the provisions of law. The consequences of the damage to the state at the time of prosecution and investigation amounted to 2.422.212.871.507 VND.

 

(2) Second group of violations: 7 real estate projects in Da Nang City [29ha project in Da Phuoc International Urban Area, An Don Park project, Habour Ville project, An Cu 2 and An Cu 3 residential area expansion projects, 3.77ha Truong Sa street project, 1.5ha Truong Sa street project, and Phu Gia Compound project] were transferred without auction, pricing was not based on the proposal and advice of the city's price appraisal council. The land price was not accurate at the time, reducing 10% of the land use fees, and changing the name of the person receiving the land use rights, resulting in damage to the state at the time of prosecution and investigation amounting to 19.625.479.699.400  VND.

 

The case mentioned above indicates that, in reality, there is a phenomenon of intentionally granting land use rights to businesses without going through auctions. According to legal regulations, businesses must go through auction procedures in the following cases if they want to be allocated or lease land: (i) Investment in constructing residential houses for sale or for lease or lease purchase; (ii) Investment in constructing infrastructure for transfer or lease; (iii) Using land funds to generate capital for investing in infrastructure construction; (iv) Using commercial, service land; non-agricultural production land; (v) Leasing land from agricultural land funds for public purposes related to agricultural, forestry, aquaculture, and salt production; (vi) Allocating land, leasing land for state-owned land reclaimed due to rearrangement, relocation of work offices, enterprise operation bases, production and business facilities with assets attached to state-owned land ownership; (vii) Allocating land, leasing land for cases with reduced land use fees or lease fees.

 

There are some cases where land use rights are not auctioned but are instead allocated or leased to organizations or individuals for various purposes. If land is allocated or leased to businesses, it is done for the purpose of carrying out certain economic and social tasks of the state, as specified in Clause 2, Article 118 of the 2013 Land Law. However, most businesses acquiring land through allocation or lease must undergo the process of auctioning land use rights. Only when the land is put up for auction as required but there are no participants, or in cases where there is only one registered bidder or the auction is held at least twice without success, the state may allocate or lease the land without auctioning the land use rights^[4].

 

The law has specific regulations, but in reality, there have been numerous instances of land allocation, leasing without going through auctions, direct appointment, and the selection of project implementing units often does not comply with legal requirements.

 

Case No. 2: The case of violations in land management and management of public assets in Khanh Hoa province.

 

As of November 2021, competent authorities have initiated legal proceedings against two former Chairmen of the People's Committee of Khanh Hoa province, N.C.T and L.Đ.V, and two former Directors of the Department of Natural Resources and Environment (TN-MT), L.M.Đ and V.T.T, causing a public outcry^[5]. From the case, it can be observed that there are several violations in the delegation of land use rights to businesses, identified as follows:

 

Firstly, the allocation of land to businesses for investment projects did not comply with the regulations on bidding to select investors according to Article 54 of the Investment Law 2005 and bidding regulations. Subsequently, when allocating land and leasing land to businesses, the auctioning of land use rights was not implemented as stipulated in Article 58 of the Land Law 2003 and Article 118 of the Land Law 2013. There were also actions of allocating land, leasing land, and changing the land use purpose for projects that did not conform to land use planning and land use plans.

 

For example, in the Nha Trang Golden Gate Project, which covers an area of over 20,100 m2, in February 2016, the People's Committee of Khanh Hoa province decided to allocate and lease the land to Đ.V.N.T Limited Liability Company without conducting a project bidding or land auction. Within the total area of over 20,100 m2 in this project, the investor was granted 8,224 m2 for commercial-service land to build 951 apartments and a hotel, and nearly 4,675 m2 for urban residential land to construct 3,240 condominiums. However, in the land use planning until 2020 and the 5-year land use plan from 2011 to 2015 for Nha Trang City, this land area was designated for a mixed-use service-commercial complex, with no residential land allocation. ^[6]

 

