Precedent No. 63/2023/AL was adopted by the Council of Justices of the Supreme People’s Court on February 1, 2, and 3, 2023, and published under Decision No. 39/QĐ-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 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. 63/2023/AL on reviewing administrative decisions related to sued administrative acts
2.1. Source of the Precedent
Cassation Decision No. 04/2018/HC-GĐT dated October 23, 2018, of the Council of Judges of the High People’s Court in Da Nang regarding the administrative case “Lawsuit against administrative decisions and administrative acts regarding the compulsory demolition of works violating urban order and claims for compensation caused by the enforcement act” between the petitioners Mr. Le Huu T, Ms. Le Thi Ngoc L and the respondent, the Chairman of the People’s Committee of Ward A.
Location of the precedent content:
Paragraph 15 of the “Court’s Assessment” section.
2.2. Summary of the Precedent
– Precedent situation:
The petitioner sues an administrative decision and an administrative act related to that administrative decision, but only the administrative act remains within the limitation period for the lawsuit.
– Legal solution:
In this case, the Court must resolve the petition against the administrative act and has the right to review the legality of the administrative decision related to the sued administrative act.
Legal provisions related to the precedent:
Article 6, Article 116 of the Law on Administrative Procedures of Vietnam 2015.
Keywords of the precedent:
“Limitation period for lawsuit”; “Reviewing related administrative decisions”.
CASE CONTENT:
Before the liberation, the parents of Mr. Le Huu H, Mr. Le Huu T1 and Ms. Cong Ton Nu Hanh D, established a house and land plot located at 45/266 P Street, Ward A, H City (now plot No. 77, map sheet No. 05, area 234.3m2). In 1976, Mr. T1 passed away, and Mr. H lived with his mother in the aforementioned house. In 1981, Ms. D died, so her child Le Huu H and other co-heirs continued to manage and use it. In 2003, Mr. H agreed to let Mr. T stay at the house at 45/266 P Street.
By 2008, Mr. H made an agreement for Mr. T to stay temporarily, and both parties agreed that whenever the house needed to be reclaimed, the occupant would be notified 01 month in advance.
In early 2009, needing to reclaim the house, Mr. H notified Mr. T 01 month in advance to move his belongings and return the house. However, during that time, Mr. T did not return the house but continued to use it, and Mr. H sued Mr. T in a civil case to reclaim the house lent for stay.
In Civil Appellate Judgment No. 12/2011/DSPT dated December 19, 2011, the Appellate Court of the Supreme People’s Court in Da Nang decided: Not to accept the appeal of Mr. Le Huu T and the appeal of the person with related rights and obligations Ms. Le Thi Ngoc L, upholding the first-instance judgment. Ruled: Accept the request to “Reclaim the house lent for stay” by Mr. Le Huu H against Mr. Le Huu T. Compel Mr. Le Huu T and Ms. Le Thi Ngoc L to return the house at 45/266 P Street, Ward A, H City, Thua Thien Hue Province to the co-heirs of Mr. Le Huu T1 and Ms. Cong Ton Nu Hanh D, represented by Mr. Le Huu H.
After returning the house to the heirs of Mr. Le Huu T1 and Ms. Cong Ton Nu Hanh D, in July 2012, Mr. Le Huu T and his wife arbitrarily built a temporary house (current state: wooden frames, columns, and rafters, area 27.2m2) illegally on the aforementioned land plot belonging to Mr. H’s family.
On July 22, 2012, the People’s Committee of Ward A established a record of administrative violation and suspended the construction of the work violating construction order against the aforementioned act of Mr. T and his wife.
On July 23, 2012, the People’s Committee of Ward A received a petition from Mr. Le Huu H regarding Mr. Le Huu T’s arbitrary construction of a temporary house illegally within Mr. H’s family premises.
On the same day, the People’s Committee of Ward A issued Decision No. 28/QĐ-UBND regarding the suspension of construction of the work violating urban order and required Mr. T to voluntarily demolish the violating work within 03 days.
After the deadline in Decision No. 28/QĐ-UBND, Mr. T and his wife still failed to comply and continued to complete the work.
