Precedent No. 35/2020/AL on Vietnamese individuals who, before settling abroad, handed over agricultural land to domestic residents for use

1. What is a precedent?

Precedents are arguments and rulings in legally effective judgments and decisions of the Courts regarding specific cases selected by the Council of Justices of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HDTP)

A selected precedent must meet the following criteria:

– It contains values to clarify legal provisions that have different interpretations, analyzes and explains legal issues and events, and points out principles, processing methods, and legal norms to be applied in a specific case or demonstrates equity for issues that have not been specifically regulated by law;

– It is standard in nature;

– It has guiding value for the uniform application of law in adjudication.

2. Precedent No. 35/2020/AL on Vietnamese individuals who, before settling abroad, handed over agricultural land to domestic residents for use

2.1. Source of the precedent

Cassation Decision No. 65/2018/GDT-DS dated August 06, 2018, of the High People’s Court in Da Nang regarding the civil case “Dispute over property subject to judgment enforcement” in Dak Lak province between the plaintiff, Mrs. Nguyen Thi K, and the defendant, Ms. Nguyen Thi T; persons with related rights and obligations including 09 people.

Location of the precedent’s content:

Paragraphs 4 and 5 of the “Court’s Opinion” section.

2.2. Overview of the precedent’s content

– Precedent situation:

A Vietnamese individual, before settling abroad, handed over agricultural land to a domestic resident for use; the domestic resident has used that land stably and long-term and has been issued a land use right certificate.

– Legal solution:

In this case, it must be determined that the domestic resident has the legal land use right, and the Court shall not accept the request to reclaim the land use right.

Legal provisions related to the precedent:

– Section 3 Part III, Section 3 Part V of Decision No. 201-HDCP/QD dated July 01, 1980, of the Government Council on the unified management of land and strengthening land management throughout the country;

– Article 14 of the Land Law of Vietnam 1987; Article 26 of the Land Law of Vietnam 1993; Clause 11 Article 38, Article 50 of the Land Law of Vietnam 2003 (corresponding to Point h Clause 1 Article 64; Article 100 of the Land Law of Vietnam 2013).

Keywords of the precedent:

“Vietnamese residing abroad”; “Handing over agricultural land to domestic residents for use”; “Issued a land use right certificate”; “Request to reclaim land use right”.

CASE CONTENT:

According to the Petition dated May 09, 2012, and during the proceedings, the plaintiff, Mrs. Nguyen Thi K, stated: In 1978, Mrs. Nguyen Thi K and Mr. Nguyen C (husband and wife) wrote a paper giving Mr. Nguyen Van D (son) 05 sao of land, bounded by: East by Mr. L, West by Ms. Nguyen Thi E, South by the Thuong people, North by National Highway 14; but in 1982 and 1983, Mr. D sold all of it to Mr. Nguyen Dang N and Mr. Nguyen Van B. Later, Mrs. K gave Mr. D an additional 150m² of adjacent land without writing a paper, and in 2005 gave Mr. D the house on the land (the house and land given to Mr. D were determined to be bounded by East by Mr. B, West and South by the family’s remaining land, North by National Highway 14). In 2005, Mrs. K completed procedures to apply for a land use right certificate, so on March 09, 2006, the People’s Committee of P City issued 02 land use right certificates including: Land use right certificate No. AD 516166, for plot No. 9, map sheet 58, area 10,112.4m², annual crop land, usage term until 2013 for Mrs. Nguyen Thi K; Land use right certificate No. AD 516165, for plot No. 9A, map sheet 58, area 300m², urban residential land for Mrs. Nguyen Thi K and Mr. Nguyen C. In November 2006, Mrs. K applied for adjustment and re-issuance of the land use right certificate to match the current status of the house built on the land, so on November 24, 2006, the People’s Committee of P City issued Decision No. 762/QD-UBND to recover land use right certificates No. AD 516165 and AD 516166 and replaced them with new land use right certificates No. AG 680769 and AG 680768 for Mrs. Nguyen Thi K and Mr. Nguyen C. On June 19, 2009, the Chairman of the People’s Committee of P City issued Decision No. 1654/QD-UBND to recover the land use right certificates issued to Mrs. K and Mr. C on the grounds of overlapping area and plot number already issued to Mr. Nguyen Van D.

