Precedent No. 33/2020/AL was adopted by the Council of Judges of the Supreme People’s Court on February 05, 2020, and announced according to 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 the 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 study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HĐTP)
Selected precedents must meet the following criteria:
– 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 matters not yet specifically regulated by law;
– Being exemplary;
– Providing guidance for the consistent application of law in adjudication.
2. Precedent No. 33/2020/AL regarding cases where an individual is allocated land by the State but does not use it, instead allowing others to manage and use it stably and long-term
2.1. Source of Precedent
Supervisory Review Decision No. 34/2018/DS-GDT dated June 26, 2018, of the Committee of Judges of the High People’s Court in Hanoi regarding the case “Claim for house, land, and compensation for land recovery by the State” in Hung Yen province between plaintiffs Ms. Bui Thi P, Mr. Le Ngoc T1, Ms. Le Thi Thanh X and defendant Mr. Le Ngoc T2; with 06 related parties.
Location of precedent content:
Paragraph 4 of the “Court’s Opinion” section.
2.2. Overview of Precedent Content
– Precedent Situation:
An individual is allocated land by the State but does not use it, instead allowing others to manage and use it stably and long-term since the land was allocated. During the use of the land, this person has improved the land, built stable housing, and registered land use rights without any objection from the person who was allocated the land.
– Legal Solution:
In this case, the Court does not accept the claim to reclaim land use rights.
Legal provisions related to the precedent:
– Articles 176, 192, 196 of the Civil Code of Vietnam 1995 (corresponding to Articles 170, 185, 190 of the Civil Code of Vietnam 2005; Articles 221, 187, 182 of the Civil Code of Vietnam 2015);
– Article 184 of the Civil Code of Vietnam 2015.
Keywords of the precedent:
“Claim for land use rights”; “Allowing others to manage and use land stably and long-term”; “Building stable housing”; “Registering land use rights declaration”.
CASE CONTENT
In the statement of claim and during the litigation process, the plaintiffs Ms. Bui Thi P, Mr. Le Ngoc T1, and Ms. Le Thi Thanh X, represented by Ms. Bui Thi P as authorized representative, presented:
Mr. Le Ngoc U and Ms. Bui Thi T were from Hamlet D, D1 Commune, P District, Hung Yen Province. They worked, lived, and passed away in Lang Son Province. Mr. U and Ms. T had one only child, Mr. Le Ngoc H, who was Ms. Bui Thi P’s husband. In 1973, Mr. U returned to his hometown and requested the People’s Committee of D1 Commune to allocate a residential land plot of 1,079m2 in Hamlet D, D1 Commune, P District, Hung Yen Province. In 1976, Mr. H returned to his hometown and built a three-compartment house with a flat roof, a mezzanine, and all auxiliary facilities including a kitchen, well, bathroom, and toilet on the said land plot for Mr. U and Ms. T, who had retired by then, to live in their hometown. Mr. U and Ms. T lived on that land for a while, then moved within the village to the house and land left by Ms. T’s parents. In 1977, Mr. Le Ngoc C1, Mr. U’s younger brother, borrowed the house and land for his son, Mr. Le Ngoc T2, to stay.
In 1985, Ms. P married Mr. H, at which time Mr. U, Ms. T, and Mr. H all resided at 53C, D Ward, L City, Lang Son Province.
On January 22, 1994, Ms. T passed away, and on December 20, 1995, Mr. U passed away, both without leaving a will (both passed away in Lang Son). According to Ms. P, before Ms. T passed away, she entrusted Ms. P with the document from the commune allocating land to Mr. U in Hamlet D in 1973, but in 2008, a historic flood occurred in Lang Son, Ms. P’s house was submerged, and all personal documents were damaged.
In 2008, Mr. Le Ngoc T2 went to Lang Son to meet Mr. H and requested him to write a power of attorney for Mr. T2 to receive compensation due to the State’s land acquisition for the expansion of Road 38B. In June 2009, Mr. H passed away without leaving a will but instructed Ms. P and her children to return to their hometown to reclaim the house and land lent to Mr. T2.
