Precedent No. 35/2020/AL regarding an overseas vietnamese’s allocation of agricultural land to a resident in vietnam before immigration overview of the precedent

- Situation of the precedent:

An overseas Vietnamese has allocated her agricultural land to a resident in Vietnam before immigration; the resident in Vietnam has been using such land plots for a stable and long term, and has been granted certificates of land use rights.

- Legal solution:

In this case, the Court should determine that the resident in Vietnam has the lawful land use rights and reject the claim for land use rights.

According to the petition dated May 09, 2012 and during the case process, the plaintiff, Mrs. Nguyen Thi K stated:  In 1978, Mrs. Nguyen Thi K and her husband, Mr. Nguyen C, made a written document to give Mr. Nguyen Van D (their son) a land plot of 05 “sào” (or 2500 m², “sào” is a measuring unit in Vietnam, 1 “sào” = 500 m², bordering the land of Mr. L, the land of Mrs. Nguyen Thi E, the land of the Montagnard (or Thượng people) and Highway 14 in its east, west, south and north respectively;  In 1982 and 1983, Mr. D sold the entire land plot to Mr. Nguyen Dang N and Mr. Nguyen Van B. Then, Mrs. K gave an adjacent land plot of 150 m² to Mr. D without making any document and in 2005, gave the house on this land plot to Mr. D (the house and land given to Mr. D are determined to border the land of Mr. B in the east, the remaining land of their family in the west and south, and Highway 14 in the north). In 2005, Mrs. K applied for  certificate of land use rights; on March 09, 2006, the People’s Committee of P City issued 02 certificates of land use rights, including: Certificate of land use rights No. AD 516166, covering the land plot No. 9, map sheet No. 58, area: 10,112.4m², purpose: land for annual crops; duration of use: until 2013, issued to Mrs. Nguyen Thi K; Certificate of land use rights No. AD 516165, covering the land plot No. 9A, map sheet No. 58, area: 300 m², purpose: urban residential land, issued to Mrs. Nguyen Thi K and Mr. Nguyen C. In November 2006, Mrs. K applied for adjustments and re-issuance of certificates of land use rights according to the actual conditions of land plots on which houses were built. On November 24, 2006, the People’s Committee of P City issued the Decision No. 762/QD-UBND on revocation of Certificates of land use rights No. AD 516166 and AD 516165, and issued new Certificates of land use rights No. AG 680769 and AG 680768 to Mrs. Nguyen Thi K and Mr. Nguyen C. On June 19, 2009, Chairperson of the People’s Committee of P City issued the Decision No. 1654/QD-UBND on revocation of Certificates of land use rights issued to Mrs. Nguyen Thi K and Mr. Nguyen C because they have the same areas and land plots with those specified in Certificates of land use rights issued to Mr. Nguyen Van D.

Mrs. K has brought an administrative case against the Chairperson of the People’s Committee of P City for issuance of the Decision No. 1654/QD-UBND on revocation of Certificates of land use rights issued to her and her husband. Mrs. K’s petition has been rejected according to the first-instance court’s administrative judgment No. 02/2010/HC-ST dated June 11, 2010 of the People’s Court of Buon Ma Thuot City; the first-instance court’s judgment has been amended and Mrs. K’s petition was accepted according to the appellate court’s administrative judgment No. 07/2010/HC-PT dated September 17, 2010 of the People’s Court of Dak Lak province; the Director of the People’s Supreme Procuracy has appealed against the appellate court’s administrative judgment according to the Cassation Decision No. 10/2011/HC-GDT dated November 15, 2011, the administrative court of the Supreme People’s Court has invalidated the first-instance court’s administrative judgment No. 02/2010/HC-ST dated June 11, 2010 of the People’s Court of Buon Ma Thuot City and the appellate court’s administrative judgment No. 07/2010/HC-PT dated September 17, 2010 of the People’s Court of Dak Lak province, and transferred the case file to the People’s Court of Buon Ma Thuot City for re-trying the case according to the first-instance procedure. Upon receipt of the case file for re-trying, the People’s Court of Buon Ma Thuot City has directed summons to Mrs. K twice but Mrs. K did not appear at the court. Thus, the People’s Court of Buon Ma Thuot City has dismissed the case.

