Cassation decision No. 05/2010/DS-GDT dated march 3, 2010 on civil case regarding inheritance dispute between petitioner Nguyen Quang Phuc and respondent Nguyen Dinh Hue

THE SUPREME PEOPLE’S COURT

CASSATION DECISION NO. 05/2010/DS-GDT DATED MARCH 3, 2010 ON CIVIL CASE REGARDING INHERITANCE DISPUTE BETWEEN PETITIONER NGUYEN QUANG PHUC AND RESPONDENT NGUYEN DINH HUE

On March 3, 2010, the cassation trial was conducted at the office of the Supreme People’s Court to hear the civil case of inheritance dispute between:

Petitioner:  Mr. Nguyen Quang Phuc, born in 1962; residing in: Cau Lau Tay village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

Respondent:  Mr. Nguyen Dinh Hue, born in  1950; residing in:  Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

Persons with relevant rights and obligations:

1. Mr. Nguyen Nghe, born in 1945; residing in:  group 2/1, Nam Dan commune, Krong No district, Daklak province.

2. Mrs. Nguyen Thi Hoe, born in  1935; residing in:  group 10A, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

3. Mrs. Nguyen Thi Muon, born in  1937; residing in:  group 2, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

4. Mrs. Nguyen Thi Lieu, born in 1948; residing at:  2121 Tatanka CT- Gienland Newjersey 08381 USA.

5. Mrs. Nguyen Thi A; residing at: 76 Bach Dang, Son Phong ward, Hoi An town, Quang Nam province.

6. Mrs. Nguyen Thi Be; residing at: 76 Bach Dang, Son Phong ward, Hoi An town, Quang Nam province.

7. Mrs. Nguyen Thi Cuc; residing in: Hoa Binh village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

8. Mrs. Nguyen Thi Xe, Mr. Nguyen Quang Phuc, Mr. Nguyen Quang Phuoc, Mrs. Nguyen Thi Bich Lien, Mr. Nguyen Quang Phu (Mr. Hue’s grandson); co-residing in: Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

9. Mr. Nguyen Quang Thang; residing in: group 16b, Ruong Hoi hamlet, Bao Vinh commune, Long Khanh town, Dong Nai Province.

10. Mrs. Nguyen Thi Hien, Mrs. Nguyen Thi Sau; co-residing at: 152 Nguyen Cong Tru, Da Nang city.

11. Mrs. Le Thi Hong and Nguyen Quang Yen, born in 1995, Nguyen Quang Tinh, born in 2002; co-residing in: Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.  Mrs. Le Thi Hong is the legal guardian of Yen and Tinh.

12. Mr. Nguyen Quang Vinh; residing in: Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

13. Mr. Nguyen Muoi, born in 1952; residing in:  group 1, village 3, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

14. Mrs. Tran Thi Minh Van, born in 1947; residing in: Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

FINDING THAT

According to the lawsuit petition dated July 18, 2007 and available evidence presented by the petitioner in the case file:

Mr. Nguyen Trang and Mrs. Huynh Thi Duong had 6 common children:

1. Mr. Nguyen Tham (died in 1975), unknown wife, had 9 children below: Nguyen Thi A, Nguyen Thi Be, Nguyen Thi Xe, Nguyen Quang Phuc, Nguyen Thi Cuc, Nguyen Quang Phuc, Nguyen Quang Phuoc, Nguyen Thi Bich Lien, Nguyen Quang Phu.

2. Mr. Nguyen Nhu (died in 1972), unknown wife, had 5 children below: Nguyen Quang Thang, Nguyen Quang Vinh, Nguyen Thi Hien, Nguyen Thi Sau, Nguyen Quang Tam

3. Mrs. Nguyen Thi Hoe;

4. Mrs. Nguyen Thi Muon;

5. Mr. Nguyen Nghe;

6. Mrs. Nguyen Thi Lieu.

In 1949, Mrs. Duong died leaving no will.  In 1950 Mr. Trang got married to Mrs. Nguyen Thi Men and they had two common children: Mr. Nguyen Dinh Hue and Mr. Nguyen Muoi.

