Cassation decision No. 100/2013/GDT-DS dated August 12, 2013 on inheritance dispute between plaintiff Vu Dinh Hung and defendant Vu Thi Tien

THE SUPREME PEOPLE’S COURT

CASSATION DECISION NO. 100/2013/GDT-DS DATED AUGUST 12, 2013 ON INHERITANCE DISPUTE BETWEEN PLAINTIFF VU DINH HUNG AND DEFENDANT VU THI TIEN

On August 12, 2013, the cassation trial was conducted at the office of the Supreme People’s Court to hear the civil case of inheritance dispute between:

Plaintiff:

Mr. Vu Dinh Hung, born in 1938; address: 66 Dong Xuan Street, Hoan Kiem district, Hanoi City.

Defendant:

1. Mrs. Vu Thi Tien (Mrs. Hien), born 1946, address: 57, Lac Long Quan Street, Tay Ho district, Hanoi City.

2. Mrs. Vu Thi Hau, born 1950, address: 406, Buoi Street, Tay Ho district, Hanoi City.

Persons with relevant rights and obligations:

1. Mr. Vu Dinh Duong, born in 1934, address: 20 Shelly, Garden, Cambrige, England.

2. Vu Thi Cam, born in 1937, address: 117 Rue Charenton, Paris, France.

3. Vu Thi Thao, born in 1940, address: 8307 2nd ST Paramont CA 90723-USA.

4. Mrs. Nguyen Thi Kim Oanh, born in 1963, address: 77 Hang Giay Street, Hoan Kiem district, Hanoi city.

5. Mrs. Ha Thuy Linh, born in 1957, address: 66 Dong Xuan, Hoan Kiem district, Hanoi city; represented by Mr. Hoang Manh Khoi.

DEEMING THAT

Representation of Mr. Vu Dinh Hung in the petition dated July 1993:

His parent Mr. Vu Dinh Quang and Mrs. Nguyen Thi Thenh had 6 children: Mr. Vu Dinh Duong, Mrs. Vu Thi Cam, Mrs. Vu Thi Thao, Mrs. Vu Thi Tien (or Mrs. Hien) and Mrs. Vu Thi Hau. Mr. Quang and Mrs. Thenh had a house at 66 Dong Xuan Street, Hoan Kiem district, Hanoi with area of 123m2. In 1979, Mr. Quang died without a will, Mrs. Thenh and 3 children: Mr. Hung, Mrs. Hau, Mrs. Tien have lived there since then; Mr. Duong, Mrs. Thao and Mrs. Cam all have leaved Vietnam to live abroad. In the family meeting minutes dated October 28, 1982, Mrs. Thenh and Mr. Hung, Mrs. Tien, Mrs. Hau reached a temporary agreement to split the house into 3 parts for them. In 1987, Mrs. Thenh died. In 1989, Mrs. Tien sneakily sold the part of the house temporarily divided to Mrs. Nguyen Thi Kim Oanh.  On October 31, 1993, although Mr. Hung filed a petition for division of inheritance with the court, Mrs. Hau still kept selling the part of the house temporarily divided to Mrs. Ha Thuy Linh. The sale of these parts of the house is illegal. Mr. Hung have obtained a document confirming that Mr. Duong, Mrs. Cam and Mrs. Thao mutually agree to cede their inheritances to him. So, he requests division of inheritance at law.

Mr. Hung presents photocopies of Letters of Authorization made on March 3, 1992 by Mr. Vu Dinh Duong, on May 1, 1993 by Mrs. Vu Thi Cam, on October 28, 1991 by Mrs. Vu Thi Thao, all confirming that they authorize Mr. Hung to take care of their property in the house 66 Dong Xuan equivalent to 1/6 of the house. After filing the petition, Mr. Hung present additional documents: Letters of Permanent Transfer of Inheritance Rights made on April 25, 1995 by Mr. Vu Dinh Duong, on May 10, 1995 by Mrs. Vu Thi Cam, and by Mrs. Vu Thi Thao; these documents were made abroad, all confirming that: The parent left the house 66 Dong Xuan to 6 children, but Mrs. Tien (Hien) and Mrs. Hau selling a part of the house failed to follow the mother’s advice (not to sell or allow strangers to live in the house) Mr. Duong, Mrs. Thao and Mrs. Cam hereby make these documents, permanently transferring 1/6 of the house 66 Dong Xuan equivalent to their inheritances to Mr. Hung in order for him to maintain ancestor worship at the house where the three families abroad could go to worship ancestors; besides, they request the court to allow Mr. Hung receive the inheritance in kind (all documents presented by Mr. Hung are photocopies).

