Precedent No. 61/2023/AL was adopted by the Council of Judges of the Supreme People’s Court on February 01, 02, and 03, 2023, and was published under Decision No. 39/QD-CA dated February 24, 2023, 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 Judges 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:
– Have value in clarifying legal provisions with different interpretations; analyze and explain legal issues and events; and point out principles, methods of resolution, and legal norms to be applied in a specific case or demonstrate equity regarding issues not yet specifically regulated by law;
– Possess standard characteristics;
– Have value in guiding the uniform application of law in adjudication.
2. Precedent No. 61/2023/AL on the termination of adoption when the adopted child is a minor
2.1. Source of the precedent
First-instance Decision No. 87/2019/QDST-HNGD dated April 24, 2019, of the People’s Court of Trang Bom District, Dong Nai Province, on the “Request for termination of adoption”; the requesters are Mr. Tran Cong T and Ms. Nguyen Thi Q; the persons with related interests and obligations are Mr. Nguyen Thanh H and Ms. Tran Thi Thao TI.
Location of the precedent content:
Paragraphs 7 and 8 of the “Court’s Assessment” section.
2.2. Summary of the precedent content
– Precedent situation:
The natural father, natural mother and the adoptive father, adoptive mother agree to return the minor adopted child to the natural father and natural mother for continued care and upbringing; the adopted child aspires to return to live with the natural father and natural mother, and the adoptive father and adoptive mother request the termination of the adoption.
– Legal solution:
In this case, the Court must accept the request to terminate the adoption.
Legal provisions related to the precedent:
– Articles 25, 26, and 27 of the Law on Adoption 2010;
– Article 78 of the Law on Marriage and Family of Vietnam 2014.
Keywords of the precedent:
“Termination of adoption”; “Minor adopted child”; “Voluntary termination of adoption”.
CONTENT OF THE CIVIL MATTER
– In the application and statement dated April 17, 2019, the requesters Mr. Tran Cong T and Ms. Nguyen Thi Q presented:
Mr. T and Ms. Q married in 1999 and have two common children (now adults). In 2015, the couple’s younger biological brother and sister-in-law, Nguyen Thanh H and Tran Thi Thao TI, faced economic difficulties, so they agreed to let child Nguyen Minh Khanh HI, born on October 31, 2003, be the adopted child of Mr. T and Ms. Q. Thus, they completed the adoption procedures at the People’s Committee of Commune A, District B, and were issued Adoption Certificate No. 01 on September 15, 2015.
After the adoption, they changed the child’s surname from Nguyen Minh Khanh HI to Tran Minh Khanh HI and provided good care and upbringing. However, child HI now aspires to return to live with his biological parents, so they request the termination of the adoption of child Tran Minh Khanh HI.
– In the statement dated April 17, 2019, the persons with related interests and obligations, Mr. Nguyen Thanh H and Ms. Tran Thi Thao TI presented:
They live together and registered their marriage at the People’s Committee of Commune A (marriage certificate issued in 1998). They have three common children: Nguyen Minh C, born January 10, 2000; Nguyen Minh Khanh HI, born October 31, 2003; and Nguyen Khanh M, born July 8, 2009. In 2015, due to difficult economic circumstances, they agreed to let child Nguyen Minh Khanh HI become the adopted child of Mr. H’s biological sister, Ms. Nguyen Thi Q, and Mr. Tran Cong T.
Upon being adopted, HI’s surname was changed to Tran Minh Khanh HI, and he was well-raised and educated. However, HI now wishes to return to live with them, so they agree.
– In the statement dated April 17, 2019, child Tran Minh Khanh HI presented:
He is the biological son of father Nguyen Thanh H and mother Tran Thi Thao TI and is currently a student in class 10A1 – N High School, Town O, District B, Dong Nai.
In 2015, due to his biological parents’ difficult family circumstances and many children, his parents agreed to let his uncle Tran Cong T and aunt Nguyen Thi Q adopt him.
After the adoption, he moved to live at his uncle and aunt’s house and his surname was changed from Nguyen Minh Khanh HI to Tran Minh Khanh HI. While living there, he lived and studied well and maintained contact with his family. However, as he is now older and his biological home has many siblings, he aspires to return to live with his natural parents.
Since Mr. Tran Cong T and Ms. Nguyen Thi Q now request to terminate the adoption, he agrees.
In addition, due to family and school commitments, Mr. Tran Cong T, Ms. Nguyen Thi Q, Mr. Nguyen Thanh H, and child Tran Minh Khanh HI requested to be absent from the hearing.
– The representative of the People’s Procuracy of Trang Bom District stated their opinion:
Regarding the procedures from the acceptance of the civil matter, the legal relationship, the evidence collection process, and the procedural deadlines, everything complied with the Code of Civil Procedure.
Regarding the content: The application of Mr. Tran Cong T and Ms. Nguyen Thi Q is legal and grounded, so it is recommended that the Court accept it.
