Lesson Plan for Session 1

Transcription

1 Session 1 Subject: Land Law For English Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 1 Learning outcomes: After completion of this sesson, students are able to: Describe course specification. Show the chronological order of legal regulations relating to land. Assessment methods: MCQs Short answer questions. Activities Lecture and discussion 2 1

2 Autobiography Outline Introduction of course specification of Land Law Main law and specific law 3 Autobiography Dr. Phalthy Hap, from , a lecturer in Chemistry at the National Institute of Education. He also taught Teaching Methodology for Chemistry students who would become high school teachers. In 2004, Dr. Hap transferred his working place to the Royal University of Law and Economics. After his study in Master course and doctoral course at Nagoya University, Japan, he started teaching Civil Law, Land Law, Research Methodology, Private Property Law and Public Property law for both Bachelor and Master students. He has also served as the Vice Director of Graduate Program of the Royal University of Law and Economics from June 2011 to May Since May 2017, he has become the Director of Graduate Program. 4 2

3 Introduc?on of a Course Syllabus Introduce the teaching mode: Students work in group to form problem solving forum, Students raised the questions to those who present, Students discuss the topic raised by the lecturer in class. Students also do assignment in group and present it individually at the end of the course. Explain the marking criteria, Introduce reading references for the course. 5 Main Law and Specific Law (1) Law Main Law Constitution Civil Code Criminal Code Code of Civil Procedure Code of Criminal Procedure Specific Law Labor Law: 1997 Land Law: 2001 Law on Nationality: 1996 Law on Financial Management for

4 Main Law and Specific Law (2) If the provisions of main law and specific law are conflicting, which law shall prevail/shall be applied? "ស$ន&'បទប*+,ត.$/ច1ប23ល ន$ងច1ប2ព$7ស ផ9:យ<= 7 Main Law and Specific Law (3) A quick look on main laws: Japan: Civil Code in 1896 France: Civil Code in 1804 Cambodia: Civil Code: Civil Code Civil Code Died 2007 Now Current Civil Code 8 4

5 Main Law and Specific Law (4) A quick look on specific laws of Cambodia: Family Law: 1989 Law on Land Management, Urban Planning and Construction: 1994 Labor Law: 1997 Land Law: 2001 Forestry Law: 2002 Law on Concessions: 2007 Law on Expropriation: 2010 Law on Civil Code Enforcement: Main Law and Specific Law (5) Usually, main laws happened first and then followed by specific laws. So the interpretation of law, the provisions of the newly promulgated law shall repeal the provisions of the existing laws if the provisions are conflicting. So with this regard, if the provisions the main law and specific law are conflicting, the provisions of the specific law shall prevail. 10 5

6 Main Law and Specific Law (6) Provisions Main Laws Provisions Specific Laws Prevail Provisions Specific Laws 11 Cambodian Land Laws A quick look on the development of Cambodian land laws: Now Gov t Instruction 1992 Land Law 2001 Land Law Law on Civil Code Enforcement and remaining Articles of the 2001 Land Law 12 6

7 Homework Please read for next session: Phalthy Hap, The Implementation of Cambodia s Laws on Land Tenure (Doctoral Dissertation, Nagoya University, 2010), Phalthy Hap, Compilation of Laws and Legal Regulations Relating to Land and Urbanization (Phnom Penh: Chorkchey, 2018) Issues relating to land in Cambodia, Annex to Land Law course lecture notes. 13 Thank you!!! Ques?ons and Answers Contact: hphalthy@yahoo.com

8 Session 2 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 2 Learning outcomes: After completion of this sesson, students are able to: Explain the importance of granting private ownership to citizens. Describe the process of land privatization in early Analyze the impact of institutional reform Assessment methods: MCQs Short answer questions. Presentation Activities Lecture, group discussion and presentation 16 8

9 Outline Concept of Ownership Land Privatization in 1989 Institutional Reform for Land Management in Cambodia 17 Concept of Ownership (1) Ownership A bundle of rights which consists of: Right of use ស$ទH$I'Jស2 Right of enjoyment ស$ទH$KLMយផល Right to dispose ស$ទH$Nត2Oង 18 9

10 Concept of Ownership (2) The main purpose of providing landownership is to encourage landowners to make use of land in order to improve country s economy. 19 Concept of Ownership (3) In French Colonization, Cambodia already recognized private ownership. In 1920, The first Civil Code just existed in Cambodia. The Code stipulated ownership right and possessory right

11 Concept of Ownership (4) Ownership had been in trouble by civil wars since Unfortunately, more seriously ownership rights were totally disappeared during the Democratic Kampuchea After 1979, ownership rights were not allowed and Cambodian citizens were allowed to use land in the form of solidarity group for farming. 21 Land Privatization1989 (1) Solidary group for farming was divided into 3 types: Solidarity group for farming type 1 Solidarity group for farming type 2 Solidarity group for farming type 3 From 1979 to 1983, solidarity group for farming developed very well but after 1984 it was drastically unsuccessful

12 Land Privatization1989 (2) April 1989: The first ownership was provided only for house. The June 1989 Instruction: Cambodian citizens are fully provided rights to hold, use, and inherit land No one can claim ownership before 1979 The state does not reshuffle and redistribute the land already occupied. 23 Land Privatization1989 (3) The restriction rights over land: Ownership was recognized over residential land for no more than 2000 m 2. Possession was recognized over agricultural land for no more than 5 hectares. Concession right was given only for exploitation land for more than 5 hectares

13 Land Privatization1989 (4) Institutions responsible for issuing certificates: Provincial People s Committee: Ownership គណRកSTធ$Vរ"XជនZត. District People s Committee: Possession គណRកSTធ$Vរ"XជនLGក Ministry of Agriculture: Concession right The state issued only certificate of land occupancy and use. បMណ[សS\ល2ស$ទH$Vន2Vប2I'Jស2ដ^ធ_' 25 Land Privatization1989 (5) Land applications: Family head Commune chief! District People s Committee -Stage 1: June 3-December 31, Stage 2: January 1-June 30, Continuing stage: Continued to receive land applications (no time limitation) 26 13

14 Land Privatization1989 (6) Outcomes of land applications: As of July 1990 = 3.7 million land applications (equivalent to 70% of the total land parcels) 27 Discussion (1) Discuss in group to find out the importance of granting private ownership

15 Institutional Reform for Land Management in Cambodia (1) 1979: Department of Agricultural Economic Policy Management (For managing solidarity groups for farming) 1989: Department of Cadastre `យកabនcប2cង3លនdCយ7ដeក$ចfកស$កមg `យកabនសGhdដ^ (For leading, managing and using land throughout the country) 29 Institutional Reform for Land Management in Cambodia (2) Ministry of Agriculture OCM MLMUPC Now Dept. of Agricultural Economic Policy Management Dept. of Cadastre General Dept. of Cadastre and Geography 30 15

16 Institutional Reform for Land Management in Cambodia (3) Evolvement of land application process Dept. of Cadastre ownership & possession All provinces can issue Some provinces can issue Before Dept. of Cadastre issues, land applications must be sent to OCM District Possession, Province Ownership 31 Discussion (2) Work in group to analyze the impact of institutional reform with regard to land management. Then assign a member to present your ideas. ចjរklគព'ផលបmnoល2/កpqទrង2stបMន uក2ទងនvង Vរcប2cងដ^ធ_' ប`xប2មកyងzpងសSជ{កS=ក2 }'បទប~ញ គpន$តរបស2អក 32 16

17 Homework Please read for next session: The 2007 Cambodian Civil Code, Arts Thank you!!! Ques?ons and Answers Contact:

18 Session 3 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 3 Learning outcomes: After completion of this sesson, students are able to: Prepare the case study which relates to indivisible ownership Solve the problem arising from adjoining ownership Assessment methods: Presentation Case study Activities Group discussion, role play 36 18

