Precedent No. 32/2020/AL was adopted by the Council of Judges of the Supreme People’s Court on February 05, 2020, and announced under Decision No. 50/QD-CA dated February 25, 2020, by the Chief Justice of the Supreme People’s Court.
1. What is a Precedent?
Precedent refers to arguments and rulings in legally effective judgments and decisions of the Court regarding a specific case, selected by the Council of Judges of the Supreme People’s Court and announced by the Chief Justice of the Supreme People’s Court as a precedent for Courts to research and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HĐTP)
Selected precedents must meet the following criteria:
– Have the value of clarifying legal provisions that are subject to different interpretations, analyzing and explaining legal issues and events, and indicating the principles, guidelines for handling, and legal norms to be applied in a specific case, or demonstrating fairness for issues not yet specifically regulated by law;
– Be exemplary;
– Have the value of guiding the uniform application of law in adjudication.
2. Precedent No. 32/2020/AL regarding a case where land was reclaimed by an individual but then that individual emigrated to reside abroad, and another person has managed and used the land stably and for a long time
2.1. Source of the Precedent
Supervisory Review Decision No. 19/2019/DS-GDT dated August 20, 2019, of the Council of Judges of the Supreme People’s Court regarding the case “Dispute over land use rights” in Bac Lieu province between plaintiff Ms. Ly Kim S and defendant Mr. Tran Van N; with 16 related parties.
Location of the precedent’s content:
Paragraph 1 of the “Court’s Opinion” section.
2.2. Overview of the Precedent’s Content
– Precedent Situation:
Land originated from an individual’s reclamation, but then that individual emigrated to reside abroad, and another person has managed and used the land stably and for a long time. During the land use, this person improved the land, built a stable house, registered and declared it, and was granted a land use right certificate.
– Legal Solution:
In this case, it must be determined that the individual who reclaimed the land no longer has legal land use rights, so the request to reclaim land use rights is unfounded and cannot be accepted.
Legal provisions related to the precedent:
– Clause 2 Article 10, Clause 1, Clause 4 Article 50 of the Land Law of Vietnam 2003 (corresponding to Clause 5 Article 26, Clause 1, Clause 4 Article 100 of the Land Law 2013);
– Clause 1 Article 164, Article 176, Clause 2 Article 177, Articles 192, 196, 201 of the Civil Code of Vietnam 1995 (corresponding to Clause 1 Article 155, Article 170, Clause 2 Article 171, Articles 185, 190, 195 of the Civil Code of Vietnam 2005; Clause 1 Article 150, Article 221, Clause 2 Article 237, Articles 187, 182, 192 of the Civil Code of Vietnam 2015).
Keywords of the precedent:
“Lawsuit to reclaim land use rights”; “Land reclaimed by an individual”; “Residing abroad”; “Land managed and used by another person”; “Stable and long-term land use”; “Granted land use right certificate”.
CASE CONTENT:
In the lawsuit petition dated September 18, 2012, and during the resolution of the case, the plaintiff, Ms. Ly Kim S, represented by her authorized representative Ms. Tran Thi Phuong L1, presented:
In 1958, Ms. S’s parents, Mr. Ly Ma C and Ms. Tran Thi K, reclaimed approximately 50,450m2 of agricultural land, now comprising parcel No. 135 with an area of 47,250m2 and parcel No. 138 with an area of 3,200m2 in Hamlet X, N Commune, H District, Bac Lieu Province. In 1971, Mr. and Ms. K handed over the management and use of the aforementioned land to their son, Mr. Ly Kim Q. In 1978, Mr. Q leased the land to Mr. Tran Van C1 (Ms. K’s younger brother), but no written agreement was made, and Mr. C1 did not pay rent (there was testimony that in 1971, Mr. and Ms. K leased the aforementioned land to Mr. C1). In 1997, Mr. C1 self-declared and was granted a Land Use Right Certificate for an area of 47,250m2, parcel No. 135. However, Mr. C1 also signed a “Land Ownership Confirmation Letter” on May 30, 2004, confirming that Mr. C1 had borrowed the aforementioned land from Mr. and Ms. K.