Mr. Trang died in 1982 and Mrs. Men died in 1983 leaving no will. After Mrs. Men died, she left a 3-compartment house on the land area of 1,200m2 in Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province. This house and piece of land has been under management and use of Mr. Nguyen Dinh Hue’s family.

In 1992, Mr. Nguyen Quang Phuc, Mrs. Nguyen Thi Hoe, Mrs. Nguyen Thi Muon, Mr. Nguyen Nghe and Mrs. Nguyen Thi Lieu (children and grandchildren of Mr. Trang and Mrs. Duong) filed a lawsuit claiming distribution of inheritance of Mr. Trang and Mrs. Duong. The respondent, Mr. Nguyen Dinh Hue, agrees the distribution of inheritance, but requests consideration of their family’s contribution in the land improvement and house repair.

In the First Instance Civil Judgment No. 04/DSST dated February 21, 1992, the People’s Court of Duy Xuyen district, Quang Nam-Da Nang province determined that the house and land in dispute was the common property of Mr. Trang, Mrs. Duong and Mrs. Men and decided the distribution of inheritance based on that determination.

After the first instance trial: Mr. Hue appealed and the Chief Procurator of the People’s Procuracy of Duy Xuyen district appealed the foregoing First Instance Civil Judgment. During the appellate trial preparation period, on August 10, 1992, the co-petitioners withdrew the lawsuit request.

In the Decision No. 25 dated August 13, 1992, the People’s Court of Quang Nam-Da Nang province (old) applied Article 46 and 65 of the Ordinance on resolution of civil cases to suspend the lawsuit settlement.

On May 25, 2006, Mrs. Nguyen Thi Lieu and Mr. Nguyen Quang Phuc filed a lawsuit as follows:  Pursuant to Resolution No. 02/2004/NQ-HDTP dated August 10, 2004 of the Council of Judges of the Supreme People’s Court, the estate of Mr. Trang, Mrs. Duong and Mrs. Men becomes the common property of co-heirs, so request the court to distribute it as the common property.

In the First Instance Civil Judgment No. 09/DSST dated August 28, 2006, the People’s Court of Quang Nam province judged: Pursuant to Resolution No. 02/2004/NQ-HDTP dated August 10, 2004 of the Council of Judges of the Supreme People’s Court, the estate of Mr. Trang, Mrs. Duong and Mrs. Men is entitled to become the common property of co-heirs and be distributed as the common property.

After the first instance trial, Mr. Nguyen Dinh Hue and his wife, Mrs. Tran Thi Minh Van; Mr. Nguyen Quang Phuc and Mrs. Nguyen Thi Lieu filed an appeal.

In the Appellate Civil Judgment No. 57/2007/DSPT dated May 22, 2007, the Appellate Court of the Supreme People’s Court in Da Nang judged: “After expiry of a period of 10 years and in today’s court hearing, the litigants keep provoking the dispute over line of succession. Mr. Phuc claims that as the piece of land is the estate of Mrs. Duong, Mr. Trang, Mr. Hue and Mr. Muoi do not stand in first line of succession of Mrs. Duong, but natural children of Mrs. Duong stand in the first line of succession of Mrs. Men. Mr. Hue claims that the house and land are property left by Mrs. Men and Mr. Trang, so natural children of Mrs. Duong do not stand in line of succession of Mrs. Men...”; thus, the estate left by the deceased is not entitled to become the common property; so the court decides as follows:  “…Quash the First Instance Judgment No. 09/2006/DS-ST dated August 28, 2006 of the People’s Court of Quang Nam province on division of common property and suspend the lawsuit settlement…”

