Precedent No. 49/2021/AL was adopted by the Council of Justices of the Supreme People’s Court on November 25, 2021, and promulgated under Decision No. 594/QD-CA dated December 31, 2021, 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 promulgated 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)
Selected precedents must meet the following criteria:
– Contain value in clarifying legal provisions that have different interpretations; analyze and explain legal issues and events, and point out principles, handling methods, and legal norms to be applied in a specific case or demonstrate equity for issues not yet specifically regulated by law;
– Possess standard-setting nature;
– Contain value in guiding the uniform application of law in adjudication.
2. Precedent No. 49/2021/AL on the determination of administrative decisions issued without proper authority
2.1. Source of the precedent
Cassation Decision No. 06/2019/HC-GDT dated April 2, 2019, of the Council of Justices of the Supreme People’s Court regarding the case “Lawsuit against administrative decisions in the field of land management” between the requester Mr. Thai Van N and the respondent the Chairman of the People’s Committee of D Province; the person with related interests and obligations is V Church.
Location of the precedent content:
Paragraph 3 of the “Court’s Assessment” section.
2.2. Overview of the precedent content
– Precedent situation:
The Chairman of the People’s Committee issues an administrative decision to resolve a land dispute where that dispute is related to a contract regarding land use rights.
– Legal solution:
In this case, the Court must determine that the dispute over the contract regarding land use rights falls under the jurisdiction of the Court; the Chairman of the People’s Committee issuing an administrative decision to resolve the land dispute is without proper authority.
Legal provisions related to the precedent:
– Clause 3 Article 25 of the Civil Procedure Code of Vietnam 2004 (corresponding to Clause 3 Article 26 of the Civil Procedure Code of Vietnam 2015);
– Article 136 of the Land Law of Vietnam 2003 (corresponding to Article 203 of the Land Law of Vietnam 2013).
Keywords of the precedent:
“Administrative decision”; “Land dispute”; “Contract regarding land use rights”.
CASE CONTENT:
In the Petition dated September 24, 2012, and during the resolution process, Mr. Thai Van N presented: The origin of the disputed land between V Church (referred to as the Church) and Mr. Thai Van N’s household belonged to the Church, donated to the Church in 1960 by Mr. Nguyen Van Q and Mrs. Nguyen Thi S (parents of Mr. Nguyen Phuoc T) and partly by Mr. Nguyen Van E. In 1961, the Church was built with a width of 11m. In 1976, the Church allowed Mr. N to build a house on the Church’s land and look after the Church (as Mr. N is a parishioner), with a width of 16m and a length from Highway 80 to River P (about 30m). Mr. N built a house on a 5m wide portion, and on the remaining width, Mr. N planted bananas and mangoes. During the use of the land, in 1986, Mr. N’s family built two additional rooms and a kitchen adjacent to the main house. In 1999, due to land erosion, the Church moved to the opposite side (across Highway 80). Part of the old Church land was handed over to Mr. Nguyen Phuoc T (son of Mr. Q, the former owner) and part was handed over to Mrs. M and Mr. K in exchange for materials to build the new Church. The area used by Mr. N’s family for housing (including the house built in 1976 and the rooms and kitchen built in 1986) continued to be used by Mr. N’s family.
On January 18, 2003, Priest-in-charge Nguyen Quang D and representatives of the Parish Council of V Church established a “Land Handover Document” giving Mr. N a portion of land 10m wide and 30m long from Highway 80 to River P, with a total area of 300m2.
In 2009, Mr. N renovated the main house into a solid structure and built an additional mobile phone shop. The Church did not agree, leading to a dispute. Mr. N claimed he had been given the land by Priest-in-charge Nguyen Quang D and the Parish Council under the “Land Handover Document” dated January 18, 2003. According to the cadastral map extract by the Land Use Rights Registration Office of P District on September 1, 2011, Mr. N’s main house has an area of 134.7m2 (5.8m wide) and the phone shop is 102.2m2 (4.4m wide).
The Church submitted an application to the People’s Committee of D Province requesting a resolution.