19 Outline Meaning of indivisible ownership អត នMយ/កមgស$ទH$អklគ Indivisible ownership characteristics លកƒណR/កមgស$ទH$អklគ Adjoining ownership អឌ ស$ទH$lព 37 Meaning of Indivisible Ownership (1) Indivisible ownership: Ownership of a single thing by multiple persons wherein the size of each owner's ownership interest is limited to such owner's share of the thing. (CC, Art. 202) 38 19

20 Meaning of Indivisible Ownership (2) Civil Code Dec. 21, 2011 Now Land Law Civil Code Indivisible ownership Indivisible ownership 39 Indivisible Ownership Characteris?cs (1) The shares of owners of indivisible ownership are presumed to be equal. (CC, Art. 203) Each owner of indivisible ownership can transfer or provide his share as security. A creditor of an owner of indivisible ownership can foreclose the share. (CC, Art. 204) An owner of indivisible ownership can use the entire indivisible thing in accordance with his share. (CC, Art. 205) 40 20

21 Indivisible Ownership Characteris?cs (2) An owner of indivisible ownership can individually perform acts of preservation on the indivisible thing. (CC, Art. 206) No owner of indivisible ownership can dispose of or significantly alter the indivisible thing without the consent of the other owners. (207) The administration of the indivisible property shall be determined by majority in value of the indivisible property. (CC, Art. 208) 41 Indivisible Ownership Characteris?cs (3) Each owner of indivisible ownership shall bear expenses of administration, taxes and other charges in relation to the indivisible thing in proportion to his share thereto. Where an owner makes an expenditure for an act of preservation or administration or for taxes or other charges in excess of his share to the indivisible thing, he may seek compensation from the other owners of indivisible ownership for such excess expenditure in accordance with their respective share. (CC, Art. 209(1&2)) 42 21

22 Indivisible Ownership Characteris?cs (4) When an owner of indivisible ownership gives up the share or dies without successors, his/her share goes to other owners of indivisible ownership. (CC, Art. 210) Each owner of indivisible ownership may demand at any time a partition of the indivisible thing. However the owners may agree to make a contract prohibiting partition for a period of time not to exceed five years. Renewal of agreement can be available but no more than 5 years. (CC, Art. 211) 43 Indivisible Ownership Characteris?cs (5) If the indivisible thing cannot be made by the parties, the court may: (CC, Art. 212) order the partition of the physical thing, order the thing to be sold by compulsory sale, order that one or more owners of indivisible ownership transfer their shares to the other owners in exchange for payment of compensation

23 Indivisible Ownership Characteris?cs (6) If an owner of indivisible ownership has a claim against another owner in regard to preservation or administration or for taxes or other charges in relation to the indivisible thing, he may upon partition demand satisfaction out of the portion that is to accrue to the obligor. 45 Discussion (1) Work in group to make a case study with regard to indivisible ownership and then assign a member to present your discussion

24 Adjoining Ownership (1) Adjoining ownership is the ownership over the neighboring land which has common ownership including party wall or rampart on the boundary of land or building above that land. (CC, Art. 215) 47 Adjoining Ownership (2) Civil Code Dec. 21, 2011 Now Land Law Civil Code Adjoining Ownership Adjoining Ownership 48 24

25 Adjoining Ownership (3) Adjoining ownership includes: Party wall, (CC, Arts ) ជŒpងអឌ ស$ទH$ Ramparts: ditch, fence and dike. (CC ) កp ង s=ម ˆn របង ភ_Š 49 Adjoining Ownership (4) The owner of land that is next to a wall may turn that wall into party wall by paying the half value of the wall and the land on which the wall is built to the other owner. (CC, Art. 220) An owner of a party wall may continue the height of the wall by his/her expense. (CC, Arts. 221) 50 25

26 Adjoining Ownership (5) All ramparts that are located in the boundary of immovable property are considered as adjoining ownership of the respective owner. (CC, Art. 223) However, ramparts that are not adjoining ownership cannot be claimed as adjoining ownership. (CC, Art. 225) 51 Discussion (2) Work in group to formulate the case study of adjoining ownership and then perform the role play

27 Homework Please read for next session: The 2001 Land Law, Arts , Comp. pp , Sub-decree on the Management and Use of Coowned Buildings 2009, Comp. pp , Law on Granting Ownership over Private Part of Co-owned Buildings for Foreigners 2010, Comp. pp , Sub-decree on the Management of Gated Community 2011, Comp. pp Thank you!!! Ques?ons and Answers Contact:

28 Session 4 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 4 Learning outcomes: After completion of this lesson, students are able to: Analyze the case relating to co- ownership Design the project for condominium development Assessment methods: Presentation Report writing Activities Problem solving, case study 56 28

29 Co-ownership Outline Development of co-ownership in Cambodia The management of condominium operations 57 Co- Ownership (1) Co-ownership is the ownership of immovable property belonging to several persons divided by lots, of which each person has one part that is a private part and another part that is a share of common property. (LL, Art. 175) 58 29

30 1/19/19 Co- Ownership (2) Co-ownership: - Private part - Common part Image from Google 59 Co- Ownership (3) Civil Code 2001 Dec. 21, Land Law Now Co-Ownership Co- ownership 60 30

31 Co- Ownership (4) Co-owners can prepare their own internal regulation or other board of directors. (LL, Arts. 176, 184) Each co-owner has full right over his/her private part. (LL, Art. 177) With the private part, each co-owner may transfer, lease, or create usufruct, establish right of use and residence, mortgage, and pledge. (LL, Art. 177) The private part cannot be created as easement. (LL, Art. 177) 61 Co- Ownership (5) Owner of co-owned building on the top floor cannot build any building on it or sell it. (LL, Art. 179) Any co-owner who alters the common parts of a building or a land in order to have the private use of them or for the purposes of selling them shall be liable to restore them to the original state. Such co-owner shall be subject to the penalties of 1,500,000 to 9,000,000 riel. (LL, Art. 180(1)) Any person other than the co-owners who takes possession of a common part for himself shall be forced to return the premises wrongfully occupied and to restore it to its original state. (LL, Art. 180(2)) 62 31

32 Co- Ownership (6) The competent authorities may impose on co-owners any measures to ensure the proper maintenance of common parts. The costs of maintenance shall be at the expenses of co-owners based on the proportional costs of their part. A co-owner who refuses to comply with his responsibilities or does not follow the provisions for public order shall be subject to punishment of 500,000 to 3,000,000 riel. (LL, Art. 185) 63 Discussion (1) Suppose a piece of land consisting 200 m 2 having a 10 storey apartment building with 10 owners in each apartment. The ladders are connected the left side of the building where everyone can use. Analyze the case when the building becomes old and some owners are not able to rebuild theirs and then present your ideas

33 Development of Co- ownership in Cambodia (1) The glossary of the 1992 Land Law defined the coownership as the ownership of several persons. With this regard, co-owner may be the owner of indivisible ownership and adjoining ownership (The 1992 Land Law, Arts ). The 2001 Land Law stipulates clearly the meaning of co-ownership which means ownership of several persons exercising exclusive rights over certain parts of the property, and the other parts named common parts (The 2001 Land Law, Arts. 10, ). 65 Development of Co- ownership in Cambodia (2) The registration guidance of co-owned buildings has been available since September 2005 (Instructive Circular on the Registration of Buildings and Parcels of Co-owned Buildings, No.01DNS/AKKD, Sept. 21, 2005). The management and use of co-ownership was set by in August 2009 (Sub-decree on the Management and Use of Co-owned Buildings, No. 126ANK/BK, August 12, 2009). Certificate sample Registration of Private Parts of Co-owned Buildings was available in November 2009 (Proclamation on Establishment and the Use of Document Serving the Registration of Private Parts of Co-owned Buildings, No. 262PK, November 30, 2009)

