What is the content of Precedent No. 02/2016/AL on the dispute over re-claim of assets? What is the opinion of the Council of Judges of the Supreme People's Court of Vietnam?
- What is the overview of Precedent No. 02/2016/AL on the dispute over re-claim of assets in Vietnam?
- What is the content of Precedent No. 02/2016/AL on the dispute over re-claim of assets in Vietnam?
- What is the opinion of the Council of Judges of the Supreme People's Court of Vietnam on Precedent No. 02/2016/AL?
What is the overview of Precedent No. 02/2016/AL on the dispute over re-claim of assets in Vietnam?
Decision 220/QD-CA in 2016 clearly states the overview of Precedent No. 02/2016/AL on dispute over re-claim of assets as follows:
Source of Precedent:
Cassation Decision No. 27/2010/DS-GĐT dated July 8, 2010 of the Council of Judges of the Supreme People's Court on the case of "Dispute over re-claim of assets" in Soc Trang province between the plaintiff, Ms. Nguyen Thi Thanh with defendant Mr. Nguyen Van Tam; The person with related rights and obligations is Ms. Nguyen Thi Yem.
Overview of the content of the Precedent:
In cases where Vietnamese people residing abroad have spent money to receive land use rights transfer and ask someone in the country to accept the land use rights transfer on their behalf, the Court must consider when resolving the dispute. Consider and calculate the effort to preserve, preserve, and renovate to increase the value of land use rights for the person in whose name the household is named; In case it is not possible to determine the exact effort of that person, it is necessary to determine the person who actually paid to receive the transfer of land use rights and the person whose name was transferred to the land use rights with equal efforts to divide the shares. The additional value of the difference compared to the original amount received from the original transfer of land use rights.
Legal provisions related to Precedent:
Article 137 and Article 235 of the 2005 Civil Code.
Keywords of Precedent:
“Invalid civil transaction”; “Re-claim of assets”; “Basis for establishing ownership rights”; “Establish ownership of income”; "Vietnamese people residing abroad".
>> Download all Precedent: Here
What is the content of Precedent No. 02/2016/AL on the dispute over re-claim of assets? What is the opinion of the Council of Judges of the Supreme People's Court of Vietnam?
What is the content of Precedent No. 02/2016/AL on the dispute over re-claim of assets in Vietnam?
In Decision 220/QD-CA in 2016, the content of Precedent No. 02/2016/AL on the dispute over re-claim of assets is clearly stated as follows:
In the petition dated January 24, 2005, the declaration dated February 7, 2005 and the process of resolving the case, Ms. Nguyen Thi Thanh, the plaintiff, presented:
Ms. Thanh is an overseas Vietnamese in the Netherlands visiting relatives in Vietnam and intends to transfer land use rights, so on August 10, 1993, she received the transfer from Mr. Heng Tinh and his wife, Ms. Ly Thi Sa. Forgot an area of 7,595.7m2 of farmland in Ward 7, Soc Trang town for 21.99 gold taels.
She is the person who directly transacts, negotiates the transfer and pays money and gold to Mr. Heng Tinh and his wife. Ms. Thanh's purpose is to transfer the land to her younger siblings, Mr. Nguyen Van Tam and Ms. Nguyen Thi Chinh. They farm to support her parents and Mr. Tam. Because she is a Vietnamese residing abroad, she let Mr. Tam be named in the transfer documents.
At the same time, Ms. Thanh presented the "Farm Land Transfer Form" dated August 10, 1993 and certified by the People's Committee of An Hiep commune. After receiving the transfer, she let Mr. Tam and his wife farm, but in 2004, without her consent, Mr. Tam transferred the entire area of 7,595.7m2 of land to Minh Chau Limited Liability Company for a price. The value of land use rights is 1,260,000,000 VND. Therefore, she asked Mr. Tam to return the money obtained from her land transfer.
Mr. Nguyen Van Tam, the defendant, presented:
The area of 7,595.7m2 of land that Ms. Thanh is disputing is the land transferred by Mr. Heng Tinh and his wife who spent money and gold, whose name was in the "Farm Land Transfer Sheet" made on the 10th. August 1993. This transfer sheet does not have confirmation from the local government. But after that, he and Mr. Heng Tinh and his wife also signed a contract and an application for transfer of land use rights on the same day, August 11, 1993. These documents were certified by the People's Committee of An Hiep commune and the People's Committee of My district. Tu agreed to the transfer. After transferring, he registered and declared and was granted a land use right certificate on May 28, 1994.
Therefore, in 2004, he transferred all of the above land to Minh Chau Limited Liability Company with a value of 1,260,000,000 VND. He said that the "Farm Land Transfer Sheet" dated August 10, 1993, certified by the People's Committee of An Hiep commune presented by Ms. Thanh, is fake because according to the Inspection Conclusion No. 2784/C21 (P7). dated October 25, 2005 of the Institute of Criminal Sciences of the General Police Department, is not his signature on the land transfer form presented by Ms. Thanh. Therefore, he did not agree to Ms. Thanh's request to sue.