When Ms. S intended to move the graves of Mr. and Ms. K to the said land, Mr. Tran Van N (the current land user) disagreed. Therefore, the children of Mr. and Ms. K, namely Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, and Ms. Ly Kim H, unanimously authorized Ms. S to file a lawsuit demanding that Mr. N return the entire area of 50,450m2 of land. At the first-instance trial, Ms. L1 (Ms. S’s authorized representative) withdrew part of the lawsuit, only requesting Mr. N to return the actual measured area of 30,674.7m2 in parcel No. 135 and requesting to receive compensation for the 3,184m2 of land in parcel No. 135 reclaimed by the State.
The defendant, Mr. Tran Van N, presented:
The origin of the disputed land was used by Mr. Tran Van C1 (his father) before 1975 and was granted a Land Use Right Certificate in 1997. Subsequently, Mr. C1 completed the procedure to gift this land area to him; he was granted a Land Use Right Certificate in 2009 and has directly managed and used this land area ever since. Regarding the Confirmation Letter dated May 30, 2004, provided by Ms. S, he stated that the signature in the letter was not Mr. C1’s signature, but he did not request a forensic examination. During the land use, the State reclaimed a part of the land for road construction. His family had stably used the aforementioned land area before 1975 and was granted a Land Use Right Certificate, thus he did not accept the demand for land from the children of Mr. and Ms. K.
Parties with related rights and obligations:
– Ms. Vo Thi B presented: Around 1970-1971, when she came to live with Mr. C1, Mr. C1 was already cultivating and using the disputed land. Mr. C1 said that this land was leased from Ms. K, and when Ms. K’s family emigrated to reside in the US, Ms. K transferred the land to Mr. C1. During the use, Mr. C1 registered, declared, and was granted a Land Use Right Certificate in 1997; in 2009, Mr. C1 completed the procedure to gift it to Mr. N. She did not agree to return the disputed land to the children of Mr. K and Mr. C.
Mr. and Ms. Tran Thi D, Tran Thi D, Tran Thi T, and Tran Van Q1 presented: Mr. Tran Van C1 (deceased in 2009) and Ms. Dang Thi V (year of death unknown) had 04 children, who are the aforementioned individuals. After Ms. V’s death, Mr. C1 lived with Ms. Vo Thi B and had 07 children, including Mr. and Ms. Tran Van H1, Tran Thi Cam H2, Tran Van L, Tran Van N1, Tran Thi M, Tran Thi G, and Tran Van N. The disputed land originally belonged to Mr. and Ms. C and Mr. and Ms. K. Due to difficult circumstances, Mr. C1 borrowed the disputed land from Mr. and Ms. K, without any written agreement. Subsequently, when Mr. and Ms. K’s family went to live abroad, Mr. C1 self-declared and registered the land and was granted a Land Use Right Certificate. When the children of Mr. and Ms. K found out, Mr. C1 wrote a letter acknowledging that the land registered under Mr. C1’s name was borrowed from Mr. and Ms. K. All these individuals agreed with Ms. S’s lawsuit request.
– Mr. and Ms. Tran Van H1, Tran Thi Cam H2, Tran Van L, Tran Van N1, Tran Thi M, Tran Thi G presented: They did not know the origin of the disputed land, but from birth and growing up, Mr. C1 (their father) had cultivated this land. In 1997, Mr. C1 was granted a Land Use Right Certificate, and in 2009, Mr. C1 gifted it to Mr. N, and Mr. N was granted a Land Use Right Certificate. They did not agree with Ms. S’s lawsuit request.
In Civil First-Instance Judgment No. 05/2015/DS-ST dated July 15, 2015, the People’s Court of Bac Lieu Province decided:
To partially accept Ms. Ly Kim S’s lawsuit request against Mr. Tran Van N. To compel Mr. Tran Van N to return to Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, and Ms. Ly Kim H the value of the land area of 30,674.7m2 in parcel 135, map sheet No. 09 in Hamlet X, N Commune, H District, Bac Lieu Province, totaling 788,389,547 VND.
Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, and Ms. Ly Kim H are jointly responsible for contacting the Project Management Board for Basic Construction Investment of H District to receive the compensation amount for the reclaimed land area of 3,184m2, which is 636,800,000 VND.
