Nghị định 22/1998/NĐ-CP về việc đền bù thiệt hại khi Nhà nước nước thu hồi để sử dụng vào mục đích quốc phòng, an ninh, lợi ích quốc gia, lợi ích công cộng

DECREE

ON COMPENSATIONS FOR DAMAGE WHEN THE STATE RECOVERS LAND FOR USE IN PURPOSES OF NATIONAL DEFENSE, SECURITY, NATIONAL INTERESTS AND PUBLIC INTERESTS

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Land Law of July 14, 1993;
At the proposals of the Minister of Finance, the Minister of Construction, the General Director of the National Land Administration and the Head of the Government Pricing Committee,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

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1. Land used for purpose of national defense and security stipulated in this Decree is the land defined in Clause 1, Article 65 of the Land Law and detailed in Decree No.9-CP of February 12, 1996 of the Government on the regime of management over the use of land in national defense and security.

2. Land used for national interests and public interests comprising:

a/ Land used for the construction of transport lines, bridges, culverts, pavements, water supply and drainage, rivers, lakes, dykes, dams, canals and other water conservancy works, schools, scientific research agencies, hospitals, medical stations, markets, public parks, flower parks, entertainment centers for children, public squares, stadiums, sport and physical training centers, sport competition centers, airports, sea ports, wharves, bus stations, national parks, nature preserves and sanatoria;

b/ Land used in the construction of hydro-electric power stations, electric transformer stations, reservoirs of hydro-electric power stations, power transmission lines, communication lines, oil and gas pipelines, metereology and hydrology observatories, various observation stations in service of research and public services and national reserve stores;

c/ Land used in the building of working places of State agencies and political and social organizations;

d/ Land used in the building of works of the various non-business branches and domains of economy, culture, education, medicine, science, technique and other non-business economic fields of State agencies, political-social organizations and units of the People's Armed Forces;

e/ Land used by individuals in the country and foreign organizations and individuals and overseas Vietnamese for production and business projects, export processing zones, industrial parks, high-tech parks, entertainment and recreation centers, tourist centers and other investment projects licensed for investment by the competent State agencies as prescribed by law;

f/ Land used for the projects of development of new urban centers, concentrated population centers and other population centers as decided by the competent State agencies;

g/ Land used for other public works and special cases as decided by the Prime Minister;

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Article 2.- Persons and organizations that have to make compensations

Organizations and individuals in the country and foreign organizations and individuals that are allotted or leased land by the State (commonly called land users) for use in the purposes stipulated in Article 1 of this Decree shall have to pay compensation for damage in land and property associated with land as stipulated in this Decree.

Article 3.- Persons, households and organizations that are entitled to receive compensation

1. Organization, households and individuals in the country whose land is recovered (commonly called person whose land is recovered) by the State for use for the purposes of national defense, security, national interests and public interests, that are entitled to receive compensation for damage in land, must fill the conditions stipulated in Article 6 of this Decree.

2. The persons who receive compensations for damage in property associated with the recovery of land must be lawful owners of these properties in conformity with the provisions of law.

3. The compensation of damage from the recovery of land of foreign organizations and individuals and international organizations and overseas Vietnamese that have been leased land by the Vietnamese State shall be settled according to specific decisions of the Prime Minister.

4. The provisions of this Decree shall not apply to the use of land in service of public utility works of the villages and communes through the mobilization of contributions of the population.

Article 4.- Scope of compensation for damage

1. Compensation for damage in land for the whole area of land that is recovered as stipulated in Chapter II of this Decree;

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3. Allowances for living and production to the persons who have to move their dwelling places or their production and business places;

4. Defraying the expenses of the persons who have to change their professions due to the recovery of land by the State;

5. Defraying the expenses in direct service of the organization of the compensation, the removal and ground clearing.

Chapter II

COMPENSATION FOR DAMAGE IN LAND

Article 5.- Principle of compensation for damage in land

When the State recovers land for use in the purposes defined in Article 1 of this Decree, the persons whose land is recovered shall, depending on each concrete case, receive compensation in cash, house or land.

When the compensation in land or house involves difference in area or value, the difference shall be solved according to the provisions of Articles 9, 10 and 11 of this Decree.

Article 6.- Conditions for receiving compensation for damage in land

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1. The subject must have a certificate of his/her right to use land as provided for by land legislation;

2. He/she must have the decision of the competent State agency on land allotment or lease as prescribed by land legislation;

3. He/she must have a certificate on the assignment of the land use right as prescribed by law;

4. He/she must have the papers on liquidation, pricing together with the certificate of reception of the right to use land as prescribed by law or the decision of delivery of the dwelling house or allotment of the dwelling house associated with the residential land under State ownership by the competent State agency;

5. The effective verdict of the People's Court on the settlement of dwelling house dispute associated with the right of land use or the decision of the competent agency on the settlement of the land dispute;