34 Development of Co- ownership in Cambodia (3) The ideas of managing and registering co-owned buildings and registering private parts of co-owned buildings have led to remarkable decision to grant ownership of private parts of co-owned buildings from the first floor up to foreigners (Law on Granting Ownership over Private Parts of Co-owned buildings for Foreigners, May 24, 2010). The Management of gated community (Borey) has been available since March 2011 (Sub-decree on the Management of Gated Community, No. 39ANK/BK, March 10, 2011). 67 Development of Co- ownership in Cambodia (4) Meaning of condominium: 1. Ownership in common with others, 2. A single real-estate unit in a multi-unit development in which a person has both separate ownership of a unit and a common interest, along with the development s other owners, in the common areas. (Black s Law Dictionary, 8th ed., 2004) 68 34

35 Development of Co- ownership in Cambodia (5) Condominium has not been defined in any Cambodian legal regulations. But the term condominium falls under the example of co-owned buildings. 69 The Management of Condominium Opera?ons (1) To some extent, there is no difference between managing co-owned buildings and condominiums since condominiums are considered as co-owned buildings. No specific legal regulations governing condominium operations yet, therefore condominium operations seem to be under: The 2001 Land Law Sub-decree on the Management and Use of Co-owned buildings, 2009, Comp. p Law on Granting Ownership over Private Parts of Co-owned buildings for Foreigners, May 24, 2010, Comp. p Sub-decree on the Management of Gated Community, March 10, 2011, Comp. p

36 The Management of Condominium Opera?ons (2) Registration of co-owned buildings and land parcels covers: Land parcels and buildings of the ground floors with more owners of the private parts. Land parcels and many storey buildings with common ladders, premises and roads to private parts. Land parcels consisting of separate many storey buildings with various owners. Land parcels and buildings were formerly owned by one owner but later on one part or some parts are sold to other parties. (Instructive Circular on the Registration of Buildings and Parcels of Coowned Buildings, No.01DNS/AKKD, Sept. 21, 2005), Comp. p The Management of Condominium Opera?ons (3) Co-owned building is the building or construction which consists of various owners living in. Co-owned building includes: Villa Semi-villa Many storey apartment Condominium The likes Private parts refer to every part of a co-owned building which is privately occupied and used. Common parts refer to every part of co-owned building which is the subject of use or interest of all co-owners such as premises, ladders, parks, pathway, entrance, party walls, other common places. (Sub-decree on the Management and Use of Co-owned buildings, No.126ANK/BK, August 12, 2009), Comp. p

37 The Management of Condominium Opera?ons (4) Co-owned land parcel is the land portion of a coowned building that has specific location and size for constructing a co-owned building or existing coowned building under co-owned building project. It is under the joint management and use of all co-owners. Land lot refers to private part connected with common part of co-owned building. Each land lot has various value depending on the size of private part. (Sub-decree on the Management and Use of Co-owned buildings, No.126ANK/BK, August 12, 2009), Comp. p The Management of Condominium Opera?ons (5) Condominium = co-owned building Condominium developer: Owner of the condominium Owners of private parts Lessees of private parts Lessee of the condominium Lessees of private parts Private parts Image from Google ladder garden Common parts 74 37

38 The Management of Condominium Opera?ons (6) Co-owners of condominium can prepare an internal rule regulating the obligations and maintenance of the common parts. Lessees of condominium may be under the internal rule set by the condominium developer. Image from Google 75 The Management of Condominium Opera?ons (7) Foreigners are allowed to own private part of co-owned building starting from the first floor. Those foreigners are considered as special co-owners. With regard to common parts, special co-owners have: right of use and right of enjoyment With regard to private parts, special co-owners: Are entitled to buy private parts from the first floor only 70% of the total co-owned buildings. Are not entitled to buy private parts of any co-owned buildings within 30 km from the distance of the border. Image from Google 76 38

39 The Management of Condominium Opera?ons (8) Law on Granting Ownership over Private Part of Co-owned Buildings for Foreigners has the main purposes attract foreign direct investment. Foreigners may buy lots of units in the condominium so that the condominium construction may boost faster. Image from Google 77 The Management of Condominium Opera?ons (9) Number of tall buildings in 2000s (Source: Image from Google 78 39

40 The Management of Condominium Opera?ons (10) Statistics of high buildings in Phnom Penh, (Source: Phnom Penh Department of Land Management, Urban Planning, Construction and Cadastre, Statistics of high buildings in Phnom Penh, Image from Google projects from 2005 to 2017, January 11, 2018) 79 The Management of Condominium Opera?ons (11) Statistics of gated community in Phnom Penh as of September 2016! (Source: Phnom Penh Department of Land Management, Urban Planning, Construction and Cadastre, Statistical Table of Gated Communities in Image from Google Phnom Penh as of September 2018, Phnom Penh, October 17, 2016) 80 40

41 Discussion (2) Work in group to prepare the condominium development project and then write the report of that project discussion. 81 Homework Please read for next session: The Cambodian Constitution, Arts. 44 & 58, The 2001 Land Law, Arts , 43-44, & , Comp. pp , 429, Sub-decree on the State Land Management 2005, Comp. pp

42 Session 5 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 5 Learning outcomes: After completion of this lesson, students are able to: Differentiate the state private land and state public land. Analyze the effectiveness of state land management. Assessment methods: Presentation Critique Activities Group discussion, case study 84 42

43 Outline Legal regulations concerning state land Authorities for state land management 85 Legal Regula?ons Concerning State Property (1) The 1989 Amended Constitution stated the state property including (Art. 14): Land Forest Sea River Lake Natural resources Economic center Cultural center Country defense base Other state buildings 86 43

44 Legal Regula?ons Concerning State Property (2) In October 1992, the first Land Law: Art. 5: forbade private rights over forest protected areas, fishery protected areas, mining resources; patrimonial, cultural, national historical centers, monastery, cemetery, school, public park and hills, former state buildings, reserved land and land for railway, rivers, and sea. Art. 15: State public property cannot be sold. 87 Legal Regula?ons Concerning State Property (3) In December 1992, the government acknowledged: Land grabbers grabbed the state land, Land grabbing activities scare Cambodian people, People do not trust the competent authorities with regard to land administration. (Instructive Circular on the Measure toward the Public Land Grabbing Activities, No.03SRNN, December 14, 1992) 88 44

45 Legal Regula?ons Concerning State Property (4) February 1993: The law separated the property between state and the Cambodian People s Party (CPP) s. Gave right to the Government of Cambodia and the CPP for separating the property. (Law on the Division of Property, No.09 K, February 08, 1993) 89 Legal Regula?ons Concerning State Property (5) The 1993 Constitution states the state property including (Art. 58): Land Mineral resources Mountains Sea Under sea water Underground of sea Coastline Island Airspace River Lake Forestry Natural resources Economic center Cultural center Country defense base Other determined state buildings 90 45

46 Legal Regula?ons Concerning State Property (6) June 1995: The government stated that old or newly existed island could not be owned. (Sub-decree on the Declaration of State Property, No.53ANK/BK, June 27, 1995) December 1997: The government stated the procedure of selling state property. (Order on the Management of Sate Property, No.30BB, December 25, 1997) 91 Legal Regula?ons Concerning State Property (7) August 30, 2001: The second Land Law has been available. Art. 15: describes the details of state public property. Art. 16: forbids the sale of state public property. However, when state public property no longer serves the public interests, it can be transferred to state private property. Art. 17: allows the sale, exchange or donation of the state private property. Art. 18: states the forbiddance of claiming ownership from possession of the state property. Art. 43: states the forced eviction of illegal occupation over state public land without any compensation