Mrs. K filed an administrative lawsuit against the Chairman of the People’s Committee of P City regarding the issuance of Decision No. 1654/QD-UBND. The first-instance administrative judgment No. 02/2010/HC-ST dated June 11, 2010, of the People’s Court of Buon Ma Thuot City did not accept Mrs. K’s claim; the appellate administrative judgment No. 07/2010/HC-PT dated September 17, 2010, of the People’s Court of Dak Lak Province modified the first-instance judgment and accepted Mrs. K’s claim. The appellate administrative judgment was protested by the Prosecutor General of the Supreme People’s Procuracy. At Cassation Decision No. 10/2011/HC-GDT dated November 15, 2011, the Administrative Court of the Supreme People’s Court annulled both the first-instance and appellate administrative judgments and transferred the file to the People’s Court of Buon Ma Thuot City for first-instance retrial. After the retrial acceptance, the People’s Court of Buon Ma Thuot City summoned Mrs. K twice legally, but she was absent, so the Court suspended the case resolution.

Now Mrs. K has filed a civil lawsuit requesting Mr. D and his wife to return the land because she claimed: In 2005, Mr. D used a photocopy of the 1978 land gift paper, modified the entire plot location, then photocopied it as a document to declare for the land use right certificate. Simultaneously, Mr. D made an application to confirm the loss of original documents, which was certified by the People’s Committee of E Ward; based on these documents, the People’s Committee of P City issued land use right certificates to Mr. D for an area of 4,925.5m² (Certificate No. AD 579302 for plot 9A, map sheet 58, area 300.5m² and Certificate No. AD 579313 for plot 09, map sheet 58, area 4,624m²). Now Mrs. K sues to reclaim 4,652.7m² of land (after deducting 272.8m² recovered by the People’s Committee of P City in Decision No. 4233/QD-UBND dated December 24, 2010); Mrs. K agrees to let Mr. D and his wife continue using 183.74m² (including 150m² previously given and an additional 33.74m² because they built a house on this area); she requested the Court to annul the land use right certificates issued to Mr. D and Mrs. T.

– Previously, Mr. Nguyen Van D (now deceased) and Mrs. Nguyen Thị T stated: In 1978, Mr. C and Mrs. K wrote a paper giving them 05 sao of land, bounded by: East by Mr. L, West by Ms. Nguyen Thi E, South by the Thuong people, North by National Highway 14; but in 1982, Mrs. K sold 01 sao to Mr. N, and in 1985, Mr. C sold 04 sao to Mr. B, exhausting the 5 sao given in 1978, so the parents agreed to exchange and gave them 5 sao of adjacent land; after that, the parents settled in the Federal Republic of Germany.

Before settling in Germany, Mrs. K sent all house and land documents to Mrs. Nguyen Thi E. In 2004, Mrs. K returned to the country. In 2005, Mr. D and Mrs. T met Mrs. E to reclaim the documents, but Mrs. E only handed over photocopies, while the original documents with government stamps were kept by Mrs. K.

Mr. D and his wife took the photocopies provided by Mrs. E, made more copies, and attached 2 coffee cultivation land allocation decisions from 1980 and 1990 by the People’s Committee of P Town to the People’s Committee of E Ward to ask about the procedure for a land use right certificate. They were instructed that they needed the signatures of Mrs. K and the siblings in the family regarding the parents giving them the 150m² house and 3.5 sao of fruit tree land as per the original gift paper. Later, Mr. D told Mrs. K (Mr. C was dead by then), and Mrs. K signed a confirmation that in 1978 she gave them the house and several sao of land; the confirmation also had the signatures of Mr. Nguyen Van Đ (now deceased) and Mrs. Nguyen Thi E. Based on this confirmation, on December 26, 2005, the People’s Committee of P City issued Certificate No. AD 579302 for plot 9A, area 300.5m² of residential land and Certificate No. AD 579313 for plot 09, area 4,624.9m² of agricultural land.