6. In case no papers provided for in Clauses 1, 2, 3, 4 and 5 of this Article are available, the person whose land is recovered shall have to produce papers to certify that the recovered land has been used in a stable way prior to October 15, 1993 and belongs to one of the following categories:

a/ The land has been used stably prior to January 8, 1988 as certified by the People's Committee of the commune, ward or township;

b/ The person or organization in question has been allotted land for use by the competent State agency in the process of implementation of the land policy of the State of the Democratic Republic of Vietnam, the Provisional Revolutionary Government of the Republic of South Vietnam and the State of the Socialist Republic of Vietnam and the person who has been allotted the land has continued to use it from that date till the day when the land is recovered;

c/ He/she can produce valid papers issued by the competent agency of the old regime to the land user and the latter has used the land continuously from the date of issue till the day when the land is recovered;

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e/ He/she can produce papers on the purchase or sale of the house and property associated with the land use right prior to October 15, 1993;

f/ He/she can produce the certificate of provisional land tenure right issued by the People's Committee of the province or city directly under the Central Government or by the People's Committee of the district, town or city attached to the province or the Land Administration Service on the mandate of the People's Committee of the province or city directly under the Central Government or he/she is listed in the land register and continues to use the land.

7. He/she receives the assignment or transfer of, inherits, donates or presents the right to use the land or house associated with the land use right and that land comes under the right of use of the person or organization that meets one of the conditions stipulated in Clauses 1, 2, 3, 4, 5 and 6 of this Article but that has not filled the procedures for the transfer of name in the land register.

8. The person who reclaims the land by himself/herself for agricultural production, forestry or aquaculture, or salt production prior to October 15, 1993 and who has continuously used that land without dispute till it is recovered and who has fully discharged his/her financial duty to the State;

Article 7.- Persons not allowed to receive compensation for damage in land

The person whose land is recovered and who has not one of the conditions stipulated in Article 6 of this Decree or who has violated the plan already ratified by the competent level and such violation has been announced, or who violates the corridor protecting work, or who illegally occupies land shall not receive compensation when the State recovers the land. In case of necessity, the People's Committee of the province or city directly under the Central Government shall consider and decide on a case by case basis.

Article 8.- Price of land for calculation of compensation for damage

The price of land for calculation of compensation for damage shall be decided by the President of the People's Committee of the province or city directly under the Central Government for each project at the proposal of the Finance-Pricing Service with the participation of the related branches.

The price of land for calculation of compensation for damage shall be determined on the basis of the local price of land issued according to provisions of the Government multiplied by coefficient K in order to ensure compatibility of the compensation with the profitability and the price of assignment of the land use right in the locality.

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Article 9.- Compensation for damage with regard to agricultural land, forest land, salt making land and land with water surface for aquaculture

1. When the State recovers agriculture land, forest land, salt making land and land with water surface for aquaculture, the person whose land is recovered shall receive compensation in land according to the area and land category of the recovered land. If no land for compensation is available, the person whose land is recovered shall receive compensation in cash at the price of land defined in Article 8 of this Decree.

If the area of the compensation land is smaller than that of the land recovered, the person whose land is recovered shall receive compensation in cash for the difference in land.

If the compensation land is lower in price than the recovered land, the person whose land is recovered shall receive compensation in cash for the difference. If the compensation land has a price higher than that of the recovered land, the person whose land is recovered shall not have to pay for the difference.

2. If the recovered land is the land assigned by the State for temporary use or a leased land or a land for bidding, the person whose land is recovered shall not receive compensation for the damage in land but shall receive compensation for the damage in the expenditures in investment in the land.

3. If the person whose land is recovered is engaged in agriculture but does not fall into the categories to receive compensation as prescribed in Article 7 of this Decree, and if he/she has no land to practice agriculture after his/her land is recovered, the local administration shall consider and assign himher new land if possible.

4. If the recovered land belongs to the public utility land fund of the commune as stipulated in Article 45 of the Land Law of 1993 or the land of the commune which is not yet assigned to anyone for use, the person to whom the State assigns or leases land shall have to pay compensation in cash for the damage in land to the commune budget. The person who is using public utility land of the commune shall be paid compensation by the People's Committee of the commune for the expenditures in investing in the land.

Article 10.- Compensation for damage to land in urban centers

1. Urban land is the land stipulated in Article 55 of the Land Law and provided for in detail in Decree No.88-CP of August 17, 1994 of the Government on the management and use of urban land. A land which is planned for urban development but does not yet have an infrastructure shall not receive compensation as the other urban land but shall receive compensation at the price of land subject to land use tax or land rent multiplied by an appropriate coefficient K.

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3. If the land which is recovered is residential land, compensation for damage shall be made in cash, dwelling house or residential land in the resettlement area.

The area of the compensation residential land for each household shall conform to the land quota prescribed by the People's Committee of the province or city directly under the Central Government but shall not exceed the area of the recovered land; the maximum area of compensation in the new settlement shall be prescribed by the People's Committee of the province or city directly under the Central Government in conformity with land legislation. In case the residential area which is recovered is larger than the compensation residential area, the person whose land is recovered may be given as compensation an additional part of the residential area depending on the land fund in the locality. The remainder shall be paid in cash. In case the recovered residential area is smaller than the compensation area, the person who receives compensation shall have to pay in cash for the difference.