Now, Mrs. K initiates a civil case to request Mr. and Mrs. D to return land to her with the following reasons:  In 2005, Mr. D has made a photocopy of the photocopied document of land gifting in 1978, in which the location of the land plot has been deliberately falsified, and used that photocopy in applying for certificate of land use rights. Moreover, Mr. D also made a statement of loss of the original document of land gifting which has been certified by the People's Committee of E Ward. Based on documents submitted by Mr. D, the People's Committee of P City has issued a certificate of land use rights to Mr. D for the land area of 4,925,5m² (Certificate of land use rights No. AD 579302 covering the land plot No. 9A, map sheet No. 58, area: 300.5m² and Certificate of land use rights No. AD 579313 covering the land plot No. 09, map sheet No. 58, area: 4,624m²). Now, Mrs. K requests Mr. and Mrs. D to return an area of 4,652.7m² (having subtracted an area of 272.8m² of land appropriated by the People's Committee of P City according to the Decision No. 4233/QD-UBND dated December 24, 2010); Mrs. K agreed that Mr. and Mrs. D shall continue using the land area of 183.74m² (including 150 m² previously gifted to them and a land area of 33.74 m² additionally gifted to them because they has built a house on this land area); the Court is requested to invalidate the Certificates of land use rights issued by the People's Committee of P City to Mr. D and Mrs. T.

- Previously, Mr. Nguyen Van D (died) and Mrs. Nguyen Thi T stated:  In 1978, Mr. C and Mrs. K made a written document to gift them a land plot of 2,500 m², bordering the land of Mr. L, the land of Mrs. Nguyen Thi E, the land of the Montagnard (or Thượng people) and Highway 14 in its east, west, south and north respectively;  Mrs. K sold 500 m² of land to Mr. N in 1982 and a land area of 2,000 m² to Mr. B in 1985. Total land area sold equals to the land area of 2,500 m² gifted to them in 1978. Thus, their parents agreed to give them the adjacent land plot of 2,500 m². Then, their parents immigrated to the the Federal Republic of Germany.

Before immigration to Germany, Mrs. K gave all house and land documents to Mrs. Nguyen Thi E for management. In 2004, Mrs. K returned to Vietnam. In 2005, Mr. D and Mrs. T requested Mrs. E to give back the house and land documents but Mrs. E only gave them a photocopied document. The originals of house and land documents bearing seals and certification of local authorities are kept by Mrs. K.

Mr. and Mrs. D have made a photocopy of the photocopied document given by Mrs. E, and presented it and 2 decisions on allocation of land for planting coffee trees issued by the People’s Committee of P Town in 1980 and 1990 to the People’s Committee of E Ward to ask for instructions on procedures for issuance of certificate of land use rights, and they were instructed to obtain the signatures of Mrs. K and other siblings to certify their parents’ gifting of the house of 150 m² and the land of 1,750 m² for planting fruit trees to them in 1978 as indicated in the original document of land gifting. Then, Mr. D told such instructions to Mrs. K (when Mr. C has died) and Mrs. K has made the certification certifying the gifting of the house and land area for planting fruit trees to them in 1978. This certification bears the signatures of Mr. Nguyen Van D (died) and Mrs. Nguyen Thi E. Based on this certification, on December 26, 2005, the People’s Committee of P City has issued the Certificate of land use rights No. AD 579302 covering the land plot No. 9A, map sheet No. 58, area: 300.5 m², purpose: residential land, and Certificate of land use rights No. AD 579313 covering the land plot No. 09, map sheet No. 58, area: 4,624.9 m², purpose: agricultural land.

