Precedent No. 50/2021/AL was adopted by the Council of Justices of the Supreme People’s Court on November 25, 2021, and published 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 or decisions of the Court on a specific case 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 has the value of clarifying legal provisions that are subject to different interpretations, analyzing and explaining legal issues and events, and pointing out the principles, approaches, and legal norms to be applied in a specific case, or demonstrating fairness towards issues for which there are no specific legal provisions;
– It is exemplary;
– It has the value of guiding the uniform application of law in adjudication.
2. Precedent No. 50/2021/AL on the right to initiate a lawsuit to reclaim property of a person to whom property was assigned under a legally effective judgment or decision
2.1. Source of the precedent
Cassation Decision No. 481/2012/DS-GDT dated September 25, 2012, of the Civil Court of the Supreme People’s Court regarding the case “Dispute to reclaim property” in Thua Thien Hue province between the plaintiff Mr. Nguyen Van N and the defendant Ms. Nguyen Thị T.
Location of the precedent’s content:
Paragraph 4 of the “Court’s Assessment” section.
2.2. Overview of the precedent’s content
– Case situation:
A legally effective judgment or decision of the Court resolved the division of property, but this judgment or decision has not been executed because the judgment creditor did not request execution and has not actually received the property. When the statute of limitations for requesting judgment execution has expired, the person to whom the property was assigned by the Court initiates a dispute to reclaim the property assigned under the aforementioned judgment or decision.
– Legal solution:
In this case, the Court must determine that the person who was assigned the property under the legally effective judgment or decision of the Court has the right to initiate a lawsuit to reclaim the property.
Legal provisions related to the precedent:
– Clauses 2 and 7 of Article 25 of the Civil Procedure Code of Vietnam 2004 amended and supplemented in 2011 (corresponding to Clauses 2 and 9 of Article 26 of the Civil Procedure Code of Vietnam 2015);
– Article 256 of the Civil Code 2005 (corresponding to Article 166 of the Civil Code 2015);
– Clause 6 of Article 105 of the Land Law of Vietnam 2003 (corresponding to Clause 7 of Article 166 of the Land Law of Vietnam 2013).
Keywords of the precedent:
“Legally effective judgment or decision dividing property”; “Expiration of the statute of limitations for requesting judgment execution”; “Right to initiate a lawsuit to reclaim property”.
CASE CONTENT:
In the petition dated January 4, 2005, the plaintiff Mr. Nguyen Van N stated: he and Ms. Nguyen Thị T married in 1963; they had a house located on a plot of land in Village B, Commune X (now house No. 04 H Street, Area A, Ward C, Hue City) with an area of 1,490m2. In 1968, Mr. N left for the North; in 1975, when Mr. N returned home, Ms. T had another husband, so they applied for divorce.
In the Appellate Civil Judgment No. 43/DSPT dated May 13, 1977, the People’s Court of Binh Tri Thien Province granted the divorce between Mr. N and Ms. T. Regarding property, Mr. N was granted the right to use a portion of land within the aforementioned plot, which contained his father’s grave, according to the boundary division map drawn by the Court and attached to the judgment. After the appellate judgment took effect, Mr. N fulfilled his child support obligations, and the functional agencies proceeded to divide and measure the land according to the Court’s drawing. In 2001, when Mr. N returned to build an ancestral house, Ms. T obstructed him, so he filed a lawsuit requesting Ms. T to return the property, which is the land use right according to the judgment, and requiring Ms. T to restore the original boundaries as divided by the judgment.
The defendant, Ms. Nguyen Thị T, admitted to marrying Mr. N and then divorcing under Judgment No. 43 dated May 13, 1977. In 1968, Mr. N went to the North, and in 1969, there was a death notice for Mr. N, so Ms. T took another husband. Since the judgment was issued, the judgment creditor, Mr. N, did not file a request for judgment execution, so Ms. T did not accept returning the land to Mr. N because she believed the land was left to her by her father.
In the First-instance Civil Judgment No. 08/2006/DSST dated June 21, 2006, the People’s Court of Hue City, Thua Thien Hue Province decided:
To accept the request of Mr. Nguyen Van N, forcing Ms. Nguyen Thị T to return the land use right of an area of 452.85m2 (with sides of 37.5; 38.55; 36.14), which is the property established under Judgment No. 43/DSPT dated May 13, 1977, on which his father’s grave is located, in plot No. 42, cadastral map No. 28, area 1,997.06m2 at house No. 04 H Street, Area A, Ward C, Hue City (the location of Mr. N’s plot is shown on the attached drawing).
Additionally, the First-instance Court also ruled on court fees and the parties’ right to appeal.
After the first-instance trial, Ms. T appealed.
In the Appellate Civil Judgment No. 55/2006/DSPT dated December 11, 2006, of the People’s Court of Thua Thien Hue Province decided:
To annul the entire First-instance Civil Judgment No. 08/2006/DSST dated June 21, 2006, of the People’s Court of Hue City, Thua Thien Hue Province, regarding the dispute to reclaim land use rights between the plaintiff Mr. Nguyen Van N and the defendant Ms. Nguyen Thị T. Suspend the resolution of the case. Return the petition to Mr. Nguyen Van N. Additionally, the Appellate Court also ruled on court fees.
After the appellate trial, Mr. N filed a complaint.
