Precedent No. 62/2023/AL was adopted by the Council of Judges of the Supreme People’s Court on February 01, 02, and 03, 2023, and was promulgated 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 Court regarding a specific case selected by the Council of Judges 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-HĐTP)
A selected precedent must meet the following criteria:
– Possess value in clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, handling methods, and legal norms to be applied in a specific case or demonstrating justice for issues not yet specifically regulated by law;
– Possess a standard character;
– Possess value in guiding the uniform application of law in adjudication.
2. Precedent No. 62/2023/AL1 on the starting point of performing child support obligations for minor children in cases involving disputes over the determination of paternity
2.1. Source of the precedent
Appellate Judgment No. 07/2018/HN-PT dated March 22, 2018, of the People’s Court of Binh Phuoc Province regarding the marriage and family case “Determination of paternity, child support” between the plaintiff Ms. Le Thi D and the defendant Mr. Trinh Vinh C.
Location of the precedent’s content:
Paragraph 4 of the “Court’s Assessment” section.
2.2. Overview of the precedent’s content
– Precedent situation:
After the child is born, the mother files a lawsuit requesting to determine the defendant as the biological father of the child and requesting the defendant to perform child support obligations for the minor child. The Court determines the defendant is the biological father of the child and has the obligation to provide support for the child.
– Legal solution:
In this case, the Court must determine the child support period for the minor child to be calculated from the time the child was born.
Legal provisions related to the precedent:
Clause 24 Article 3, Article 107, Article 110 of the Law on Marriage and Family of Vietnam 2014.
Keywords of the precedent:
“Determination of paternity”; “Child support for minor children”; “Starting point for performing support obligations”.
CASE CONTENT:
* Plaintiff Ms. Le Thi D presented:
She and Mr. Trinh Vinh C voluntarily lived together from 2013 and held a wedding ceremony according to customs but did not register their marriage. Because they could no longer live together, they requested the Court to resolve the matter. In Judgment No. 13/2017/HNGD-ST dated March 31, 2017, the People’s Court of Loc Ninh District, Binh Phuoc Province, declared not to recognize Ms. Le Thi D and Mr. Trinh Vinh C as husband and wife.
During their time living together, Ms. D and Mr. C had a common child named Le Gia P, born on January 12, 2014. Since birth, child Le Gia P has been raised by Ms. D.
Ms. D filed a lawsuit requesting the Court to determine child Le Gia P as the child of herself and Mr. Trinh Vinh C; simultaneously requesting the Court to compel Mr. Trinh Vinh to provide child support of 2,000,000 VND per month from January 12, 2014, until child Le Gia P reaches adulthood. At the first-instance trial, she partially changed her request, compelling Mr. C to provide child support of 1,500,000 VND per month from January 12, 2014, until child P reaches the age of 18.
* Defendant Mr. Trinh Vinh C presented:
Mr. Trinh Vinh C admitted the period of cohabitation and the fact that the Court resolved not to recognize the parties as husband and wife as Ms. Le Thi D presented. He admitted child Le Gia P is his biological child with Ms. Le Thi D, born during the period of cohabitation as husband and wife. He stated that during the cohabitation period and at the time of separation, due to severe family conflicts, Ms. Le Thi D did not allow Mr. Trinh Vinh C to recognize child Le Gia P as his son and registered the birth using the mother’s surname.
Regarding the request for child support as requested by Ms. Le Thi D:
He stated that the aforementioned support level was too high, exceeding his income. Mr. C only agreed to provide support of 1,300,000 VND per month, calculated from November 1, 2017, until child Le Gia P reaches adulthood.
At First-instance Marriage and Family Judgment No. 48/2017/HN-ST dated November 22, 2017, the People’s Court of Loc Ninh District ruled:
Recognize the agreement between Ms. Le Thi D and Mr. Trinh Vinh C. Determine child Le Gia P, born on January 12, 2014, as the biological child of Ms. Le Thi D and Mr. Trinh Vinh C.
Assign child Le Gia P to Ms. Le Thi D for care and upbringing until child Le Gia P reaches adulthood.
Support level and timing of support obligation: Compel Mr. Trinh Vinh C to provide child support for child Le Gia P at 1,500,000 VND per month until child Le Gia P reaches the age of 18. The support period is calculated from October 12, 2017, until child Le Gia P reaches the full age of 18.
Additionally, the judgment ruled on court fees, enforcement obligations, and the parties’ right to appeal.
On November 27, 2017, the plaintiff Ms. Le Thi D filed an appeal with the following content: Request the People’s Court of Binh Phuoc Province to conduct an appellate trial to amend part of the First-instance Judgment No. 48/2017/HN-ST dated November 22, 2017, of the People’s Court of Loc Ninh District, Binh Phuoc Province.