To recognize and assign Mr. Tran Van N the right to manage and use the land area of 30,674.7m2 in parcel 135, map sheet No. 09 in Hamlet X, N Commune, H District, Bac Lieu Province, with specific land plot locations as follows:
Land Plot I: Area 757.7 m2 with side measurements as follows: East borders Mr. Truong Thanh H’s land 26.3m; West borders Canal 14000 and Cai Chanh River 00m; South borders Canal 14000 with a measurement of 66m; North borders Cai Chanh River 57.9m.
Land Plot II: Area 6,892m2 (excluding the clearance area and road V right-of-way) with side measurements as follows: East borders Mr. Truong Thanh H’s land 129.5m; West borders irrigation canal 180.1m; South borders Ms. Truong Thi H’s land 63.9m; North borders Canal 14000 50.8m.
Land Plot III: Area 23,025m2 (excluding the clearance area and road V right-of-way) with side measurements as follows: East borders irrigation canal with a measurement of 217.1m; West borders Mr. Truong Van T’s land 232.7m; South borders Mr. Truong Van N2’s land 91.1m; North borders Canal 14000 and Mr. Truong Van T’s land 162.3m.
The cadastral survey extracts of the aforementioned land plots are attached to the Judgment and form an integral part of the Judgment.
After the first-instance trial, Mr. Tran Van N and Mr. Tran Van L filed appeals.
In Civil Appellate Judgment No. 210/2016/DS-PT dated September 08, 2016, the High People’s Court in Ho Chi Minh City decided:
To amend the First-Instance Judgment, recognizing the agreement between Ms. Tran Thi Phuong L1 (authorized representative of Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, Ms. Ly Kim H) and Mr. Tran Van N as follows:
– Mr. Tran Van N is granted the right to manage and use the land area of 30,674.7m2 in parcel 135, map sheet No. 09 in Hamlet X, N Commune, H District, Bac Lieu Province, with land plot locations as follows:
Land Plot I: Area 757.7m2 with side measurements as follows: East borders Mr. Truong Thanh H’s land 26.3m; West borders Canal 14000 and Cai Chanh River 00m; South borders Canal 14000 with a measurement of 66m; North borders Cai Chanh River 57.9m.
Land Plot II: Area 6,892m2 (excluding the clearance area and road V right-of-way) with side measurements as follows: East borders Mr. Truong Thanh H’s land 129.5m; West borders irrigation canal 180.1m; South borders Ms. Truong Thi H’s land 63.9m; North borders Canal 14000 50.8m.
Land Plot III: Area 23,025m2 (excluding the clearance area and road V right-of-way) with side measurements as follows: East borders irrigation canal with a measurement of 217.1m; West borders Mr. Truong Van T’s land 232.7m; South borders Mr. Truong Van N2’s land 91.1m; North borders Canal 14000 and Mr. Truong Van T’s land 162.3m.
The cadastral survey extracts of the aforementioned land plots are attached to the Judgment and form an integral part of the Judgment.
– Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, and Ms. Ly Kim H, represented by Ms. Tran Thi Phuong L1 as their authorized representative, are entitled to contact the Project Management Board for Basic Construction Investment of H District to receive the compensation amount for the reclaimed area of 3,184m2, which is 636,800,000 VND.
Mr. Tran Van N is responsible for paying Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, Ms. Ly Kim H, represented by Ms. Tran Thi Phuong L1 as their authorized representative, the amount of 72,246,970 VND.
After the appellate trial, Mr. Tran Van N filed a petition for supervisory review of the aforementioned Civil Appellate Judgment.
In Supervisory Review Protest Decision No. 33/2019/KN-DS dated June 18, 2019, the Chief Justice of the Supreme People’s Court protested Civil Appellate Judgment No. 210/2016/DS-PT dated September 08, 2016, of the High People’s Court in Ho Chi Minh City; proposing that the Council of Judges of the Supreme People’s Court conduct a supervisory review hearing to quash the aforementioned Civil Appellate Judgment and quash Civil First-Instance Judgment No. 05/2015/DS-ST dated July 15, 2015, of the People’s Court of Bac Lieu Province; and remand the case file to the People’s Court of Bac Lieu Province for re-trial under first-instance procedure, in accordance with legal provisions.
At the supervisory review hearing, the representative of the Supreme People’s Procuracy agreed with the Protest Decision of the Chief Justice of the Supreme People’s Court.