Secondly, there are activities that allow the change of land use purposes and permit businesses to invest in and implement projects that violate land laws. Specifically, the People's Committee of Khanh Hoa province allocated hundreds of hectares of land on Chín Khúc Mountain to Khanh Hoa Construction Investment Trading Company Limited for afforestation. Despite not converting the forest land for other purposes, in October 2015, the Chairman of the People's Committee of the province, N.C.T, signed a decision to approve the investment direction, allocating 7,500 m2 of rural residential land on Chín Khúc Mountain. The land use rights were granted with a land-use fee, and the property buyers were granted stable and long-term land use rights. On September 18, 2019, the Vice Chairman of the People's Committee of the province, Đ.C.T, signed a decision to change the designation of the 7,500 m2 from "rural residential land" to "forest production land," but still requiring an annual land lease payment. ^[7]

 

Land management violations cause serious consequences in Khanh Hoa because of the illegal implementation of land allocation and land leasing activities for businesses.

 

Case No. 3: Violations related to land management in Ho Chi Minh City

 

In Ho Chi Minh City, there have been irregularities in land management for many years, particularly concerning the allocation of land use rights to businesses. Specifically:

 

First, one case involves the land at 8-12 Le Duan, Ho Chi Minh City. This land, with an area of nearly 5,000 square meters, is state-owned and was previously leased to four units under the Ministry of Industry and Trade for use as their headquarters. In 2007, the People's Committee of Ho Chi Minh City decided to reclaim the land for competitive bidding to select a reputable investor with experience in constructing a hotel on the property, without applying a joint venture arrangement. However, Mr. N.T.T, the former Vice Chairman of the People's Committee of Ho Chi Minh City, signed various documents and directed others to assist, subsequently approving documents allowing Hoa Thang Nam Company to participate with a 30% investment share in the project, granting land without auction, deciding to apply both land allocation and leasing for the same project, and deciding not to auction the property at 12 Le Duan. As a result of these violations, ownership of the land at 8-12 Le Duan shifted from state ownership to the illegal ownership of Hoa Thang Nam Company, contrary to the law, Decree 121/2010/ND-CP, and the decision of the Prime Minister regarding the rearrangement and handling of state-owned houses and land. The accused individuals' actions caused losses and misappropriation of over 1.9 trillion dong for the state. ^[8]

 

Secondly, regarding the property at 185 Hai Ba Trung (District 3, Ho Chi Minh City). This is a state-owned asset entrusted to the Light Music Center (under the Department of Culture, Sports and Tourism of Ho Chi Minh City, now under the Department of Culture and Sports) for management and use as its headquarters. Due to the deterioration of the facility at 185 Hai Ba Trung, in 2007, the Light Music Center approached Diep Bach Duong Company (with D.T.B.D as the Director) to collaborate on investment and upgrade the headquarters. Subsequently, Ms. D.T.B.D proposed exchanging the property at 57 Cao Thang (District 3, Ho Chi Minh City, currently mortgaged to a bank) for the space at 185 Hai Ba Trung. After being granted the certificate of land use rights at 185 Hai Ba Trung, the accused D.T.B.D did not deposit this asset in the bank to withdraw the certificate of land use rights at 57 Cao Thang, as promised to transfer and rename it for the Light Music Center. Instead, D.T.B.D continued to use the property at 185 Hai Ba Trung as collateral for bank loans, and up to now, has been unable to repay the debt, causing the state to lose the property at 185 Hai Ba Trung, resulting in damages exceeding 186 billion dong. In this case, the accused, who were former leaders and officials of the People's Committee of Ho Chi Minh City, were found to have neglected their responsibilities in advising, proposing, and approving the illegal property exchange, thereby enabling D.T.B.D to misappropriate state property. Among them, the accused N.T.T, the former Vice Chairman of the People's Committee of the city, did not exercise due diligence in directing the inspection and verification of the legal status of the property at 57 Cao Thang, failing to discover that this property was mortgaged, leading to the loss of state assets. ^[9]

 

Thirdly, regarding the irregularities related to the transfer of 32 hectares of land in Phuoc Kien commune. In 2007, the Phuoc Kien project was approved for detailed planning 1/2000 by the People's Committee of Nha Be District. By August 2009, the Ho Chi Minh City People's Committee issued a document approving the location for Tan Thuan Company (an economic entity of the Party Committee of Ho Chi Minh City) to invest in the Phuoc Kien project. In April 2017, Tan Thuan Company sent a proposal to the Office of the Municipal Party Committee of Ho Chi Minh City, seeking cooperation with QCGL Company to invest in the Phuoc Kien residential area project. Specifically, Tan Thuan Company would contribute 30%, and QCGL Company would contribute 70%. Tan Thuan Company would transfer more than 32 hectares of land to implement the Phuoc Kien residential area project at an average price of over 1,107 million VND/m2. Within 20 days of signing the cooperation agreement, QCGL Company was required to make a payment to Tan Thuan Company equivalent to 70% of the value of the transferred land, as priced above (358 billion VND x 70% = 250.6 billion VND).