4. If the recovered land lies in the inner city Category I and Category II, compensation shall be chiefly made in dwelling house or cash. The person who is to receive compensation shall decide whether he shall receive compensation in dwelling house or cash. The price of house for the calculation of compensation is the price of dwelling house prescribed by the People's Committee of the province or city directly under the Central Government on the basis of the standard minimum price of newly built dwelling houses issued by the Government.

The compensation in residential land in inner city Category I and Category II for the person whose residential land is recovered shall be carried out only when there has been a project of resettlement right in the area of the recovered land, or resettlement in the area planned for population settlement or in other population areas in that inner city and already ratified by the competent State agency. The person who is to receive compensation in land in the inner city must be the person whose recovered land lies in that inner city. If the person whose residential land is recovered does not accept house or land or does not agree to resettle in the inner city and asks for a residential land in the suburban areas he shall, besides the compensation as prescribed, receive an allowance equal to 10% of the value of the recovered land.

5. With regard to the recovered residential land in other urban areas not lying in the inner cities Category I and Category II, compensation shall be made in land, cash or dwelling house at the proposal of the person whose land is recovered. In case there is no land available in the inner city, compensation shall be made in land outside the urban area.

6. With regard to the urban residential land in the newly urbanized centers which before 1993 were still rural areas or areas with special conditions such as: the households and individuals having large compounds containing agricultural land or forest land, compensation shall be made according to the price of land in the urban areas and at the quota of maximum residential area prescribed by the localities. The excess area shall receive compensation in cash at the price of agricultural and forest land multiplied by an appropriate coefficient K.

Article 11.- Compensation for damage to the residential land in rural areas

1. The residential land of each household in the rural areas comprises land for building dwelling house and constructions in service of family life.

The person whose land is recovered shall receive compensation in land of the same use purpose, but the maximum level of compensation in land at the new site is the residential land quota prescribed in Article 54 of the Land Law. Any difference in land price shall be compensated for in cash. In special cases when no land is available for compensation, the compensation shall be made in cash at the land price prescribed in Article 8 of this Decree.

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Article 12.- Handling of a number of specific cases of residential land

1. If the land areas remaining after recovery is smaller than the area prescribed in Article 10 and Article 11 of this Decree and the land user needs to continue the use, he/she shall be allowed to retain this land but must use it according to plan; if the remaining residential land is not enough to build a dwelling, he/she shall be encouraged to assign it to the neighboring household or ask the State to recover this land area and shall receive compensation as in the case with a recovered land.

2. In case the land in use is the land assigned for temporary use or a leased area or an area for bidding, when the State recovers it, the land user shall not receive compensation in land but shall receive compensation for damage in expenditures in investment in the land.

3. If the person whose land is recovered does not belong to the categories of persons to receive compensations as stipulated in Article 7 of this Decree and if he has another place of dwelling, he/she shall not be assigned a new land; if he/she has no other place to live, he/she shall be considered for allotment of a new land and must pay the land use levy or shall be entitled to buy a dwelling house.

Article 13.- Compensation for damage to special-use land

1. The State agency, political organization, political-social organization, non-business unit, unit of the people's armed forces which is assigned land by the State without having to pay the land use levy or have paid this levy with sources from the Sate budget, shall not receive compensation for damage to the land when the State recovers the land but shall be considered for allotment of new land and receive compensation for the expenditures in investing in the land unless this expenditure comes from State budgetary sources.

2. State enterprises, enterprises of the political-social organizations, stock companies, companies with limited liabilities, collective economic units, and private enterprises which lease land from or are assigned land by the State without having to pay the land use levy or which pay this levy with money from State budgetary sources, shall not receive compensation when the State recovers the land, but shall be considered by the State for allotment of new land with the maximum level not exceeding the recovered area and shall receive compensation for the expenditures in investing in the land unless this expenditure comes from State budgetary sources.

3. State enterprises, enterprises of political-social organizations, stock companies, companies with limited liabilities, collective economic units, and private enterprises the land of which is recovered by the State but which have paid land use levy outside the State budgetary sources shall receive compensation for the land and shall be considered by the State for allotment or lease of new land.

The assignment or lease of new land provided for in this Article must conform with the project decided by the competent level and with the already ratified plan.

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In the following cases the persons who are assigned land from or are leased land by the State shall have to remit the whole compensation they have received as compensation for damage to the land according to the land price prescribed in Article 8 of this Decree to the State budget after deduction of the expenditures in investment by the person whose land is recovered:

- The recovered land is the land assigned for temporary use, leased land, or land open to bidding as defined in Clause 2 Article 9 and Clause 2 of Article 12 of this Decree;

- Public utility land of the commune defined in Clause 4 Article 9 of this Decree;

- Land assigned without having to pay the land use levy or having to pay this levy which comes from State budgetary sources as defined in Clause 1 and Clause 2 of Article 13 of this Decree, except for agricultural land, forest land, salt making land and land with surface water for aquaculture allotted to households and individuals;

- Land used illegally as defined in Clause 3 of Article 9 and Clause 3 of Article 12 of this Decree from which the person whose land is recovered does not receive compensation for land damage but only for the expenditures in investing in land.

