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Determination of common property, private property is the right to use land of husband and wife

Land is the nation's resource, man can not create but can justify it. Land has great significance for the needs of the life of every citizen and the whole community. As a result, land use rights have become a valuable asset that everyone wants to own. For couples in our country, with the idea of ​​"settling new career," the land to build housing, living and living is very necessary. The identification of common property, which is the property of the couple is not important, but in life can arise a lot of issues need to determine the common property of the couple to protect. Protect the rights of spouses, children of the family as well as third parties involved (such as creditors).
However, nowadays, the determination of land use right is the common property, the husband and wife also encountered many difficulties because this is a specific asset, so when determining the common property, also have their own points. Compared with other types of common assets; More importantly, the current law on the determination of common property, it is easy to cause different understandings and difficult to apply. Therefore, within the scope of the article, we are pleased to address some issues when determining common property, private property is the land use rights of husband and wife for the same review and exchange.
 
1. Based on the source
 
The personal property of husband and wife, Item 1 of Article 32 of the 2000 Law on Marriage and Family stipulates: "The personal property of the husband and the wife consists of the property which each person has before marriage; The property is inherited separately, is given separately in the marriage period; Assets shall be divided exclusively for spouses according to the provisions of Clause 1, Article 29 and Article 30 of this Law; utensils, personal belongings ".
 
Clause 1, Article 27 of the Marriage and Family Law prescribes the common property of husband and wife, including:
 
1. Property created by spouses during the marriage period;
 
2. Income earned from labor, production or business activities during the marriage period;
 
3. Other legal incomes of a married couple during the marriage period: "Other lawful collections" of husband and wife during the marriage period may be bonuses, allowances, lottery winnings, which The spouses have property or property which the spouses have established ownership under Articles 247, 248, 249, 250, 251 and 252 of the Civil Code ... in the marriage period (Point a of Clause 3 Resolution No. 02/2000 / NQ-HDTP dated December 23, 2000);
 
4. The property which the husband or wife has inherited or is jointly donated;
 
5. Other assets to be agreed upon by the husband and wife are common property;
 
6. Right to use land acquired by husband and wife after marriage: After marriage, the land use right of which both husband and wife or each partner are assigned or leased by the State are the common property of the wife, (Decree No. 70/2001 / ND-CP detailing the implementation of the Law on Marriage and Family 2000).
 
Thus, in principle, the property, if formed from the source specified in Clause 1, Article 32 of the Marriage and Family Law, it is a separate property if it belongs to at least one of the six sources prescribed in Clause 1 of Article 27. is the common property of the couple. However, in many cases the application of these provisions also encounter certain problems:
 
Firstly, land use rights are transferred from private funds or transferred by private assets, which in essence have to be defined as private property but have the view that even though the right to use Land acquired or transferred from private or common property but during the marriage is property created during the marriage and is a common property. Therefore, the law should stipulate more clearly the land use right in this case.
 
Second, there are cases where it is necessary to identify that the property is under common ownership in accordance with the section governed by the Civil Code but is easily confused and that it is a property under common ownership. For example: The right to use land used by husband and wife to buy together in the marriage period (wife has 200 million inherited money, husband 500 million is given separately, two people pay money to buy "land" with price 700 million); In other cases, the husband jointly own the land use right with the third person before marriage, but after marriage, the husband uses the common money to buy back the land use right of the third party. We think that these cases should be defined as assets under common ownership in accordance with the division of civil law.
 
Thirdly, for land use rights that are private property, but after marriage has been put into operation, used together, built houses, planted trees on that land, the land use right becomes the property. general or not? The current trend is that if no agreement is entered into the common property, the land use right remains private property, but the assets on land (buildings, trees, etc.) are common property.
 
However, there is also the view that land use rights have been put into operation, in general use unless there is a written agreement.

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