Compel Mr. Trinh Vinh C to pay child support for child Le Gia P from birth on January 12, 2014, until October 12, 2017, which is 45 months with an amount of 45 months X 1,500,000 VND/month = 67,500,000 VND.
On November 30, 2017, the defendant Mr. Trinh Vinh C filed an appeal disagreeing with the support level of 1,500,000 VND/month as ruled in the first-instance judgment. He requested the People’s Court of Binh Phuoc Province to lower the support level to 1,000,000 VND/month. Additionally, Mr. C requested to take child P to raise himself without requiring Ms. D to provide support.
The representative of the Procuracy participating in the appellate trial requested the Trial Panel, based on Clause 1 Article 308 of the Civil Procedure Code 2015: To not accept Mr. C’s appeal, not accept Ms. D’s appeal, and uphold the decisions of First-instance Judgment No. 48/2017/HN-ST dated November 22, 2017, of the People’s Court of Loc Ninh District.
After studying the documents in the case file, examining at the trial, based on the results of the arguments at the trial, and the opinions of the Procurator and the parties.
COURT’S ASSESSMENT:
[1] Considering Mr. C’s appeal requesting to raise child Le Gia P without Ms. D’s support, it is found that: Since birth, child P has been cared for and raised solely by Ms. D, developing normally physically and mentally. The first-instance Court assigning child P to Ms. D for upbringing is appropriate; therefore, Mr. C’s appeal on this part is groundless.
[2] Considering Mr. C’s appeal requesting the People’s Court of Binh Phuoc Province to lower the support level from 1,500,000 VND/month to 1,000,000 VND/month, it is found that: According to the Verification Minutes of the People’s Court of Loc Ninh District (File 33), the average cost to care for and raise a child of P’s age is 3,000,000 VND/month. Thus, the first-instance Court compelling Mr. C to have the obligation to provide child support for child P at 1,500,000 VND per month (3,000,000 VND : 2 people = 1,500,000 VND/person) is appropriate. Furthermore, Mr. C is a teacher with a stable income, a monthly salary of 4,666,220 VND (File 18); therefore, Mr. C’s appeal to reduce the support level is groundless.
[3] Considering Ms. Le Thi D’s appeal regarding compelling Mr. Trinh Vinh C to repay the amount Ms. D alone spent to raise child Le Gia P from birth on January 12, 2014, until October 12, 2017 (the date she filed the lawsuit), which is 45 months with an amount of 45 months X 1,500,000 VND/month = 67,500,000 VND, it is found that: At the appellate trial, Mr. C admitted child P is his child; since birth, child P has been raised by Ms. D because Mr. C had not been confirmed as the legal father of child P. Despite this, when Ms. D gave birth, Mr. C gave Ms. D 5 million VND for birth preparation. Subsequently, Mr. C gave Ms. D an average of 5 months per year, 1 million VND each month for child support. Ms. D only admitted Mr. C gave her 5 million VND for birth preparation and that Mr. C only gave her 1 million VND on three separate occasions.
[4] Considering the provisions of Articles 82, 83; Clause 24 Article 3, Articles 107, 110 of the Law on Marriage and Family 2014, and Article 281 of the Civil Code 2005, the child support obligation of parents toward minor children arises from the time the child is born. Providing child support is a right and an obligation of the parent not directly raising the child. Child Le Gia P is the common child of Ms. Le Thi D and Mr. Trinh Vinh C, but from the time child P was born on January 12, 2014, until October 12, 2017 (the date Ms. D filed the lawsuit requesting support), Ms. D alone cared for, raised, and paid the costs for raising the child. Thus, the first-instance Court’s non-acceptance of the request to compel Mr. C to repay the costs Ms. D spent to raise child P from the date of birth on January 12, 2014, until October 12, 2017, was inappropriate and affected Ms. D’s legal rights and interests. Therefore, it is necessary to partially accept Ms. D’s appeal, compelling Mr. C to repay Ms. D 1/2 of the amount of 2 million VND/month that Ms. D spent to raise the child from January 12, 2014, to October 12, 2017, as follows: 45 months X 1,000,000 VND/month = 45,000,000 VND.
[5] Mr. C presented that on average each year he provided support for 5 months, 1 million VND each month to Ms. D to raise the child. However, Mr. C has no documents or evidence to prove this; Ms. D only admitted receiving from Mr. C 3 times, 1 million VND each time for child support. Therefore, there is only a basis to accept that Mr. C provided child support for 3 months, 1,000,000 VND each month, totaling 3,000,000 VND. This amount is deducted from the 45,000,000 VND child support that Mr. C must repay Ms. D (45,000,000 VND – 3,000,000 VND) = 42,000,000 VND.
[6] Regarding the amount of 5,000,000 VND Mr. C gave Ms. D, this was for childbirth costs, so Mr. C is not allowed to deduct it from the child support amount.