Ms. P and her children requested Mr. T2’s family to return the entire house, land, and 398,638,000 VND in compensation when the State acquired the land in 2008.
The defendant, Mr. Le Ngoc T2, presented:
The land plot his family is managing and using was requested by his father, Mr. Le Ngoc C1, who asked Mr. Le Ngoc U (Mr. C1’s elder brother) to register for it on his behalf in 1974, but in reality, his father was the direct recipient of the land. In 1975, his father allowed him and his wife to build a house on this land plot. From the time he and his wife lived on the land until Mr. U and Ms. T and Mr. H passed away, Mr. U’s family never claimed the land as their own, nor did Mr. U or Mr. H ever build a house on this land plot. All the house and assets on the land currently belong to him and his wife, built and established by them. In 1998, he declared himself as the land user. In 2008, when the State acquired land to expand Road 38B, his family received over 300 million VND in compensation; since the records did not show his family’s name, the People’s Committee of D1 Commune required him to have a commitment letter from the person named in dossier 299, so he went to Lang Son to meet Mr. H and requested him to write a commitment letter. Mr. H wrote him a commitment letter dated April 10, 2008, stating that the entire land plot allocated to Mr. U by the commune in 1974 had been handed over to him for use; from then until now and in the future, the family would have no objection to that land plot. He did not accept the entire claim filed by Ms. P and her children.
According to information provided by the People’s Committee of D1 Commune, the land plot currently managed and used by Mr. T2’s family is shown on map 299, drawn in 1981, with an area of 1073m2 at plot number 117, map sheet number 15; the 1986 cadastral book on page 128 records the land user as Le Ngoc U1. The People’s Committee of D1 Commune conducted verification and concluded that Mr. Le Ngoc U1 is a resident of the same Hamlet D, but not the user of this land plot; the correct land user named in the cadastral book is Le Ngoc U.
According to the cadastral map of D1 Commune completed in December 1998, on Map Sheet No. 31, the land plot managed and used by Mr. T2’s household consists of 04 plots: Plot No. 269 (T) with an area of 574.4m2; Plot 251 (pond) with an area of 261.2m2; Plot No. 286 (pond) with an area of 152.9m2; Plot No. 301 with an area of 149.1m2, which is the right-of-way for Road 38B. The total area of the plots and right-of-way is 1,177.6m2. According to the 1998 cadastral book, on pages 86, 87, all the above land plots are registered under the name of Le Ngoc T2 as the land user.
In Civil First Instance Judgment No. 01/2015/DS-ST dated March 31, 2015, the People’s Court of Phu Cu District decided:
1. Partially accept the claim of Ms. Le Thi Thanh X and Mr. Le Ngoc T. Ms. Bui Thi P has no rights related to the inheritance left by Mr. Le Ngoc U and Ms. Bui Thi T.
2. Allocate to Mr. Le Ngoc T2 and Ms. V the area currently managed and used according to the actual survey data of August 8, 2014, which is 990m2; including: residential land of 816m2; pond land of 174m2 (with an attached diagram). Mr. Le Ngoc T2 and Ms. Doan Thi V are obliged to register the allocated land use rights with the competent state agency, in accordance with land law.
The house, constructions, trees, and crops on the land plot are owned by Mr. T2 and Ms. V.
3. Oblige Mr. Le Ngoc T2 and Ms. Doan Thi V to pay Ms. Le Thi Thanh X and Mr. Le Ngoc T1 the value of the inheritance that Ms. X and Mr. T1 are entitled to inherit from Mr. Le Ngoc U and Ms. Bui Thi T, amounting to 191,864,200 VND (One hundred ninety-one million eight hundred sixty-four thousand two hundred dong).
Additionally, the first-instance Court also ruled on court fees and the right to appeal for the parties involved.
On April 15, 2015, the defendant, Mr. Le Ngoc T2, appealed part of the judgment.