Article 15.- The land fund used for compensation includes:

1. Land not yet put to use;

2. Land not yet put to use but on which infrastructure has been built in service of compensation;

3. Land recovered under the provisions of Article 26 and Article 27 of the Land Law;

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Chapter III

COMPENSATION FOR DAMAGE IN PROPERTY

Article 16.- Principles for paying compensation for damage in property

1. Compensation for damage in property comprises houses, architectural constructions, trees, domesticated animals and other properties associated with the land existing at the time of the recovery of the land.

2. The owner of the property is the person having lawful property stipulated in Item 1 of this Article. When the State recovers the land and if he/she suffers damage, he/she shall receive compensation at the existing price of the property.

3. The owner of the property existing on the illegal land defined in Article 7 of this Decree shall, depending on concrete cases, be considered for assistance from the People's Committee of the province or city directly under the Central Government.

Article 17.- Compensation for damage in house and architectural works

1. For houses, architectural works and other properties associated with the land, compensation shall be made according to the level of the actual damage.

Level of compensation = Existing value of the house or construction + a sum representing a percentage (%) of the existing value of the house or construction

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The existing value of the house or construction shall be priced at a percentage of the value of the house or construction priced after the construction price of new buildings. This price is the standard price issued by the People's Committee of the province or city directly under the Central Government according to regulations of the State.

The actual additional sum shall be decided by the People's Committee of the province or city under the Central Government at the proposal of the Board for compensation in ground clearing.

In particular, with regard to 4th grade houses, temporary houses and independent auxiliary constructions, the compensation shall be equal to a newly build house or construction with equivalent technical standard under the standard price issued by the People's Committee of the province or city directly under the Central Government according to regulations of the State.

2. With regard to the houses and constructions which are partly dismantled but the remainder can be no longer used, compensation shall be made for the whole construction.

3. With regard to the houses or constructions which are partly dismantled and the remaining part is still usable, compensation shall be made for the value of the part of the construction which has been dismantled and for the whole expenditures in repairing or finishing the remaining part.

4. With regard to the houses and constructions which can be taken to pieces for transportation and reinstallation at the new site, compensation shall be only for the expenditures in dismantlement, transport and reinstallation and the expenditures for the losses in the course of the dismantlement, transport and reinstallation.

5. The level of compensation for each household moving its dwelling place within the province or city shall range from 1,000,000 VND to 3,000,000 VND; if it moves to another province, the compensation shall be from 3.000,000 VND to 5,000,000 VND. The specific amount shall be prescribed by the People's Committee of the province or city directly the Central Government.

Article 18.- Handling of cases of compensation for damage in house and architectural constructions

1. The owner of property as provided for in Clause 2, Article 16 of this Decree, suffers damage in property when the State recovers the land, shall receive compensation at the level stipulated in Article 17 of this Decree.

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a/ In the rural areas:

- The houses or constructions built on the land of the category eligible for compensation for damage according to Article 6 of this Decree shall receive compensation as provided for in Article 17 of this Decree;

- The houses or constructions built on the land of the category not eligible for compensation as provided for in Article 7 of this Decree, where there is no zoning program of the State or built not in conformity with the zoning program, which do not encroach upon the construction protection corridor, shall receive allowances representing 80% of the compensation provided for in Article 17 of this Decree. They shall receive no compensation if they violate the zoning program already announced or encroach upon the construction protection corridor; the People's Committee of the province or city directly under the Central Government shall consider for assistance to each concrete case.

With regard to the houses and architectural constructions which lie in rural areas at the time of construction but now lies in urban areas, shall receive compensation as provided for in Point a and Point b of Clause 2.1 of this Article when the State recovers the land.

b/ With regard to the urban areas:

- The houses or constructions built on the land of the category eligible for compensation for damage as provided for in Article 6 of this Decree shall receive compensation as stipulated in Article 17 of this Decree.

- The houses and construction built on the land in the category not eligible for compensation as stipulated in Article 7 of this Decree but where there is no zoning program at the time of the construction or which are built according to the program, which do not encroach upon the construction protection corridor, shall receive compensation representing 70% of the level provided for in Article 17 of this Decree; they shall receive no compensation if they violate the announced zoning program of if they encroach upon the construction protection corridor. In special cases the People's Committee of the province or city directly under the Central Government shall make provision for each concrete case.

3. The houses and architectural objects built on the land in the category not eligible for compensation as provided for in Article 7 of this Decree and which have been informed of this non-eligibility by the competent State agency at the time of construction or which are built after October 15, 1993, shall receive no compensation nor allowances. The person who has this illegal construction shall be forced to dismantle it.

Article 19.- Compensation for renters of State-owned houses

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2. The person who is using a Government owned house which is dismantled is entitled to buy or rent a house in another place with an area not smaller than in the old place of dwelling and at the selling price of the dwelling house or the rent of the State owned house as prescribed by the Government on the buying, selling or trading of dwelling house and shall receive house removal compensation provided for in Clause 5, Article 17 of this Decree.

Article 20.- Compensation for grave removal

With regard to the removal of graves, the level of compensation shall be calculated for the expenditures in land, digging, exhumation, transport, rebuilding and other reasonable directly related expenditures.