On July 18, 2007, Mr. Phuc continued to bring a lawsuit claiming that: Mrs. Nguyen Thi Lieu immigrated to the USA in 1997; on July 27, 2006, the Standing Committee of National Assembly promulgated Resolution No. 1037/2006/NQ-UBTVQH11 dated July 27, 2006 of Standing Committee of the National Assembly on housing-related civil transactions established before July 1, 1991 with involvement of overseas Vietnamese; in comparison with Clause 2 Article 39, Chapter XI of the foregoing Resolution, the prescriptive period for filing a lawsuit associated with the estate of Mr. Trang, Mrs. Duong, Mrs. Men remains effective; thus, he petitions for division of inheritance of Mr. Trang and Mrs. Duong which includes the house and piece of land under management and use of Mr. Hue’s family (he indicates that this estate was formed by Mr. Trang and Mrs. Duong, Mrs. Men only gave contribution in restoring the piece of land and repairing the house), and he claims to be handed over the house for dwelling and ancestor worship.

The respondent (Mr. Nguyen Dinh Hue) refuses the distribution of inheritance as claimed by the petitioner and claims that the house and land jointly formed by Mr. Trang and Mrs. Duong were handed over to the married couple Mr. Nguyen Tham (the eldest son of Mr. Trang and Mrs. Duong) for management and use by Mr. Trang and Mrs. Men; Mr. Trang and Mrs. Men built a new house on a new piece of land which have been under his family’s management and use.

In the First Instance Civil Judgment No. 05/2007/DSST dated December 18, 2007, the People’s Court of Quang Nam province judged: Pursuant to guidance of Resolution No. 1037/2006/NQ-TVQH11 dated July 27, 2006 of the Standing Committee of National Assembly on housing-related civil transactions established before July 1, 1991 with involvement of an overseas Vietnamese, when the petitioner filed  the lawsuit (on July 18, 2007), the prescriptive period for filing lawsuit associated with the estate of Mr. Trang, Mrs. Duong and Mrs. Men still remains effective; the house and land in dispute (under management and use of Mr. Hue’s family) is the common property of these 3 people (each person is entitled to own one-third of the property) for distribution of inheritance, in specific:

Accept the lawsuit petition of Mr. Nguyen Quang Phuc against Mr. Nguyen Dinh Hue concerning the distribution of inheritance left by Mr. Nguyen Trang, Mrs. Huynh Thi Duong, Mrs. Nguyen Thi Men, including the house and the piece of land in Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

Permit Mr. Nguyen Quang Phuc to own the house and perennial trees on the piece of land of 521m2 in Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province, which is worth VND 83,411,355 (with attached map).

Permit Mr. Nguyen Dinh Hue to acquire land use right of 706m2 associated with buildings under ownership right of Mr. Hue and Mrs. Van in Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province (with attached map). The parties are not required to make up for each other.

Mr. Nguyen Quang Phuc is obliged to make up for Mrs. Nguyen Thi Lieu VND 22,748,655. and make up for Nguyen Quang Yen and Nguyen Quang Tinh VND 1,516,577 each, and Mrs. Le Thi Hong will receive it on their behalf.

In addition, the Court of First Instance decided the court fee and liability due to delayed judgment enforcement and announced the right to appeal of the litigants.

On December 20, 2007, Mr. Hue and his wife made an appeal claiming that the house and land in dispute are property formed by Mr. Trang and Mrs. Men after Mrs. Duong died; therefore, the Court of First Instance was wrong when determining that these are common property of these 3 people for distribution of inheritance.

On January 2, 2008, Mr. Phuc filed an appeal claiming Mr. Hue to pay the difference of estate portion to other heirs. On September 22, 2009 (at the appellate court hearing), Mr. Phuc withdrew the appeal.

In the Judgment No. 95/2008/DSPT-QD dated August 22, 2008, the Appellate Court of the Supreme People’s Court in Da Nang judged:

The petitioner withdrew the appeal at the appellate court hearing, the respondent filed an appeal, but “in 5 court hearings (on April 23, 2008, May 15, 2008, June 18, 2008, August 19, 2008, August 22, 2008), Mr. Nguyen Dinh Hue and Mrs. Tram Thi Minh Van were absent in 4 court hearings (on on April 23, 2008, May 15, 2008, August 19, 2008, August 22, 2008). Considering that Mr. Hue and Mrs. Van were knowingly absent despite being duly served multiple times causing prejudice to the appellate trial, they are considered as renouncing their appeal”;

Thereby decides as follows:

1. Suspend appellate trial of the appeal of Mr. Nguyen Dinh Hue and Mrs. Tran Thi Minh Van and appeal of Mr. Nguyen Quang Phuc.