 

After obtaining approval from Mr. T.T.C (former Standing Deputy Secretary of the Ho Chi Minh City Party Committee for the 2015-2020 term), on June 5, 2017, Tan Thuan Company officially signed a land transfer contract with QCGL Company. The transfer price was 1.29 million VND/m2, differing from the initially proposed price (over 1.107 million VND/m2). However, following an investigation by the Security Investigation Agency, on August 6, 2020, the Asset Valuation Council concluded that the land valuation at the time of the transfer in Phuoc Kien Residential Area was 1.768 million VND/m2, not 1.29 million VND/m2. ^[10]

 

On December 6, 2017, the Office of the Municipal Party Committee issued a document requesting Tan Thuan Company to temporarily suspend the implementation of the land transfer contract until there were directives from the the Standing Committee of the City Party Committee. By December 19, 2017, the Office of the Municipal Party Committee submitted a document proposing that Tan Thuan Company renegotiate the transfer price. After renegotiation, both parties adjusted the unit price to 1,768,000 Vietnamese dong per square meter. However, on April 24, 2018, the Office of the Municipal Party Committee issued a document requesting Tan Thuan Company to cancel the aforementioned land transfer contract. Therefore, on May 8, 2018, the contract was terminated, and Tan Thuan Company returned 374 billion Vietnamese dong to QCGL Lai Company, including 23 billion Vietnamese dong in VAT taxes and 21 billion Vietnamese dong in interest, causing damage to the state capital at the company. ^[11]

 

In this case, Tan Thuan Company, an economic entity of the city's Party Committee, violated the regulations of Article 22, Clause 1 of Decree No. 91/2015/NĐ-CP on state capital investment in enterprises and the management, use of capital, and assets in enterprises when transferring land. The Ho Chi Minh City Party Committee, as the representative agency of the owner, failed to fulfill its responsibilities adequately. It did not rigorously assess the proposals from Tan Thuan Company, improperly approved the land transfer compensation plan, deviated from the correct procedures and authority, proposed the designation of the transfer partner without conducting a competitive bidding process, and failed to appraise the proposed transfer price. These actions led to violations of the regulations stated in Decree No. 91/2015/NĐ-CP and Decision No. 1087-QĐ/TU dated March 31, 2009, of the Standing Committee of the City Party Committee regarding the issuance of regulations on the management and use of properties such as houses and land-use rights in single-member limited liability companies under the  ownership of the City Party Committee. Mr. T.T.C, the Deputy Secretary of the Standing Committee of the Municipal Party Committee, approved the decision to transfer the compensated land, which was not within his authority and was not in accordance with legal regulations. Furthermore, there was a lack of reporting to the Standing Committee of the Municipal Party Committee and the Standing Committee before making the decision. ^[12]

 

Case number 4: Wrongdoing in the Land Transfer Project of 43 hectares in Binh Duong

 

Related to the illegal sale of 43 hectares of golden land, a case occurred at the Binh Duong Production - Import-Export Corporation Limited (Corporation 3/2). The Investigative Police Department of the Ministry of Public Security (C03) has proposed the prosecution of 21 defendants under the charge of "Violating regulations on the management and use of state property causing losses and wastefulness." ^[13]

 