Article 21.- Compensation for cultural constructions, historical relics, temples and pagodas

With regard to the projects involving cultural construction, historical relics, temples and pagodas, there must be a plan mainly for preservation. In special cases where removal is necessary, compensation for the transfer of historical relics, cultural constructions, churches, temples and pagodas to be decided by the Prime Minister, if it is a construction under the management of the Central Government and by the President of the People's Committee of the province or city directly under the Central Government, if it is a construction under local management.

Article 22.- Compensation for technical infrastructure constructions

The level of compensation shall be equal to the value of the new building of the constructions with the technical standard equivalent to the dismantled construction. In special cases, the Prime Minister or the Presidents of the People's Committees of the provinces or cities directly under the Central Government shall decide for each specific case.

Article 23.- Compensation for damage to crops

1. The level of compensation for the annual crops and animals raised on the land with water surface shall be equal to the annual production according to the average output of the previous three years and at the average price of the farm produce and aquatic produce of the same kind in the locality at the time of compensation.

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Article 24.- Compensation for damage in case of temporary land assignment

Organizations and individuals in the country and foreign organizations and individuals that are temporarily assigned land for use by the competent State agency shall have to make compensation for damage in property and crops on the land to the current user as follows:

1. For the property which is dismantled, compensation shall follow the provisions in Article 17 of this Decree.

2. For plants and animals raised on the ground, compensation shall be as stipulated in Article 23 of this Decree. If the period of use is prolonged thus affecting many ensuring crop seasons, compensation shall be made for the crops that are suspended. Past the term of use, the person who is temporarily assigned land shall have to restore the land to its original state and return the land. If after the land is returned it cannot continue to be used for the same purpose as before the recovery, he/her shall make compensation in cash enough to ensure the restoration of the land to its earlier state.

Chapter IV

POLICY OF SUPPORT

Article 25.- Support for stabilization of production and life

1. Support for stabilization of production and life for those who have to move to another place shall be meant for a period of 6 months at the rate of allowance in cash for one household member per month equivalent to 30 kg of rice at the average price at the local market at the time of compensation. For the projects using large areas of land, the families and individuals whose land is recovered and have to move to a resettlement in another province with prolonged influence on their production and life the allowance for stabilization of production and life for the persons who have to move their dwelling places shall be for one year. Besides, they shall also enjoy the policies toward those moving to new economic areas.

2. With regard to the enterprises subject to land recovery which have to move to new places, depending on the size and capability for stabilization of production and business in the new places, the project owners using the land shall have to pay compensation according to the regime of allowance for job severance to the personnel of the enterprise in the period of production and business stoppage till the moment when production and business return to normal at the new place.

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4. Apart from the compensation for the expenditures in land, property, technical infrastructural constructions stipulated in Chapter II and Chapter III of this Decree, the person who is assigned land or rent land by the State shall also have:

a/ To provide support expenditure in training for the agricultural laborers who have to change to other occupations due to the recovery of the land. The concrete level of this support shall be publicly announced by the People's Committee of the province or city directly under the Central Government and shall be remitted to laborers or the direct training organizations of the locality.

b/ If the need arises to recruit new labor, priority of recruitment shall be given to the laborers in the units whose land is recovered.

5. The user of dwelling house under State ownership and the house lies in the area where land is to be recovered and the house is to be dismantled if he does not continue to rent the house of the State, shall be granted support in cash to establish a new dwelling place. The level of support represents 60% of the land value and 60% of the house rent he/she is paying.

The value of land shall be calculated at the rate of land issued by the People's Committee of the province or city directly under the Central Government as provided for by the Government multiplied by the area of the house he/she is renting, but the maximum shall not exceed the assignment quota of residential land in urban areas prescribed by the locality.

If the land user wants to ask the State for assignment of new dwelling land, he/she shall have to pay land use level as currently prescribed and shall receive allowance provided for above. The level of land to be assigned shall conform with Articles 10 and 11 of this Decree.

6. If the stability of the life of the people cannot be assured even after having taken all measures of support, the President of the People's Committee in the province or city directly under the Central Government shall decide a policy of support. In special cases he shall submit the plan to the Prime Minister for decision. In particular, with regard to the projects involving the displacement of a population of more than fifty thousand people, the plan must be reported to the National Assembly.

Article 26.- Other support policies

Basing himself on the reality in the locality, the President of the People's Committee of the province or city directly under the Central Government may decide on a number of policies of allowance to the persons whose land is recovered. These include:

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2. An organization, a household or individual who is the user of the land which is recovered, who carries out the dismantlement of the construction, who move according to the plan of the Council of Compensation for ground clearance shall receive a reward of 5,000,000 VND per household at most.

Article 27.- Expenditures in carrying out compensation and ground clearance

The level of expenditure in organizing the compensation, ground clearance and related expenditures shall be drafted by the Council of Compensation for Ground Clearance and submitted to the Director of the Finance-Pricing Service for checking and examination in order to compile the compensation plan. The Ministry of Finance shall guide the contents for the expenditures and for the management and use of this budget.

Chapter V

SETTING UP RESETTLEMENT AREAS TO CLEAR THE GROUND AND RECOVER LAND

Article 28.- Setting up resettlement area

Basing itself on the economic-social development plant of the locality, on the actual size of the recovered land and the land fund capability for compensation, the number of families and individuals whose residential land is recovered and who have to move to a new dwelling area, the People's Committee of the province or city directly under the Central Government shall decide or empower the People's Committee of the district, town or city directly under the province to decide and organize the setting up of a concentrated resettlement area or scattered resettlement area suited to the actual situation in the locality.