Representation of the defendant:

Representation of Mrs. Vu Thi Tien: She agrees with Mr. Hung’s representation about consanguinity and the origin of the house 66 Dong Xuan. In 1989, she sold the part of the house divided to Mrs. Oanh, the house was handed over and the house sale paperwork was completed at the Hanoi Land Department. After moving to the house, Mrs. Oanh also reached an agreement with Mr. Hung and Mrs. Hau to convert some facilities in the house for more convenient use. Subsequently, Mr. Hung filed a complaint to the Hanoi Land Department so the house sale paperwork between Mrs. Tien and Mrs. Oanh was revoked. Mrs. Hau also sold the divided part of the house to another person. She stated that Mrs. Thenh gave money to 3 children going abroad, so they do not make any claim for this house. She sold her part of the house to Mrs. Oanh, so she assumes no liability whatsoever for the sold part of the house.

Representation of Mrs. Vu Thi Hau: She agrees with Mr. Hung’s representation about consanguinity and the origin of the house 66 Dong Xuan and the Mrs. Tien’s representation about division of the house. She stated that she notified her siblings living abroad of the sale of her part of the house and obtained their consent. She requests to divide the part of the house that she sold to Mrs. Linh and Mr. Khoi.

Representation of persons with relevant rights and obligations:

Representation of Mrs. Ha Thuy Linh and Mr. Hoang Manh Khoi: They mutually bought the house based on the family meeting minutes given by Mrs. Hau. They made the payment in full and have lived in that house up to now, so they request the court to legalize their part of house bought from Mrs. Hau.

Representation of Mrs. Nguyen Thi Kim Oanh: On October 18, 1992, she bought the part of the house divided to Mrs. Tien for VND 30,000,000. The sale was permitted by the competent authority. After the purchase, she moved to the house, had an agreement to convert some facilities in the house with Mr. Hung, so she requests the court to recognize the house sale contract entered into between Mrs. Tien and Mrs. Oanh.

At the first instance civil judgment No. 20/DSST dated May 23, 1995, People’s Court of Hanoi City judged: accepting the petition for division of inheritance made by Mr. Hung, Mr. Duong, Mrs. Cam , Mrs. Thao with the representation of Mr. Hung, requesting division of the estate of Mr. Quang and Mrs. Thenh; accepting a part of the will made by Mrs. Thenh on October 28, 1982, stating that the value of estate is VND 1,228,151,520 and the land and house shall be divided among 3 children: Mr. Hung, Mrs. Hau and Mrs. Tien. The house sale between Mrs. Tien, Mrs. Hau with Mrs. Oanh, Mrs. Linh was conducted in accordance with regulations of the state.

Mrs. Tien filed an appeal, requesting reconsideration of the way to calculate the area of the estate. Mr. Hung also filed an appeal, claiming that the court heard the case in an impartial manner.

At the appellate civil judgment No. 115 dated October 10, 1995, the Appellate Court of the Supreme People’s Court in Hanoi judged: quashing the first instance judgment, transferring the case file to the People’s Court of Hanoi City for conducting another first instance trial.

At the first instance civil judgment No. 50/DSST dated September 11, 1996, the People’s Court of Hanoi City accepted the petition for division of inheritance made by Mr. Hung, Mr. Duong, Mrs. Cam, Mrs. Thao with the representation of Mr. Hung, requesting division of the estate of Mr. Quang and Mrs. Thenh; recognized the voluntary consent of Mr. Duong, Mrs. Cam, Mrs. Thao to transfer their inheritances to Mr. Hung and divide inheritance in kind to Mr. Hung, Mrs. Hau, Mrs. Tien (each person receives 1/3 of the shop and the rear part of the house), Mrs. Hau and Mrs. Tien must pay the difference to Mr. Hung (Mrs. Hau VND 156,824,381; Mrs. Tien VND 140,774,106). The house sale between Mrs. Tien, Mrs. Hau and Mrs. Oanh, Mrs. Linh is considered illegal.

 Mr. Hung filed an appeal thereafter.