47 Legal Regula?ons Concerning State Property (8) October 2005: The government states: Identification and mapping of state land, Registration and classification of state land, Establishment and maintenance of state land data system, Distribution and management of state land, Reclassification of state land. (Sub-decree on State Land Management, No.118ANK/BK, October 7, 2005) 93 Legal Regula?ons Concerning State Property (9) February 2007: The government: Stated the illegal state land occupation, Determined the type of illegal state land occupation, Legitimize the state land occupation in case no evidence can be found. (Circular on the Illegal State Land Tenure, No.02SR, February 26, 2007) 94 47

48 Legal Regula?ons Concerning State Property (10) July 2007: The government states that: The state private land use planning does not apply to the land belonging to private ownership, collective ownership, monastery, or indigenous people, or state public land. (Inter-ministerial Proclamation on the Procedure on Managing of the Use of Private State Land, No.95PK/DNS/MP, July 25, 2007, Art. 2) 95 Legal Regula?ons Concerning State Property (11) January 2008: The registration of economic land concessions which do not belong to state public land and private land. (Letter of the Ministry of Land Management, Urban Planning and Construction about Instructive Principle on the Registration of Economic Concession Land, No.01DNS/SNN/ASDP, January 2, 2008) 96 48

49 Legal Regula?ons Concerning State Property (12) July 2009: The government encouraged to fasten the registration of state public and private land. (Government Statement on Land Policy, No.27SCN/AK, July 01, 2009) May 2010: The government states that District Working Group must seek agreement for classifying state public land and state private land). (Circular on Squatter Settlement on State Land Illegally Grabbed in the Capital, Cities and Towns, No.03SR, May 31, 2010) 97 Discussion (1) Work in group to differentiate the state public land and state private land. Raise some examples to support your ideas

50 Authori?es for State Land Management (1) State Property Management Authority: The KXŽធរcប2cង ព សម*ត.$រដe Ministry of Economy and Finance is the government secretary to the sale, exchange and rent of state property. It has the duty to report to the government the result of sale, exchange and rent of state property. 99 Authori?es for State Land Management (2) State Property Occupation Authority: The KXŽធរVន2Vប2 ព សម*ត.$រដe Ministries, institutions, local authorities, and other public legal entities holding the state property. It has the duty to use, maintain and request for the sale, exchange and rent of state property to the government through the state property management authority. KXŽធរcប2cង ព សម*ត.$រដe

51 Authori?es for State Land Management (3) Some state land are now under investment: Boengkak Surrounding stadium land Give your opinions about this. 101 Discussion (2) Work in group to analyze the effectiveness of state land management in the case of land surrounding old stadium. Raise the critical points to discuss

52 Homework Please read for next session: Sub-decree on Sporadic Land Management 2002, Comp Sub-decree on Revision of Article 9 and Article 13 of Sub-decree No.48ANK/BK dated May 31, 2002 on Sporadic Land Registration, No. 121ANK/BK, June 9, 2016 in Land Law lecture notes. 103 Thank you!!! Ques?ons and Answers Contact: hphalthy@yahoo.com

53 Session 6 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 6 Learning outcomes: After completion of this lesson, students are able to: Analyze the impact of the land registration process reform. Explain the importance of the sporadic land registration. Assessment methods: Presentation Short answer questions Activities Group discussion, role play

54 Outline Cadastral institutions Overview of sporadic land registration Background of sporadic land registration Output of land applications Development of land certificates Procedure of sporadic land registration Signature delegation to provinces Characteristics of sporadic land registration Output of sporadic land registration 107 Cadastral Ins?tu?ons (1) 1979: Department of Policy Management of Agricultural Economics under the Ministry of Agriculture 1989: Department of Cadastre under the Ministry of Agriculture 1994: Department of Cadastre under the Office of Council of Ministers ទ'ស.'VរគណRរដeម.' `យកabនcប2cង3លនdCយ7ដeក$ចfកស$កមg `យកabនសGhdដ^

55 Cadastral Ins?tu?ons (2) Central level: Department of Cadastre ( ) `យកabនសGhdដ^ Province: Provincial Cadastral Office Vh លMយសGhdដ^Zត. District: District Land Office Vh លMយភjម$CលLGក 109 Cadastral Ins?tu?ons (3) 1999: Ministry of Land Management, Urban Planning and Construction (MLMUPC) ស ង បចp នដ^ នគរjបន'យកមg ន$ងសpណង2 The Department of Cadastre has been upgraded to the General Department of Cadastre and Geography អគ `យកabនសGhdដ^ ន$ងភjម$s

56 Cadastral Ins?tu?ons (4) Central Level: Ministry of Land Management, Urban Planning and Construction (1999-now) Province: District: Provincial Department of Land Management, Urban Planning, Construction, and Cadastre មន9'រ បចp នដ^ នគរjបន'យកមg សpណង2 ន$ងសGhdដ^Zត. District Office of Land Management, Urban Planning, Construction, and Land Vh លMយ បចp នដ^ នគរjបន'យកមg សpណង2 ន$ងភjម$CលLGក 111 Cadastral Ins?tu?ons (5) Ministry of Agriculture OCM MLMUPC Now Dept. of Agricultural Economic Policy Management Dept. of Cadastre General Dept. of Cadastre and Geography

57 Cadastral Ins?tu?ons (6) Evolvement of land application process Dept. of Cadastre ownership & possession All provinces can issue Some provinces can issue Before Dept. of Cadastre issues, land applications must be sent to OCM District Possession, Province Ownership 113 Overview of Cambodian Land Registra?on (1) Youth volunteer land registration Systematic land registration - Sporadic land registration Sporadic land registration No land registration

58 Overview of Cambodian Land Registra?on (2) Now - Systematic land registration (Compulsory) - Sporadic land registration (Voluntary) Sporadic land registration started with the Land Law (compulsory) Sporadic land registration started with the Gov t Instruction (Compulsory) 115 Background of Sporadic Land Registra?on (1) June 3, 1989: Call for land applications January 17, 1990: Delay of land applications reception First call for land applications Extension of land applications Now? June 1989 December 1989 January 1990 July

59 Output of Land Applica?ons June 1989 July 1990 = 3.7 million land applications (approx. 70% of the total land parcels) (Instruction on the Amendment of Instruction No.03SNN dated June 03, 1989 of the Council of Ministers, No. 03SNN, December 08, 1990) 117 Development of Land Cer?ficates The name of possessory land certificates has been developed as below: Now certificate of immovable property (បMណ[សS\ល2ស$ទH$Vន2Vប2អចលនវត :) certificate of land occupancy and use (បMណ[សS\ល2ស$ទH$Vន2Vប2I'Jស2ដ^ធ_')

60 Procedure of Sporadic Land Registra?on (1) Before Jan Landholder Commune! District Office of Land Management, Urban Planning, Construction and Land Provincial Department of Land Management, Urban Planning, Construction and Cadastre Ministry of Land Management, Urban Planning and Construction 119 Discussion (1) What do you think when the registration procedures go to the central authority? Work in group to find out advantages and disadvantages of the centralized power for land registration

61 Procedure of Sporadic Land Registra?on (2) After Jan District Office of Land Management, Urban Planning, Construction and Land Landholder Provincial Department of Land Management, Urban Planning, Construction and Cadastre 121 Signature Delega?on Power to Provinces

62 1/19/19 Characteris?cs of Sporadic Land Registra?on Sporadic land registration has generally provided possessory land certificate due to the following reasons: <Tនប_ង2សGhdដ^ ysនšនទ'ក1លដ^ No cadastral index map but sporadic index map Coordination may not be clear ម$នSនចpណGចន$ មVច1ស2 ស2 The land parcel is registered in immovable register 'žក :ង7 វŸចGnប+ 'អចលនវត : Sporadic index map Mr. Chum Road Mrs. Bopha Mr. Dara 123 Output of Sporadic Land Registra?on (1) Number of land certificates distributed to citizens from 2002 to 2017 via sporadic land registration Number of land certificates distributed to citizens 14,000 11,754 12,000 10,394 10,000 8,000 6,000 8,236 6,359 7,977 8,335 5,805 5,535 4,000 2,000 2,011 2,998 2, (Source: Annual report of Ministry of Land Management, Urban Planning and Construction )

63 Output of Sporadic Land Registra?on (2) Number of certificates Apr Apr Apr. Apr May Note: As of 2015, the total of sporadic land registration is 607,951 certificates. 125 Discussion (2) Form a small group for discussion. Then perform the role play. Suppose Mr. Samnang s land is registered through sporadic land registration. What can be advantageous to him when he can have the land certificate?