The building of the resettlement area must be planned according to the investment project and must be ratified by the competent State agency as currently prescribed for investment and construction.

Article 29.- Compulsory conditions of a resettlement area

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2. Before apportioning land to households and individuals, the resettlement area must build the appropriate infrastructure conformable to the plan on residential land, and construction land of the locality.

Article 30.- Apportioning residential land to the households at the resettlement area

The apportioning of residential land at the resettlement area shall be carried out according to the following principles:

1. Priority shall be given to the households that carry out early the plan for ground clearance; next are the households beneficiaries of social policies: those with meritorious deeds for the revolution, the families of fallen heroes, war invalids and diseased soldiers;

2. In case the residential land fund for compensation is limited, the level of compensation in residential land for each household shall be determined in this order: families which have a large area recovered shall receive more compensation in land, those with little land recovered shall receive less compensation in land, at a unified percentage (%), but the minimum compensation in land for each household is 100 m2 in rural areas, and 40 m2 in urban areas. The difference in area and land price shall receive compensation in cash;

3. In case the area of residential land recovered is smaller than the minimum stipulated in Item 2 of this Article, the person who is apportioned new residential land in the resettlement area shall receive the minimum level as stipulated in Item 2 of this Article and he/she shall have to pay the land use levy for the difference in area as currently prescribed.

Article 31.- Sources of funding for building of resettlement area

The sources of funding to build the infrastructure of the resettlement area comprises:

1. The budget for compensation of damage to the infrastructure in the area where land is recovered contributed to the organizations and individuals that are assigned land or rent land;

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3. The support fund brought by the persons and organizations that are assigned land or rent land. The concrete level of the support shall be decided by the People's Committee in the province or city directly under the Central Government on the basis of a previous agreement with the person who is assigned land or rents land;

4. Support from the State budget;

5. Other sources of funding.

Chapter VI

ORGANIZATION OF IMPLEMENTATION

Article 32.- The Council of Compensation for damage in ground clearing

1. Basing itself on the decision of the competent State agency to recover the land, and on the size, characteristics and nature of each project, the People's Committee of the province or city directly under the Central Government shall direct the setting up of the Council of Compensation for damage in ground clearing at the level of the district, town and city directly under the province.

The Council of Compensation for damage in ground clearing shall have to help the People's Committee of the same level to evaluate the plan of compensation for damage in land clearing and submit to the Evaluation Council at the provincial level then submit to the President of the People's Committee of the province or city directly under the Central Government for approval and shall organize the compensation for ground clearance according to the ratified plan.

The Council of Compensation for damage in ground clearance at the district level shall be presided over by the President or Vice President of the People's Committee of the district, town or city directly under the province. The other members comprise:

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- The President of the People's Committee of the commune, ward or township where land is recovered, member;

- A representative of the Fatherland Front of the rural or urban district, town or city directly under the province, member;

- The owner of the project (land user), member;

- The representative of the persons beneficiaries of compensation.

The other members of the Council shall be appointed by the President of the People's Committee of rural or urban district, town or city directly under the province in a way suitable to the reality of each project.

2. The President of the People's Committee of the rural or urban district, town or city directly under the province shall have to direct the Council of Compensation for damage in ground clearance, draw up the plan of compensation for damage in ground clearance and submit to the Evaluation Council of the province or city directly under the Central Government for evaluation as basis to present the President of the People's Committee of the province or city directly under the Central Government for approval.

The Evaluation Council of the province or city directly under the Central Government shall be composed of:

- The Director of the Finance-Pricing Service, President of the Council;

- The representative of the Land Administration Service, member.

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The maximum time of the evaluation of the plan of compensation for damage in ground clearance of the Evaluation Council is 20 days after receipt of the plan of compensation for damage in ground clearance sent in by the Evaluation Council at the district level.

3. In necessary cases, the People's Committee of the province or city directly under the Central Government shall set up the Council of Compensation for damage in ground clearance at the provincial or city level composed of:

- The representative of the leadership of the People's Committee of the province or city directly under the Central Government, President of the Council;

- The Drector of the Finance-Price Service, Vice President of the Council;

- The representative of the Fatherland Front Committee of the province or city;

- The representative of the Land Administration Service, member;

- The representative of the rural or urban district, town or city directly under the province where land is to be recovered, member;

- The owner of the project (land user), member;

- The representative of the persons beneficiaries of compensation for damage;

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4. The Council of Compensation for damage in ground clearance shall be set up for each construction (project) and shall operate until the completion of the compensation for damage in ground clearance for this construction.

5. With regard to small and simple projects where the project owner may agree with the person whose land is recovered on the level of compensation as stipulated in this Decree, the Council of Ground Clearance is not necessarily set up. The investor shall have to report the plan of compensation to the People's Committee of the rural or urban district, town or city directly under the province for approval before implementation.