However, on March 09, 2006, the People’s Committee of P City issued Certificate of land use rights No. AD 516166, covering the land plot No. 9, map sheet No. 58, area: 10,112.4 m², purpose: land for annual crops, to Mrs. K and Certificate of land use rights No. AD 516165, covering the land plot No. 9A, map sheet No. 58, area: 300 m², purpose: urban residential land, to Mrs. K and Mr. C. The land areas certified in these certificates are also the ones specified in the certificates of land use rights issued to them. After detecting this mistake, on November 24, 2006, the People’s Committee of P City issued the Decision No. 762/QD-UBND to revoke the certificates of land use rights issued to Mr. C and Mrs. K.

Now, they disagreed with the petition filed by Mrs. K, and also stated that they have mortgaged two land plots mentioned above to Bank A for a loan amount of VND 3,000,000,000. Because they were unable to repay debt, the Bank has brought the case to the Court for judgment. According to the Court's judgment, the judgment enforcement agency has sold the property via auction. Thus, the judgment enforcement has been finished, and the Court is requested to handle the case in accordance with regulations of law.

The person with related benefits and duties that is the representative of the People’s Committee of P City stated:  Certificates of land use rights have been issued to Mr. D and Mrs. T in accordance with regulations of law.

The person with related benefits and duties that is the representative of Bank A stated:  The mortgage agreement signed between the Bank and Mr. D and Mrs. T is bona fide, and this secured transaction has been registered in accordance with regulations of law.

- According to the first-instance civil judgment No. 124/2013/DS-ST dated September 06, 2013, the People’s Court of Buon Ma Thuot City, Dak Lak Province, has rejected the entire petition of the plaintiff.

- According to the appellate court’s civil judgment No. 07/2014/DSPT dated January 14, 2014, the People’s Court of Dak Lak Province has amended the first-instance civil judgment and accepted the entire petition of the plaintiff, compelled Mr. D and Mrs. T to return the land to Mrs. K (after subtracting the land area of 183.74 m² which Mrs. K has voluntarily gifted to Mr. D for building a house), and invalidate 2 certificates of land use rights issued by the People’s Committee of P City to Mr. D and Mrs. T.

Mr. and Mrs. D, Bank A and Mr. H (who is successful bidder for the land according to the Decision on recognition of agreement between persons concerned No. 47/2011/QDST-KDTM dated June 17, 2011, People’s Court of Dak Lak Province on settlement of dispute over the credit agreement and land use rights mortgage agreement between the Bank and Mr. and Mrs. D) have applied for handling the case according to cassation procedure.

- According to Decision No. 343/2014/KN-DS dated September 16, 2014, the Chief Justice of the Supreme People’s Court has appealed against the appellate court’s civil judgment No. 07/2014/DSPT dated January 14, 2014 of the People’s Court of Dak Lak Province according to cassation procedure to invalidate the appellate court’s judgment and the first-instance judgment, and transfer the case file to the first-instance court for re-trying the case. According to the Cassation Decision No. 461/2014/DS-GDT dated November 24, 2014, the Civil Court of the Supreme People’s Court has invalidated the first-instance judgment and the appellate court’s judgment, and transfer the case file to the People’s Committee of Buon Ma Thuot City for re-trying the case according to first-instance procedures with the following (summarized) judgment:

+ Mr. C and Mrs. K had 29,418.27 m² of land when they were alive. In 1983, they immigrated to Germany and authorized their children, including Mr. and Mrs. D, to use the land plot. At the end of 2005, Mr. and Mrs. D were granted the certificate of rights to use 4,924 m² of land (including 300,5m² of residential land and 4,624.9m² of agricultural land).  In 2004, Mrs. K returned to Vietnam. In 2006, Mrs. K was granted the certificate of rights to use the entire land area which has been used by Mr. and Mrs. D according to the certificate of land use rights issued to them. Then, the People’s Committee has detected this mistake and issued a decision to invalidate the certificates of land use rights issued to Mrs. K and certify its lawful issuance of certificates of land use rights to Mr. and Mrs. D. Thus, the land area in dispute is of Mrs. K and Mr. C but they have immigrated to a foreign country and authorized Mr. and Mrs. D to use the land area since 1983; in 2005, Mr. and Mrs. D were granted certificates of land use rights. If the agricultural land area of 4,624.9m² was not given to Mr. and Mrs. D, it would be appropriated by the State. The remaining land area is 300.5 m² of which Mrs. K has given 150 m² to Mr. D and the remainder is the inheritance left by Mr. C, and thus, Mrs. K is not entitled to claim it.