On May 14, 2012, the Chairman of the People’s Committee of D Province issued Decision No. 197/QD-UBND-ND to resolve the land dispute, with the following content:
“Article 1: Recognize land use rights for Mr. Thai Van N for the area located as follows:
+ East borders Mr. Nguyen Phuoc T, 23.8m edge.
+ West borders the Church land, 24.3m edge.
+ South borders Highway 80, 5.8m edge.
+ North borders River P, 5.4m edge.
– Recognize land use rights for V Church for the area located as follows:
+ East borders Mr. Thai Van N, 24.3m edge.
+ West borders Mrs. Huynh Thi M, 23.7m edge.
+ South borders Highway 80, 4.4m edge.
+ North borders River P, 4.2m edge.
(Accompanied by the cadastral map extract established by the Land Use Rights Registration Office of P District on September 1, 2011).
Force Mr. N to move architectural structures and plants (if any) to return the above land for the Church’s use.”
On September 24, 2012, Mr. N filed a lawsuit requesting the Court to annul Decision No. 197/QD-UBND-ND dated May 14, 2012, of the Chairman of the People’s Committee of D Province.
– Opinion of the People’s Committee of D Province: The land origin belongs to Mr. Nguyen Van Q and Mr. Nguyen Van E, donated to the Church in 1960, with a width of 28m from Highway 30 to River P. The Church was built in 1969 with a width of 8m. In 1976, the Church handed over a portion about 4m wide to Mr. N to build a house and look after the Church; Mr. N planted fruit trees on the remaining land. In 1999, as the Church deteriorated, it moved to another location. Part of the land was returned to the former owner, and part was exchanged with Mr. K for building materials for the new Church.
On January 18, 2003, Priest-in-charge Nguyen Quang D and representatives of the Parish Council of V Church established a “Land Handover Document” giving Mr. N a portion 10m wide and 300m2 in area.
In 2009, when Mr. N renovated and built a new house, expanding to cover the entire 10m width, a dispute occurred with the Church. Upon the Church’s complaint, the Chairman of the People’s Committee of D Province resolved it via Decision No. 197/QD-UBND-ND, granting Mr. N the right to use the area with edges 5.8m and 5.4m wide, and 23.8m and 24.3m long; the rest required Mr. N to move structures and plants to return the land to the Church. The above decision considered the land use history of Mr. N’s family; although the Priest of V Church made a “Land Handover Document” for Mr. N in 2003, it was not certified by the local authorities, thus it has no legal value. The Decision of the People’s Committee of D Province is grounded, and it is requested not to accept Mr. N’s request.
– Opinion of V Church: The origin of the Church land was donated by parishioners: Mr. Q donated 21m width and Mr. E sold 7m width in 1960, both from Highway 80 to River P. Total width is 28m. In 1961, the Church was built with an 11m width. In 1976, the Church allowed Mr. N’s family to use a 4m wide portion to build a house and look after the Church; Mr. N’s family planted fruit trees (mango, banana) on the remaining area. In 1986, Mr. N’s family built two additional rooms and a kitchen.
In 1999, due to erosion, the Church moved to the opposite land for rebuilding with the Provincial People’s Committee’s permission. The old land was partly returned to Mr. T (son of the old owner) and partly exchanged with Mrs. M and Mr. K for materials.
On January 18, 2003, Priest-in-charge Nguyen Quang D and the Parish Council made a land handover document for Mr. N’s family (10m wide). Both sides had an oral agreement to exchange construction materials for the new Church, but Mr. N’s family did not fulfill it, so the Church did not go to the Commune People’s Committee to confirm the handover paper.
In 2009, Mr. N built a solid house and a phone shop, leading to a dispute. The Church only agreed to let Mr. N use the 4m wide portion; for the 1.2m wide portion, the price must be negotiated with the Church, and the remaining 4.4m wide area must be returned to the Church.
The Church agreed with Decision No. 197/QD-UBND-ND dated May 14, 2012, and requested the Court to dismiss Mr. N’s request.
In First-instance Administrative Judgment No. 02/2014/HC-ST dated June 27, 2014, the People’s Court of Dong Thap Province decided:
To dismiss Mr. Thai Van N’s request to annul Decision No. 197/QD-UBND-ND dated May 14, 2012, of the Chairman of the People’s Committee of D Province.