According to the investigation conclusion, in 2010, Corporation 3/2, represented by Mr. N.V.M, signed a cooperative agreement to establish a joint venture with Au Lac Company. In the collaboration agreement, the two parties agreed to establish a joint venture company with a charter capital of 200 billion VND – Corporation 3/2 contributing 30%, and the remaining 70% contributed by Au Lac. Subsequently, based on a proposal from Corporation 3/2, the Standing Committee of Binh Duong Provincial Party Committee issued a document "agreeing to the proposal for the corporation to cooperate with Au Lac Company to establish a joint venture for investing in construction and business projects in Zone B with an area of 43 hectares." In December 2016, the joint venture company, named Tan Phu Company, signed a contract to receive the transfer of land use rights for 43 hectares at a transfer price of over 250 billion VND from Corporation 3/2. Later, the land use rights certificates for the 43 hectares were updated to the name of Tan Phu Company. In August 2017, Corporation 3/2 signed a contract to transfer 30% of its capital contribution in Tan Phu Company to Au Lac Company. The value of the 30% capital contribution in 2010 was 60 billion VND, but the parties agreed to transfer it at a price of over 161 billion VND.

 

Thus, from the initial land use rights belonging to the state-owned enterprise, up to this point, Au Lac Company owns 100% of the capital contribution in Tan Phu Company, which is synonymous with having full decision-making authority over the 43-hectare project. This transfer has resulted in the complete shift of state assets to private ownership, causing a loss of 302.8 billion VND. ^[14]

 

Case number 5: The case concerns violations in the military's land management

 

In this case, the Navy has three land plots: plot number 2 with an area of 1,995 square meters, plot number 7-9 with an area of 3,531 square meters, and plot number 9-11 with an area of 1,660 square meters on Ton Duc Thang Street, District 1, Ho Chi Minh City. Implementing Standing Committee of the Navy Party Committee's direction to engage in joint ventures for economic activities with these mentioned land plots, based on trust in the advice from subordinates and collective discussions, the accused N.V.H (former: Commander of the Navy, Deputy Minister of Defense) committed several misconducts, including: signing and approving documents that did not adhere to the regulations of the Ministry of Defense, the Government, and the Land Law of 2003; failing to inspect and direct the actual capacity assessment of Yen Khanh Company; not verifying the capital contribution value of the land-use rights; not checking the implementation of the Ministry of Defense's directives. After authorizing the Director of Hai Thanh Company to sign the contract, there was no direct inspection of the execution, leading to the partner using the land-use rights certificate as collateral, changing the enterprise's legal form, and transferring ownership rights to a third party; not being aware of the requirement to submit fees for changing the land-use purpose. As a result, the Navy lost the management and use rights of the three land plots for 49 years, causing a loss to the state budget of over 939.288 billion VND. ^[15]

 

With the typical criminal cases mentioned above, it can be observed that the violations did not occur due to a lack of legal regulations governing land allocation for business activities, leading to misconduct. Instead, the root cause lies in individuals responsible for enforcing legal provisions failing to adhere to them deliberately. Numerous cases indicate signs of collusion and connections for the benefit of certain individuals with managerial authority, working in conjunction with businesses to form interest groups that allow businesses to benefit from land allocation activities in violation of the law. In the process of allocating land use rights to businesses, looking at the cases, the phenomena of misconduct and corruption in land management can be observed as follows:

 

First, intentionally assigning land use rights to businesses without going through auctions. The law has specific provisions requiring that land allocation activities for businesses must go through auctions, but in reality, many land allocation and leasing activities have taken place without auction processes, and the application of bidding or selecting contractors has not been in accordance with the law.

 

Second, applying rental and land use fees incorrectly, implementing policies of exemption or reduction of land rental and land use fees for ineligible entities.

 

The criteria for calculating land rental and land use fees, the methods of determining unit prices, cases of exemption or reduction of land rental and land use fees, and other financial policies related to land have been explicitly stipulated by the state as the representative owner of land. Policies of exemption or reduction of land rental and land use fees are mostly directed towards cases where land is used for social or community benefits, fulfilling certain socio-economic tasks with the purpose of compensating, resolving, or reducing the costs of implementing these projects, and they have all been specifically regulated by the law. However, there still exists the practice of applying land prices much lower than the market prices or the prices approved by the Valuation Council; the application of policies to exempt or reduce land rental and land use fees to ineligible entities results in many businesses receiving land at significantly lower costs, causing losses to the state budget. Projects implemented under these conditions also pose legal risks for future land buyers.

 

Third, violations in the management of land, which is a public asset, and the property of businesses with state capital investment.