On July 26, 2012, the People’s Committee of Ward A issued Enforcement Decision No. 30/QĐ-UBND regarding the demolition of the work violating urban order against Mr. T and his wife at the aforementioned address.
On November 22, 2012, the People’s Committee of Ward A issued Notice No. 21/TB-UBND requesting the demolition of the temporary house built illegally within the premises of Mr. Le Huu H’s family, sent to Mr. Le Huu T and Ms. Le Thi Ngoc L with the content: requesting Mr. Le Huu T’s family to comply with the demolition of the temporary house built illegally on land not under their right of use from the date of receiving the notice until the end of December 28, 2012. If after the said deadline, the family still intentionally fails to comply, the Ward People’s Committee will organize enforcement according to the law.
While the state agency had not yet performed the compulsory demolition of the violating work, in March 2013, Mr. T’s family continued to build another new temporary house, auxiliary works, and walls on the land not under their right of use and without a construction permit from the competent State agency.
On March 10, 2013, the Ward People’s Committee continued to establish a record of administrative violation against Mr. Le Huu T, content: Compelling the owner of the work to voluntarily demolish the entire construction, temporary house, and fence on land not under the right of use, and issued Decision No. 01/QĐ-UBND dated March 11, 2013, to suspend the construction violating urban construction order at house No. 45/266 P Street, Group 2, Ward A, H City, Thua Thien Hue Province, with a constructed area of 28.7m2. Although the Ward People’s Committee repeatedly invited them to meetings to encourage the family to voluntarily demolish the work and issued written requests for them to strictly comply with the decisions of the Ward People’s Committee, Mr. T’s family did not implement them and continued to clandestinely build fences and complete the violating work.
On March 15, 2013, the People’s Committee of Ward A issued Decision No. 02/QĐ-UBND regarding the compulsory demolition of the work violating urban order.
On March 18, 2013, the People’s Committee of Ward A proceeded to deliver Enforcement Decision No. 02/QĐ-UBND dated March 15, 2013, to Mr. T’s household, but at the delivery session, Ms. L (Mr. T’s wife) read the content of the enforcement decision and refused to receive it.
However, subsequently, Mr. T still did not comply with Decision No. 02/QĐ-UBND and sent a petition to the People’s Committee of H City requesting a review of his house construction at 45/266 P Street, Ward A.
On April 05, 2013, the People’s Committee of H City issued Document No. 820/UBND-KNTC, content: The fact that the People’s Committee of Ward A established a record and issued decisions to suspend construction and enforce the demolition of Mr. Le Huu T’s violating work is correct according to regulations, and required the demolition of the illegally built house before April 15, 2013.
On the same day, the People’s Committee of H City issued Official Dispatch No. 780/UBND-KNTC to Mr. Le Huu T, content: “To ensure the management of urban order regarding construction in the City, the City People’s Committee requests you to carry out the demolition of the entire violating work on land not under the right of use in plot 77 located at 266/45 P Street, Ward A before April 15, 2013”.
On March 05, 2014, the People’s Committee of Ward A invited Mr. T’s household to the Ward People’s Committee to notify Mr. T and Ms. L (Mr. T’s wife) of the enforcement time (Notice No. 29/TB-UBND dated March 05, 2014) and Ms. L stated that she had received Notice No. 29/TB-UBND on March 05, 2014.
On March 10, 2014, the People’s Committee of Ward A held a meeting with Residential Group 2, Ward A regarding the organization of enforcement for Mr. Le Huu T’s household for building a house on land not yet under the right of use. Mr. T’s household did not attend this meeting.
On March 12, 2014, the People’s Committee of Ward A conducted the enforcement against Mr. T’s violating work. During the enforcement process, the Ward People’s Committee established an enforcement record, an asset inventory record, an asset temporary seizure record, and an asset handover record with the signature of Ms. Le Thi Ngoc L (Mr. T’s wife) and relevant departments.
On March 31, 2014, Mr. T filed a lawsuit in an administrative case requesting the Court to annul Decision No. 02/QĐ-UBND dated March 15, 2013, of the Chairman of the People’s Committee of Ward A and to compel the Chairman of the People’s Committee of Ward A to compensate a total of 620,000,000 VND for the damages caused by the enforcement act.