However, later on March 09, 2006, the People’s Committee of P City also issued Certificate No. AD 516166 for plot 9, area 10,112.4m² to Mrs. K and Certificate No. AD 516165 for plot 9A, area 300m² to Mrs. K and Mr. C, which overlapped with the area issued to Mr. D and his wife. After discovering this error, on November 24, 2006, the People’s Committee of P City issued Decision No. 762/QD-UBND to recover the certificates issued to Mr. C and Mrs. K.

Now they do not accept Mrs. K’s claim; they also stated that these two plots of land were mortgaged to Bank A for a loan of 3,000,000,000 VND; since they could not pay the debt, the Bank sued, the Court resolved it, and the enforcement agency had already successfully auctioned the property, so they requested the Court to resolve the matter based on legal provisions.

The representative of the People’s Committee of P City stated: The process and procedures for issuing land use right certificates to Mr. D and Mrs. T were in accordance with the law.

The representative of Bank A stated: The mortgage contract signed between the Bank and Mr. D, Mrs. T was in good faith and registered as a secured transaction according to the law.

– In the first-instance civil judgment No. 124/2013/DS-ST dated September 06, 2013, the People’s Court of Buon Ma Thuot City, Dak Lak province, rejected all of the plaintiff’s claims.

– In the appellate civil judgment No. 07/2014/DSPT dated January 14, 2014, the People’s Court of Dak Lak Province modified the first-instance judgment and accepted all of the plaintiff’s claims; ordered Mr. D and Mrs. T to return the land to Mrs. K (minus 183.74m² voluntarily given), and annulled the 2 certificates issued to them.

Mr. D and Mrs. T; Bank A and Mr. H (the successful auction bidder under Decision No. 47/2011/QDST-KDTM dated June 17, 2011, which resolved the credit contract and mortgage dispute) applied for a cassation review.

– In Decision No. 343/2014/KN-DS dated September 16, 2014, the Chief Justice of the Supreme People’s Court protested the appellate civil judgment No. 07/2014/DSPT dated January 14, 2014; proposed to annul both the appellate and first-instance judgments and transfer the file for retrial. In Cassation Decision No. 461/2014/DS-GĐT dated November 24, 2014, the Civil Court of the Supreme People’s Court annulled the first and appellate judgments with the following reasoning (summary):

+ During their lifetime, Mr. C and Mrs. K used 29,418.27m² of land; in 1983 they moved to Germany and handed over the land to their children, Mr. D and his wife were given a part and at the end of 2005 were issued a certificate for 4,924m². In 2004, Mrs. K returned; in 2006 she was issued a certificate for the entire area including Mr. D’s part; but later the People’s Committee discovered this and annulled Mrs. K’s certificate, determining the issuance to Mr. D was lawful. Thus, although the land originated from Mrs. K and Mr. C, they went abroad and handed it over to Mr. D since 1983, and Mr. D was issued a certificate in 2005; specifically, the 4,624.9m² of agricultural land would have been recovered by the State if not handed over; as for the 300.5m² of residential land, Mrs. K agreed to give Mr. D 150m², and the rest was Mr. C’s inheritance, so Mrs. K has no right to reclaim it.

+ On the other hand, in 2009 Mr. D and his wife mortgaged the land; failing to pay, the Bank sued, the Court resolved it, and the enforcement agency completed the auction, so the appellate Court’s order for return (except 180m²) was incorrect and did not protect the rights of the Bank and Mr. H (the buyer).

– In the first-instance civil judgment No. 98/2014/DS-ST dated January 14, 2014, the People’s Court of Buon Ma Thuot City decided to reject all of the plaintiff’s claims.

– In the appellate civil judgment No. 06/2016/DS-PT dated January 11, 2016, the People’s Court of Dak Lak Province decided to uphold the aforementioned first-instance judgment.