64 Homework Please read for next session: Sub-decree on the Procedure of Establishing Cadastral Index Maps and Land Registers 2002, Comp. pp , Sub-decree on Revision of Article 7, Article 7 and Article 11 of Sub-decree No.46ANK/BK dated May 31, 2002 on the Procedure of Establishing Cadastral Index Maps and Land Registers, No.122ANK/BK, June 9, 2016 in Land Law lecture notes. 127 Thank you!!! Ques?ons and Answers Contact: hphalthy@yahoo.com

65 Session 7 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 7 Learning outcomes: After completion of this lesson, students are able to: Analyze the impact of systematic land registration Compare the land registration system in Cambodia Assessment methods: Case study Presentation Activities Group discussion

66 Outline Background of systematic land registration Process of systematic land registration Characteristics of systematic land registration Budget for systematic land registration Output of systematic land registration Complementary land registration Total land registration as of Background of Systema?c Land Registra?on (1) The 2001 Land Law provides another way for landholders to register the land through systematic land registration (Art. 229). Sub-decree on the Procedure of Establishing Cadastral Index Maps and Land Registers, No. 46ANK/BK, May 31, 2002 has been available to implement the systematic land registration

67 Background of Systema?c Land Registra?on (2) Systematic land registration has been remarkably available since May 19, 2002 under the cooperation of: Royal Government of Cambodia World Bank Germany under GTZ Finland under FINNMAP The planned project was for 15 years with 3 phases (5 years/phase) having fund of 100 million dollars. 133 Process of Systema?c Land Registra?on Royal Government of Cambodia Budget Adjudication area តpបន2kន$ចMយ Provincial Governor Cadastral staff ម.'សGhdដ^ Registration work

68 1/19/19 Characteris?cs of Systema?c Land Registra?on Systematic land registration provides the certificate of ownership because: There is a coordination, SនចpណGចន$ មV There is a cadastral index map Sនប_ង2សGhdដ^ The land parcel is registered in land register ក1លដ^@AវCនចGnžក :ង7 វŸ3លប+ 'ដ ^ Cadastral index map Land Register, front Land Register, inside 135 Budget for Systema?c Land Registra?on (1) Comparing government and donors budget RGC Foreign donors Total USD USD USD USD USD Year

69 Budget for Systema?c Land Registra?on (2) Government budget for systematic land registration Budget of Royal Government of Cambodia for systematic land registration ,570, ,989,862 3,336, USD USD USD USD USD USD USD USD Year 137 Budget for Systema?c Land Registra?on (3) Available sources concerning budget for land registration. Description Yearly Expense (USD) RGC ,570,895 2,989,862 3,336, Foreign donors ,321 88, Company 337, , Total (Sources: Letter of Land Administration Sub-sector Project, )

70 Output of Systema?c Land Registra?on (1) Number of land certificates via land systematic registration! (Source: Reports of Ministry of Land Management, Urban Planning and Construction from 2006 to 2017) 139 Output of Systema?c Land Registra?on (2) Number of land certificates via youth volunter for land registration Year 2012 Year 2013 Year 2014 Year 2015 Year 2016 Year 2017 (Source: Reports of Ministry of Land Management, Urban Planning and Construction from 2002 to 2017)

71 Output of Systema?c Land Registra?on (3) Total of land certificates by all registration Systematic land registration Number of land certificates by all registrations Youth volunteer for land registration Sporadic land registration 519 Indigenous land registration (Source: Report of Ministry of Land Management, Urban Planning and Construction for 2017) 141 Discussion (1) Make a plan for a land registration project in one village. Work in group to find out impact of the systematic land registration after the project has ended

72 Complementary Land Registra?on (1) Complementary land registration has been available when the systematic land registration project has ended, but the landholders who missed the registration apply later. Importantly, complementary land registration can provide the certificate of ownership. 143 Complementary Land Registra?on (2) Output of complementary land registration as of September 2015 is 2,252 land certificates. Land parcel no. 19 is registered later through complementary land registration Certificate of Ownership: There is a coordination, There is a cadastral index map, The land parcel is registered in land register

73 Total of Land Registra?on as of Land registration as of 2016 = 4,451, As of 2017 = 4,647, Sporadic land registration Systematic land registration Youth volunteer for land registration Registration for indigenous land registration Registration for state land 145 Discussion (2) Work in group to compare the three types of land registration in Cambodia and present your findings. 1. Systematic land registration 2. Sporadic land registration 3. Complementary land registration

74 Homework Please read for next session: Sub-decree on Social Land Concessions 2003, Comp. pp Proclamation on the Instructive Principle of Implementing the Sub-decree on Social Land Concessions, No.200DNS/ PK, November 19, 2003, Comp. pp Sub-decree on Revision of Articles 21, 22 & 23 of Sub-decree No.19ANK/BK dated March 19, 2003 on Social Land Concessions, December 7, 2016 in Land Law lecture notes. 147 Thank you!!! Ques?ons and Answers Contact:

75 Session 8 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 8 Learning outcomes: After completion of this lesson, students are able to: Explain the characteristics of land subject to social concessions. Plan for social land concession projects Assessment methods: MCQs Presentation Activities Discussion, problem solving

76 Outline Background of land concessions Land subject to social land concessions Social Land Concession Characteristics A View of Social Land Concession Practices A fact of statistics on lists of families Program of social land concessions Secretariat General Effect of the Sub- decree on Social Land Concessions Agricultural services for social land concessions Assessment criteria of social land concession holders Outputs of social land concession holders 151 Background of Land Concessions (1) The 1989 Government Instruction: Land concession was permitted over the land with the size more than 5 hectares. Ministry of Agriculture had the duty to issue land concession contracts which depended on harvesting season. After harvesting, the contract can be renewed

77 Background of Land Concessions (2) There was no record of land concession contracts issued by the Ministry of Agriculture soon after land privatization in The 1992 Land Law did not stipulate land concessions remaining ambiguous about those who already occupied land concessions. 153 Background of Land Concessions (3) The 2001 Land Law stipulates clearly that land concessions is divided into: (LL, Arts ) Social land concessions Economic land concessions Other concessions do not fall under the 2001 Land Law Following the 2001 Land Law, the Sub-decree on Social Land Concessions was available in

78 Purposes of social land concessions 155 Land Subject for Social Land Concessions (1) State private land (LL, Art. 58(1)). Vacant state land (LL, Art. 17(4)). Must follow the legal provision set up by law

79 Social Land Concession Characteris?cs (1) Residential land: Can be no more than 1,200 m 2 or 3,600 m 2 (SD19, Art. 16) Social land concession holder needs to reside at least 6 months per year. (SD19, Art. 18) Period to receive ownership need to be at least 5 years. (SD19, Art. 18) 157 Social Land Concession Characteris?cs (2) Agricultural land: Can be no more than 2 ha or 5 ha (SD19, Art. 17) Social land concession holder must start agriculture within at least 12 months from the first reception. (SD19, Art. 18) Period to receive ownership need to be at least 5 years. (SD19, Art. 18)

