Thông tư 37/2014/TT-BTNMT

CIRCULAR

DETAILED REGULATIONS ON COMPENSATION, SUPPORT, AND RESETTLEMENT UPON LAND EXPROPRIATION BY THE STATE

Pursuant to the Law on Land dated November 29, 2013;

Pursuant to the Decree No.21/2013/NĐ-CP dated March 04, 2013 of the Government defining the functions, tasks, entitlements and organizational structure of the Ministry of Natural Resources and Environment;

Pursuant to the Decree 47/2014/NĐ-CP dated May 15, 2014 of the Government regulating in detail compensation, support, and resettlement upon land expropriation;

At the proposal of General Director of General Department of Land Administration and General Director of the Legal Department,

The Minister of Natural Resources and Environment has promulgated the Circular regulating in detail compensation, support, and resettlement upon land expropriation by the State;

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope

This Circular regulates compensation, support, and resettlement upon land expropriation by the State.

Article 2. Regulated entities

1. Governmental agencies charged with the management of land; professional agency for natural resources and environment; organizations in charge of compensation and site clearance. 

2. Land users as defined in Article 5 of the Law on Land.

3. Relevant organizations and individuals.

Chapter II

DETAILED REGULATIONS ON COMPENSATION, SUPPORT AND RESETTLEMENT UPON LAND EXPROPRIATION

Article 3. Determination of the remaining land-related investment expense

The remaining land-related investment expense as defined in Article 3 of the Decree 47/2014/NĐ-CP dated May 15, 2014 of the Government regulating in detail compensation, support, and resettlement upon land expropriation (hereinafter referred to as the Decree No. 47/2014/NĐ-CP) shall be determined according to the following requirements:

1. Documentary evidences to show land users’ investment

2. Such documentary evidences shall include the followings:

a) Lease or lump-sum agreements, records on leveling and restoration of the land allocated or leased out by the State, land reclamation, inundation, erosion control, ground construction and reinforcement to create space for manufacturing and business premises;

b) Written contract discharge; invoices or payment vouchers for land-related investment expenses as defined in Point a of this Clause;

c) Other documents and contracts relating to funds invested in the land made at the date of investment.

3. Holders of the title to expropriated land plots do not have any of the papers as defined in Clause 2 of this Article, but have actually made investment in the land, the People’s Committees of central-affiliated cities and provinces (hereinafter referred to as the province-level People’s committee) shall determine the remaining land-related investment expense in reliance on specific circumstances of the locality under their management.

4. The remaining land-related investment expense as defined in Clause 4, Article 3 of the Decree 47/2014/NĐ-CP shall be calculated according to the following formula:

a) Determination of the remaining land-related investment expense should be based on unit prices, economic and technical norms stipulated by competent agencies;

b) In case investment in the land has been made a number of times or years, determination of the remaining land-related investment expense shall be done by accumulation of all the expenses paid in such periods or years.

Article 4. Relocation on the remaining inhabited parcel subject to expropriation by the State

Conversion of use purpose from agricultural land into inhabited land for relocation, in case the inhabited parcel is expropriated and the piece of agricultural land is not recognized as inhabited land as defined in Clause 5, Article 6 of the 47/2014/NĐ-CP shall conform to the following regulations:

1. Such conversion shall be permitted only if/ on conditions that Remaining area of the expropriated parcel satisfies regulatory requirements for partition according to the regulations prescribed by the People’s committee of the province where that expropriated land plot is located.

2. In case the remaining inhabited parcel does not meet requirements for plot partitioning according to the regulations prescribed by the People’s committee of a province where the expropriated land is located, competent agencies shall have authority to expropriate such parcel or land users may be entitled to continue to use the remaining area according to the land-use planning.

3. Expenditures on compensation, support and resettlement with respect to the remaining inhabited parcel which does not meet the requirement for plot partitioning upon expropriation by the State must be specified in the plan for compensation, support and resettlement.

Article 5. Determination of agricultural land acreage for the purpose of calculating life stabilization support upon expropriation

1. Determination of agricultural land acreage for the purpose of calculating support in living stabilization as defined in Point b, Clause 3, Article 19 of the Decree 47/2014/NĐ-CP shall be done according to expropriation decision made by the People’s committee within their delegated authority without accumulation of land areas previously expropriated.