 

Currently, land use rights that were previously granted to organizations within the block of Party and the military were often in strategic locations, representing valuable land suitable for investment and business activities. ^[16]  However, historical changes have led to alterations in the functions of using these land areas. From these land reserves, during the process of adjusting the new usage methods, there have been activities transferring the use of land from state agencies and state-owned enterprises to privately-funded enterprises. Nevertheless, during the implementation, certain officials intentionally violated regulations, leading to manipulation and causing these prime land areas to fall into the hands of businesses with vested interests. Some approvals and endorsements indicate the subjective intentions of certain leaders in various agencies and units; there are signs of abuse of power, exceeding authority, and exploiting for personal gain or benefiting a friendly group, resulting in the state's assets being misappropriated and lost.

 

3. Certain recommendations for refining the legislation on corruption through practical cases related to the transfer of land use rights to businesses.

 

Based on the practical cases mentioned above, it is evident that the issue of corruption in land management, specifically in the transfer of land use rights to businesses, indeed requires reined-in control through a cohesive system of solutions.

 

First, it's essential to clarify corrupt behaviors associated with land management and the transfer of land to businesses that contravene legal provisions, providing a basis for sanctioning and addressing any misconduct.

 

Presently, as per Article 2 of the 2018 Anti-Corruption Law, there are 12 types of corrupt behaviors within the state sector executed by individuals holding positions or authority within governmental, organizational, or state-affiliated units. These corrupt acts indicate signs of personal gain as a characteristic trait for possible accountability. However, in the process of transferring land use rights to businesses, although the benefits are publicly received by the enterprises and any losses incurred belong to the state, it is challenging to prove the personal gains of those violating the law, as evident from the aforementioned cases. Many prominent cases involving violations in land management have seen high-ranking officials being arrested, prosecuted, and tried. However, they are mostly charged under offenses such as 'Violations of regulations on managing and using state assets causing loss and waste' (Article 219 of the Penal Code) and 'Violations of regulations on land management' (Article 229 of the Penal Code), which fall under Chapter XVIII 'Crimes against economic management order' rather than Chapter XXIII 'Crimes against official duty.' Meanwhile, the misconduct in granting land use rights to businesses results in significant damages, with potential substantial gains distributed covertly afterward. The adverse effects of such wrongful land allocations not only affect land planning negatively but also pose security threats, leading to numerous complex ramifications over many years, causing overall damages not quantifiable in monetary terms. However, the maximum penalties for offenses mentioned in Articles 219 and 229 of the Penal Code are only up to 20 years imprisonment. In contrast, crimes falling under official duty, such as embezzlement of assets (Article 353) or accepting bribes (Article 354), could result in the death penalty. Presently, activities for external group interests are executed in a sophisticated manner, where bribes are not exchanged in cash but through percentage allocation to proxies in projects. This intricate maneuver influences and guides misconduct in land management. However, the sanctions are not robust enough, lacking the strength to deter intentional misconduct.

 

 Besides, the misconduct in land management by individuals holding positions and directly executing land allocation or leasing activities is often evidenced through documented signatures on related papers and files. However, in practice, verbal directives or endorsements from leaders who do not directly sign these documents lead to situations where responsibility is only pursued against the executing personnel, often without holding the directing figures behind the scenes accountable. Consequently, this may result in incomplete handling of the misconduct.

 

 From these observations, we propose that the Anti-Corruption Law, Land Law, and Penal Code need to harmonize and clarify corrupt behaviors within land management activities. This includes specifying indicators of violations, defining behaviors, and intervening directives from individuals not directly executing official duties. It should prohibit unlawful interference in land management by unauthorized individuals, as well as provide detailed guidelines on direct gains, indirect benefits, material acquisitions, and other gains by authorized individuals involved in land management, providing a basis for accountability and imposing sanctions.

 

Secondly, there's a need to enhance the supervisory role of local People's Councils to prevent abuses of power, overstepping authority, and deliberate misconduct in land management activities.