[7] The viewpoint of the representative of the People’s Procuracy of Binh Phuoc Province requesting not to accept Mr. C’s appeal for a support reduction is grounded.
[8] The viewpoint of the representative of the People’s Procuracy of Binh Phuoc Province requesting not to accept Ms. D’s appeal for child support from January 12, 2014, to October 12, 2017, is groundless.
[9] Other decisions of the first-instance judgment not appealed or protested shall take legal effect from the expiry of the appeal or protest period.
[10] Appellate marriage court fees: Mr. Trinh Vinh C must bear the court fees according to law.
For these reasons,
DECISION:
Based on Clause 2 Article 308, 309 of the Civil Procedure Code 2015; Resolution No. 326/2016/UBTVQH14 of the National Assembly Standing Committee on court fees and legal costs;
Reject the appeal request of Mr. Trinh Vinh C.
Partially accept the appeal request of Ms. Le Thi D.
Amend the First-instance Marriage and Family Judgment No. 48/2017/HNGĐ-ST dated November 22, 2017, of the People’s Court of Loc Ninh District.
Apply Articles 3, 14, 68, 69, 71, 82, 83, 107, 110, 116, 117, 119 of the Law on Marriage and Family 2014; Article 281 of the Civil Code 2005.
[1] Recognize the agreement between Ms. Le Thi D and Mr. Trinh Vinh C. Determine child Le Gia P, born on January 12, 2014, as the biological child of Ms. Le Thi D and Mr. Trinh Vinh C. Assign child Le Gia P to Ms. Le Thi D for the right of care and upbringing until child Le Gia P reaches the age of 18 and has working capacity.
[2] Compel Mr. Trinh Vinh C to repay child support for the common child Le Gia P to Ms. Le Thi D from January 12, 2014, to October 12, 2017, in the amount of: 42,000,000 VND (Forty-two million VND). [3] Compel Mr. Trinh Vinh C to provide monthly child support for the common child Le Gia P to Ms. Le Thi D at 1,500,000 VND (One million five hundred thousand VND) until child Le Gia P reaches the age of 18 and has working capacity. The starting time for calculating support is from October 12, 2017 (The date Ms. D filed the lawsuit).
[4] First-instance marriage court fees: Mr. Trinh Vinh C must bear 300,000 VND. Ms. Le Thi D does not have to bear any; the Civil Judgment Enforcement Bureau of Loc Ninh District, Binh Phuoc Province shall refund Ms. D the court fee advance of 300,000 VND paid under Receipt No. 0014898 dated October 12, 2017.
[5] Appellate marriage court fees: Mr. Trinh Vinh C must bear 300,000 VND, to be deducted from the court fee advance he paid under Receipt No. 0005554 dated November 30, 2014, of the Civil Judgment Enforcement Bureau of Loc Ninh District, Binh Phuoc Province.
[6] From the date the judgment takes effect, there is a request for judgment enforcement from the judgment creditor until all sums are paid. Every month, the judgment debtor must also bear interest on the remaining amount to be executed according to the interest rate specified in Clause 2 Article 468 of the Civil Code 2015. In case the judgment is enforced according to Article 2 of the Law on Civil Judgment Enforcement, the judgment creditor and judgment debtor have the right to agree on enforcement, the right to request enforcement, voluntary enforcement, or be subject to coercive enforcement according to Articles 6, 7, and 9 of the Law on Civil Judgment Enforcement; the statute of limitations for judgment enforcement is carried out according to Article 30 of the Law on Civil Judgment Enforcement.
[7] Other decisions of the first-instance judgment not appealed or protested shall take legal effect from the expiry of the appeal or protest period.
CONTENT OF THE PRECEDENT
“[4] Considering the provisions of Articles 82, 83; Clause 24 Article 3, Articles 107, 110, Law on Marriage and Family 2014, Article 281 of the Civil Code 2005, the child support obligation of parents toward minor children arises from the time the child is born. Providing child support is a right and an obligation of the parent not directly raising the child. Child Le Gia P is the common child of Ms. Le Thi D and Mr. Trinh Vinh C, but from the time child P was born on January 12, 2014, until October 12, 2017 (the date Ms. D filed the lawsuit requesting support), Ms. D alone cared for, raised, and paid the costs for raising the child. Thus, the first-instance Court’s non-acceptance of the request to compel Mr. C to repay the costs Ms. D spent to raise child P from the date of birth on January 12, 2014, until October 12, 2017 (the date Ms. D filed the lawsuit requesting support), was inappropriate and affected Ms. D’s legal rights and interests. Therefore, it is necessary to partially accept Ms. D’s appeal, compelling Mr. C to repay Ms. D 1/2 of the amount of 2 million VND/month that Ms. D spent to raise the child from January 12, 2014, to October 12, 2017, as follows: 45 months X 1,000,000 VND/month = 45,000,000 VND.”