In Cassation Protest Decision No. 708/2009/KN-DS dated December 10, 2009, the Chief Justice of the Supreme People’s Court protested against Appellate Civil Judgment No. 55/2006/DSPT dated December 11, 2006, of the People’s Court of Thua Thien Hue Province, with the following comments:
Mr. N’s land use right was determined in Appellate Judgment No. 43/DSPT dated May 13, 1977. Mr. N has the right to sue to reclaim property through a new civil case. The Appellate Court’s determination that Mr. N did not have the right to sue and the return of the petition to Mr. N is unreasonable.
Requested the Civil Court of the Supreme People’s Court to conduct a cassation trial to annul the aforementioned appellate civil judgment and annul First-instance Civil Judgment No. 08/2006/DSST dated June 21, 2006, of the People’s Court of Hue City, Thua Thien Hue Province; transfer the case file to the People’s Court of Hue City, Thua Thien Hue Province, for a new first-instance trial in accordance with the law.
At the cassation hearing, the representative of the Supreme People’s Procuracy agreed with the protest of the Chief Justice of the Supreme People’s Court.
COURT’S ASSESSMENT:
[1] Based on the documents in the case file, there are grounds to conclude: Mr. Nguyen Van N and Ms. Nguyen Thị T married in 1963. The couple had a house located on a plot of land in Village B, Commune X (now house No. 04 H Street, Area A, Ward C, Hue City) with an area of 1,490m2. In 1968, Mr. N left for the North; in 1975, when Mr. N returned home, Ms. T had another husband, so they applied for divorce.
[2] In Appellate Judgment No. 43 dated May 13, 1977, the People’s Court of Binh Tri Thien Province granted the divorce between Mr. N and Ms. T, and decided on child support responsibilities and property division. According to the decision in the judgment, Mr. N was entitled to a portion of land within the aforementioned plot (with a boundary division diagram drawn by the Court and attached to the judgment). Due to working far from home, Mr. N left the land in its original state; in 2001, when Mr. N returned home intending to build an ancestral house, Ms. T obstructed him; the two sides did not agree on the land boundaries, and Ms. T did not agree to return the land to Mr. N. Therefore, Mr. N filed a lawsuit requesting Ms. T to return the portion of land according to the legally effective Appellate Judgment.
[3] In reality, Ms. T has been the person managing and using the portion of land that the People’s Court of Binh Tri Thien Province assigned to Mr. N. According to Ms. T, Mr. N had not filed a request for judgment execution, and the aforementioned Appellate Judgment had not been executed, and the statute of limitations for execution has now expired according to the law.
[4] According to the law, Mr. N’s land use right for the disputed land was determined in Appellate Judgment No. 43 dated May 13, 1977, of the People’s Court of Binh Tri Thien Province. The Court is not allowed to re-resolve the relationship of who is the lawful land user, but suing to reclaim property is a different legal relationship. If the statute of limitations for judgment execution is still valid, Mr. N has the right to request the judgment enforcement agency to force the delivery of land according to Judgment No. 43 dated May 13, 1977, of the People’s Court of Binh Tri Thien Province. However, now that the statute of limitations for requesting judgment execution has expired, Mr. N has the right to initiate a lawsuit to reclaim property through a new civil case. In this case, if there is no basis to determine that Mr. N has renounced his property rights, his lawsuit request must be accepted.
[5] The Appellate Court’s determination that Mr. N did not have the right to sue and the return of the petition to Mr. N is groundless. Furthermore, the Courts at all levels have not verified or considered the management and use of the land, the declaration and payment of taxes; or the opinions of competent State agencies on whether or not they recognize the lawful land use rights for this portion of land.
[6] The First-instance Court’s acceptance of Mr. N’s request to force Ms. T to return the land use right of 452.85m2, which is property established under Judgment No. 43/DSPT dated May 13, 1977, where his father’s grave is located, without considering the efforts of preserving, improving, and maintaining the land for Ms. T, as well as the amount of land tax Ms. T paid, is incorrect. The Appellate Court’s annulment of the entire first-instance judgment of the People’s Court of Hue City to suspend the case and return the petition to Mr. N is not in accordance with the law.
[7] Therefore, the protest of the Chief Justice of the Supreme People’s Court is grounded for acceptance.
[8] For the above reasons, based on Clause 2 of Article 291, Clause 3 of Article 297, and Article 299 of the Civil Procedure Code 2004 (amended and supplemented in 2011).
DECISION:
– Annul the entire Appellate Civil Judgment No. 55/2006/DSPT dated December 11, 2006, of the People’s Court of Thua Thien Hue Province and annul the entire First-instance Civil Judgment No. 08/2006/DSST dated June 21, 2006, of the People’s Court of Hue City, Thua Thien Hue Province, regarding the case “Dispute to reclaim property” between the plaintiff Mr. Nguyen Van N and the defendant Ms. Nguyen Thị T.
– Transfer the case file to the People’s Court of Hue City, Thua Thien Hue Province, for a new first-instance trial in accordance with the law.
PRECEDENT CONTENT
“[4] According to the law, Mr. N’s land use right for the disputed land was determined in Appellate Judgment No. 43 dated May 13, 1977, of the People’s Court of Binh Tri Thien Province. The Court is not allowed to re-resolve the relationship of who is the lawful land user, but suing to reclaim property is a different legal relationship. If the statute of limitations for judgment execution is still valid, Mr. N has the right to request the judgment enforcement agency to force the delivery of land according to Judgment No. 43 dated May 13, 1977, of the People’s Court of Binh Tri Thien Province. However, now that the statute of limitations for requesting judgment execution has expired, Mr. N has the right to initiate a lawsuit to reclaim property through a new civil case. In this case, if there is no basis to determine that Mr. N has renounced his property rights, his lawsuit request must be accepted.”