In Civil Appellate Judgment No. 25/2017/DS-PT dated September 28, 2017, the People’s Court of Hung Yen Province decided:
1. Partially accept the claim and appeal of Ms. Le Thi Thanh X and Mr. Le Ngoc T1, Ms. Bui Thi P (also known as Bui Thi Huong P).
2. Amend Civil First Instance Judgment No. 01/2015/DS-ST dated March 31, 2015, of the People’s Court of Phu Cu District, Hung Yen Province, as follows:
3. Allocate to Mr. Le Ngoc T2 and Ms. Doan Thi V an area of 621.2 m2 of land plot No. 117, map sheet No. 15, map 299 drawn in 1981 in Hamlet D, D1 Commune, P District, registered under the name of Mr. Le Ngoc U.
4. Allocate to Ms. Le Thi Thanh X, Mr. Le Ngoc T1, Ms. Bui Thi P (also known as Bui Thi Huong P) an area of 369m2 (including 174.2m2 of pond land) at land plot No. 117, map sheet No. 15, map 299 drawn in 1981 in Hamlet D, D1 Commune, P District, registered under the name of Mr. Le Ngoc U, along with assets on the land including 01 level-four house with corrugated iron roof, 01 shed, 01 livestock pen, and a western boundary wall on the allocated land area. Ms. Bui Thi P manages both the assets of Ms. Le Thi Thanh X and Mr. Le Ngoc T1 (the allocation of land, assets, and dimensions are accompanied by a specific diagram).
5. Ms. Bui Thi P (also known as Bui Thi Huong P) must repay Mr. Le Ngoc T2 and Ms. Doan Thi V the value of the structures on the allocated land, amounting to 47,068,000 VND (Forty-seven million sixty-eight thousand dong).
6. Oblige Mr. Le Ngoc T2 and Ms. Doan Thi V to pay Ms. Bui Thi P, Ms. Le Thi Thanh X, and Mr. Le Ngoc T1 the value of the inheritance that Ms. P, Ms. X, and Mr. T1 are entitled to inherit from Mr. Le Ngoc U and Ms. Bui Thi T, amounting to 199,319,000 VND (One hundred ninety-nine million three hundred nineteen thousand dong).
Additionally, the judgment also ruled on court fees and liability for delayed execution of the judgment.
On October 25, 2017, Mr. Le Ngoc T2 filed a petition for supervisory review of the aforementioned civil appellate judgment.
In Decision No. 07/QDKNGDT-VC1-DS dated March 28, 2017, the Chief Procurator of the High People’s Procuracy in Hanoi lodged a protest against Civil Appellate Judgment No. 25/2017/DS-PT dated September 28, 2017, of the People’s Court of Hung Yen Province, requesting the Committee of Judges of the High People’s Court in Hanoi to conduct a supervisory review, quash the aforementioned Civil Appellate Judgment and Civil First Instance Judgment No. 01/2015/DS-ST dated March 31, 2015, of the People’s Court of Phu Cu District, Hung Yen Province; and remand the case file to the People’s Court of Phu Cu District, Hung Yen Province, for re-trial in accordance with the law.
At the supervisory review hearing, the representative of the High People’s Procuracy in Hanoi supplemented the protest regarding court fees, requesting the Committee of Judges of the High People’s Court in Hanoi to accept the protest of the Chief Procurator of the High People’s Procuracy in Hanoi, quash Civil First Instance Judgment No. 01/2015/DS-ST dated March 31, 2015, of the People’s Court of Phu Cu District, Hung Yen Province, and Civil Appellate Judgment No. 25/2017/DS-PT dated September 28, 2017, of the People’s Court of Hung Yen Province; and remand the case file to the People’s Court of Phu Cu District, Hung Yen Province, for re-trial in accordance with the law.