2. Area of agricultural land approved for support in living stabilization as defined in Point a, Clause 3, Article 19 of the Decree 47/2014/NĐ-CP means the area of land used by households and individuals within a commune, ward and town where expropriation takes place, including:

a) Agricultural land originally allocated by the State to households and individuals for agricultural production under the Decree No. 64/CP dated September 27, 1993 of the Government regulating allocation of agricultural land to households and individuals for long-term and stable agricultural production; The Decree No. 85/1999/NĐ-CP dated August 28, 1999 of the Government amending and supplementing the Decree No. 64/CP and allocation of agricultural land to households for long-term salt production; allocation of forestland under the Decree No. 02/CP dated January 15, 1994 of the Government regulating allocation of forestland to organizations, households and individuals for long-term forest production; The Decree No. 163/1999/NĐ-CP dated November 16, 1999 of the Government on allocation and lease of forestland to organizations, households and individuals for long-term forest production; The Decree No. 181/2004/NĐ-CP dated October 29, 2004 of the Government on enforcement of the Law on Land;

b) Agricultural land used by households and individuals who are eligible to be allocated  a piece of agricultural land under the Law on Land but have not been allocated yet and currently use such agricultural land as receivers of transferred, disposed, gifted and reclaimed land according to the law and the confirmation by the People’s committee of communes, wards and towns where such agricultural land is currently used for production activities by the holders of these to-be-expropriated pieces;

c) Agricultural land transferred from state-run farm and plantation to households and individuals for agricultural, forest and aquaculture production (excluding specialized forestland, protective forestland) who earn stable incomes from agricultural and forest production developed on such land at the date of expropriation.

3. In case households and individuals as defined in Clause 2 of this Article who have their agricultural land being expropriated below 30% and such expropriation has created certain impacts on their living and production, the province-level People’s committee shall rely on actual circumstances in the locality to decide other specific supporting measures according to the provisions set out in Article 25 of the Decree No. 47/2014/NĐ-CP.

Article 6. Compensation and support for expropriation of agricultural land currently used by officials and civil servants (who are entitled to allowance  working or retired on a pension, retired as a result of loss of capacity for work, retired on redundancy payments)

1. Officials and civil servants (who are still working or retired, retired as a result of loss of capacity for work, retired on redundancy allowance) that are not the entities defined in Point d, Clause 1, Article 19 of the Decree 47/2014/NĐ-CP but currently use the land after transfer of land use right under the law upon expropriation shall receive compensation in the form of land but receive no support in living and production stabilization, training, occupational change and job seeking.

2. In case households population of which include with and without officials and civil servants (still working or retired on a pension, retired as a result of a loss of capacity for work, retired on redundancy payments) and currently use the land for agricultural production, upon expropriation, members who are not officials and civil servants shall get support in living and production stabilization, training, occupational change and job seeking. The province-level People’s committee shall rely on particular conditions in the locality to decide appropriate support.

Article 7. Documents determining payment of land levies before July 01, 2004 with respect to allocation of land ultra vires

1. Determination of payment of land levies to agencies, organizations before July 01, 2004 with respect to allocation of land beyond ultra vires according to the provisions set out in Article 11 of the Decree No. 47/2014/NĐ-CP shall be based on one of the following papers:

a) Invoices, receipts of land levies, compensation for expropriation under the Decision No. 186/NĐBT dated May 31, 1990 of the Council of Ministers regulating compensation for losses caused to agricultural land and forestland upon conversion into other purposes.

b) Invoices and receipts made at the time of collection of money as stipulated by the Ministry of Finance;

c) Invoices and receipts and other papers issued at the time of collection of money and confirmed by the People’s committee of the commune or agencies, organizations that allocate land ultra vires;

d) Receipts issued to households and individuals by the People's committee of the commune, the cooperative, or the organization that allocates land ultra vires.

2. In case land is allocated ultra vires and papers concerning payment of land levies are kept in the organization that collects money or other relevant organizations, such organization shall be responsible for providing such papers to organizations charged with the implementation of compensation, site clearance or to land users for the preparation of compensation and site clearance and completion of plan for compensation, support and resettlement.

Article 8. Division of compensation, support and resettlement into sub-projects

Division of compensation, support and resettlement into sub-projects is done according to the provisions set out in Clause 1, Article 29 of the Decree No.47/2014/NĐ-CP and stipulated as follows:

1. The date for division of compensation, support and resettlement into sub-projects means the date of review or approval of the investment project.