+ On the other hand, in 2009, Mr. and Mrs. D have mortgaged the land to the Bank for a loan. Because Mr. and Mrs. D were unable to repay debt, the Bank has brought the case to the Court. The Court has settled the case and the judgment enforcement agency has sold the property via auction and enforced the judgment. Thus, the appellate court's judgment which forces Mr. and Mrs. D to return the entire land area (except 180 m² of land on which Mr. D has built a house) is not legitimate and does not ensure legitimate rights and benefits of the Bank and of Mr. H (who is the successful bidder for land).

- According to the first-instance civil judgment No. 98/2014/DS-ST dated January 14, 2014, the People’s Court of Buon Ma Thuot City has decided to reject the entire petition of the plaintiff.

- According to the appellate court’s judgment No. 06/2016/DS-PT dated January 11, 2016, the People’s Court of Dak Lak Province has decided to keep the validity of the entire first-instance judgment.

After the appellate trial, Mrs. Nguyen Thi K has appealed against the appellate court’s judgment No. 06/2016/DS-PT dated January 11, 2016 of the People’s Court of Dak Lak Province according to the cassation procedure.

- According to the appeal No. 11/2017/KN-DS-VC2 dated February 07, 2017 through cassation procedure, the Director of the Superior People’s Procuracy of Da Nang has requested the Committee of Judges of the Superior People’s Court conducting the cassation procedure to invalidate the first-instance civil judgment No. 98/2014/DS-ST dated January 14, 2014 of the People’s Court of Buon Ma Thuot City and the appellate court’s judgment No. 06/2016/DS-PT dated January 11, 2016 of the People’s Court of Dak Lak Province for re-trying the case for the following reasons:

+ When following procedures for certificate of land use rights, Mr. Nguyen Van D has used the photocopied document and falsified the document of gifting of house and land dated January 02, 1978 (changed four boundaries of the land plot), which includes the certification given by Mr. Nguyen Van S, Chairman of the Farmers’ Union cum Chairman of the People’s Committee of E Commune, on November 25, 1983 (over 5 years after the date of gifting the land). Thus, this certification is considered unlawful, and the issuance of the Certificate of land use rights No. AD 579302 covering the land plot No. 9A, map sheet No. 58, area: 300.5 m²,  and Certificate of land use rights No. AD 579313 covering the land plot No. 09, map sheet No. 58, area: 4,624.9 m² by the People’s Committee of P City to the household of Mr. Nguyen Van D is inappropriate.  On the other hand, Mr. Nguyen Van S, Chairman of the Farmers’ Union cum Chairman of the People’s Committee of E Commune, has made certification on November 25, 1983 on the said document of gifting of house and land dated January 02, 1978 but the first-instance court and the appellate court did not verified the fact and take statements of these persons, i.e. they did not clarify the entire case.

+ The defendant thought that in 1982, Mrs. Nguyen Thi K has sold 500 m² of the land plot that Mr. C and Mrs. K have gifted to Mr. and Mrs. D to Mr. Nguyen Dang N. In 1985, Mr. C has sold the remaining 2,000 m² of that land plot to Mr. Nguyen Van B. After Mr. C and Mrs. K sold land, they have gifted the adjacent land plot of 2,500 m² to Mr. and Mrs. T.  Mr. C and Mrs. K did not provide details about four boundaries of the land plot which Mr. C and Mrs. K gifted to them in 1978. After this land plot has been sold, Mr. C and Mrs. K gifted the adjacent land plot of 2,500 m² to them. Hence, they have stated that this land plot borders the land of Mr. B and the remaining land of their family, and asked for certification of the state-owned cinema affiliated to the Cultural Department of Dak Lak Province and the Farmers' Union of E Commune.