The first-instance court also ruled on court fees.
On July 10, 2014, Mr. N filed an appeal against the entire first-instance judgment.
In Protest Decision No. 89/QDKNPT-P5 dated July 11, 2014, the Procurator General of the People’s Procuracy of Dong Thap Province protested First-instance Administrative Judgment No. 02/2014/HC-ST and requested the appellate court to amend the judgment and annul part of Decision No. 197/QD-UBND-ND.
At the appellate hearing, the representative of the High People’s Procuracy in Ho Chi Minh City withdrew the entire protest decision of the Procurator General of Dong Thap Province.
In Appellate Administrative Judgment No. 65/2015/HC-PT dated September 9, 2015, the High People’s Court in Ho Chi Minh City decided:
To terminate the appellate trial for Protest Decision No. 89/QDKNPT-P5.
To not accept the appeal of Mr. Thai B (authorized representative of the requester). To uphold First-instance Judgment No. 02/2014/HC-ST.
Applying Article 31 of the Land Law 1993 and Decree No. 17/1999/ND-CP dated March 29, 1999, of the Government, ruling:
To not accept Mr. Thai Van N’s lawsuit request to annul Decision No. 197/QD-UBND-ND dated May 14, 2012, of the Chairman of the People’s Committee of D Province.
The appellate court ruled on court fees.
On November 17, 2015, Mr. N requested a cassation review of Appellate Administrative Judgment No. 65/2015/HC-PT.
On February 1, May 9, and July 9, 2018, the People’s Committee of D Province issued Documents No. 32/UBND-NC, 232/UBND-NC, and 349/UBND-NC requesting a cassation review of the appellate judgment.
In Protest Decision No. 25/2018/KN-HC dated November 9, 2018, the Chief Justice of the Supreme People’s Court protested Appellate Administrative Judgment No. 65/2015/HC-PT under cassation procedures and requested the Council of Justices of the Supreme People’s Court to annul both the appellate and first-instance judgments; and to hand over the case file to the People’s Court of Dong Thap Province for a first-instance retrial in accordance with the law.
At the cassation hearing, the representative of the Supreme People’s Procuracy requested the Council of Justices of the Supreme People’s Court to accept the Chief Justice’s protest.
THE COURT’S ASSESSMENT:
[1] Regarding jurisdiction over the dispute:
[2] The land Mr. Thai Van N’s family is using is determined to be 202.2m2 (with a mobile phone shop on it) belonging to part of plot No. 42, cadastral map No. 8a, V commune, P district, Dong Thap province, originally donated to the Church. In 1976, the Church allowed Mr. N’s family to use a 4m wide portion to build a house and look after the Church. On January 18, 2003, Priest Nguyen Quang D and the Parish Council established a “Land Handover Document” giving Mr. N a portion 10m wide and 30m long, total area 300m2.
[3] In 2009, Mr. N renovated the house and built a mobile phone shop; the Church disagreed, leading to a dispute. Mr. N claimed he was given the land by Priest Nguyen Quang D and the Parish Council according to the “Land Handover Document” dated January 18, 2003. The Church representative admitted there was such a document but claimed Mr. N failed to exchange materials for the new Church construction, so the Church did not seek commune certification. Therefore, the dispute between the two parties is related to a gift contract for land use rights between V Church and Mr. N. Thus, the case falls under the jurisdiction of the Court as prescribed in Clause 3 Article 25 of the Civil Procedure Code 2004 and Clause 3 Article 26 of the Civil Procedure Code 2015. The Chairman of the People’s Committee of D Province issuing Decision No. 197/QD-UBND-ND dated May 14, 2012, to resolve the land use rights dispute between V Church and Mr. Thai Van N was without proper authority.
[4] Regarding the content:
[5] Origin and land use process of Mr. N: The land of V Church was originally donated by parishioners. In 1976, V Church gave Mr. N a portion of land; Mr. N built a house on part of the land (currently 134.7m2), and on the rest (currently 102.2m2), Mr. N planted mangoes and bananas, which was confirmed by the People’s Committee of D Province and the Church.
