Precedent No. 38/2020/AL was adopted by the Council of Justices of the Supreme People’s Court on August 13, 2020, and published under Decision No. 276/QD-CA dated October 02, 2020, by the Chief Justice of the Supreme People’s Court.
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-HĐTP)
Selected precedents must meet the following criteria:
– Possess value in clarifying legal provisions with different interpretations, analyzing and explaining legal issues and events, and pointing out principles, handling directions, and legal norms to be applied in a specific case, or demonstrating justice for issues not yet specifically regulated by law;
– Possess standard characteristics;
– Possess value in guiding the uniform application of law in adjudication.
2. Precedent No. 38/2020/AL on the non-acceptance of requests for property reclamation already partitioned by a legally effective judgment
2.1. Source of the Precedent
Cassation Decision No. 28/2019/DS-GDT dated November 12, 2019, of the Council of Justices of the Supreme People’s Court regarding the civil case “Property reclamation lawsuit” in Lam Dong province between the plaintiff, Ms. To Thi M, and the defendants, Mrs. Nguyen Thi D and Ms. Pham Thi H, with 09 persons with related rights and obligations.
Location of the precedent content:
Paragraph 2 of the “Court’s Assessment” section.
2.2. Summary of the precedent content
– Precedent situation:
After property, being house ownership rights and land use rights, has been partitioned by a legally effective judgment or decision of the Court, another person (who was not a litigant in that case) files a lawsuit to claim ownership of that house and land use rights.
– Legal solution:
In this case, the Court shall not accept the new case. The person requesting ownership of the house and land use rights shall notify the competent person in writing to review the legally effective judgment or decision of the Court under cassation or reopening procedures in accordance with the law.
Legal provisions related to the precedent:
Point c Clause 1 Article 192, Point g Clause 1 Article 217, Clause 2 Article 327, Clause 1 Article 353 of the Civil Procedure Code of Vietnam 2015.
Keywords of the precedent:
“Property partitioned by legally effective judgment or decision”; “Property reclamation lawsuit”; “Non-acceptance of new case”.
CASE CONTENT:
1. In the Petition dated July 18, 2011, the Supplementary Petition dated June 16, 2015, and testimonies during the proceedings, the plaintiff Ms. To Thi M (represented by Mr. Nguyen Anh D) stated:
The origin of the land at No. 12 G Street, Ward 5, T City (including a portion of the house and land currently in dispute at No. 12A G Street) was the property of Ms. M’s parents, Mr. To Duy H1 and Mrs. Tran Thi D1, granted House Ownership and Land Use Right Certificate No. 6015/ND-XD Q3,4 on December 18, 1989, by the Department of Construction of Lam Dong province. The house has a level 2, grade 3 structure, 80% remaining quality, tiled floors, built walls, concrete walls, flat roof, total area of 437.9m2, and main usable area of 315.17m2. In 1973, Mr. H1 rented a part of the back house (No. 12A G Street) to Ms. Hoang Thi N for residence. In 1975, Mr. H1’s family asked for the house back, and Ms. N asked to stay for a while longer until she found a new place to stay. Since 1975, Mr. H1’s family had not collected rent from Ms. N. In 1980, Ms. N secretly allowed Ms. Pham Thi H to move into the house being rented from Mr. H1. Ms. M’s family complained about this to the People’s Committee of Ward 5, T City, but through mediation, Ms. M’s family agreed to let Ms. H stay until she found a house.
In 2003, Ms. H declared and applied for a Certificate of house ownership and land use rights at No. 12A G Street, Ward 5, T City; Ms. M’s family continued to demand Ms. H return the house. In 2011, Ms. H obtained a house construction permit, but Ms. M’s family was unaware. Currently, the house and land at 12A G Street, Ward 5, T City, are under the names of Ms. H and Mrs. Nguyen Thi D on the certificate of residential house ownership and residential land use rights. Therefore, Ms. M filed a lawsuit requesting the Court to compel Ms. H and Mrs. D to return the house and land they occupied at 12A G Street, Ward 5, T City, to Ms. M’s family.
2. The defendants, Mrs. Nguyen Thi D and Ms. Pham Thi H, stated:
In 1994, Ms. H and Mr. Nguyen Ngọc C (Ms. H’s husband) received a transfer of the house at No. 12A G Street, Ward 5, T City, from Ms. Hoang Thi N and used it stably without dispute. In 2002, Ms. H and Mr. C divorced. In the Appellate Marriage and Family Judgment No. 17/HNGD-PT dated September 24, 2002, the People’s Court of Lam Dong province declared Mrs. D owned ½ of the house and Ms. H owned ½ of the house, as Ms. H and her husband had jointly purchased the house with Mrs. D (Ms. H’s mother). On January 12, 2004, Ms. H and Mrs. D were granted a certificate of house ownership and residential land use rights for house No. 12A G Street, Ward 5, T City. In March 2011, Ms. H applied for permission from competent authorities to rebuild the house because it was seriously degraded. When the reconstruction began, Ms. H discussed with Ms. M about demolishing a wall that Ms. M’s family had built encroaching on Ms. H’s land, but Ms. M did not allow the demolition and demanded Ms. H return the house. Ms. H and Mrs. D asserted: House No. 12A G Street, Ward 5, T City, was legally purchased by Ms. H and Mrs. D from Ms. N, and they have been granted ownership certificates; therefore, they do not agree with Ms. M’s petition.