After the appellate trial, Mrs. Nguyen Thi K applied for a cassation protest against the appellate civil judgment No. 06/2016/DS-PT.

– In Cassation Protest No. 11/2017/KN-DS-VC2 dated February 07, 2017, the Prosecutor General of the High People’s Procuracy in Da Nang proposed to the Council of Justices of the High People’s Court in Da Nang to annul both the first-instance and appellate judgments for retrial because:

+ In the process of declaring procedures for the land use right certificate, Mr. Nguyen Van D used a photocopy and forged the house and land gift paper dated January 02, 1978 (modifying the boundaries), adding the certification of Mr. Nguyen Van S, Chairman of the Farmers’ Association and Chairman of the E Commune People’s Committee dated November 25, 1983 (more than 5 years after the gift date), which was illegal. The issuance of the certificates by the People’s Committee of P City was incorrect. Furthermore, the certification by Mr. S in 1983 on a 1978 document was not verified by the Courts, which meant the case was not fully clarified.

+ The defendant claimed that in 1982, Mrs. Nguyen Thi K sold 01 sao of the area given to them, and in 1985 Mr. C sold the remaining 04 sao. After selling, they gave the couple 05 sao adjacent. Regarding the 1978 gift, the boundaries were unknown so they were left blank; after the sale, the parents gave the 5 sao next to it, so the couple filled in the boundaries and sought certification.

However, according to the sale papers, Mr. D directly sold the land to Mr. N and Mr. B. The gift paper provided by Mrs. K (original) and the defendant (photocopy) both showed boundaries, but the photocopy’s boundaries were modified rather than blank. There was no basis for Mrs. T’s claim about being given 5 sao next to it after the sale.

The defendant also claimed Mrs. K made a confirmation on October 15, 2005, regarding the 1978 gift of a house and land. But this confirmation only mentioned a 100m² house on a 150m² plot, not several sao of fruit tree land.

Regarding procedure: In 2005 Mr. D and his wife applied for a certificate on a different area than the one given in 1978. Since Mr. Nguyen C died in 1998, inheritance rights arose for Mrs. K and 14 children. The Courts failed to include these people as parties with related rights and obligations, violating the Code of Civil Procedure.

At the cassation hearing, the representative of the High People’s Procuracy in Da Nang proposed that the Council of Justices of the High People’s Court in Da Nang accept the protest.

COURT’S OPINION:

[1] Regarding whether Mrs. K and her husband have the right to reclaim the 4,924m² of land for which Mr. D and Mrs. T were issued land use right certificates on December 26, 2005, the Council of Justices of the High People’s Court in Da Nang finds:

[2] Mr. Nguyen C and Mrs. Nguyen Thi K had 14 common children, Mr. Nguyen Van D being one of them. The 4,924m² of land in dispute is part of the total 29,418.27m² created by the couple during their lifetime. On October 02, 1978, they wrote a gift paper for Mr. D for a house and 5 sao of land with specific boundaries; however, in 1982 and 1983, Mr. N and Mr. B received the transfer of all 5 sao. While Mrs. K stated Mr. D sold it, Mr. D denied this and said the parents sold it. The cassation level finds Mr. D’s statement consistent with the statements of Mr. N and Mr. B that they bought the land from the parents and paid them directly, and consistent with the fact that in 1978 the parents only signed a handwritten paper, so legally they were still the registered users.

[3] After selling the 5 sao given to Mr. D in 1978, around 1983 Mr. C and Mrs. K moved to Germany; the remaining house and land were managed and used by Mr. D and Mrs. T. The Cassation Trial Panel finds the couple’s statement that the parents gave them 5 adjacent sao to compensate for the ones sold is grounded because it aligns with the testimony of the buyers (Mr. N, Mr. B) and Mrs. K’s 2005 confirmation (signed by children and neighbors) that they had given the house and land in 1978, but the papers were lost, so she signed the confirmation for them to register.

