Nghị định 90-CP năm 1994 Quy định đền bù thiệt hại khi Nhà nước thu hồi đất để sử dụng vào mục đích quốc phòng, an ninh, lợi ích quốc gia, lợi ích công cộng

DECREE

STIPULATING THE COMPENSATIONS FOR THE LOSSES CAUSED BY THE RECOVERY OF LAND FOR USE IN NATIONAL DEFENSE, SECURITY WORKS, AND NATIONAL AND PUBLIC INTERESTS

THE GOVERNMENT

Pursuant to the Law on Organization of the Government on the 30th of September, 1992;
Pursuant to the Land Law on the 14th of July, 1993;
At the proposals of the Minister of Finance, the Minister of Construction, the General Director of the General Land Administration, and the Chairman of the Government Pricing Commission.

DECREES:

Article 1.- To promulgate along with this Decree the Regulation on the State's compensations for the losses caused by the recovery of land for use in national defense, security works, and national and public interests stipulated at Article 27 of the Land Law.

The compensations for losses incurred in the recovery of land for use in other purposes is not regulated by this Decree.

Article 2.- An organization, household or individual in the country that is using land lawfully, shall be compensated for losses when the State recovers the land for uses stipulated at Item 1, Article 1 of this Decree.

A foreign organization or individual, an international organization or a Vietnamese having settled abroad (commonly referred to as foreigner), and the enterprise with foreign investment in Vietnam to which the Vietnamese State has rented land, are eligible for consideration for compensations according to separate regulations when the State recovers the land for use in the purposes stipulated at Item 1, Article 1 of this Decree.

Article 3.- The ministers, the heads of ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People's Committees of the provinces and cities directly under the Central Government shall have to implement this Decree.

Article 4.- This Decree takes effect as from the date of its signing. The regulations on compensations for losses in land and property when the State recovers the land for use in national defense, security works, and national and public interests published earlier, are now annulled.

REGULATION

OF THE COMPENSATIONS FOR THE LOSSES WHEN THE STATE RECOVERS LAND FOR USE IN NATIONAL DEFENSE, SECURITY WORKS, AND NATIONAL AND PUBLIC INTERESTS

(Issued along with Decree No. 90-CP on the 17th of August, 1994 of the Government)

Chapter I

OBJECTS AND SCOPES OF APPLICATION

Article 1.- This Regulation is applied only to pay compensations for losses when the State recovers lands for use in national defense, security works, and national and public interests stipulated at Article 27 of the Land Law.

1. The land used in national defense and security stipulated in this Regulation is the land defined at Item 1 of Article 65 of the Land Law.

2. The land used for public and national interests is the land used for the construction of transport routes, bridges and culverts, street pavements, water supply and drainage systems from rivers and lakes, dykes, dams, schools, hospitals, markets, public parks, flower gardens, cultural projects, public entertainment and recreation centers, public squares, stadiums, airports, seaports, cemeteries for fallen heroes, land used in the building of dams or lakes of hydro-electric power plants, power plants, power lines, scientific research projects, public offices (offices of State agencies, political and social organizations), and other construction works as defined by the Government.

Article 2.-

1. The persons eligible for compensations for losses when the State recover land must be those who are allocated land by the State, or who have been permanently using land before the Law becomes effective, and who are qualified for the granting of certificates of land use right by the authorized State agency, according to the land categories defined by the various Decrees of the Government for the implementation of the Land Law.

2. In the absence of the regular papers mentioned above, the person whose land is recovered by the State, must produce assignment or transfer papers, or papers on inheritance of the land use right with proper certification by the People's Committee at various levels.

Article 3.-

1. Households or individuals, who are using land lawfully and are affected by the land recovery decision of the State, shall receive compensation for losses in land and property existing on this land.

2. Households and individuals, who are using temporily allocated land, rented land and land acquired from bidding and are affected by the land recovery decision of the State, shall receive compensations for losses in property or receive capital allowances, depending on each concrete case.

Article 4.-

1. State agencies, political and social organizations and units of the People's Armed Forces which are allocated land and exempted from the land use levy or who have paid this levy derived from the State budget, shall not receive compensations for losses in land, but shall be considered by the State for allocation of new land when their land is recovered by the State.

2. State businesses, businesses of political and social organizations, stock companies, companies with limited liabilities, collective economic units and private businesses, which are affected by the land recovery decision of the State, shall receive compensation for land, if the land in use is an allocated land for which the land use levy has been paid and the payment did not come from the State budget.

If the land is exempted from land use levy when it is allocated, or if this levy is paid by a source from the State budget, it shall receive no compensations for losses in land.

Article 5.- Foreign organizations and individuals, international organizations, Vietnamese having settled abroad (commonly referred to as foreigners) and enterprises with foreign investment in Vietnam who rent land from the Vietnamese State and from which the State recovers land for uses stipulated at Item 1, Article 1 of this Decree, shall be considered and compensated for losses according to separate regulations of the Vietnamese Government.

Chapter II

COMPENSATIONS FOR LOSSES IN LAND

Article 6.- Compensations for losses in land shall be made through the allocation of a new land for the same use as in the first allocation, or the payment of a sum equivalent to the price of land for the same use.

In case the State cannot compensate by allocating another land, or if the person whose land is recovered does not request compensation in land. The price of land which is used to calculate the compensations shall be announced by the People's Committee of the province or city directly under the Central Government (hereafter called provincial People's Committee for short) according to the land price brackets defined by the Government.

Article 7.- The land fund used for compensations for losses comprises:

1. Unused land.

2. Land reclaimed with capital of the State budget, land reclaimed and land fund used to create capital for infrastructure construction.