At the decision No. 82/TDC dated July 15, 1997, the Appellate Court of the Supreme People’s Court of Hanoi City suspended settlement of this case.

After effective date of Resolution No. 1037/2006/NQ-UBTVQH11 dated July 27, 2006 of the Standing Committee of National Assembly on housing-related civil transactions established before July 1, 1991 involving foreign Vietnamese, the Appellate Court of the Supreme People’s Court of Hanoi resumed settlement of the case.

At the appellate civil judgment No. 142/2007/DSPT dated July 3, 2007, the Appellate Court of the Supreme People’s Court of Hanoi quashed the first instance judgment and transferred to case file to the People’s Court of Hanoi City to conduct another first instance trial: While the petition was solely written and signed by Mr. Hung, the Letters of Authorization made by Mr. Duong, Mrs. Thao, Mrs. Cam fail to present the authorization to file for a petition for division of inheritance (except for the Letter made by Mrs. Thao), litigants involve their heirs to participate in the legal proceedings; and the estate must be re-valued appropriately.

After the case was re-accepted, litigants stated that Mr. Duong and Mrs. Thao died in 2002. The first instance court requested Mr. Hung to present their death certificates and file another lawsuit petition in accordance with Clause 2 Article 164 of the Civil Procedure Code (full name, address, nationality of children of Mr. Duong and Mrs. Thao; name and address of persons living in the disputed part of the house) but Mr. Hung failed to present them with the court.

At the Decision No. 04/2008/QDST-DS dated January 17, 2008, the People’s Court of Hanoi City terminated settlement of the case and returned the court fee to Mr. Hung.

On January 29, 2008, Mr. Hung filed an appeal, claiming that the aforesaid termination is improper.

At the Decision No. 168/2008/DS-QDPT dated September 4, 2008, the Appellate Court of the Supreme People’s Court of Hanoi accepted the appeal made by Mr. Hung, overruled the first-instance judgment with the following reason: The first instance court applying Clause 2 Article 192 to terminate settlement of the case is wrong, depriving litigants of their right to file the lawsuit.

After re-accepting the case, the People’s Court of Hanoi City requested Mr. Hung to present documents containing name, age, address of the heirs of Mr. Duong and Mrs. Thao; letters to authorize acceptance or refusal of their inheritances; name and address of persons who live in the house of Mrs. Oanh. Mr. Hung failed to present above documents.

At the Decision No. 54/DS-ST dated September 30, 2009, the People’s Court of Hanoi City judged: Terminate settlement of the case, return the petition and evidence enclosed to Mr. Hung.

The Mr. Hung filed an appeal thereafter.

At the Judgment No. 44/2010/QD-PT dated March 9, 2010, the Appellate Court of the Supreme People’s Court in Hanoi judged: Uphold the first instance judgment.

Mr. Hung filed for cassation trial thereafter.

At the Decision No. 35/2013/KN-DS dated January 22, 2013, the Chief Justice of the Supreme People’s Court appealed Decision No. 44/2010/QD-PT dated March 9, 2010 of the Appellate Court of the Supreme People’s Court of Hanoi. Request the Council of Judges of the Supreme People’s Court to adjudicate cassation trial, override above appellate civil judgment and override the decision on termination of first instance settlement No. 54/2009/DS-ST dated September 30, 2009 of the People’s Court of Hanoi City; transfer the case file to the People’s Court of Hanoi City to conduct another first instance trial as per the law.

At the cassation trial court hearing, the representative of the Supreme People’s Procuracy consents to the appeal made by the Chief Justice of the Supreme People’s Court.

DEEMING THAT

The house at 66 Dong Xuan Street, Hoan Kiem district, Hanoi City was built by Mr. Vu Dinh Quang (died in 1979) and Mrs. Nguyen Thi Thenh (died in 1987). They had 6 children, 3 children Mr. Vu Dinh Duong, Mrs. Vu Thi Cam and Mrs. Vu Thi Thao have lived abroad since 1979, 3 children Mr. Vu Dinh Hung, Mrs. Vu Thi Tien (Hien), Mrs. Vu Thi Hau have lived in Vietnam. After Mr. Quang died, only Mrs. Thenh, Mr. Hung, Mrs. Tien and Mrs. Hau have lived in the house.