[6] Thus, Mr. N’s family used the land given by the Church continuously from 1976 to 2009 (paying taxes to the state). However, tax receipts did not specify the area, and Mr. N did not declare for land use right registration.
[7] In 1999, because V Church moved elsewhere, the land where the Church was located was returned to the former owner Mr. Nguyen Phuoc T and a portion was given to Mrs. Huynh Thi Mai H and Mr. Dang Van K in exchange for materials; there were no disputes among these families.
[8] On January 18, 2003, the Priest-in-charge and representatives of the Parish Council established a “Land Handover Document” for Mr. N, stating: “This paper is made as evidence to hand over the old foundation land of V Church located in Hamlet B, V Commune. Calculated from Road 80 to the riverbank (P Canal). Length: 30 meters, width: 10 meters. Total area: 300 square meters. Reason: This land belongs to the Church. Mr. Thai Van N and Mrs. Huynh Thi Mai H have been permitted by the Church to live and cultivate here until now. Now that the Church has moved and this land is no longer in use, we hand it over to Mr. and Mrs. N for full declaration and use rights.”
[9] The content of the above document is not a contract for the transfer of land use rights; it is essentially V Church confirming the handover of land for Mr. N to have use rights (like a gift contract) so Mr. N has a basis to register land use rights like Mr. T and Mr. K. In fact, when the Church handed over the land, Mr. N was already using it, and the Church had not used it since 1999. Since the document was made, the Church did not object; additionally, at the first-instance trial, the Church representative confirmed: “When Priest B handed over assets, there was confirmation but no receipt stating the specific amount of land assets”.
[10] Thus, Mr. N has used the disputed area continuously since 1976, the Church has not directly used it, and Mr. N’s family has a need for it.
[11] The Chairman of the People’s Committee of D Province issuing Decision No. 197/QD-UBND-ND dated May 14, 2012, forcing Mr. N’s family to move structures and plants to return 102.2m2 of land to the Church is incorrect.
[12] The first-instance and appellate courts only relied on the area where Mr. N built the house and the Church representative’s testimony to rule that Mr. N was only entitled to 134.7m2, which is inconsistent with the objective facts; furthermore, ruling that the Church’s handover document was legally invalid because it was not certified by competent authorities to dismiss Mr. N’s request is groundless.
[13] Because the Chairman of the People’s Committee of D Province issued Decision No. 197/QD-UBND-ND dated May 14, 2012, to resolve the land dispute without proper authority, the case’s resolution was also not in accordance with the law.
For the above reasons;
DECISION:
Pursuant to Clause 1 Article 271, Clause 3 Article 272, and Clause 2 Article 274 of the Law on Administrative Procedures;
1. To accept Cassation Protest Decision No. 25/2018/KN-HC dated November 9, 2018, of the Chief Justice of the Supreme People’s Court against Appellate Administrative Judgment No. 65/2015/HC-PT dated September 9, 2015, of the High People’s Court in Ho Chi Minh City;
2. To annul Appellate Administrative Judgment No. 65/2015/HC-PT dated September 9, 2015, of the High People’s Court in Ho Chi Minh City;
3. To hand over the case file to the High People’s Court in Ho Chi Minh City for an appellate retrial in accordance with the law.
PRECEDENT CONTENT
“[3] … Mr. N claimed he was given the land by Priest-in-charge Nguyen Quang D and the Parish Council of V Church under the “Land Handover Document” established on January 18, 2003. The representative of V Church admitted there was a “Land Handover Document” as Mr. N presented, but claimed Mr. N did not perform the exchange of materials to build the new Church, so the Church did not go to the Commune People’s Committee to confirm the handover paper. Therefore, the dispute between the two parties is related to a gift contract for land use rights between V Church and Mr. N. Thus, the case falls under the jurisdiction of the Court as prescribed in Clause 3 Article 25 of the Civil Procedure Code 2004 and Clause 3 Article 26 of the Civil Procedure Code 2015. The Chairman of the People’s Committee of D Province issuing Decision No. 197/QD-UBND-ND dated May 14, 2012, to resolve the land use rights dispute between V Church and Mr. Thai Van N was without proper authority.”