However, according to land sales documents, Mr. D has directly sold the land to Mr. N and Mr. B. According to the original document of land gifting presented by Mrs. K and the photocopy thereof presented by the defendant, the land plot in dispute has four boundaries determined but four boundaries of the land plot shown in the photocopied document have been deliberately altered.  Mrs. T's statement that after selling the land plot of 2,500 m² gifted to them, Mr. C and Mrs. K have gifted the adjacent land plot of 2,500 m² to them is ungrounded because she cannot provide any evidence thereof.

The defendant also said that Mrs. K has made a certification dated October 15, 2005 certifying the gifting of the house and land plot for planting fruit trees to Mr. and Mrs. T in 1978. Mrs. K and their siblings, including Nguyen Van D (died in 2008) and Nguyen Thi E, have appended their signatures to validate the said photocopied document of land gifting. However, the provided certification only indicates that Mrs. K has gifted the house of 100m² (5m x 20m) built on the land plot of 150m² (5m x 30m) to Mr. and Mrs. T but the land plot for planting fruit trees.  

Regarding the court procedures:  In 2005, Mr. D and Mrs. T applied for certificate of land use rights for the land plot which is not the one gifted by Mr. C and Mrs. K on January 02, 1978. Mr. Nguyen C died in 1998, so Mrs. K and their 14 children are entitled to the inheritance left by Mr. C but the first-instance court and the appellate court did not consider them as persons with related benefits and duties in the lawsuit. Thus, they have violated Article 61 of the 2004 Civil Procedure Code (Article 73 of the 2015 Civil Procedure Code).

At the cassation trial, the representative of the Director of the Superior People’s Procuracy at Da Nang has requested the Judge of Superior People’s Court at Da Nang to accept the appeal filed by the Director of the Superior People’s Procuracy at Da Nang.

[1] Regarding Mr. and Mrs. K's claim for the land area of 4,924 m2 of which the certificate of land use rights has been issued to Mr. D and Mrs. T by the People’s Committee of P Ward on December 26, 2005, the Committee of Judges of the Superior People’s Court at Da Nang considers that:

[2] Mr. Nguyen C and Mrs. Nguyen Thi K have a total of 14 children and Mr. Nguyen Van D is one of their children. The land area of 4,924 m2 (including 300.5 m2 of residential land and 4,624.9 m2 of agricultural land) in the dispute between Mrs. K and Mr. and Mrs. D is a portion of the land plot of 29,418.27 m2 established by Mr. C and Mrs. K (this land plot belongs to the administrative division of C Commune before 1975, of H Commune after 1975, of E Commune since 1983, and presently E Ward, P City, Dak Lak Province). On October 02, 1978, Mr. C and Mrs. K made a document of house and land gifting, in which his son, Mr. Nguyen Van D, was gifted a house of 4m x 12m, located on the land area of 2,500 m2, bordering the land of Mr. L, the land of Mrs. Nguyen Thi E, the land of the Montagnard, and Highway 14 in its east, west, south and north respectively. However, Mr. Nguyen Dang N and Mr. Nguyen Van B have received transfer of the entire land plot of 2,500 m2 in 1982 and 1983. Mrs. K stated that Mr. D has directly transferred this land plot of 2,500 m2 to Mr. N and Mr. B but Mr. D has disagreed and stated that Mr. C and Mrs. K have acted as the transferor. With regard to this matter, the cassation court believed that Mr. D’s statement is legitimate because it matches with the statement provided by Mr. N and Mrs. B that they have purchased this land plot of 2,500 m2 and made payments directly to Mr. C and Mrs. K (records No. 231, 230, 229) and also matches with the fact that Mr. C and Mrs. K made a document of land gifting to Mr. D in 1978. Hence, Mr. C and Mrs. K are considered legal users of this land plot.