2. The First Instance Civil Judgment No. 05/2007/DSST dated December 18, 2007 of the People’s Court of Quang Nam province become legally effective as of August 22, 2008.

In addition, the Court of Appeal decided the court fee.

After the Appellate Decision was rendered, Mr. Hue filed a claim.

In the Decision No. 208/2009/KN-DS dated May 20, 2009, the Chief Justice of the Supreme People’s Court appealed the above Appellate Civil Judgment and requested the Council of Judges of the Supreme People’s Court to hear the case under cassation review, quash the above First Instance Judgment No. 05/2075/DSST dated December 18, 2007 of People’s Court of Quang Nam Province; refer the case file to the People’s Court of Quang Nam Province for first instance re-trial as per the law, with the following judgment:

In terms of court procedures:

Pursuant to Clause 2 Article 39 of Resolution No. 1037/2006/UBTVQH11 dated July 27, 2006 of Standing Committee of the National Assembly: The period from July 1, 1996 to the effective date of this Resolution shall not be included in the prescriptive period for resolution of housing-related civil transactions established before July 1, 1991 with involvement of overseas Vietnamese”. Accordingly, the condition for applying this Resolution is that the housing-related civil transactions must be established before July 1, 1991 with involvement of overseas Vietnamese. In this case, the civil transaction related to house inheritance was established before July 1, 1991 (Mrs. Duong, Mr. Trang and Mrs. Men all died before July 1, 1991) and Mrs. Nguyen Thi Lieu has been resided abroad; however, while the Court of First Instance failed to clarify the time when Mrs. Nguyen Thi Lieu started immigrating aboard, it accepted the lawsuit petition dated July 18, 2007 of Mr. Nguyen Quang Phuc to resolve the case of distribution of inheritance. This was an ungrounded decision.

According to the report of appellate court hearing (first opening) on April 23, 2008, the Court of Appeal adjourned such hearing because the respondent was absent without known reasons”.

So, in this summons, there are unjustifiable grounds to determine that Mr. Hue was absent without justifiable reasons despite being duly served.

At the appellate court hearing (second opening) on May 15, 2008, the Court of Appeal adjourned such hearing because it accepted the petition of Mr. Hue sent on May 6, 2008, which he explained that he could not receive the subpoena dated April 23, 2008 and requested appellate trial in June 2008 since he had received medical treatment in Ho Chi Minh City.

At the appellate court hearing (third opening) on June 18, 2008, Mr. Hue was present, but the Court of Appeal adjourned such hearing because the petitioner (Mr. Phuc) was absent.

At the appellate court hearing (fourth opening) on August 19, 2008, Mr. Hue was present and submitted the notice to the court reporter at 8:00 (the court reporter received the notice and made a record), but the court hearing minutes stated that he and his wife were absent. It was untrue.

At the appellate court hearing (fifth opening) on August 22, 2008, according to the minutes made at 5:00 on August 21, 2008 (case file p. 260), Mr. Nguyen Van Tien (court reporter of the People’s Court of Duy Xuyen district, Quang Nam province) and Mr. Huynh Menh (judicial officer of Duy Phuoc commune), Mr. Dang Ngoc Hung (village deputy head) came to Mr. Hue’s family to serve the subpoena and notice of appellate trial on the following date (August 22, 2008) but they failed to do so because Mr. Hue was not at home. According to the confirmation of Mr. Hung “…as the neighbors said, Mr. Hue and Mrs. Van were at home, but they knowingly closed the door not to receive the subpoena and notice”. However, according to the claim (with attached documents) of Mr. Hue and his wife, after the Court of Appeal adjourned the court hearing on August 19, 2008, Mr. Hue came to the polyclinic hospital of Quang Nam province to receive medical treatment because the doctor diagnosed him with “spots …in right lung”; according to the confirmation of Mr. Tran Thanh Tam and Mr. Le Chau Phu, after the examination, Mr. Hue stayed at the house of Mr. Tam in Tam Ky (not Duy Xuyen) to receive outpatient treatment daily at the polyclinic hospital of Quang Nam province until August 23, 2008. Accordingly, in this summons, there were no substantial ground to confirm that Mr. Hue and his wife stayed at home but they avoided receiving the subpoena. So, in this court hearing, it is ungrounded to determine that Mr. Hue is absent despite being duly served.

