Vietnam: Is it possible to be a lawsuit in case Certificate of land use rights was stolen by other people? What are the solutions to protect the petitioner in this case?
- Is the land use right certificate eligible for property in Vietnam?
- Is it possible to be a lawsuit in case Certificate of land use rights was stolen by other people?
- Where will the petitioner submit the petition in Vietnam?
- What are the regulations on re-grant of Certificate of land use rights in Vietnam?
Is the land use right certificate eligible for property in Vietnam?
According to Article 105 of the 2015 Civil Code, property includes objects, money, valuable papers and property rights. In terms of nature, the land use right certificate can be considered a valuable paper.
Pursuant to Clause 8, Article 6 of the Law on the State Bank of Vietnam 2010 as follows:
“Valuable paper means a proof evidencing the debt-payment obligation of the issuer towards the owner in a certain duration under the interest payment condition and other conditions.”
At the same time, in Official Letter 141/TANDTC-KHXX dated September 21, 2011 the Supreme People's Court explained that valuable papers include the following types of papers:
- Bills of exchange, promissory notes, cheques and other negotiable instruments specified in Article 1 of the 2005 Law on negotiable instruments;
- Government bonds, corporate bonds, term bonds, shares specified at Point c, Clause 1, Article 4 of the 2005 Ordinance on Foreign Exchange;
- Bill, draft, bond, public bond or other instrument which gives rise to a debt payment liability specified at Point 16, Article 3 of the 2009 Law on Public Debt Management;
- Types of securities (Stocks, bonds, fund certificates; Rights, warrants, call option, put option, futures, securities classes or indexes; capital contribution contracts; investment; other types of securities prescribed by the Ministry of Finance) specified in Clause 1, Article 6 of the Law on Securities 2006 (amended and supplemented with a number of articles in 2010);
- Corporate bonds are specified in Article 2 of the Government's Decree No. 52/2006/ND-CP dated May 19, 2006 on "Issuing corporate bonds".
In addition, according to Clause 16, Article 3 of the 2013 Land Law as follows:
“Certificate of land use rights and ownership of houses and other land-attached assets is a legal certificate in which the State certifies the lawful land use rights and ownership of houses and land-attached assets of the person who has land use rights and ownership of houses and land-attached assets.”
From the above regulations, the Certificate of land use rights is not considered a valuable paper but only a legal document for the State to confirm the land use rights, ownership of houses and other land-attached assets. Therefore, the Certificate of land use rights is not eligible for property.
Is it possible to be a lawsuit in case Certificate of land use rights was stolen by other people?
The red book is not a type of property, however, the red book is considered a legal document for the state to confirm the legal land use rights, ownership of houses and other assets attached to the land. if the owner of the red book has the red book, it may affect the exercise of his/her own land use rights and civil rights, which may lead to damage to the owner (especially in cases of land use right Transfer).
According to Clause 2, Article 14 of the 2015 Civil Code:
“Article 14. Protection of civil rights by competent authorities
...
2. Each court may not refuse to settle a civil matter or case with the season that there is no provision of law to apply; in this case, regulations in Article 5 and Article 6 of this Code shall apply.”
And according to Clause 2, Article 4 of the Civil Procedure Code 2015 as follows:
“Article 4. Right to request Courts to protect legitimate rights and interests
...
2. Courts must not refuse to settle a civil case for the reason that there is no applicable law provision for such case.
A civil case without applicable law provisions is a civil case falling within the governing scope of civil laws but there is no applicable law provision at the time such civil case arises and an agency/organization/individual requests the Court to settle.
The settlement of civil case specified in this clause shall comply with the principles prescribed in the Civil Code and this Code.”
At the same time, in Clause 1, Article 14 of the 2015 Civil Code as follows:
Article 14. Protection of civil rights by competent authorities
1. Each court and a competent authority must respect and protect civil rights of persons.
If a particular civil right is violated or is under a dispute, the protection of such right shall be implemented as prescribed in procedural law at the court or arbitrator.
The protection of civil rights under administrative procedures shall be implemented as prescribed by law. A decision on settlement of case/matter under administrative procedures may be re-examined at a court....”
According to Article 164 of the Civil Code 2015 as follows:
“Article 164. Measures for protection of ownership rights and other property-related rights
1. Each owner or holder of other property-related rights is entitled to self-protect and prevent anyone from infringing his/her rights by measures in accordance with regulations of law....”
Based on the above grounds, if there is a request to the Court to force the occupier to return the certificate of land use rights, stop the act of obstructing the exercise of the land user's rights, the People's Court will accept to settle disputes over ownership and other rights to property.
Where will the petitioner submit the petition in Vietnam?
According to Article 35 of the Civil Procedure Code 2015, The district-level People's Court where the defendant resides and works will have jurisdiction to accept and settle (If the involved parties are abroad, the provincial-level People's Court will have jurisdiction to settle)
What are the regulations on re-grant of Certificate of land use rights in Vietnam?
For the case of applying for re-grant of Certificate of land use rights due to its loss, the applicant for re-grant of Certificate of land use rights can follow the procedures specified in Article 77 of Decree 43/2014/ND-CP, specifically as follows:
Article 77. Re-grant of certificates, certificates of house ownership or certificates of ownership of construction works due to loss
1. Households, individuals or communities shall declare to the commune-level People’s Committee of the locality where the land is located the loss of their certificates, certificates of house ownership or certificates of ownership of construction works. The commune-level People’s Committee shall post up the loss at its office, except the loss due to a natural disaster or fire.
Domestic organizations, religious institutions, foreign organizations, foreigners or overseas Vietnamese shall announce the loss of their certificates, certificates of house ownership or certificates of ownership of construction works in the local mass media.
2. After 30 days from the date of posting up the loss of the certificate at the office of the commune-level People’s Committee, for households, individuals or communities, or from the date of the first announcement in the local mass media, for domestic organizations, religious institutions, foreign organizations, foreigners or overseas Vietnamese, the person whose certificate is lost shall submit a dossier of request for re-grant of the certificate.
3. The land registration office shall check the dossier; the extract of the cadastral map or the extract of the cadastral survey of the land parcel, in case the cadastral map is unavailable and a cadastral survey of the land parcel has not yet been conducted; make a dossier and submit it to a competent state agency defined in Article 37 of this Decree for signing a decision to cancel the lost certificate and sign and re-grant the certificate of land use rights and ownership of houses and other land-attached assets; and adjust and update the change in the cadastral records and land database; hand over the certificate to the land user concerned or send it to the commune-level People’s Committees for handover, in case of submission of dossiers at commune level.
The application for re-issuance of the Certificate of land use rights in case of lose is specified in Clause 2, Article 14 of Circular 02/2015/TT-BTNMT.
Thus, from the above analysis, it is possible to be a lawsuit for claiming land use right certificate. The petitioner shall file a petition at the district-level People's Court of the place where the defendant resides and works (If the involved parties are abroad, the provincial-level People's Court will have jurisdiction) to request the Court to settle the case.
If the people's court decides to force the occupier to return the certificate of land use rights and stop the act of obstructing the exercise of the land user's rights, the People's Court will accept and settle the disputes over ownership and other rights to property.
In addition, the owner of the land use right certificate can carry out the procedures to apply for the re-issue of the land use right certificate according to the provisions of Article 77 of Decree 43/2014/ND-CP.
LawNet