 

 Currently, according to Article 7 of the 2018 Anti-Corruption Law, various agencies and individuals, including the National Assembly, its Standing Committee, committees of the National Assembly, National Assembly Delegation, National Assembly deputies, People's Councils, Standing Committees of People's Councils, Councils' Boards, Delegation of People's Councils, and People's Council deputies, within their scope of responsibilities, are empowered to oversee anti-corruption efforts. However, a series of wrongdoings regarding the allocation of land use rights to businesses in localities over recent times indicates that the effectiveness of this oversight hasn't met expectations. Additionally, Chapter 13 of the Land Law addresses supervision and inspection, but the monitoring and inspection procedures for land management aren't explicitly tailored to the legal complexities of land issues. While it mentions the oversight rights of the National Assembly, People's Councils, the Front, or citizens, specific procedures for oversight are lacking. This results in references to laws related to the functioning of relevant organizations, while the actual authority of bodies like the People's Councils doesn't correspond adequately to the expected role.

 

 In Vietnam, People's Councils at various levels exercise the right of ownership representation concerning land by planning, local land use plans, which are then submitted for approval by competent authorities. They also set land prices and oversee land recovery for socio-economic development projects for the national and public interests of their locality, as stipulated in the Land Law of 2013. However, upon close examination of specific land laws, the authority of People's Councils seems considerably restricted, particularly concerning land allocation and leasing to businesses. ^[17]

 

 An essential basis for land allocation and leasing is the annual land use plan approved by the authorized state agency. Although the People's Council has the authority to pass local land use plans before submitting them for approval, there's a lack of specific legal provisions concerning the Council's rights regarding adjustments to these plans. Article 50 of the Land Law of 2013 doesn’t grant the People's Council the rights to receive reports, inspect, or evaluate the results of land use plans. Therefore, the Council only holds authority over the initial land use plans, while in practice, these plans, even once approved, might be adjusted to suit investment project needs.

 

Regarding the conditions for land allocation, leasing, and changing land-use purposes for investment projects, Article 58 of the Land Law of 2013 stipulates only one instance requiring provincial People's Council approval: for investment projects altering agricultural or special-use forest land. This, combined with Article 59 of the same law, grants significant power to provincial People's Committees in deciding land allocation and leasing to enterprises without necessarily seeking the opinion or prior approval of the People's Council.

 

 Examining typical criminal cases mentioned previously reveals discrepancies in land valuation for leasing purposes. Land usage fees are often assessed at low rates, yet market-based valuations result in significantly higher figures. This indicates a lax and irresponsible approach in determining land prices. According to legal provisions, the People's Council has the authority to pass land price lists. However, these lists are constructed by the People's Committees based on government-prescribed principles, valuation methods, and land price frameworks.

 

Specific land prices are decided by provincial People's Committees based on land parcel investigations, market rates, and information from land databases. They apply appropriate valuation methods. The People's Council only has the authority to pass land price lists within government-set frameworks and lacks the power to approve specific land prices. This limitation restricts the Council's ability to oversee adherence to state laws by state agencies.

 

 Therefore, we propose amending the Land Law of 2013 to bolster the supervisory role of the People's Councils and delineate specifically their authority in adjusting land use plans. The People's Councils should be empowered to assess and inspect the implementation outcomes of land planning and use plans. Simultaneously, we aim to enhance the Councils' authority in monitoring and providing opinions on cases where land pricing for leasing or allocation contradicts the law or market values.

 

Thirdly, we suggest refining legal provisions to enable citizens to effectively exercise their oversight rights regarding land management and use.

 

 In the practical identification of misconduct in land management, citizens are pivotal stakeholders closely tied to land resources, making their oversight activities immensely significant. The Land Law of 2013 grants citizens the right, either individually or through representative organizations, to supervise and report discrepancies in the management and utilization of land, such as irregularities in land allocation, leasing, land use fees, rent, and land-related taxes. Upon receiving feedback from citizens, competent state agencies must (i) investigate, process, and respond in writing within their jurisdiction, (ii) forward petitions to the competent state authority for resolution if beyond their jurisdiction, and (iii) notify the organizations or individuals who raised the concerns of the outcomes.

 

 Consequently, while the law stipulates citizens' oversight rights and the responsibilities of state agencies upon receiving citizens' feedback, there is a lack of specific regulations concerning the timeframe binding state agencies to act and the punitive measures in cases of non-compliance or inadequate legal responses. Therefore, these regulations remain largely theoretical and have yet to manifest their intended effectiveness.