[3] After selling the land plot of 2,500 m2, which has been gifted to Mr. D according to the document of land gifting in 1978, in 1983, Mr. C and Mrs. K have immigrated to the Federal Republic of Germany, and Mr. D and Mrs. T have managed and used the remaining land area. The Jury of the cassation court finds that Mr. D and Mrs. T’s statement that Mr. D’s parents have, before their immigration to Germany, gifted them the adjacent land plot of 2,500 m2 as a substitute for the land plot gifted to them but his parents have sold to Mr. N and Mr. B is well-grounded because this statement matches with Mr. N and Mr. B's statement that they have purchased land and made payments directly to Mr. and Mrs. K, and also matches with the certification dated October 15, 2005 bearing the signature of Mrs. K (which also bears the signatures of her children, Mr. Nguyen Van D and Mrs. Nguyen Thi E, the witness, Mr. Nguyen Van H1, and certification given by the local authority) to certify that Mrs. K has gifted the house and land to Mr. D in 1978 but the original document of land gifting has been lost, and this certification was made to facilitate Mr. D’s application for certificate of land use rights and residential house in accordance with regulations of law.

[4] On the other hand, the land plot of 4,924 m2 of which Mr. D and Mrs. T have been granted the certificates of land use rights by the People’s Committee of P City on December 26, 2005 has only 300.5 m2 of residential land (Certificate of land use rights No. AD 579302 covering the land plot No. 9A, map sheet No. 58); the remaining area of 4,624.9 m2 of the land plot No. 09, map sheet No. 58, is agricultural land (Certificate of land use rights No. AD 579313). Pursuant to Clause 5 Article 14 of the 1987 Land Law and Clause 3 Article 26 of the 1993 Land Law, the agricultural land shall be appropriated by the State if it has been not used for more than 6 months or 12 months without approval from the State. Pursuant to Clause 11 Article 38 of the 2003 Land Law and Point h Clause 1 Article 64 of the 2013 Land Law, the land used in contravention of the Land Law shall be appropriated, including the following cases: “The land for annual crops which has been not used for a consecutive period of 12 months, land for perennial plants which has been not used for a consecutive period of 18 months; Forest land which has been not used for a consecutive period of 24 months; etc.”, the cassation court finds that, although Mr. C and Mrs. K previously used the agricultural land area of 4,624.9 m2 but they have immigrated to a foreign country and have not used this land plot for many years. Thus, this agricultural land plot will be appropriated by the State; Mr. and Mrs. D have directly used this land plot, annually declared and paid land levies to the State, and have been granted the certificate of land use rights in 2005. Thus, they have the legal right to use this land plot.

[5] For the said reasons, the cassation court thinks that it’s well-grounded to determine that: Before immigration to the Federal Republic of Germany, Mr. C and Mrs. K have gifted the land plot of 2,500 m2 to Mr. and Mrs. D, for which Mr. and Mrs. D have obtained a certificate of land use right, as a substitute for the land plot of the same area gifted to Mr. D in 1978 and sold by Mr. C and Mrs. K to Mr. N and Mr. B in 1982 and 1983 respectively. On the other hand, Mr. C and Mrs. K have not used the land plot for many years, this land plot shall be appropriated by the State. Mr. and Mrs. D have used this land plot, declared and paid land levies to the State, and have been granted the certificate of land use rights. Hence, they have the legal right to use this land plot. Thus, the first-instance civil judgment No. 98/2014/DS-ST dated January 14, 2014 of the People’s Court of Buon Ma Thuot City and the appellate court’s judgment No. 06/2016/DS-PT dated January 11, 2016 of the People’s Court of Dak Lak Province rejects Mrs. K’s claim for land returned by Mr. D and Mrs. T. This judgment is well-grounded and made in accordance with regulations of law.