In the Decision to terminate the resolution of the first-instance civil case and return the petition No. 03/2016/QDST-DS dated August 1, 2016, the People’s Court of Lam Dong province decided:
To terminate the resolution and return the petition for the first-instance civil case accepted under No. 03/2012/TLDS-ST dated April 17, 2012, regarding the case “Property reclamation lawsuit” between the plaintiff Ms. To Thi M and the defendants Mrs. Nguyen Thi D and Ms. Pham Thi H.
The first-instance Court also ruled on court fees and the right to appeal according to the law.
After the first-instance trial, on August 18, 2016, Mr. Nguyen Anh D, the authorized representative of the plaintiff, appealed against the aforementioned first-instance decision.
In the Decision resolving the appeal against the Decision to terminate the resolution of the case No. 91/2017/QDDS-PT dated May 30, 2017, the High People’s Court in Ho Chi Minh City decided:
To accept the appeal of the plaintiff and the persons with related rights and obligations, including: Mr./Ms. To Thi S1, To Duy T, To Duy S, To Thi Kim N1, To Thi T1, To Thi S2, To Duy E, To Duy P1, To Thi H2, To Thi H3, To Thi Ngọc L, To Duy P2, To Duy Lam S3, To Thi Ngọc H4, To Duy H5, To Thi Ngọc V, To Duy H6 (represented by Mr. Nguyen Anh D).
To annul the Decision to terminate the resolution of the civil case No. 03/2016/QDST-DS dated August 1, 2016, of the People’s Court of Lam Dong Province; Transfer the case file to the People’s Court of Lam Dong Province to continue resolving the case.
The appellate Court also ruled on court fees.
On September 1, 2017, Judge Bui Huu Nhan – Presiding Judge of the first-instance trial, filed a request for the Supreme People’s Court to review the aforementioned appellate decision under cassation procedures.
In Decision No. 49/2019/KN-DS dated July 31, 2019, the Chief Justice of the Supreme People’s Court protested against the Decision resolving the appeal against the Decision to terminate the resolution of the case No. 91/2017/QDDS-PT dated May 30, 2017, of the High People’s Court in Ho Chi Minh City; requested the Council of Justices of the Supreme People’s Court to conduct a cassation trial, annul the aforementioned Appellate Decision, and uphold the Decision to terminate the resolution of the first-instance civil case No. 03/2016/QDST-DS dated August 1, 2016, of the People’s Court of Lam Dong Province and return the petition.
At the cassation trial, 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 ASSESSMENT:
[1] The case file shows that Ms. To Thi M filed a lawsuit claiming that house No. 12A G Street, Ward 5, T City, belonged to Mr. To Duy H1 and Mrs. Tran Thi D1, requesting the Court to compel Ms. Pham Thi H and Mrs. Nguyen Thi D to return it to her.