Ms. Nguyen Thi Yem (Mr. Tam's wife) is a person with related rights and obligations. In 1993, she and her husband transferred Mr. Heng Tinh's land. When carrying out the transfer procedures, she did not participate, but she did give money and gold to Mr. Tam to pay Mr. Heng Tinh and his wife, so she did not accept Ms. Thanh's request.
Mr. Heng Tinh and his wife, Ms. Ly Thi Sa Quenh (also known as Ly Thi Sa Venh), who transferred the land, affirmed that Ms. Thanh directly agreed to transfer and directly paid 21.99 taels of gold to him and her. and Ms. Thanh allowed Mr. Tam to put his name on the land transfer form dated August 10, 1993; The signature in the land transfer form presented by Ms. Thanh is indeed his or her signature.
In First Instance Civil Judgment No. 04/2006/DS-ST dated April 28, 2006, the People's Court of Soc Trang province decided:
Accept part of Ms. Nguyen Thi Thanh's request to reclaim land transfer money.
Forcing the couple of Mr. Nguyen Van Tam and Ms. Nguyen Thi Yem to repay Ms. Nguyen Thi Thanh 630,000,000 VND.
In addition, the Court of First Instance also decides on court fees, expert examination costs and declares the right to appeal to the litigants according to the provisions of law.
On May 10, 2006, Mr. Nguyen Van Tam appealed that Ms. Thanh did not have the right to use the land he transferred to Minh Chau Limited Liability Company, but the Court of First Instance forced him to pay. Paying Ms. Thanh 630,000,000 VND is incorrect.
On May 12, 2006, Mr. Nguyen Huu Phong (representing Ms. Thanh) appealed to the Court of Appeal to force Mr. Tam to return the entire amount of money that Mr. Tam transferred the land, which was 1,260,000,000 VND. for Mrs. Thanh.
In Civil Court of Appeal No. 334/2006/DS-PT dated August 25, 2006, the Court of Appeal of the Supreme People's Court in Ho Chi Minh City decided: rejecting the appeal request of the plaintiff and defendant. petition, amending the First Instance Judgment as follows:
Partially accepted Ms. Nguyen Thi Thanh's request to reclaim money for transferring land use rights.
Forcing Mr. Nguyen Van Tam and Ms. Nguyen Thi Yem to repay Ms. Nguyen Thi Thanh the amount of 27,047,700 VND, equivalent to 21.99 taels of 24k gold.
Force Mr. Nguyen Van Tam and Ms. Nguyen Thi Yem to return the amount of 1,232,266,860 VND to confiscate the State fund.
In addition, the Court of Appeal also decides on court fees.
After the appeal trial, Mr. Nguyen Van Tam complained about the above-mentioned Civil Appeal Judgment.
In Decision No. 449/2009/KN-DS dated August 21, 2009, the Chief Justice of the Supreme People's Court appealed against the Court's Civil Appeal Judgment No. 334/2006/DS-PT dated August 25, 2006. Appeal of the Supreme People's Court in Ho Chi Minh City, requesting the Council of Judges of the Supreme People's Court to conduct a cassation trial, annul the above Appellate Judgment and annul the First Instance Civil Judgment No. 04 /2006/DS-ST dated April 28, 2006 of the People's Court of Soc Trang province; hand over the case file to the People's Court of Soc Trang province for first instance retrial in accordance with the provisions of law, with the conclusion:
“Ms. Nguyen Thi Thanh filed a lawsuit to reclaim assets against Mr. Nguyen Van Tam and claimed that because she was a Vietnamese residing abroad, she asked Mr. Tam (her younger brother) to transfer his wife's land in her name. Mr. Heng Tinh's husband gave it to her, but Mr. Tam later transferred her land to someone else.
The Court of First Instance and the Court of Appeal determined that Mr. Tam only signed the transfer of land from Mr. Heng Tinh and his wife on behalf of Ms. Thanh, which was well-founded.
Because Ms. Thanh is a Vietnamese residing abroad, Ms. Thanh was not given the land but was only returned the investment value of the land transfer.
Regarding the difference in land value, the time of first instance trial and appeal trial was the time of implementation of the 2005 Civil Code, there was no regulation forcing confiscation into public funds, so this difference was made by Ms. Thanh and Ms. Mr. Tam also enjoys the same benefits. The first instance court's decision not to force Mr. Tam to pay the difference in land value for confiscation is well-founded, but not to force Mr. Tam to pay Ms. Thanh the initial investment value is incorrect. The Court of Appeal did not provide a legal basis but forced Mr. Tam to pay the entire difference (1,232,226,860 VND) to confiscate the State fund, which is not in accordance with the regulations and the law.