80 A View of Social Land Concession Prac?ces (1) Before relocation: Deikraham (2006) Sambokchab (2006) Boengkak (2008) 159 A View of Social Land Concession Prac?ces (2) After relocation: Andong Village Trapaing Anhchanh Village Damnaktrayoeng Boreikeila (on-site upgrading)

81 A Fact of Sta?s?cs on Lists of Families Sambokchab case: 1992: 386 families May 29, 2006: 1352 families June 6, 2008: 3163 families Deikraham case: A list recognized by Chamkarmon governor consisted of 289 families had 48 names overlapped. 161 Program of Land Concessions (1) Local social land concession program: កមgkធ'សម*uនដ^សង មក$ចf =ក2មjលabន Commune council plays an important role in selecting social land concession holders. A citizen or more, or the organization working with citizens or representatives of citizens in a commune can initiate social land concession program via the request to commune council. (SD 19, Art. 5)

82 Program of Land Concessions (2) National social land concession program: កមgkធ'សម*uនដ^សង មក$ចf =ក2Xត$ The situation where the local social land concession program cannot start, the national social land concession program will work. Relevant ministries or institutions play an important role in initiating the social land concession program. (SD 19, Art. 7) 163 Program of Land Concessions (3) National social land concession program can start: Where there is a program to develop land in remote areas without sufficient local residents to develop the land. Where there is a program to resettle large groups of families, such as urban squatters, or displaced persons. Where there is a social land concession program that may link to the economic concession in order to develop agro-industry. Where there is new or existing development program, such as a donor or investor supported program that is coordinated by the national level. Where there are requests for social land concessions that cannot be met by local programs. (SD 19, Art. 7)

83 Discussion (1) Provide examples of land which can be under social concession projects. 165 Secretariat General The main duties of Secretariat General of National Social Land Concession Committee: Develop principles to monitor grants of social land concessions and to adjust policies and other provisions submitted to the National Social Land Concession Committee for review and approval Develop activity plan of the National Social Land Concession Committee Stimulate the monitoring and evaluate the implementation of national social land concession programs and prepare regular reports on the outcome and submit to the National Social Land Concession Committee. (SD 19, Art. 22)

84 Effect of the Sub- decree on Social Land Concessions The implementation of the Sub-decree on Social Land Concessions depends on the Ministerial Proclamation. (SD 19, Art. 31) Ministerial Proclamation is implemented only in the areas determined by the Ministry of Land Management, Urban Planning and Construction for collecting experience. (Proclamation 200, Art. 39) The Proclamation sets up the criteria of social land concession holders. (Proclamation 200, Arts. 22 &23) 167 Agricultural Services for Social Land Concessions Joint Proclamation on Mechanism to Provide Agricultural Dissemination Services for Social Land Concession Peasants: (Dec. 26, 2006) Provides only agricultural services for only social land concession holders who are peasants. No budget has been clearly allocated. No report concerning this agricultural services provision has been available

85 Assessment Criteria of Social Land Concession Holders Proclamation on Financial Criteria of Social Concession Land Applicants: (July 3, 2007) Determines the criteria of social concession land applicants. It doesn t try to evaluate the poor throughout the country. It may have some problems as the result of selection. Witness about the urgent work causing poor quality house 169 Outputs of Social Land Concessions (1) From 2001 to September 2012: Poor citizens and disabled soldiers = 24,113 families (58,595 ha) Former soldiers and the families of former soldiers = 7,178 families (134,000 ha) Soldiers and families standing along the border = 2,109 families (12,222 ha) The poverty rate was 18.6% in 2012, with almost 3 million poor people and over 8.1 million who are near-poor. About 90% of them live in the countryside. ( country/cambodia/overview, last visited Jan. 31, 2015), Brazil, USA

86 Outputs of Social Land Concessions (2) For 2013: Former soldiers and their families = 2,971 families Poor people = 4,388 families Planning for social land concessions = 3,148 families (Report of Ministry of Land Management, Urban Planning and Construction, 2013) 171 Discussion (2) Work in group to design a social land concession project and then prepare your ideas in a commune where poor people and state private land are available. Then present your discussion

87 Homework Please read for next session: Economic Land Concession for Investment Plan with regard to the Implementation of Order No.02BB dated June 13, 2005 on Strengthening the Management of State Property, No. 05SRNN, July 01, 2005, Comp. pp Sub-decree on Economics Land Concessions 2005, Comp. pp Sub-decree on the Amendment of the Sub-decree on Economic Land Concession, No.131ANK/BK, September 15, 2008, Comp. pp Letter of the Office of Council of Ministers Concerning The Request to Determine the Land Concession Fee and the Deposit of All Economic Land Concession (Both Old and New), No.660SCN, June 22, 2012, Comp. pp Thank you!!! Ques?ons and Answers Contact:

88 Session 9 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 9 Learning outcomes: After completion of this lesson, students are able to: Analyze the impact of economic land concessions. Calculate the economic land concession fees. Assessment methods: Presentation Calculation exercises Activities Group discussion, Show and tell

89 Outline Purposes of economic land concessions Land subject to economic land concessions Economic land concession initiatives Contracting authorities Legal perspectives of ELCs Economic land concession fee Outputs Discussion of Boengkak 177 Purposes Economic land concessions have the following purposes: To develop intensive agricultural and agro-industrial activities, To achieve a specific set of agreements from the investor for developing the land in an appropriate and perpetual manner based on a land use plan for the area. To increase employment in rural areas within a framework of intensification and diversification of livelihood opportunities and within a framework of natural resource management based on appropriate ecological system, To encourage small as well as large investments in economic land concession projects, and To generate state revenues or the provincial or communal revenues through economic land use fees, taxation and related services charges. (SD146, Art. 3)

90 Land Subject to Economic Land Concessions (1) State private land. (LL58) Land has already been registered and classified into state private land and has been followed the legal procedures. (SD118, Art. 3) 179 Land Subject to Economic Land Concessions (2) Sub-decree on ELC states the 5 criteria of ELC. (SD146, Art. 4) The land has been registered and classified as state private land. Land already had land use plan. Land has been already environmentally and socially assessed. Land for resolution of resettlement issues. Land has already been publicly consulted

91 Economic Land Concession Ini?a?ves (1) Solicited proposal: (SD146, Arts. 7-17) សp 'SនVរអpoវ`វ Contracting authority initiates the economic KXŽធរចGnក$ចfសន land concession projects. Technical Secretariat needs to work hard on the ធ$Vរabនប fក ស projects through preliminary study and provides recommendations for the possibility of economic land concessions. 181 Economic Land Concession Ini?a?ves (2) Brief diagram of solicited proposal Contracting Authority Technical Secretariat Technical assessment Negotiation by priority order Evaluation of the proposal Public announcement

92 Economic Land Concession Ini?a?ves (3) Un-solicited proposal: (SD146, Arts ) សp 'ម$នSនVរអpoវ`វ Investor plays an important role in submitting unsolicited proposal. The un-solicited proposal is competitive and must be included: the introduction of new technology Special linkages between social land concessions and economic land concessions exceptional access to processing or export markets 183 Economic Land Concession Ini?a?ves (4) Brief diagram of un-solicited proposal Investor - CDC - Provincial Investment Sub- committee - Contracting Authority Recommendations Negotiation - Technical Secretariat - Provincial State Land Management Committee គណRកSTធ$Vរcប2cងដ^រដe =ក2Zត