Article 33.- Responsibility of the People's Committees at various levels and of the branches

1. The President of the People's Committee of the province or city directly under the Central Government shall have to direct the Council of Compensation for damage in ground clearance in drawing up the plan of compensation and ratify the plan at the proposal of the Council of Compensation at the provincial level or at the proposal of the President of the People's Committee of the rural or urban district, town or city directly under the province which has been evaluated by the Evaluation Council at the provincial level.

2. The Director of the Finance-Price Service shall have:

a/ To determine the price of land, the price of the plants and the domestic animals in order to calculate the compensation for the damage and submit it to the President of the People's Committee of the province or city directly under the Central Government for approval as basis to direct the Council of Compensation in the district, town or city directly under the province in determining the price in compensation;

b/ To evaluate and check the setting of the price of compensation, the level of compensation, the level of allowance for the organizations and individuals reported by the district level Council of Compensation for damage in ground clearance;

c/ To set the price of compensation, the level of compensation and allowance for each organization and individual, and integrate all this into a plan of compensation for damage (in case of setting up the Council of Compensation for damage in ground clearance at provincial level) and report it to the People's Committee of the province or city directly under the Central Government for approval;

d/ To directly supervise, inspect and direct the payment of compensations and allowances to each beneficiary and the expenditures in the organization of the compensation for damage in ground clearance.

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a/ To determine the size, area, legality and illegality of the constructions associated with the land which is recovered as basis for the calculation of the compensation for damage and the allowances for each beneficiary;

b/ To determine the price of houses and other constructions associated with land in order to calculate the compensation for damage and submit it to the President of the People's Committee of the same level for approval;

c/ To coordinate with the specialized agencies in determining the size of the resettlement area in order to make conform with the general development program of the locality and submit it to the competent State agency for approval.

4. The Director of the Land Administration Service shall have:

a/ To determine the size of the land for the eligibles and non eligibles for compensation, the level of compensation or allowance for each land owner whose land is recovered to serve as basis for the calculation of the compensations and allowances for each beneficiary;

b/ To coordinate with the President of the People's Committee of the district, town or city directly under the province in determining the capacity of the land fund used for compensation in land and report it to the President of the People's Committee of the province or city directly under the Central Government and send it to the Council of Compensation for damage in ground clearance as basis for the drawing up of the plan of compensation;

c/ To perform the tasks in land management under the Land Law in order to organize the implementation of compensation and set up the new resettlement area.

5. The President of the People's Committee of the rural or urban district, town or city directly under the province where land is recovered shall have:

a/ To direct the Council of Compensation for damage in ground clearance in drawing up the plan of compensation and report it to the Evaluation Council at provincial level and submit it to the President of the People's Committee of the province or city directly under the Central Government for approval;

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c/ To organize the compensation for damage in ground clearance according to the plan already approved by the President of the People's Committee or the province or city directly under the Central Government.

6. The person who is assigned land or rents land (project owner) shall have:

To take part in the Council of Compensation for damage in ground clearance, supply the necessary documents to help the Council accomplish its tasks.

To organize the payment of compensation money in time to the beneficiaries of compensations for damage or allowances right after the plan for compensation is ratified by the competent authority.

7. The Council of Compensation for damage in ground clearance shall operate and receive allowances according to the part-time regime. The specific levels shall be decided by the President of the People's Committee of the province or city directly under the Central Government at the proposal of the Director of the Finance-Price Service.

Article 34.- Order in the implementation of compensation for damage

1. After the decision to recover land is issued, the President of the People's Committee of the province or city directly under the Central Government shall direct the setting up of the Council of Compensation for damage in ground clearance. If it is necessary to level the ground early in order to carry out the project, the council may be set up before the decision to recover land. The Council of Compensation for damage in ground clearance shall distribute the declarations, conduct popularization work, direct the declaration and collect the declarations. The Land Administration Service in coordination with the People's Committee of the rural or urban district or city directly under the province to revise the land fund for compensation in land.

2. The organization or individual whose land is recovered shall declare the land area, category, kind and location of the land, the quantity of property... existing on the land and send the declaration to the People's Committee of the commune, ward or township where the land is recovered for certification and send it to the district level Council of Compensation for damage in ground clearance or the People's Committee of the rural or urban district, town or city directly under the province (in case the Council of Compensation for damage in ground clearance is set up in the province or city directly under the Central Government).

3. The Council of Compensation for damage in ground clearance shall inspect and make an account of the actual damage compared to the declaration with the participation of the victims of damage and the land user (the person who has the responsibility to make the compensation), on which basis to determine the damage in land and property of the organizations, households and individuals whose land is recovered and whose property is destroyed or dismantled.

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5. The Council of Compensation for damage in ground clearing shall determine the total amount of compensation for the whole area of the recovered land, the whole property existing on the land and other compensations; it shall also determine the level of compensation and allowance and support for each subject, and draw up an integrated plan for compensation. This aims:

a/ To report to the Evaluation Council at the provincial level which shall submit the plan to the President of the People's Committee of the province or city directly under the Central Government for approval of the proposal of the Council of Compensation for damage in ground clearing set up at the rural or urban districts, towns or cities directly under the province;

b/ To submit to the President of the People's Committee of the province, town or cities directly under the Central Government for approval of proposals of the Council of Compensation for damage in ground clearing at the level of the province or city directly under the Central Government.