COURT’S OPINION:
[1] Based on the testimonies of all parties, it is acknowledged that the land area belonging to plot No. 31 (actual land area is 990.2m2), map sheet No. 269 in Hamlet D, D1 Commune, P District, Hung Yen Province, originated from the People’s Committee of D1 Commune, which allocated it to Mr. Le Ngoc U in 1973. This land plot is currently managed and used by Mr. Le Ngoc T2 (BL 181,184), and Mr. T2 has not yet been granted a certificate of land use rights.
[2] Ms. P (Mr. Le Ngoc U’s daughter-in-law claims that) after Mr. U was allocated the land, Mr. U and his wife, along with Mr. Le Ngoc H (Mr. U’s son and Ms. P’s husband), brought construction materials from Lang Son to build a house and other structures on the land. Mr. U and his wife lived there for a short time, then moved to Lang Son to live with Ms. P and her husband, lending the house and land to Mr. C1’s family (Mr. U’s younger brother) for Mr. T2 (Mr. C1’s son) to reside. Meanwhile, Mr. T2 and Ms. S (Mr. C1’s wife) denied borrowing the house and land from Mr. U, claiming that because Mr. C1’s family had many children, none of whom were married, and they did not meet the conditions for receiving land for population expansion, they asked Mr. U to apply for land on behalf of Mr. C1’s family. Mr. C1 was the direct recipient of the land and allowed Mr. T2 and his wife to live there; they also presented confirmations from those who received excess land, built houses, and other structures on Mr. T2’s land to prove it. Based on the confirmations of the witnesses and the appraisal report comparing the bricks of Mr. T2’s house with the bricks Ms. P brought from Lang Son, there is a basis to determine that the house and assets on the land were established by Mr. T2’s family.
[3] Regarding the disputed land area, it is found that: Neither Ms. P nor Mr. T2 could provide documents proving legal land use rights for the disputed area. However, based on the testimonies of the parties, the verification report at the People’s Committee of D1 Commune (BL253), Mr. Ta Quang H (who was a cadastral officer of D1 Cooperative from 1960-1978) provides a basis to determine that in 1973, Mr. Le Ngoc U (Mr. Le Ngoc C1’s elder brother), working in Lang Son, returned to his hometown to apply for land for population expansion and was allocated land by the People’s Committee of D1 Commune. The verification report with the cadastral officer of D1 Commune shows that Mr. U was registered as the user of the disputed land plot on the 1981 land demarcation map and the 1982 cadastral book, while Mr. Le Ngoc T2 was registered as the user on the 1998 commune cadastral map and the 1998 cadastral book (BL37). According to the verification report at the People’s Committee of D1 Commune, the origin of the land Mr. T is managing and using was allocated by the People’s Committee of D1 Commune in 1973 under Mr. U’s name. The local authorities do not know whether Mr. U applied for the land for himself or on behalf of Mr. C1, and the commune has no documents related to the transfer of land use rights. However, in reality, Mr. U’s family and Mr. H (Mr. U’s son) did not live on this land, but Mr. T2’s family has managed and used it since 1975 and paid land taxes (BL253). Mr. Ta Quang H, who allocated the land to Mr. U, also confirmed that Mr. U did not use it, but Mr. T2 did. After some time, Mr. U applied for another plot of land because the previously requested plot was already used by Mr. T2, and the Cooperative allocated a second land plot to Mr. U (currently used by Mr. B – Mr. T2’s younger brother – BL262).