 

 Therefore, we recommend the addition of provisions to Article 199 of the Land Law of 2013 concerning the timeframe within which state agencies must respond, provide explanations regarding citizen feedback. Moreover, we suggest including sanctions against state agencies and authorized individuals who fail to comply with regulations, hindering citizens from exercising their supervisory rights.

 

 Fourth, refine the monitoring and evaluation system for land management and usage. This system aims to assess the enforcement of land laws, the effectiveness of land management and usage, and the impact of land policies and regulations on the national and local socio-economic and environmental landscapes. Information within this system is to be made public for organizations and individuals to access in accordance with legal provisions. We propose constructing an integrated monitoring and evaluation system that spans from central to local levels to manage land-related information. This system should widely or selectively disclose information tailored to individual cases, ensuring property owners' privacy rights. However, it needs to be uniformly structured nationwide for convenient access by citizens under necessary conditions. Building this monitoring and evaluation system will support the management of land transactions, tax administration, and enable citizens to self-monitor, mitigating risks and avoiding fraud in land dealings. With a unified monitoring and evaluation system, authorized agencies overseeing land management and conducting inspections can easily update information, track project adjustments, identify unusual shifts in land management, thereby promptly detecting misconduct and preventing prolonged wrongdoing, effectively curbing corruption in land management.

 

 Fifth, reinforcing measures to control the management and use of state-owned land and land-associated public assets.

 

 Major cases related to land irregularities have highlighted concerning issues regarding the loss of public assets associated with the right to use land under the management of state entities being transferred to private enterprises. Presently, public assets are understood as possessions collectively owned by the populace, represented and uniformly managed by the State, encompassing: assets serving administrative activities, providing public services, ensuring national defense and security in agencies, organizations, units; infrastructure assets serving national interests, public benefits; assets established under collective ownership; public assets within enterprises; funds belonging to state budgets, financial reserves outside state budgets, national foreign exchange reserves; land and various other resources. Concerning land, in the regime of collective land ownership and unified State management, every parcel of land is considered state-owned. However, the distinction here lies in its usage, or more precisely, the differentiation between 'public' and 'private' is not tied to land ownership rights but to the 'use of land for private or public purposes.' The lack of coherence in 'public land use areas' or 'private land use areas' leads to confusion between 'public' and 'private' lands. The transformation of 'public' into 'private' is the crux of land corruption issues.

 

Thus, the Land Law currently requires amendments and supplements to clearly define and distinguish between 'public land' and 'private land' to create transparency in land management and usage, consequently facilitating the detection of misappropriation of public land. Additionally, in managing the use of public land, it's crucial to clarify the scope and authority of those responsible for managing administrative agencies, national defense establishments, security units, etc. This separation of authority must be distinct from the responsibilities in land management. Many land irregularities have shown the involvement of leaders from Party agencies, the military, police forces, etc., indicating an overlap of authority and responsibilities between the leadership managing land use agencies and those in charge of land management. Therefore, amending the Land Law in a direction that segregates the authority to manage land use agencies from the authority in land management is necessary to prevent abuses of power, overstepping of authority, and the occurrence of severe land management irregularities as seen in recent times.

 

 4. Finally

 

Land is a critically important resource, characterized by its ownership rights and substantial influence on economic and social development. Therefore, enhancing the legal framework isn't just about combating corruption but also about establishing comprehensive regulations to efficiently manage land. Numerous high-profile criminal cases investigated and prosecuted in recent years have revealed significant irregularities in land management, particularly concerning the transfer of land-use rights to businesses. These incidents underscore the critical importance of prioritizing anti-corruption efforts in land management and the pressing need to refine related laws. This refinement aims to enhance transparency and fairness in land-use rights allocation, eliminate group interests prevalent in certain regions, and ensure genuine oversight and engagement of citizens, elected bodies, and representatives of the people alongside state agencies and individuals vested with authority in land management.