2. Sub-projects upon approval shall be done independently and ensure progress of the investment project.

Article 9. Appraisal of policy framework for compensation, support and resettlement

Appraisal of the policy framework for compensation, support and resettlement (hereinafter referred to as the policy framework) as defined in Clause 2, Article 17 of the Decree No.47/2014/NĐ-CP shall be done as follows:

1. Before making submission to the Prime Minister for consideration and decision about the policy framework, related ministries and departments shall be responsible for making submission of the policy framework to the Ministry of Natural Resources and Environment for appraisal. The documents shall comprise:

a) Written request for appraisal of the policy framework;

b) Draft statement to be submitted to the Prime Minister;

c) Draft policy framework;

d) Decision and approval of investment policy by competent agencies.

2. Within 30 days since receipt of adequate documents as stipulated, the Ministry of Natural Resources and Environment shall issue appraising comments in writing to the related Ministries and Departments.

Article 10. Content of the plan for compensation, support and resettlement to be established, appraised and approved by related Ministries and Departments

Plan for compensation, support and resettlement to be established by the Ministries and Departments as stipulated in Clause 3, Article 17 of the Decree No.47/2014/NĐ-CP comprise the following issues:

1. Area of individual types of land to be expropriated

2. Planned number of organizations, households and individuals that use the land in the area subject to expropriation.

3. Planned amount of compensation, support and resettlement.

4. Planned location and area of resettlement area, resettlement houses and manner of settlement

5.  Budget estimates and sources of expenditures for the implementation of the plan for compensation, support and resettlement.

6. Planned progress of the plan for compensation, support and resettlement

7. Planned time, movement, transfer of premises

Plan for compensation, support, and resettlement should show all the aforesaid issues and detail individual localities (if any). In case the expropriation is for the construction of a concentrated resettlement area, the issues defined in this Article shall include the area expropriated for the construction of the concentrated resettlement area.

Article 11. Movement of land linked properties used by organizations, residential community and religious establishments upon expropriation

The People’s Committee of competent authorities that executes land expropriation in the area subject to expropriation shall be responsible for making notification to organizations, residential community and religious establishments that currently use the properties for movement to other places; notification of movement of properties shall coincide with the notification of expropriation. Persons that are using the properties shall be responsible for moving the properties and transferring the premises as scheduled.

Article 12. Organizations whose land is expropriated without compensation

1. Upon expropriation, any organization that suffers losses caused to their properties assigned for management by the State and is forced to move to new premises shall be permitted to use the compensation for re-investment in the new premises according to the investment project approved by competent authorities.

2. Upon expropriation, any organization that uses land allocated with land levies or land leased out with land rent paid once for the entire period of lease and such land levies and land rent originate from the state budget, or any organization that uses land allocated without land levies or leased out with annual land rent shall not be compensated in the form of land. Any organization that moves to new premises shall get pecuniary support according to the investment project approved by competent authorities; maximum support shall not exceed the compensation in the form of land with respect to the land subject to expropriation and paid by organizations, individuals allocated to or leased out to by the State.

Article 13. Appraisal of the plan for compensation, support and resettlement

The Services of Natural Resources and Environment shall be responsible for presiding over and collaborating with relevant agencies on appraising the plan for compensation, support, and resettlement before making submission to the People’s committee of the same level for approval.

Chapter III

IMPLEMENTARY PROVISIONS

Article 14. Transitional provision

1. For investment projects with the plan for compensation, support, and resettlement being approved by competent agencies but the compensation is not yet fulfilled before July 01, 2014, handling of delayed compensation shall be done according to the provisions of the Law on Land issued before July 01, 2014.

2. For investment projects with the policy framework being approved by the Prime Minister but the plan for compensation, support, and resettlement of the entire project is not yet approved till July 01, 2014, the related Ministries and Departments shall be responsible for checking the plan for compensation, support, and resettlement and making submission of it to the Prime Minister for decision.

Article 15. Effect

This Circular takes effect since August 13, 2014.

Article 16. Implementation

The Ministries, ministerial-level agencies, Governmental agencies; People’s Committees of central-affiliated provinces, cities shall be responsible for executing this Circular.

Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Natural Resources and Environment for consideration and decision./.