[4] Although Mr. U was the person allocated the land, after being allocated the land, Mr. U did not use it but allowed Mr. T2 to use it from 1975 until now. During the land use, because the land allocated to Mr. U was a swampy area, Mr. C1’s family and Mr. T2 had to hire people to fill it to raise the foundation, build, and repair the house many times. Mr. U and Mr. H were aware of the filling, repairing, and building of the house but did not dispute it. The People’s Committee of D1 Commune and the witnesses, who are local residents, all confirmed that Mr. U and Mr. H did not live there, did not build a house, but occasionally visited and stayed at Mr. C1’s house in the village. After Mr. U and his wife passed away, Mr. H, Mr. U’s only son, also had a commitment letter confirming that Mr. U could not live there and therefore transferred the right to use the said land plot to Mr. T2, and the family had no objection to that land plot. Thus, Mr. U was the person allocated the land, but Mr. U did not use it but allowed Mr. T2 to manage and use this land plot from after Mr. U was allocated the land (1974) until now. During the land use, Mr. T2 built stable housing, registered and declared, and paid land use taxes for this land plot, so according to land law, Mr. T2 is eligible to be considered for a certificate of land use rights. The fact that Mr. U did not use the land but had his name on Land Demarcation Map 299 and the 1982 cadastral book is inaccurate and not a basis to determine that Mr. U is the legal user of this land plot. The first-instance Court and the appellate Court only relied on the fact that Mr. U was allocated the land to determine that the disputed land plot belonged to Mr. U and his wife to accept the plaintiff’s claim and deduct a portion of the effort for Mr. T2, which is incorrect.
[5] Furthermore, this case is a claim for assets, specifically a house, land, and compensation for land acquisition by the State, thus falling under the category of determining court fees without a specific value. The appellate Court’s determination of court fees with a specific value is incorrect. Therefore, the protest by the Chief Procurator of the High People’s Procuracy in Hanoi is well-founded and accepted. However, considering that the first-instance Court also made errors, but these errors can be rectified at the appellate Court, it is not necessary to quash the first-instance judgment to resolve the case again under first-instance procedures to avoid prolonging the resolution of the case.
For the above reasons, based on Point a, Clause 1, Article 337, Clause 3, Article 343, Clause 1, Article 345 of the Civil Procedure Code 2015;
DECISION:
1. Quash the entire Civil Appellate Judgment No. 25/2017/DS-PT dated September 28, 2017, of the People’s Court of Hung Yen Province regarding the case “claim for house, land, and compensation for land acquisition by the State” between plaintiffs Ms. Bui Thi P (also known as Bui Thi Huong P), Mr. Le Ngoc T1, Ms. Le Thi Thanh X and defendant Mr. Le Ngoc T2; with related parties Mr. Vu Thi S, Ms. Doan Thi V, Mr. Le Ngoc C2, Ms. Tran Thi N, Ms. Le Thi D1, and Ms. Le Thi D2.
2. Remand the case file to the People’s Court of Hung Yen Province for re-appellate trial in accordance with the law.
PRECEDENT CONTENT
“[4] Although Mr. U was the person allocated the land, after being allocated the land, Mr. U did not use it but allowed Mr. T2 to use it from 1975 until now. During the land use, because the land allocated to Mr. U was a swampy area, Mr. C1’s family and Mr. T2 had to hire people to fill it to raise the foundation, build, and repair the house many times. Mr. U and Mr. H were aware of the filling, repairing, and building of the house but did not dispute it. The People’s Committee of D1 Commune and the witnesses, who are local residents, all confirmed that Mr. U and Mr. H did not live there, did not build a house, but occasionally visited and stayed at Mr. C1’s house in the village. After Mr. U and his wife passed away, Mr. H, Mr. U’s only son, also had a commitment letter confirming that Mr. U could not live there and therefore transferred the right to use the said land plot to Mr. T2, and the family had no objection to that land plot. Thus, Mr. U was the person allocated the land, but Mr. U did not use it but allowed Mr. T2 to manage and use this land plot from after Mr. U was allocated the land (1974) until now. During the land use, Mr. T2 built stable housing, registered and declared, and paid land use taxes for this land plot, so according to land law, Mr. T2 is eligible to be considered for a certificate of land use rights. The fact that Mr. U did not use the land but had his name on Land Demarcation Map 299 and the 1982 cadastral book is inaccurate and not a basis to determine that Mr. U is the legal user of this land plot. The first-instance Court and the appellate Court only relied on the fact that Mr. U was allocated the land to determine that the disputed land plot belonged to Mr. U and his wife to accept the plaintiff’s claim and deduct a portion of the effort for Mr. T2, which is incorrect. ”