In Decision to Terminate the Settlement of the Administrative Case No. 04/2015/QĐST-HC dated May 21, 2015, the People’s Court of Hue City, Thua Thien Hue Province decided: “Terminate the settlement of the administrative case accepted as No. 02/2014/TLST-HC dated May 07, 2014, regarding ‘Lawsuit against Decision No. 02/QĐ-UBND dated March 15, 2013, of the Chairman of the People’s Committee of Ward A, H City’, between the petitioners Mr. Le Huu T, Ms. Le Thi Ngoc L and the respondent, the Chairman of the People’s Committee of Ward A, H City, Thua Thien Hue Province. Reason: ‘Mr. T and Ms. L were aware that the Chairman of the People’s Committee of Ward A issued the aforementioned administrative decision on March 18, 2013. The time from the awareness of the decision on March 18, 2013, until the date of filing the lawsuit on March 31, 2014, was 01 year and 13 days. Thus, according to point a, clause 2, Article 104 of the Law on Administrative Procedures, the limitation period for the lawsuit has expired, so the case must be terminated and the petition returned to the petitioner as prescribed at point c, clause 1, Article 100, point d, clause 1 and clause 2, Article 120, Article 121, and Article 122 of the Law on Administrative Procedures’.”
In Decision on Settlement of Appeal No. 02/2015/QĐPT-HC dated July 23, 2015, the People’s Court of Thua Thien Hue Province decided: Uphold Decision to Terminate the Settlement of the Administrative Case No. 04/2015/QĐST-HC dated May 21, 2015, of the People’s Court of Hue City.
In Cassation Protest No. 01/2018/KN-HC dated June 14, 2018, the Chief Justice of the High People’s Court in Da Nang requested the Council of Judges of the High People’s Court in Da Nang to conduct a cassation trial to annul the Decision on Settlement of Appeal No. 02/2015/QĐPT-HC dated July 23, 2015, of the People’s Court of Thua Thien Hue Province and annul the Decision to Terminate the Settlement of the Administrative Case No. 04/2015/QĐST-HC dated May 21, 2015, of the People’s Court of Hue City, compelling the People’s Court of Hue City to accept and resolve the petition of Mr. Le Huu T and Ms. Le Thi Ngoc L requesting the Chairman of the People’s Committee of Ward A to compensate for damages caused by performing illegal enforcement acts.
At the cassation trial, the representative of the High People’s Procuracy in Da Nang requested the Council of Judges of the High People’s Court in Da Nang to accept the Protest of the Chief Justice of the High People’s Court in Da Nang.
COURT’S ASSESSMENT:
[1] According to the lawsuit petition dated March 31, 2014, Mr. Le Huu T and Ms. Le Thi Ngoc L raised the following issues:
[2] Lawsuit against Decision No. 02/QĐ-UBND dated March 15, 2013, of the Chairman of the People’s Committee of Ward A, H City regarding the compulsory demolition of the work violating urban construction order at house No. 45/266 P Street, Ward A, H City, with Mr. T and Ms. L as the construction investors; they argued this administrative decision was illegal.
[3] Lawsuit against the enforcement act of the Chairman of the People’s Committee of Ward A, H City at house No. 45/266 P Street, Ward A, H City and a request for compensation for damages caused by the enforcement act; they argued this enforcement act was illegal and caused serious consequences.
[4] Reviewing the lawsuit content and the documents and evidence in the case file, it is found that:
[5] 1) Regarding the lawsuit against the administrative decision:
[6] On March 15, 2013, the Chairman of the People’s Committee of Ward A, H City issued Decision No. 02/QĐ-UBND regarding the compulsory demolition of the work violating urban construction order at house No. 45/266 P Street, Ward A, H City with Mr. T and Ms. L as investors. On March 18, 2013, officials of the People’s Committee of Ward A proceeded to deliver this decision to Mr. T and Ms. L. The delivery was recorded at 11:30 AM with the presence of representatives from the Ward People’s Committee, the Fatherland Front, the Residential Group, along with 02 witnesses. The delivery record clearly stated the number and date of the decision, the enforcement content; Ms. L read the content of the enforcement decision but did not cooperate, did not sign the record, and claimed the enforcement was illegal.