Thus, the Court of Appeal was wrong when determining that the intentional absence of Mr. Hue and Mrs. Van could be considered as denouncing the their appeal and suspended the appellate trial.

In terms of the content:

The Court of First Instance had insufficient grounds to determine that the piece of land in dispute is the common property of Mrs. Huynh Thi Duong, Mr. Nguyen Trang and Mrs. Nguyen Thi Men only based on the depositions from some witnesses that this piece of land was formed by Mr. Nguyen Trang and Mrs. Huynh Thi Duong and Mr. Trang got married to Mrs. Men and stayed on this piece of land after Mrs. Duong died. Because:  there are depositions of other witnesses in the case file (those in the families of Mr. Nguyen Trang, Mr. Nguyen Tran, Mr. Nguyen Van Tien, Mrs. Nguyen Thi Nhieu, Mr. Nguyen Bon, etc.) which confirm that the piece of land in dispute were formed by Mr. Trang and Mrs. Duong; after Mrs. Duong died, Mr. Trang handed it over to his eldest son, Mr. Nguyen Tham, for management and use; Mr. Trang got married to Mrs. Men and built another house on another piece of land (current house and land in dispute).  Accordingly, the Court of First Instance has not considered all depositions of the witnesses and has not verified the origin of the estate but resolved the distribution of inheritance. This was an ungrounded decision. Alternatively, Mr. Nguyen Dinh Hue has being managed and used this house stably, but the Court of First Instance compelled Mr. Hue to hand it over to Mr. Nguyen Quang Phuc. This was not a decision in conformity with actual circumstance.

At the cassation court hearing, representative of the Supreme People’s Procuracy requests the Council of Judges of the Supreme People’s Court to accept the Appeal of the Chief Justice of the Supreme People’s Court.

According to available documents in the case file, Mr. Trang had two wives, Mrs. Huynh Thi Duong and Mrs. Nguyen Thi Men. Mr. Nguyen Trang and Mrs. Huynh Thi Duong had 6 common children: 1. Mr. Nguyen Tham (died in 1975) had 9 children: Mrs. Nguyen Thi A, Mrs. Nguyen Thi Be, Mrs. Nguyen Thi Xe, Mr. Nguyen Quang Phuc, Mrs. Nguyen Thi Chuc, Mr. Nguyen Quang Phuc, Mr. Nguyen Quang Phuoc, Mrs. Nguyen Thi Bich Lien, Mr. Nguyen Quang Phu; 2. Mr. Nguyen Nhu (died in 1972) had 5 children: Mr. Nguyen Quang Thang, Mr. Nguyen Quang Vinh, Mrs. Nguyen Thi Hien, Mrs. Nguyen Thi Sau, Mr. Nguyen Quang Tam; 3. Mrs. Nguyen Thi Hoe; 2. Mrs. Nguyen Thi Muon; 5. Mr. Nguyen Nghe; 6. Mrs. Nguyen Thi Lieu (currently residing in the USA). In 1949, Mrs. Duong died without a will; in 1950, Mr. Trang got married to Mrs. Nguyen Thi Men. Mr. Trang and Mrs. Men had two common children: Mr. Nguyen Dinh Hue and Mr. Nguyen Muoi. Mr. Trang died in 1982 and Mrs. Men died in 1983 leaving no will. On July 18, 2007, Mr. Phuc continued to bring a lawsuit claiming that: Mrs. Lieu has resided abroad since 1997, pursuant to Resolution No. 1037/2006/NQ-UBTVQH11 dated July 27, 2006 of Standing Committee of the National Assembly, the prescriptive period for filing a lawsuit associated with the estate of Mr. Trang and Mrs. Duong remains effective; accordingly, Mr. Phuc requests the court to accept the case and resolve the distribution of inheritance of Mr. Trang and Mrs. Duong as the house and land under management and use of Mr. Hue’s family were formed by Mr. Trang and Mrs. Duong, Mrs. Men only gave contribution in land improvement and house repair, and Mr. Phuc claims handover of the house for dwelling and ancestor worship. While Mr. Hue and Mr. Muoi are no co-heirs and the house and land were jointly formed by Mr. Trang and Mrs. Duong, Mr. Trang and Mrs. Men handed it over to Mr. Nguyen Tham (the eldest son of Mr. Trang and Mrs. Duong) for management and use; and Mr. Trang and Mrs. Men built a house on another piece of land (in dispute). The Court of First Instance determined the prescriptive period for filing a lawsuit associated with the estate of Mr. Trang, Mrs. Duong and Mrs. Men remains effective and decided the distribution of inheritance, the Court of Appeal determined that the appellant denouncing the appeal as they were absent despite being duly served and suspended the appellate trial, First Instance Judgment became legally effective.