3. Land recuperated as defined in Article 26 of the Land Law.

4. The public utility land fund as defined at Article 45 of the Land Law.

Article 8.- The person who is using land lawfully as stipulated at Item 1, Article 3, and Point a, Item 2, Article 4 of this Regulation, shall receive compensations as follows, when the land is recovered by the State:

1. If the recovered land is agricultural or forestry land, he shall receive compensation in land of the same category and class, and with the same acreage as the recovered land.

In case the compensated land belongs to a category lower than that of the recovered land but still belongs to Categories 1, 2 and 3, there shall be no compensation for the disparity in the land categories.

If the compensated land belongs to Categories 4,5 and 6, the user shall be compensated for the disparity in land categories. The value of this disparity shall be determined according to the land prices set by the provincial People's Committee in conformity with the land price brackets defined by the Government.

2. If the recovered land is special-use land or residential land, the user shall receive compensation in special use land or residential land, with the same acreage and land category or class as the recovered land.

In case the recovered land compensated land has a lower value, the user shall be compensated for the losses resulting from the disparity of value between the special use land and the compensated land.

For the residential land in urban areas, compensation shall be made chiefly in residential houses or money, when the land is recovered by the State.

Article 9.- In recovering land from users in the cases stipulated at Item 2, Article 3, and Item 2, Article 4 of this Regulation, the State shall consider a support measure by allocating land or money on a case-by-case basis, but the maximum of this support shall not exceed 30% of the land acreage or value of the recovered land.

For the recovery of the land acquired by bidding or the leased land, the user shall receive compensation equivalent to the value of the land in the remaining period of use.

Article 10.- The person, who uses land illegally, shall not receive compensation for losses in land when the State recovers it, and shall have to bear all the cost in dismantling and ground clearing at the request of the State.

Chapter III

COMPENSATIONS FOR LOSSES IN PROPERTY

Article 11.- With regard to residential houses, architectures and other works associated to the land, the user shall receive compensation equivalent to the existing value of the construction. This value is determined by multiplying the percentage (%) of the remaining value of the construction by the price of the new construction at the standard price rate set by the provincial People's Committee according to State regulations.

In case the remaining value of the house and auxiliary installations is too law, and the compensation is not enough to cover the expenditures for the construction of a new house with technical norms equivalent to those of the dismantled house, the family of the land user may be considered for additional compensation, but in any case total compensation must not exceed the price of a new house calculated on the standard price rate set by the locality for a house of the same technical norms.

With regard to the houses, architectures or other installations which can be taken to pieces and moved and re-assembled at the new place, compensation shall cover only the cost of dismantlement, transportation and assembly. Maximum compensation shall not exceed 10% of the standard price of a house of the same technical norms set by the provincial People's Committee. The family shall receive a minimum removal allowance of 400,000 Dong.

Article 12.-

1. With regard to the removal of graves, the compensation shall cover all the expenditures involved in the exhumation, transportation and reconstruction to their original state.

2. Compensation for the removal of historic relics, churches, communal houses, pagodas, cemeteries for fallen heroes shall be decided either by the Prime Minister or the president of the provincial People's Committee on a case-by-case basis.

Article 13.-

1. Compensation for annual plants and the livestock on water surface shall be equal to the value of one harvest calculated on the average of three previous harvests, at the actual price of agricultural and aquacultural products in the local market at the time the compensation is made.

2. Compensation for perennial trees is determined as follows:

a/ If the trees are in the period of capital construction or have just begun to yield, the compensation shall cover all the cost in initial investment and tending up to the time of the land recovery.

b/ If the trees are in the harvesting period, compensation shall be made for the remaining value of the garden. This value is equal to the value of the initial investment plus the cost of tending up to the first harvest, minus the depreciation. In case it is impossible to determine the remaining value of the garden, the maximum compensation shall represent two years of output based on the average of three previous years and at the price rate of agricultural products of the same kind in the local market at the time the compensation is made.

c/ In case of perennial trees which are harvested only once, the compensation shall cover all the expenditures in initial investment and tending up to the time the land is recovered.

d/ In case of perennial trees having reached the stage of liquidation, compensation shall be made to the garden owner only for the cost of cutting.

Chapter IV

ORGANIZING THE IMPLEMENTATION

Article 14.- When a decision to recover land issued by the authorized State agency, the provincial People's Committee shall set up a land recovery Steering Committee to act as adviser to the President of the provincial People's Committee in carrying out the compensation for the losses in land and property to the persons affected by the recovery decision.

The President of the provincial People's Committee shall decide the mode of compensation at the proposal of the Steering Committee and take responsibility for his decision.

Article 15.- The organizations or individuals affected by the decision are entitled to make declarations on the acreage, class, category and location of the land and the amount of properties existing on the land, and send them to the People's Committee of the commune, ward or township where the recovered land is located.

The People's Committee of the commune, ward or township shall check the declarations and certify each of them, draw up a general report on the situation of the use of the land fund to be used for compensation for the losses at its commune, and report it to the People's Committee of the district, town or city directly under the province, and also to the Steering Committee, for the recovery of land at the provincial level.

Article 16.- The organization which is allocated the land has the duty to directly carry out the compensation in cash or pay allowances (if any) to the land user affected by the decision.

Article 17.- If he deems that the decision on compensation for losses taken by the provincial People's Committee does not comply with the provisions of this Decree, the person affected by the decision is entitled to file a complaint. The complaint shall be sent to the provincial People's Committee within 15 days after the complainant receives the decision on compensation for the losses. Past this time limit, the complaint shall not be considered for a settlement.

Within one month after receipt of the complaint, the provincial People's Committee shall consider, decide and answer the complainant. The decision of the provincial People's Committee shall be effective for implementation.

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