[2] Point c, Clause 1, Article 192 of the Civil Procedure Code 2015 stipulates that one of the cases where the Court returns the petition is: “The matter has been resolved by a legally effective judgment or decision of the Court or an effective decision of a competent state agency, except for cases where the Court dismissed the petition for divorce, request for change of child custody, change of alimony levels, level of damages, request for change of property manager, change of estate manager, change of guardian, or lawsuits for property reclamation, reclamation of leased or lent property, reclamation of house or land use rights leased, lent, or allowed for temporary residence where the Court has not accepted the request and according to the law, the right to re-sue is granted;”. Documents in the case file show: In the Appellate Marriage and Family Judgment No. 17/HNGĐ-PT dated September 24, 2002, the People’s Court of Lam Dong Province declared Ms. Pham Thi H the owner of ½ of the house with an area of 40.73m2, and Mrs. Nguyen Thi D the owner of ½ of the house with an area of 40.73m2 at No. 12A G Street, Ward 5, T City. Thus, the content of Ms. M’s lawsuit claiming that house No. 12A G Street, Ward 5, T City, belonged to Mr. H1 and Mrs. D1 is subject to an existing effective judgment determining the ownership of that house belongs to Mrs. D and Ms. H. Article 256 of the Civil Code 2005 stipulates: “Owners and legal possessors have the right to request possessors, users of property, or persons benefiting from property without a legal basis regarding property under their ownership or legal possession to return that property,…”. Thus, with the contents of the Appellate Marriage and Family Judgment No. 17/HNGĐ-PT mentioned above, Ms. M does not have the right to demand Mrs. D and Ms. H return house No. 12A G Street, Ward 5, T City. Therefore, the content of Ms. M’s petition must be considered a case where “The matter has been resolved by a legally effective judgment or decision of the Court”; if Ms. M disagrees with the Appellate Marriage and Family Judgment No. 17/HNGĐ-PT, she should request the competent People’s Court to review that judgment under cassation procedures (while the statute of limitations remains) or reopening procedures (when there are grounds). Therefore, on August 1, 2016, the People’s Court of Lam Dong Province issued Decision No. 03/2016/QDST-DS to terminate the resolution of the case and return Ms. M’s petition, which is consistent with the provisions in Point c Clause 1 Article 192 and Point g Clause 1 Article 217 of the Civil Procedure Code 2015. Decision No. 91/2017/QDDS-PT dated May 30, 2017, of the High People’s Court in Ho Chi Minh City, which annulled the entire Decision No. 03/2016/QDST-DS dated August 1, 2016, on the grounds that the dispute relationship in this case is “Property reclamation,” with plaintiffs and defendants different from those in the marriage and family case tried by the People’s Court of Lam Dong Province in the Appellate Marriage and Family Judgment No. 17/HNGĐ-PT dated September 24, 2002, is incorrect.
For the above reasons,
DECISION:
Pursuant to Clause 2 Article 337, Clause 2 Article 343, and Article 344 of the Civil Procedure Code 2015;
1. Accept the Cassation Protest Decision No. 49/2019/KN-DS dated July 31, 2019, of the Chief Justice of the Supreme People’s Court.
2. Annul the Decision resolving the appeal against the Decision to terminate the resolution of the case No. 91/2017/QDDS-PT dated May 30, 2017, of the High People’s Court in Ho Chi Minh City regarding the case “Property reclamation lawsuit” between the plaintiff Ms. To Thi M and the defendants Mrs. Nguyen Thi D, Ms. Pham Thi H, and other persons with related rights and obligations.
3. Uphold the Decision to terminate the resolution of the first-instance civil case and return the petition No. 03/2016/QDST-DS dated August 1, 2016, of the People’s Court of Lam Dong Province.
PRECEDENT CONTENT
“[2]… In the Appellate Marriage and Family Judgment No. 17/HNGĐ-PT dated September 24, 2002, the People’s Court of Lam Dong Province declared Ms. Pham Thi H the owner of ½ of the house with an area of 40.73m2, and Mrs. Nguyen Thi D the owner of ½ of the house with an area of 40.73m2 at No. 12A G Street, Ward 5, T City. Thus, the content of Ms. M’s lawsuit claiming that house No. 12A G Street, Ward 5, T City, belonged to Mr. H1 and Mrs. D1 is subject to an existing effective judgment determining the ownership of that house belongs to Mrs. D and Ms. H. Article 256 of the Civil Code 2005 stipulates: “Owners and legal possessors have the right to request possessors, users of property, or persons benefiting from property without a legal basis regarding property under their ownership or legal possession to return that property,…”. Thus, with the contents of the Appellate Marriage and Family Judgment No. 17/HNGĐ-PT mentioned above, Ms. M does not have the right to demand Mrs. D and Ms. H return house No. 12A G Street, Ward 5, T City. Therefore, the content of Ms. M’s petition must be considered a case where “The matter has been resolved by a legally effective judgment or decision of the Court”; if Ms. M disagrees with the Appellate Marriage and Family Judgment No. 17/HNGĐ-PT, she should request the competent People’s Court to review that judgment under cassation procedures (while the statute of limitations remains) or reopening procedures (when there are grounds). Therefore, on August 1, 2016, the People’s Court of Lam Dong Province issued Decision No. 03/2016/QDST-DS to terminate the resolution of the case and return Ms. M’s petition, which is consistent with the provisions in Point c Clause 1 Article 192 and Point g Clause 1 Article 217 of the Civil Procedure Code 2015. Decision No. 91/2017/QDDS-PT dated May 30, 2017, of the High People’s Court in Ho Chi Minh City, which annulled the entire Decision No. 03/2016/QDST-DS dated August 1, 2016, on the grounds that the dispute relationship in this case is “Property reclamation,” with plaintiffs and defendants different from those in the marriage and family case tried by the People’s Court of Lam Dong Province in the Appellate Marriage and Family Judgment No. 17/HNGĐ-PT dated September 24, 2002, is incorrect.”