At the cassation trial, the representative of the Supreme People's Procuracy requested the Council of Judges of the Supreme People's Court to accept the appeal of the Chief Justice of the Supreme People's Court to annul the above appeal judgment and annul it. First instance civil judgment No. 04/2006/DS-ST dated April 28, 2006 of the People's Court of Soc Trang province; hand over the case file to the People's Court of Soc Trang province for first instance retrial in accordance with the provisions of law.
What is the opinion of the Council of Judges of the Supreme People's Court of Vietnam on Precedent No. 02/2016/AL?
In Decision 220/QD-CA in 2016, the comments of the Council of Judges of the Supreme People's Court on Precedent No. 02/2016/AL are clearly stated as follows:
Ms. Nguyen Thi Thanh sued to request Mr. Nguyen Van Tam to return 1,260,000,000 VND to her because she believed that she was the one who directly transacted and paid for the transfer of 7,595.7m2 of land from Mr. Heng Tinh and his wife, but because she As a Vietnamese residing abroad, he asked Mr. Tam (her younger brother) to put it in his name, but without her consent, Mr. Tam transferred the entire land area to Minh Chau Co., Ltd. to receive 1,260,000,000 VND.
Mr. Tam said that he was the one who agreed to transfer the land and paid money to Mr. Heng Tinh, so the land transfer documents were in his name. After receiving the transfer, he directly managed the use, registered the declaration, was granted a certificate of land use rights, and when he transferred to Minh Chau Co., Ltd., the government allowed him, so he did not accept Ms. Thanh's request.
However, in the process of resolving the case of Mr. Tam and his wife, there were many conflicting testimonies about the amount of money and gold paid to Mr. Heng Tinh, and he could not prove the origin of the gold money that he claimed was paid to him.
Meanwhile, Mr. Tinh and his wife, Ms. Quenh, affirmed that they only agreed to transfer the land and receive gold from Ms. Thanh, while writing the land transfer paper in Mr. Tam's name was at Ms. Thanh's request, because Ms. Thanh is residing in foreign.
According to the testimony of Mr. Thai Thi Ba, Mr. Nguyen Phuoc Hoang, and Ms. Nguyen Thi Chinh Em (the mother and siblings of Ms. Thanh and Mr. Tam), Ms. Thanh transacted and paid for the land transfer to Mr. Tinh and his wife, and Mr. Tam is just the person in his name.
Combining the above evidence, there is a basis to confirm that the Court of First Instance and the Court of Appeal determined that Ms. Thanh was the person who spent the entire amount of 21.99 gold taels to receive the transfer of the above area, while Mr. Tam is just the person in charge. Because Mr. Tam transferred the above land to Minh Chau Co., Ltd. and Ms. Thanh only asked Mr. Tam to return the transferred amount of 1,260,000,000 VND, the Court of First Instance and Appeal accepted the decision in accordance with provisions of the law.
Although Ms. Thanh was the one who spent 21.99 taels of gold to transfer the land (equivalent to about 27,047,700 VND). But the transfer documents were in Mr. Tam's name and after receiving the transfer, Mr. Tam managed the land, then transferred it to someone else. Thus, it should have been determined that Mr. Tam made efforts in preserving, preserving, and embellishing the land to increase the value of the land, so the above amount (after deducting the principal equivalent to 21.99 taels of gold from Ms. Thanh) is the joint profit of Ms. Thanh and Mr. Tam. At the same time, determine Mr. Tam's effort to give Mr. Tam a portion corresponding to his effort to be correct and ensure the rights of the litigants (In case Mr. Tam's effort cannot be accurately determined, it must be determine that Ms. Thanh and Mr. Tam have equal efforts to divide).
The Court of First Instance recognized that Ms. Thanh and Mr. Tam each had the right to own 1/2 of the above amount, but it was incorrect to not pay Ms. Thanh the amount corresponding to 21.99 gold taels.
The Court of Appeal only recognized that Ms. Thanh had the right to own the amount of money equivalent to 21.99 taels of gold, while the remaining profit was confiscated to the state fund, which is not in accordance with the provisions of the Civil Code 2005 case, does not ensure the rights of the litigants.
In addition, Ms. Thanh sued to request Mr. Tam to pay her 1,260,000,000 VND, the amount of money Mr. Tam transferred the value of the use rights of 7,595.7 m2 of land, without disputing land use rights, and Mr. Tam argued that the amount The money above is yours. Thus, the litigants dispute the ownership of the assets over the above mentioned amount. But the Court of First Instance and the Court of Appeal determined that the legal relationship was "Dispute over re-claim of assets", which is incorrect.
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