[7] Therefore, there is a legal basis to determine that on March 18, 2013, Mr. T and Ms. L were aware of Decision No. 02/QĐ-UBND dated March 15, 2013, of the Chairman of the People’s Committee of Ward A.
[8] Based on point a, clause 2, Article 104 of the Law on Administrative Procedures 2010, the 1-year period (from the date of being aware of the administrative decision) for Mr. T and Ms. L to exercise their right to sue had ended, but they only filed the lawsuit on March 31, 2014; thus, the first-instance and appellate courts’ determination that the limitation period for suing Administrative Decision No. 02 had expired was grounded and legal.
[9] 2) Regarding the lawsuit against the administrative act:
[10] On March 12, 2014, the Chairman of the People’s Committee of Ward A performed the act of compulsory demolition of the work violating urban construction order at house No. 45/266 P Street, Ward A, H City.
[11] On March 31, 2014, Mr. T and Ms. L filed a lawsuit against the enforcement act of the Chairman of the People’s Committee of Ward A and requested compensation for damages of 620,000,000 VND caused by the enforcement act.
[12] Based on point a, clause 2, Article 104 of the Law on Administrative Procedures 2010, the petition of Mr. T and Ms. L was still within the limitation period for the lawsuit and must be resolved according to the law.
[13] It is found that:
[14] The first-instance and appellate courts were correct in determining the expiration of the limitation period for the administrative decision, but failed to continue resolving the lawsuit against the administrative act of the Chairman of the People’s Committee of Ward A (but instead terminated the settlement of the administrative case regarding the lawsuit against Decision No. 02/QĐ-UBND and returned the petition), which was illegal. Such resolution was incomplete and not comprehensive regarding the lawsuit petition, seriously violating administrative procedure. Therefore, it is necessary to accept the Protest of the Chief Justice of the High People’s Court in Da Nang, annul the Decision on Settlement of Appeal No. 02/2015/QĐPT-HC dated July 23, 2015, and annul the Decision to Terminate the Settlement of the Administrative Case No. 04/2015/QĐST-HC dated May 21, 2015, for a new first-instance trial on the lawsuit of Mr. T and Ms. L against the enforcement act of the Chairman of the People’s Committee of Ward A and the request for compensation for damages, to ensure the legitimate rights and interests of the parties.
[15] As the enforcement act originates from the enforcement decision and they are interrelated, during the process of resolving the petition against the enforcement act, the Trial Panel has the right to review the legality of the aforementioned enforcement decision and other administrative decisions related to the sued administrative act, regardless of whether these decisions are within or have exceeded the limitation period for lawsuit, in order to ensure the case is resolved comprehensively, thoroughly, and in accordance with the law.
For the above reasons;
DECISION:
Pursuant to Clause 3, Article 272; Article 277 and Article 278 of the Law on Administrative Procedures 2015.
1. Accept Cassation Protest No. 01/2018/KN-HC dated June 14, 2018, of the Chief Justice of the High People’s Court in Da Nang.
2. Annul Decision on Settlement of Appeal No. 02/2015/QĐPT-HC dated July 23, 2015, of the People’s Court of Thua Thien Hue Province and Decision to Terminate the Settlement of the Administrative Case No. 04/2015/QĐST-HC dated May 21, 2015, of the People’s Court of Hue City. Transfer the case file to the People’s Court of Hue City for a new first-instance trial on the lawsuit of Mr. Le Huu T and Ms. Le Thi Ngoc L against the enforcement act at house No. 45/266 P Street, Ward A, H City by the Chairman of the People’s Committee of Ward A, H City and the request for compensation for damages according to the law.
3. The cassation decision takes legal effect from the date the Cassation Trial Panel issues the decision.
CONTENT OF THE PRECEDENT
“[15] As the enforcement act originates from the enforcement decision and they are interrelated, during the process of resolving the petition against the enforcement act, the Trial Panel has the right to review the legality of the aforementioned enforcement decision and other administrative decisions related to the sued administrative act, regardless of whether these decisions are within or have exceeded the limitation period for lawsuit, in order to ensure the case is resolved comprehensively, thoroughly, and in accordance with the law.”