6. The plan of compensation shall be made in two parts:

Part I: To determine the level of compensation, to be paid by the land-using project owners according to the scope stipulated in Article 4 of this Decree;

Part II: To determine the level of compensation and allowance for each land user whose land is recovered.

On the basis of the compensation plan ratified by the President of the People's Committee of the province or city directly under the Central Government, the organization and individuals who are assigned land or who rent land as stipulated in Article 1 of this Decree shall have to pay to the beneficiaries of compensation, pay the expenditures in investment in infrastructure construction at the resettlement area as provided for in this Decree, remit to the State budget the compensation for damage in land stipulated in Article 14 of this Decree, provide support for the land users whose land is recovered, defray the expenditures in direct service of the organization of the implementation of the compensation for damage in ground clearing. In particular with regard to the investment project using central budget sources, before ratification by the People's Committee of the province or city directly under the Central Government, the project owner shall have to report the plan of compensation to the Ministry of Finance for consultation.

7. In case the People's Committee of the province or city directly under the Central Government issues a regime or level of compensation exceeding the level provided for in this Decree, the excess compensation shall be defrayed by the local budget.

8. With regard to the projects where the land users cannot yet be determined at the time of the compensation, the People's Committee of the province or city directly under the Central Government shall directly carry out the organization of compensation and pay the compensation. The whole expenditure as prescribed at this Decree shall be apportioned to the organizations and individuals using land within the compound of the project and shall be remitted to the State budget immediately after the decision to assign land or to lease the land is issued.

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10. In case the area of the recovered land is larger than the land to be assigned or leased, the expenditure in compensation for the land and property on the land of the recovered area without being assigned or rented shall be defrayed by the State budget as prescribed by the Law on State Budget.

Article 35.- Assigning the responsibility for paying compensation for damage in ground clearing to the enterprise

Depending on the scope of land use and the character of each project, the People's Committee of the province or city directly under the Central Government may assign the responsibility of making compensation for damage in ground clearing to the enterprise which has the function and the conditions for conducting business on the infrastructure as stipulated in Article 21 of Decree No.85-CP of December 17, 1996 of the Government providing for the implementation of the Ordinance on the Rights and Obligations of Domestic Organizations with State-assigned or leased land.

The enterprise shall have the responsibility to carry out the compensation for damage according to the provisions of this Decree.

The whole expenditure on compensation for damage spent by the enterprise according to the provisions of this Decree shall be apportioned to the organizations and individuals using land in the compound of the project. If after carrying out the compensation for damage in ground clearing the enterprise builds the infrastructure and conduct business on the infrastructure as well as release the land, the compensation for damage which the enterprise has disbursed shall be accounted for in the infrastructural works as provided for in the domain of business in infrastructure and re-lease of land.

Article 36.- Responsibility of the Ministry of Finance, the Ministry of Construction and the National Land Administration

1. Responsibility of the Ministry of Finance:

a/ To assume the main responsibility and coordinate with the related branches in providing concrete compensation for damage to the construction as proposed by the People's Committee of the province or city directly under the Central Government. To organize the collection and timely issue of the collections and pay the compensation from sources of the State budget;

b/ Checking the implementation of the compensation policy.

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2. Responsibility of the Ministry of Construction:

a/ To direct and inspect the People's Committee at various levels in determining the legality of the constructions in order to calculate the compensation for damage, and to set up the resettlement areas;

b/ To coordinate with the various Ministries and branches in directing and inspecting the carrying out of compensation for damage to ground clearing within the assigned powers.

3. Responsibility of the National Land Administration:

a/ To direct and inspect the People's Committees at various levels in determining the users of land who receive compensation or support or who do not receive compensation in order to serve as basis for the compensation for damage;

b/ To perform the tasks in land management in the carrying out of compensation and setting up of resettlement areas.

Article 37.- Responsibility of the organization, household and individual whose land is recovered by the State.

The organization, household and individual whose land is recovered by the State for use in purposes defined in Article 1 of this Decree shall have to fully carry out and on schedule the recovery of land, ground clearing as prescribed by the competent State agency. In case they fail to conform to the prescriptions the Council of Compensation for damage to ground clearing shall report to the People's Committee of the same level and apply forcible measures to compel them to move out in order to clear the ground.

Article 38.- Complaint and statute of limitations

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Pending the settlement of the complaint, the complainant still has to comply with the order of moving out for ground clearing and return the land according to the plan of the prescribed competent State agency.

Article 39.- 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 shall have to implement this Decree.

In case the project owner can agree with the person whose land is recovered on accepting a level of compensation lower than prescribed in this Decree and if permitted by the People's Committee of the province or city directly under the Central Government, compensation can be made according to the mutually agreed level.

Article 40.- This Decree replaces Decree No.90-CP of August 17,1994 of the Government and takes effect 15 days after its signing. The other provisions which are contrary to this Decree are now annulled.

With regard to the projects where compensation is being implemented, the People's Committee of the provinces or cities directly under the Central Government shall, depending on the extent of the compensation being made, decide on the plan of compensation.

THE GOVERNMENT
PRIME MINISTER




Phan Van Khai