COURT’S ASSESSMENT
[1] After studying the documents and evidence in the civil matter file examined at the hearing and considering the opinions of the parties and the representative of the Procuracy, the People’s Court of Trang Bom District assesses:
[2] Regarding procedures: The requesters submitted the application and performed the procedures in accordance with regulations.
[3] Mr. Tran Cong T, Ms. Nguyen Thi Q, Mr. Nguyen Thanh H, and child Tran Minh Khanh HI submitted requests to be absent; therefore, pursuant to Clause 2, Article 367 of the Code of Civil Procedure, the Court holds the hearing in their absence.
[4] Regarding the legal relationship and the Court’s jurisdiction:
[5] Mr. Tran Cong T and Ms. Nguyen Thi Q request the termination of the adoption of child Tran Minh Khanh HI, born October 31, 2003, address: 113 Row 8, Area B, Hamlet L, Commune A, District B, Dong Nai Province. Pursuant to Clause 5, Article 29, Point b, Clause 2, Article 35, and Point l, Clause 2, Article 39 of the Code of Civil Procedure, the civil relationship is: “Request for termination of adoption” and falls under the jurisdiction of the People’s Court of Trang Bom District.
[6] Regarding the content:
[7] In 2015, Mr. Tran Cong T and Ms. Nguyen Thi Q adopted child Nguyen Minh Khanh HI, the biological child of Mr. Nguyen Thanh H and Ms. Tran Thi Thao TI. The parties completed the adoption file and were issued Adoption Certificate No. 01 dated September 15, 2015, by the People’s Committee of Commune A; thus, the adoption relationship is legal, and all parties have fully performed their rights and obligations according to the law.
[8] Currently, child HI aspires to live with his natural parents to have the conditions to care for and support his siblings’ education, which is agreed upon by the adoptive parents (Mr. T, Ms. Q) and the natural parents (Mr. H, Ms. TI). Therefore, Mr. T and Ms. Q’s application requesting the Court to terminate the adoption is voluntary and consistent with Article 78 of the Law on Marriage and Family and Article 25 of the Law on Adoption. Consequently, it is necessary to accept the request to terminate the adoption between Mr. Tran Cong T, Ms. Nguyen Thi Q, and child Tran Minh Khanh HI.
[9] Regarding fees: Pursuant to Article 149 of the Code of Civil Procedure; Clause 1, Article 37 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, of the National Assembly regarding the rates, exemption, reduction, collection, payment, management, and use of court fees and charges, Mr. Tran Cong T and Ms. Nguyen Thi Q must pay a first-instance civil matter fee of 300,000 VND.
DECISION
– Pursuant to Article 149, Clause 3, Article 367, Article 371, and Article 372 of the Code of Civil Procedure; Article 78 of the Law on Marriage and Family; Article 25 of the Law on Adoption; Clause 1, Article 37 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, of the National Assembly regarding the rates, exemption, reduction, collection, payment, management, and use of court fees and charges.
Accept the civil matter request of Mr. Tran Cong T and Ms. Nguyen Thi Q.
Terminate the adoption between Mr. Tran Cong T, Ms. Nguyen Thi Q, and child Tran Minh Khanh HI, born October 31, 2003 (according to Adoption Certificate No. 01 dated September 15, 2015, of the People’s Committee of Commune A, District B, Dong Nai Province).
The rights and obligations of the adoptive parents and the adopted child shall terminate from the date the Court’s decision to terminate the adoption becomes legally effective.
– First-instance civil matter fee: Mr. Tran Cong T and Ms. Nguyen Thi Q must bear 300,000 VND in first-instance civil matter fees, to be deducted from the advance fee of 300,000 VND they paid under court fee receipt No. 0006560 dated April 9, 2019. Mr. T and Ms. Q have completed the payment.
– Right to appeal: Ms. Tran Thi Thao TI has the right to appeal the decision within 10 days from the date the Court issues the decision; Mr. Tran Cong T, Ms. Nguyen Thi Q, and Mr. Nguyen Thanh H have the right to appeal the decision within 10 days from the date the decision is lawfully served.
PRECEDENT CONTENT
“[7] In 2015, Mr. Tran Cong T and Ms. Nguyen Thi Q adopted child Nguyen Minh Khanh HI, the biological child of Mr. Nguyen Thanh H and Ms. Tran Thi Thao TI. The parties completed the adoption file and were issued Adoption Certificate No. 01 dated September 15, 2015, by the People’s Committee of Commune A; thus, the adoption relationship is legal, and all parties have fully performed their rights and obligations according to the law.
[8] Currently, child HI aspires to live with his natural parents to have the conditions to care for and support his siblings’ education, which is agreed upon by the adoptive parents (Mr. T, Ms. Q) and the natural parents (Mr. H, Ms. TI). Therefore, Mr. T and Ms. Q’s application requesting the Court to terminate the adoption is voluntary and consistent with Article 78 of the Law on Marriage and Family and Article 25 of the Law on Adoption. Consequently, it is necessary to accept the request to terminate the adoption between Mr. Tran Cong T, Ms. Nguyen Thi Q, and child Tran Minh Khanh HI.”
