The Department of Land Administration (Ministry of Agriculture and Environment) received feedback from Mr. V.Q. A through the System for receiving and processing feedback and recommendations on legal documents related to the 2024 Land Law.
The reflected content is as follows:
Article 139 of the Land Law stipulates the settlement for cases where households and individuals using land violate land law before July 1, 2014. In which, point a, clause 3, Article 139 stipulates: In case the person is using land stably, in accordance with district-level land use planning or general planning, sub-area planning, construction planning or rural planning, they are considered for issuance of Certificates of land use rights, ownership of assets attached to land and must fulfill financial obligations according to the provisions of law.
Clause 5, Article 139 stipulates: In case households and individuals using land violate the land law specified in Clauses 1 and 2 of this Article from July 1, 2014 onwards, the State shall not issue Certificates of land use rights and ownership of assets attached to land and handle them according to the provisions of law.
Decree No. 123/2024/ND-CP stipulating penalties for administrative violations in the field of land does not clearly state whether the violation occurred before or after July 1, 2014. So when applying point a, clause 3, Article 139 of the 2024 Land Law and Decree No. 123/2024/ND-CP in practice for handling, will there be contradictions or overlaps?
After research, the Department of Land Administration has the following opinions: Article 139 of the 2024 Land Law stipulates the settlement for cases of households and individuals using land with violations of land law before July 1, 2014.
Accordingly, for cases where households and individuals are using land due to land encroachment and occupation (not falling into the cases specified in clauses 1 and 2 of Article 139 of this Law) or using land for improper purposes that have been allocated land, leased land, and recognized land use rights by the State: If the land user is stable and in accordance with district-level land use planning or general planning, zoning planning, construction planning, rural planning, it is considered for issuance of Certificates of land use rights, ownership of assets attached to land and must fulfill financial obligations (point a, clause 3, Article 139).
In case this condition is not met, land is temporarily used according to the provisions of point b, clause 3, Article 139. Conversely, for violations arising from July 1, 2014 onwards, clause 5, Article 139 of the 2024 Land Law clearly stipulates that the State does not issue Certificates of land use rights, ownership of assets attached to land and handles them according to the provisions of law.
Regarding the principle of handling administrative violations, point a, clause 1, Article 3 of the Law on Handling of Administrative Violations stipulates that all administrative violations must be detected and prevented promptly and must be strictly handled, and all consequences must be remedied in accordance with regulations.
Clause 1, Article 6 and Article 65 of the Law on Handling of Administrative Violations in 2012 (amended and supplemented by a number of articles according to Law No. 67/2020/QH14 dated November 13, 2020) stipulate that the statute of limitations for sanctioning administrative violations in the field of land is 2 years; in case the statute of limitations for sanctioning administrative violations has expired or the deadline for issuing sanctioning decisions has expired, the competent person does not issue a decision to sanction administrative violations but still applies remedial measures according to regulations for that administrative violation.
Specifying the above regulations, Decree No. 123/2024/ND-CP dated October 4, 2024 of the Government stipulating penalties for administrative violations in the field of land has built very clear and synchronous sanctions to distinguish from the Land Law, distinguishing in handling violations of land encroachment, land occupation, and land use for improper purposes in accordance with the provisions of Article 139 of the Land Law: For violations occurring before July 1, 2014, if they fall into the cases specified in Clause 3, Article 139 of the Land Law, violating organizations and individuals are still subject to monetary penalties but are not subject to remedial measures of forcing the restoration of the original state of the land before the violation (detailed in Point a, Clause 5, Article 8, Point a, Clause 5, Article 9, Point a, Clause 4, Article 10, Point a, Clause 6, Article 12, Point a, Clause 8, Article 13 of Decree No. 123/2024/ND-CP).
Therefore, the application of Article 139 of the 2024 Land Law and Decree No. 123/2024/ND-CP is completely unified, synchronized, and there is no contradiction or overlap of laws. The above is the opinion of the Department of Land Administration respectfully sent to citizens.