93 Contrac?ng Authority (1) Before September 15, 2008 (SD146, Art. 29) Provincial governor: for economic land concessions which have capital under 10,000,000,000 riels and the land size less than 1,000 hectares. Minister of Agriculture, Forestry and Fisheries: for economic land concessions which have capital from 10,000,000,000 riels up or the land size from 1,000 hectares up. 185 Contrac?ng Authority (2) From September 15, 2008 Only Minister of Agriculture, Forestry and Fisheries: for all kinds of economic land concessions. (Sub-decree on the Amendment of the Sub-decree on Economic Land Concessions, No. 131ANK/BK, September 15, 2008)

94 Contrac?ng Authority (3) From June 26, 2012??? Provincial governor: for small scale economic land concessions to Cambodian citizens who have held land as of the date of Youth Volunteer Land Registration. (Letter of the Office of Council of Ministers Concerning the Request to Get the Principles for Land Registration in Targeted Areas Implementing Order No.01BB dated May 7, 2012 on Strengthening and Improving Efficiency of Economic Land Concession Management, No.666SCN, June 26, 2012) 187 Contrac?ng Authority (4) 2005 Sept. 15, 2008 Jun. 26, Provincial Governor: only 5 ha for citizens who have possessed more than 5 ha??? (for only period of Youth Volunteer)??? - Minister of MAFF: for all kinds of economic land concessions - Minister of MAFF: for all kinds of economic land concessions - Provincial Governor: Capital below 10,000,000,000 riel & land size below 1,000 ha. - Minister of MAFF: Capital from 10,000,000,000 riel or land size from 1,000 ha up

95 Legal Perspec?ves of ELCs (1) Meaning of Economic Land Concessions (ELCs): An economic land concession: a mechanism to grant state private land through a specific economic land concession contract to a concessionaire to use for agricultural and industrial-agricultural exploitation (SD146, Art. 2) 189 Legal Perspec?ves of ELCs (2) The period of economic land concessions cannot exceed 99 years. (LL2001, Art. 61) The size of economic concession land cannot be more than 10,000 hectares. (LL2001, Art. 59) The fee of economic land concessions must be charged. (LL2001, Art. 51)

96 Legal Perspec?ves of ELCs (3) Implementation requirements of ELCs: (LL 55) A land concession is revocable through administrative decision when its legal requirements are not complied with. In this case, the concessionaire is entitled to file a claim in court in compliance with the procedures provided by law. A court may cancel the concession if the concessionaire does not comply with specific clauses specified in the contract. 191 Legal Perspec?ves of ELCs (4) Implementation requirements of ELCs: (LL62) Any failure to exploit longer than 12 months, without proper justification, shall be grounds for cancellation of the concession. All land concessions granted before this law has come into force that are not exploited within 12 months after this law comes into force shall be cancelled. Any failure by a concessionaire to fulfill the conditions attached to the concession charges book shall be grounds to withdraw the concession. In the case of withdrawal of a concession, for whatever reason, the concessionaire is not entitled to claim any compensation for any damage

97 Legal Perspec?ves of ELCs (5) Right of economic land concessionaire is recognized as the right of the owner. However, the concessionaire has a particular right in being protected by the competent authorities. A concessionaire may defend the land which he has been given in concession, against encroachment or infringement, irrespective of its forms. A concessionaire may take the fruits of the land and carry out any agricultural developments in accordance with the intended purpose of the concession. The concessionaires may not make any alteration to the intended purpose of the land that causes damage affecting its natural structure or exploit it in such a way that it is destroyed at the end of the concession. (LL2001, Art. 56) 193 Legal Perspec?ves of ELCs (6) The transfer of economic land concessions can be made by competent authorities through the economic land concession contracts. (LL2001, Art. 57(1)) T h e s u c c e s s o r s o f e c o n o m i c l a n d concessionaires can succeed the economic land concessions in case the concessionaires die. (Ll2001, Art. 57(2))

98 Discussion (1) Work in group to discuss the impact of economic land concessions. Then present your discussion. 195 Economic Land Concession Fee (1) Economic land concession fee is divided into 4 types in 2000: Type 4 (unfertile land): rental fee = 0 dollar per hectare a year Type 3: rental fee = 4-2 dollars per hectares a year Type 2: rental fee = 6-3 dollars per hectare a year Type 1: rental fee = 10-5 dollars per hectare a year (Letter of Council of Ministers about the Determination of Land Concession Fee, No.803SCN, May 31, 2000)

99 Economic Land Concession Fee (2) The period of charge economic land concession fee depending on the type of plants: For seasonal or yearly plants: the collection of rental fee is commenced at the second year of harvesting year, For long term or permanent plants: the collection of rental fee is commenced at the third year or fourth year of harvesting year. (Letter of Council of Ministers about the Determination of Land Concession Fee, No.803SCN, May 31, 2000) 197 Economic Land Concession Fee (3) Date% Before%Jun.%2012% From%Jun.%2012% From%Aug..%2012% From%Oct.%2014% % Economic%Land%Concession%Fee% $5/ha%for%cleared%land%with%an%increment%of%5%%of%every%year% $5/ha%for%cleared%land%with%an%increment%of%5%%of%every%year% Exemption%for%first%5%years%and%then%it%is%charged%$5/ha%from%year% 6%with%an%increment%of%5%%every%year.% $5/ha%only%the%cleared%land%allowed%by%MLMUC% (Letter of Office of Council of Ministers Relating to Report on Outputs of Narrow Meeting of Economic Policy Committee, No.1185SCH, August 19, 2014)

100 As of June 8, 2012: Outputs (1) 117 companies were given ELCs. Land size provided 1,216,560.5 hectares (real calculation) but from the MAFF s website, the land size consisted only 1,181,522 hectares making 35,038.5 hectares different. ( visited June 27, 2012) 199 Outputs (2) As of August 2018: 229 companies were given ELCs. Land size provided 1,180,082 hectares (Source: Ministry of Agriculture, Forestry, and Fisheries, Report of Investment on Economic Land Concessions in Cambodia, August 2018)

101 Outputs (3) Statistics by Year ( visited June 27, 2012) 201 Outputs (4) As of 2011 (from ADHOC s report): 225 companies were given ELCs. Land size provided 2,276,349 hectares. (ADHOC, The Report of Land and Housing Rights 2011 (Phnom Penh: ADHOC, March 2012), 13 )

102 Outputs (5) The accurate number of economic land concessions is not known since there are two ministries working on the the economic land concession contracts: Ministry of Agriculture, Forestry and Fisheries Ministry of Environment??? 203 Discussion of Boengkak February 6, 2007: Boengkak contract Land size = 133 hectares Fee per year = $0.60/m 2 Total fee = $79,002,000 Period of time = 99 years July 7, 2008: Sub-decree on Transferring Boengkak to state private land (No.108ANK/BK) Land size hectares July 20, 2010: Sub-decree on Transferring Boengkak to state private land (No.71ANK/BK)??? Land size hectares

103 Discussion (2) Calculate the economic land concession fees of a company which received the economic concession land of 10,000 ha since 2010 until now. 205 Homework Please read for next session: Law on Expropriation 2010, Comp. pp

104 Session 10 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 10 Learning outcomes: After completion of this lesson, students are able to: Classify the types of land which can be under expropriation projects. Develop cases of expropriation projects. Assessment methods: MCQs Report writing Activities Discussion, problem solving

105 Outline Purposes of Expropriation Principles of Expropriation Mechanism of Expropriation Brief Procedures of Expropriation Power of expropriation Dispute resolution Punishment 209 Purposes of Expropria?on Ensure just and fair deprivation of legal right to private property, Ensure a fair and just compensation in advance, Serve the nation and public interest, and Develop public physical infrastructures (EL2010, Art. 2)