 

LIST OF REFERENCES

 

1. National Assembly of the Socialist Republic of Vietnam (2013), Constitution, November 18, 2013;

 

2. National Assembly of the Socialist Republic of Vietnam (1993), Land Law No. 24-L/CTN, July 14, 1993;

 

3. National Assembly of the Socialist Republic of Vietnam (1998), Law No. 10/1998/QH10, December 2, 1998 Amending and supplementing a number of articles of the Land Law;

 

4. National Assembly of the Socialist Republic of Vietnam (2003), Land Law No. 13/2003/QH11, November 26, 2003;

 

5. National Assembly of the Socialist Republic of Vietnam (2013), Land Law No. 45/2013/QH13, November 29, 2013;

 

6. National Assembly of the Socialist Republic of Vietnam (2017), Law on Management and Use of Public Assets No. 15/2017/QH14, June 21, 2017;

 

7. National Assembly of the Socialist Republic of Vietnam (2020), Investment Law No. 61/2020/QH14, June 17, 2020;

 

8. Party Central Committee, term XI (2012), Sixth Conference Resolution No. 19-NQ/TW, October 31, 2012;

 

9. Government (2014), Decree No. 43/2014/ND-CP, dated May 15, 2014 Detailed regulations for the implementation of a number of articles of the Land Law;

 

10. Government (2014), Decree No. 45/2014/ND-CP, dated May 15, 2014 Regulations on land use fee collection;

 

11. Government (2012), Decree 31/2021/ND-CP, March 26, 2021 Detailed regulations and instructions for implementing a number of articles of the Investment Law;

 

12. High People's Court in Hanoi (2020), Criminal Appeal Judgment 158/2020/HS-PT, May 12, 2020;

 

13. http://baochinhphu.vn/Phong-chong-tham-nhung-khong-danh-trong-bo- dui/Chong-tham-nhung-dat-dai-Can-loai-bo-vua-da-bong- Vua-thoi-coi/425508.vgp, accessed November 7, 2021.

 

14. https://nhandan.vn/thoi-su-phap-luat/xet-xu-so-tham-vu-an-dinh-ngoc-he-va- dong-pham-458671, accessed November 5 /2021.

 

15. https://laodong.vn/phap-luat/cac-cuu-lanh-dao-binh-duong-nga-ngua-cung- ong-tran-van-nam-the-nao-945854.ldo, access November 5, 2021.

 

16. https://tuoitre.vn/sai-pham-dat-dai-tai-binh-duong-xin-tra-lai-145ha-dat-vang- cho-nha-nuoc-2021061508414314.htm, accessed on 5 /November 2021.

 

17. https://diendandoanhnghiep.vn/sai-pham-tai-ipc-hoan-tat-cao-trang-truy-to- ong-tat-thanh-cang-va-19-dong-pham-206120.html, accessed November 5, 2021.

 

18.https://tuoitre.vn/32ha-dat-phuoc-kien-bi-chuyen-nhuong-sai-the-nao2021082014450996.htm, accessed November 5, 2021.

 

19. https://tphcm.chinhphu.vn/ban-thuong-vu-thanh-uy-tphcm-ket-luan-mot-so- noi-dung-vu-phuoc-kien, accessed November 7, 2021 

 

20.https://tuoitre.vn/xet-xu-ong-nguyen-thanh-tai-de-nghi-huy-quyet-dinh- Giao- cho-thue-khu-dat-vang-le-duan-20200916074148999. htm, accessed November 4, 2021.

 

21. https://baotintuc.vn/phap-luat/hoan-tat-dieu-tra-bo-sung-vu-an-nguyen-thanh- tai-20210505193752711.htm, accessed November 5, 2021.

 

22. https://tuoitre.vn/32ha-dat-phuoc-kien-bi-chuyen-nhuong-sai-the-nao- 2021082014450996.htm, accessed November 5, 2021.

 

23.https://thanhnien.vn/nhieu-cuu-lanh-dao-tinh-khanh-hoa-tiep-tuc-bi-khoi-to- do-sai-pham-ve-dat-dai-post1388074.html, accessed November 4, 2021.

 

24. https://cand.com.vn/Vu-an-noi-tieng/Bai-hoc-dat-gia-tu-vu-sai-pham-dat-dai-o-Khanh-Hoa-i621331/, transcribed updated November 1, 2021.

 

(Article extracted from the Proceedings of the 2021 International Conference "Preventing and combating corruption in the economic sector according to Vietnamese, Chinese and international laws" organized by the University of Law, Hue University and Institute of Law, Zhongnan Uni