According to the available documents in the case file:

In terms of court procedures:

On October 28, 1995, The National Assembly promulgated Resolution on implementation of the Civil Code 1995. The Article 4 of this Resolution stipulates: “Resolution of housing-related civil transactions established before July 1, 1991 shall be temporarily suspended pending guidelines of the National Assembly. Then, on August 20, 1998, the Standing Committee of National Assembly promulgated Resolution No. 58/1998/NQ-UBTVQH10 in which Article 2 stipulate the scope of Resolution is guidelines for resolution of housing-related civil transactions under private ownership established before July 1, 1991”; except for “housing-related civil transactions under private ownership established before July 1, 1991 with involvement of an overseas Vietnamese, foreign entities”. So, all housing-related civil transactions under private ownership established before July 1, 1991 in dispute must apply Resolution No. 58/1998/NQ-UBTVQH10 to resolve (except for transactions with involvement of an overseas Vietnamese before July 1, 1991 pending guidelines in Resolution No. 1037/2006/NQ-TVQH11 dated July 27, 2006).

In this case, Mr. Trang, Mrs. Duong, Mrs. Men died before July 1, 1991 without a will, on July 18, 2007, the petitioner filed a lawsuit petitioning for division of inheritance of the house associated with land use right; hence, it would have been necessary to clarify if Mrs. Nguyen Thi Lieu immigrated abroad before or after July 1, 1991, to determine whether the dispute falls under scope of Resolution No. 1037 or No. 58, and the prescriptive period for filing a lawsuit associated with the estate of Mr. Trang, Mrs. Duong and Mrs. Men remains effective to accept or reject the lawsuit petition of the litigants as prescribed in Article 168, Article 171 of the Civil Procedure Code. The Court of First Instance has not verified the above matter but determined that the lawsuit petition dated July 18, 2007 of the petitioner was still in prescriptive period for filing a lawsuit associated with the estate of Mr. Trang, Mrs. Duong and Mrs. Men. It was an ungrounded decision. The Court of Appeal did not discover this error of the Court of First Instance, so it still accepted and resolved the case and determined that after the first instance trial, the petitioner (Mr. Phuc) and the respondent (Mr. Hue) made an appeal, at the appellate court hearing, the petitioner withdrew the appeal and the respondent was considered denouncing the appeal as they were absent despite being duly served twice; thereby suspended the appellate trial and First Instance Judgment became legally effective. This was an ungrounded decision which committed procedural error, because: At the first appellate court hearing on April 23, 2008: Mr. Hue was absent but there is no justifiable grounds to determine that he was absent despite being duly served; at the second appellate court hearing on May 15, 2008; the Court of Appeal accepted the petition of Mr. Hue sent on May 6, 2008, but Mr. Hue claims that he did not receive any subpoena on April 23, 2008, and requested appellate trial in June 2008 since he had received medical treatment in a hospital in Ho Chi Minh City; at the third appellate court hearing on June 18, 2008: Mr. Hue was present; at the fourth appellate court hearing on August 19, 2008: Mr. Hue was present at the court hearing and submitted the notice to the court reporter at 8:00, the court reporter made a record but the court hearing minutes states that Mr. Hue and his wife were absent, it was untrue; at the fifth appellate court hearing on August 22, 2008: the Court of Appeal, according to the minutes made by the court reporter  of the People’s Court of Duy Xuyen district, judicial officer of Duy Xuyen commune and village officer at 15:00 on August 21, 2008, determined that Mr. Hue and his wife avoided receiving the subpoena although they were at home. This was an ungrounded decision (it was supposed to collaborate with the regional police to inspect temporary residence and temporary absence to determine exactly if they were at home); meanwhile, according to the evidence provided by Mr. Hue and medical record, on August 19, 2008, he was not in Duy Xuyen but stayed at the polyclinic hospital in Quang Nam province to receive medical treatment until August 23, 2008.