106 Principles of Expropria?on (1) Only the state can carry out expropriation for serving the public and national interests. (EL2010, Art. 7) The state is required to buy the rest of the affected property remaining from expropriation projects. (EL2010, Art. 8) The remaining property from expropriation is to be sold to owner of the property otherwise it is kept as state property. (EL2010, Art. 9(2)) 211 Principles of Expropria?on (2) Expropriation is made in case of emergency. (Art. 10) The expropriation is made following cases: in a special and emergent case which the public security is needed. (EL2010, Art. 10(1)) In an emergent and necessary case in which the national interest is required. (EL2010, Art. 10(2)) The budget for expropriation must be planned in advance. (EL2010, Art. 11)

107 Mechanism of Expropria?on Expropriation committee is established and led by the representative of Ministry of Economy and Finance. (EL2010, Art. 12) no sub-decree available!!! Expropriation sub-committee is to assist the expropriation committee. (EL2010, Art. 13) Complaint resolution committee is established and led by the representative of the Ministry of Land Management, Urban Planning and Construction. (EL2010, Art. 14) no sub-decree available!!! 213 Discussion (1) Provide examples of land which can be under the expropriation projects

108 Brief Procedure of Expropria?on Before expropriation During expropriation Compensation Responsible ministry/ institution. Expropriation committee Government Expropriation must consider: - Ownership right or other rights over immovable. - Compensation - Notification of the expropriation project to landholders - Compensation must be based on market price??? (EL2010, Art. 22) 215 Power of Expropria?on Art. 19: Depriving the ownership of immovable and other real rights must be compensated fairly in advance. (Para. 1) Expropriation is still made although disputes are not resolved. (Para. 2)

109 Dispute Resolu?on (1) Owner and/or right holder Expropriation Committee គណRកSTធ$Vរអស ម$ករណ Complaint Resolution Committee គណRកSTធ$Vរªn«យបណ vងត Court 217 Discuss Article 34!!! Dispute Resolu?on (2) In case there is no agreement to the decision of the Complaint Resolution Committee, the owner of the immovable property and/or right holder can file a complaint to the competent court regarding to the inappropriate expropriation procedures, the confiscation that is not used to serve the public and national interest, and the compensation which is not adequate and just. Process and procedures of filing the complaint shall be set forth by the Sub-decree. (not yet available)

110 Punishment Competent authority who does not follow the Expropriation Law will be charged administrative sanction regardless of criminal act. (EL2010, Art. 35) Those who prevent the expropriation projects will be imprisoned from 1 month to 1 year and be fined from 100,000 riel to 2,000,000 riel. (EL2010, Art.36) Those who violently possess the expropriated area will be criminally charged. (EL2010, Art. 37) 219 Discussion (2) Work in group to develop a case study of the expropriation project. Then write the report of your implementation of the expropriation project

111 Homework Please read for next session: Sub-decree on the Organization and Functioning of the Cadastral Commission 2002, Comp. pp , Proclamation on the Function Delegation to Governors of Municipal-Provincial Boards of Governors and the President of the Municipal-Provincial Cadastral Commission in order to Decide the Land Dispute Cases in the Cadastral Commission Mechanism 2010, Comp. pp , Instructive Circular on the Implementation of the Process of Land Dispute Decision Making of Capital-Provincial Cadastral Commission in the Cadastral Commission Mechanism 2010, Comp. pp Thank you!!! Ques?ons and Answers Contact:

112 Session 11 Subject: Land Law For English Language Based Bachelor of Law Program (ELBBL) Lecturer: Dr. Phalthy Hap Lesson Plan for Session 11 Learning outcomes: After completion of this lesson, students are able to: Differentiate between administration commission and cadastral commission. Analyze the impact of establishing National Authority for Land Dispute Resolutions Provide possible resolutions to prevent land disputes. Assessment methods: Presentation Essay writing Activities Discussion, problem solving

113 Outline Overview of land disputes General principles of land dispute resolutions Legal regulations concerning land disputes Administration commission Cadastral commission National Authority for Land Dispute Resolutions Strategies to resolve land disputes Outputs of land dispute record 225 Overview of Land Disputes (1) Before 1993: Land market was poor. Land disputes were not remarkable. After 1993: Land market has remarkably increased. Land disputes noticeably emerged

114 Overview of Land Disputes (2) Number of collective land dispute cases Year ADHOC Report, , Legal Principles of Land Dispute Resolu?ons (1) Before 2003: All kinds of land disputes Courts Judgments

115 Legal Principles of Land Dispute Resolu?ons (2) From 2003: Un- registered land disputes Cadastral Commission Decision within 30 days Registered land disputes Courts Judgment 229 Legal Principles of Land Dispute Resolu?ons (3) From 2006: Un- registered land disputes Cadastral Commission National Authority for Land Dispute Resolutions? Decision within 30 days?? Registered land disputes Courts Judgment

116 Legal Regula?ons Concerning Land Issues (1) Instructive Circular on the Measure toward the Public Land Grabbing Activities, No.03SRNN, December 14, 1992: The government realized land grabbing. LL1992, Art. 5: Private right is not given in forestry reserve, fishery reserve, water reservoir for mining purposes, cultural and historical patrimonies, monasteries, deep forests, schools, public parks and hills, old public buildings, land reserved for roads construction and road maintenance, railroad, rivers and sea. 231 Legal Regula?ons Concerning Land Issues (2) Circular on the Current Legal Public and Private Ownership, Circular No.01SR, July 03, 1993: The government realized the encroachment of public parks and field. LL2001: - Art. 15: States all types state public land. - Art. 16: Forbids the sale of state public land. - Art. 18: Does not allow to make legal over the occupation of state public land regardless of the period of time occupied. - Art. 43: Does not allow to acquire ownership over state public land. It however requires immediate forced eviction. Moreover, the improvement in land cannot be compensated

117 Legal Regula?ons Concerning Land Issues (3) Circular on the Illegal State Land Tenure, No. 02SR, February 26, 2007: Determines the types of illegal state land occupation. (Comp. p. 957) Inter-ministerial Proclamation on the Procedure on Managing of the Use of Private State Land, No.95PK/DNS/MP, July 25, 2007: The planning of state private land use must not cover private land. (Comp. p. 983) 233 Legal Regula?ons Concerning Land Issues (4) Letter of the Ministry of Land Management, Urban Planning and Construction about Instructive Principle on the Registration of Economic Concession Land, No. 01DNS/SNN/ASDP, January 2, 2008: Prepare economic land concession map must avoid private property and state public land. (Comp. p. 1011) Government Statement on Land Policy, No.27SCN/AK, July 01, 2009: Responsible competent authority must be responsible for protecting and ensuring the accountability of managing state public and private property. (Comp. p. 1116)

118 Administra?on Commission គណRកមgVររដeCល Administration Commission is established under the systematic land registration projects. Land disputes happen during the systematic land registration projects are required to send to the Administration Commission for preliminary resolution. (SD46, Art. 12) 235 Cadastral Commission (1) គណRកមgVរសGhdដ^ Following the 2001 Land Law, the Cadastral Commission was established in 2002 and well functioned in The Cadastral Commission consists of 3 levels starting from district to national level

119 Cadastral Commission (2) Before Jan District Cadastral Commission Facilitation only Provincial Cadastral Commission Facilitation only Court National Cadastral Commission 30 day decision 237 Cadastral Commission (3) From Jan District Cadastral Commission Facilitation only Provincial Cadastral Commission 30 day decision Court National Cadastral Commission 30 day decision

120 Cadastral Commission (4) Before % District Cadastral Commission 100% From % Provincial Cadastral Commission 100% 100% National Cadastral Commission <100% <100% Court <<100% 239 Discussion (1) Work in group to differentiate between the administration commission and cadastral commission. And the present your discussion