[4] On the other hand, in the total 4,924m² issued to Mr. D and his wife, only 300.5m² is residential land while 4,624.9m² is agricultural land. According to Clause 5 Article 14 of the Land Law 1987 and Clause 3 Article 26 of the Land Law 1993, the State shall recover land if the user does not use it for more than 6 months or 12 months without permission. According to Clause 11 Article 38 of the Land Law 2003 and Point h Clause 1 Article 64 of the Land Law 2013, land used for annual crops not used for 12 consecutive months, or perennial crops not used for 18 consecutive months, will be recovered. The cassation level considers that although Mr. C and Mrs. K previously used this agricultural land, they settled abroad and did not use it for many years, so this land was subject to State recovery; Mr. D and his wife used it directly, declared and paid taxes annually, and were recognized by the State in 2005, so they have the legal right to use this area.

[5] Thus, from the above points, the cassation level finds sufficient basis to determine: Mr. C and Mrs. K, before settling in Germany, gave Mr. D and his wife 5 sao of land (currently certified) to compensate for the 1978 gift sold in 1982-1983; furthermore, the parents did not use the land for many years, making it subject to recovery, while the couple used it and obtained a certificate, giving them legal rights. Therefore, the lower courts’ rejection of Mrs. K’s claim is grounded and lawful.

[6] After being issued certificates in 2005, in 2009 the couple mortgaged the land to Bank A. Failing to pay, the Bank sued; the court ordered repayment or foreclosure. The land was auctioned to Mr. H. According to Articles 138 and 258 of the Civil Code 2005, Mr. H is a third party in good faith with legal rights, unrelated to the dispute between Mrs. K and the couple.

[7] Based on the analysis, the High People’s Court in Da Nang finds the protest No. 11/2017/KN-DS-VC2 groundless and upholds the appellate judgment No. 06/2016/DS-PT.

For these reasons,

DECISION:

Pursuant to Point b Clause 1 Article 337, Clause 1 Article 343 of the Civil Procedure Code 2015; Ruled:

1. Do not accept Cassation Protest No. 11/2017/KN-DS-VC2 dated February 07, 2017, of the Prosecutor General of the High People’s Procuracy in Da Nang; uphold the appellate civil judgment No. 06/2016/DS-PT dated January 11, 2016, of the People’s Court of Dak Lak Province;

2. The appellate civil judgment No. 06/2016/DS-PT dated January 11, 2016, of the People’s Court of Dak Lak Province continues to have legal effect.

The cassation decision takes effect for enforcement.

PRECEDENT CONTENT

“[4] On the other hand, in the total 4,924m² land for which Mr. D and Mrs. T were issued land use right certificates by the People’s Committee of P City on December 26, 2005, only 300.5m² is residential land (Certificate No. AD 579302, plot 9A, map sheet 58) while the remaining 4,624.9m² at plot 09, map sheet 58 is agricultural land (Certificate No. AD 579313). According to the provisions of Clause 5 Article 14 of the Land Law 1987 and Clause 3 Article 26 of the Land Law 1993, the State shall recover land if the user does not use the land for more than 6 months or 12 months without State permission. According to Clause 11 Article 38 of the Land Law 2003 and Point h Clause 1 Article 64 of the Land Law 2013, certain cases of land use violating land laws will be recovered by the State, such as: “Annual crop land not used for 12 consecutive months, perennial crop land not used for 18 consecutive months; Forestry land not used for 24 consecutive months;… ”. The cassation level considers that although previously Mr. C and Mrs. K used the 4,624.9m² of agricultural land, they settled abroad and did not use the land for many years, so this agricultural land was subject to recovery by the State; Mr. D and his wife directly used it, declared and paid taxes annually to the State, and were recognized and issued a land use right certificate by the State in 2005, so they have the legal right to use this area.

[5] … The first-instance civil judgment No. 98/2014/DS-ST dated January 14, 2014, of the People’s Court of Buon Ma Thuot City and the appellate civil judgment No. 06/2016/DS-PT dated January 11, 2016, of the People’s Court of Dak Lak Province not accepting Mrs. K’s request for Mr. D and Mrs. T’s family to return the aforementioned land area is grounded and in accordance with the law. ”