After Mrs. Thenh died, Mr. Hung, Mrs. Tien and Mrs. Hau arbitrarily divided in the house into 3 parts for them.  On October 18, 1992, Mrs. Tien sold her part of the house to Mrs. Nguyen Thi Kim Oanh and on October 31, 1993, Mrs. Hau sold her part of the house to Mrs. Ha Thuy Linh.

In 1993, Mr. Hung file a petition for division of inheritance from Mr. Quang and Mrs. Thenh as per the law. The settlement of the case lasted from 1993 to 1996 and was suspended at the appellate trial stage in 1997. In 2007, the case was re-accepted.

Before settlement of the case, before suspended proceedings (1997), Mr. Hung presented documents and letters of authorization made in 1991, 1992, 1993, 1994 by Mr. Duong, Mrs. Cam, Mrs. Thao, stating that they authorized Mr. Hung to take care of their inheritances in the house at 66 Dong Xuan; after that, Mr. Hung presented documents made in 1995 by Mr. Duong, Mrs. Thao and Mrs. Cam, stating that they permanently transfer their inheritances in the disputed estate. All documents bear stamps and seals of home countries (Mr. Duong lives in England, Mrs. Cam lives in France and Mrs. Thao lives in the USA), but they are solely photocopies.

However, all litigants clearly state house number, address of the writers. During the initiation of the re-settlement of the case after the suspension period, Mr. Hung, Mrs. Tien, and Mrs. Hau all declared that Mr. Duong and Mrs. Thao died in 2002, Mr. Hung determined that the address of Mrs. Cam and Mrs. Thao remains unchanged but he failed to receive a reply from children of Mr. Duong (the case file page No. 376, 377, 382). The first instance court requested Mr. Hung to present the death certificates of Mr. Duong and Mrs. Thao; because Mr. Hung failed to provide name and address of children of Mr. Duong and Mrs. Thao, he requested the court to take evidence for settlement as prescribed by law (case file page No. 390). Deeming that the case file has address of persons living abroad and the three persons living in Vietnam all certify the death of Mr. Duong and Mrs. Thao, so such a request for death certificate is unnecessary. The first instance court was supposed to conduct the judicial assistance as prescribed, taking evidence to clarify the death time of Mr. Duong and Mrs. Thao and ask their heirs (if any) to give opinions about the case. Then it shall hear the case according to the evidence as the case may be as prescribed. If it failed to take any new items of evidence, it must deal with the request made by Mr. Hung to claim inheritance by operation of law, the inheritances of Mr. Duong and Mrs. Thao will be temporarily managed by the persons living in Vietnam in order for their heirs to receive them by operation of law, it is supposed to be the definite resolution of the case. Regarding to persons living in the part of the house sold by Mrs. Tien, the obligation to give their names and ages falls under Mrs. Tien. The first instance court requesting Mr. Hung to provide details about these persons was wrong because he is not required by law. The first instance court was wrong when terminating the case based on the basis that Mr. Hung failed to provide names and addresses of children of Mr. Duong and Mrs. Thao, and of persons buying Mrs. Oanh’s part of house. The appellate court upheld the first instance judgment while it was supposed to quash the first instance judgment to conduct another first instance trial.

In addition, according to the case file and deposition of Mr. Hoang Manh Khoi dated October 17, 2007 (case file page No. 373) and “Letter of House Sale” dated October 31, 1993 (case file page No. 18), Mrs. Hau sold her part of the house to Mrs. Ha Thuy Linh (Mr. Hoang Manh Khoi’s wife). The first instance judgment and appellate judgment all mentioning her as Mrs. Nguyen Thi Thuy Linh is incorrect that needs modification.

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

HEREBY DECIDES

1. Overrule Judgment No. 44/2010/QD-PT dated March 9, 2010 of the appellate court of the Supreme People’s Court of Hanoi and overrule Decision on termination of settlement of the case No. 54/2009/DS-ST dated September 30, 2009 of the People’s Court of Hanoi City concerning the inheritance dispute between the plaintiff Mr. Vu Dinh Hung and the defendant Mrs. Vu Thi Tien, Mrs. Vu Thi Hau; person with relevant rights and obligations Mr. Vu Dinh Duong, Mrs. Vu Thi Cam, Mrs. Vu Thi Thao, Mrs. Nguyen Thi Kim Oanh, Mrs. Ha Thuy Linh.