In terms of the content:

During the lawsuit settlement, many witnesses gave conflict depositions. Certain witnesses claim that the house and land in dispute were formed by Mr. Trang and Mrs. Duong, Mrs. Men got married to Mr. Trang and lived on the piece of land in dispute. Other witnesses, Mr. Nguyen Tran, Mr. Nguyen Van Tien, Mrs. Nguyen Thi Nhieu, Mr. Nguyen Bon, …, in Nguyen family, confirmed that the house and land in dispute were formed by Mr. Trang and Mrs. Men after Mrs. Duong died; the house and land jointly formed by Mr. Trang and Mrs. Duong were handed over to Mr. Nguyen Tham (the eldest son of Mr. Trang and Mrs. Duong) by Mr. Trang and Mrs. Men for management and use (these depositions are consistent with those made by Mr. Hue and his wife). In this case, it would have been necessary to evaluate comprehensively the depositions of the witnesses and clarify the origin of the property in dispute to resolve the case. The Court of First Instance has not clarified this matter and only based on depositions of some witnesses to determine that the house and land in dispute formed by Mr. Trang and Mrs. Duong and Mr. Trang and Mrs. Men stayed on this piece of land after marriage to determine that this is common property of these 3 people for distribution of inheritance. This was an ungrounded decision.

Alternatively, while Mr. Hue has managed and used the 3-compartment house left by Mr. Trang and Mrs. Men stably, the Court of First Instance compelled Mr. Hue to hand it over to Mr. Phuc for management and use. This was not a reasonable and lawful decision in conformity with real circumstance.

According to facts and matters, pursuant to Clause 3 Article 291, Clause 3 Article 297 and Article 299 of the Civil Procedure Code.

HEREBY DECIDES

1. Quash Decision on Suspension of Appellate Trial No. 95/2008/RDSPT-QD dated August 22, 2008 of the Court of Appeal of the Supreme People’s Court in Da Nang and quash First Instance Judgment No. 05/2007/DSST dated December 18, 2007 of the People’s Court of Quang Nam province on the case of “dispute over inheritance between the petitioner, Mr. Nguyen Quang Phuc, and the respondent, Mr. Nguyen Dinh Hue; persons with relevant rights and obligations, Mr. Nguyen Nghe, Mrs. Nguyen Thi Hoe, Mrs. Nguyen Thi Muon, Mrs. Nguyen Thi Lieu, Mrs. Nguyen Thi A, Mrs. Nguyen Thi Be, Mrs. Nguyen Thi Cuc, Mrs. Nguyen Thi Xe, Mr. Nguyen Quang Thang, Mrs. Nguyen Thi Hien, Mrs. Nguyen Thi Sau, Mrs. Le Thi Hong, Mr. Nguyen Quang Vinh, Mr. Nguyen Muoi, Mrs. Tran Thi Minh Van.

2. Remand the case file to the People's Court of Quang Nam province for the re-trial in accordance with the provisions of law.