[6] After the People's Committee of P City had issued the certificate of land use right on December 26, 2005 (Certificate of land use rights No. AD 579302, covering the land plot No. 9A, map sheet No. 58, area: 300.5 m2, purpose: residential land, and Certificate of land use rights No. AD 579313, covering the land plot No. 09, map sheet No. 58, area: 4,624 m2, purpose: agricultural land), Mr. D and Mrs. T mortgaged these land plots to Bank A for a loan. Because Mr. D and Mrs. T were unable to repay debt on schedule, the Bank has filed a lawsuit against them. The People’s Court of Dak Lak Province has solved the case according to the Decision on recognition of agreement between persons concerned No. 47/2011/QDST-KDTM dated June 17, 2011, in which Mr. D and Mrs. T were compelled to repay debt to the Bank and the Bank was entitled to liquidate the said 2 land plots if they failed to repay debt on schedule. After that, the land use rights over the said 02 land plots have been sold via auction for debt recovery by the Bank; Mr. H was the successful bidder in accordance with Article 138 and Article 258 of the 2005 Civil Code. Thus, Mr. H is considered as a bona fide third party that has the legal right to use the said 02 land plots and does not involve in the dispute between Mrs. K and Mr. and Mrs. T.

[7] From the said analysis, the Committee of Judges of the Superior People’s Court at Da Nang finds that the appeal No. 11/2017/KN-DS-VC2 dated February 07, 2017 through cassation procedure of the Director of the Superior People’s Procuracy at Da Nang against the appellate court’s civil judgment No. 06/2016/DS-PT dated January 11, 2016 of the People’s Court of Dak Lak Province is ungrounded and should not be accepted, and the appellate court’s civil judgment No. 06/2016/DS-PT dated January 11, 2016 of the People’s Court of Dak Lak Province should be kept unchanged.

For the said reasons,

“[4] On the other hand, the land plot of 4,924 m2 of which Mr. D and Mrs. T have been granted the certificates of land use rights by the People’s Committee of P City on December 26, 2005 has only 300.5 m2 of residential land (Certificate of land use rights No. AD 579302, covering the land plot No. 9A, map sheet No. 58); the remaining area of 4,624.9 m2 of the land plot No. 09, map sheet No. 58, is agricultural land (Certificate of land use rights No. AD 579313). Pursuant to Clause 5 Article 14 of the 1987 Land Law and Clause 3 Article 26 of the 1993 Land Law, this agricultural land plot shall be appropriated by the State if it has been not used for more than 6 months or 12 months without an approval from the State. Pursuant to Clause 11 Article 38 of the 2003 Land Law and Point h Clause 1 Article 64 of the 2013 Land Law, the land used in contravention of the Land Law shall be appropriated, including the following cases: “The land for annual crops which has been not used for a consecutive period of 12 months, land for perennial plants which has been not used for a consecutive period of 18 months; Forest land which has been not used for a consecutive period of 24 months; etc.”, the cassation court finds that, although Mr. C and Mrs. K previously used the agricultural land area of 4,624.9 m2 but they have immigrated to a foreign country and have not used this land plot for many years. Thus, this agricultural land plot will be appropriated by the State; Mr. and Mrs. D have directly used this land plot, annually declared and paid land levies to the State, and have been granted the certificate of land use rights in 2005. Thus, they have the legal right to use this land plot.
[5] ... The first-instance civil judgment No. 98/2014/DS-ST dated January 14, 2014 of the People’s Court of Buon Ma Thuot City and the appellate court’s judgment No. 06/2016/DS-PT dated January 11, 2016 of the People’s Court of Dak Lak Province rejects Mrs. K’s claim for land returned by Mr. D and Mrs. T. This judgment is well-grounded and made in accordance with regulations of law.”

Pursuant to Point b Clause 1 Article 337 and se 1 Article 343 of the 2015 Civil Procedure Code; It’s judged:

1. The appeal No. 11/2017/KN-DS-VC2 dated February 07, 2017 through cassation procedure of the Director of the Superior People’s Procuracy at Da Nang is rejected; the appellate court’s civil judgment No. 06/2016/DS-PT dated January 11, 2016 of the People’s Court of Dak Lak Province shall be kept unchanged;

2. The appellate court’s civil judgment No. 06/2016/DS-PT dated January 11, 2016 of the People’s Court of Dak Lak Province continues to take its legal effect.

The cassation decision comes into force.