COURT’S OPINION:
[1] Parcel No. 135 in Hamlet X, N Commune, H District, Bac Lieu Province, originated from reclamation by Mr. and Ms. K around 1958, but Mr. C1’s family has stably used this land at least from 1975 until now. During the use, Mr. C1 registered, declared, and was granted a Land Use Right Certificate in 1997, and subsequently, Mr. C1 completed the procedure to gift it to Mr. N, who was granted a Land Use Right Certificate in 2009. Mr. and Ms. K did not register, declare, or use the aforementioned land area and did not possess any of the types of documents specified in Article 100 of the Land Law 2013 (formerly Article 50 of the Land Law 2003). Furthermore, Mr. and Ms. K’s family have all emigrated to reside in the United States, thus not meeting the conditions for the State to recognize land use rights, allocate land, or lease land as stipulated in Articles 54, 55, 56, and 183 of the Land Law 2013. Therefore, Mr. and Ms. K do not have legal land use rights over the disputed land area. The first-instance court’s acceptance of Ms. S’s lawsuit request was incorrect.
[2] At the appellate trial, the plaintiff and defendant voluntarily reached an agreement, whereby Mr. N was granted the right to use an area of 30,674.7m2, parcel No. 135, but had to pay the plaintiff 1/2 of the land use right value for the 30,674.7m2 and 1/2 of the State compensation amount (after deducting 163,450,000 VND for household support living on the land) when 3,184m2 of land was reclaimed. Consequently, the appellate court decided that Ms. L1 (authorized representative of Ms. S, Mr. S1, Ms. H, Mr. Q) was entitled to contact the Project Management Board for Basic Construction Investment of H District to receive 636,800,000 VND in land reclamation compensation and 73,246,970 VND paid by Mr. N; Mr. N was granted the right to use the area of 30,674.7m2, parcel No. 135. However, according to the cadastral survey extracts of the land plots attached to the first-instance and appellate judgments, out of the total area of 30,674.7m2 that Mr. N was granted the right to use according to the judgment, 813.7m2 belonged to parcel No. 545 (registered under Mr. Truong Van N2) and 1,233.6m2 belonged to parcel No. 136 (managed by the State). The first-instance court and the appellate court failed to include the owners of these land parcels as parties with related rights and obligations in the proceedings, and the decision to assign the aforementioned land areas to Mr. N for use did not ensure their rights and seriously violated the procedural regulations stipulated in Clause 4 Article 68 of the Civil Procedure Code 2015.
For the above reasons,
DECISION:
Based on Point a Clause 2 Article 337, Clause 3 Article 343, and Article 345 of the Civil Procedure Code 2015.
1. To accept Supervisory Review Protest Decision No. 33/2019/KN-DS dated June 18, 2019, of the Chief Justice of the Supreme People’s Court.
2. To quash Civil Appellate Judgment No. 210/2016/DS-PT dated September 08, 2016, of the High People’s Court in Ho Chi Minh City and quash Civil First-Instance Judgment No. 05/2015/DS-ST dated July 15, 2015, of the People’s Court of Bac Lieu Province regarding the case “Dispute over land use rights” between plaintiff Ms. Ly Kim S and defendant Mr. Tran Van N and other related parties.
3. To remand the case file to the People’s Court of Bac Lieu Province for re-trial under first-instance procedure, in accordance with legal provisions.
CONTENT OF THE PRECEDENT
“[1] Parcel No. 135 in Hamlet X, N Commune, H District, Bac Lieu Province, originated from reclamation by Mr. and Ms. K around 1958, but Mr. C1’s family has stably used this land at least from 1975 until now. During the use, Mr. C1 registered, declared, and was granted a Land Use Right Certificate in 1997, and subsequently, Mr. C1 completed the procedure to gift it to Mr. N, who was granted a Land Use Right Certificate in 2009. Mr. and Ms. K did not register, declare, or use the aforementioned land area and did not possess any of the types of documents specified in Article 100 of the Land Law 2013 (formerly Article 50 of the Land Law 2003). Furthermore, Mr. and Ms. K’s family have all emigrated to reside in the United States, thus not meeting the conditions for the State to recognize land use rights, allocate land, or lease land as stipulated in Articles 54, 55, 56, and 183 of the Land Law 2013. Therefore, Mr. and Ms. K do not have legal land use rights over the disputed land area. The first-instance court’s acceptance of Ms. S’s lawsuit request was incorrect.”
