Cassation judgment no. 13/2008/DS-GDT dated june 18, 2008 regarding dispute over property right

THE SUPREME PEOPLE’S COURT 

CASSATION JUDGMENT NO. 13/2008/DS-GDT DATED JUNE 18, 2008 REGARDING DISPUTE OVER PROPERTY RIGHT

On June 18, 2008, the cassation trial was conducted at the office of the Supreme People’s Court to hear the civil case of “Dispute over property right" between:

Petitioner:

1. Mr. Vo Van Binh, born in 1965; Mr. Binh settled in Russia, on June 27, 2005, Mr. Binh re-entered into household register in Tan Hy Village, Binh Dong Commune, Binh Son District, Quang Ngai Province.

2. Mr. Binh authorizes Mr. Nguyen Luong, born in 1950; residing in: Tan Hy Village, Binh Dong Commune, Binh Son District, Quang Ngai Province, according to the Letter of Authorization dated July 12, 2004.

Respondent:

1. Mr. Vo Van Ket (Mr. Binh’s father), born in 1937;

2. Mrs. Tran Thi Phuong Ngon (Mr. Binh’s stepmother), born in 1958;

Both residing in: Group 7, Le Hong Phong Ward, Quang Ngai City, Quang Ngai Province.

Persons with related interests and obligations:

1. Mr. Le Va, born in 1962; residing at: Block 2, Le Hong Phong Ward, Quang Ngai City, Quang Ngai Province.

2. Mrs. Nguyen Thi Bich Thanh, born in 1955; residing in: 163 Tran Hung Dao, Quang Ngai City, Quang Ngai Province.

3. Mrs. Tran Thi Trinh, born in 1950; residing in: Khe Thanh, Tinh Son Commune, Son Tinh District, Quang Ngai Province.

4. Mr. Vo Trong Thanh (Vu Trong Thanh), born in 1961 and his wife, Mrs. Nguyen Thi Hong Cam, born in 1964; Residing at: 53 Truong Quang Trong, Quang Ngai City, Quang Ngai Province. 5. Mrs. Vo Thi Lien, born in 1958; residing in: Tan Hy Village, Binh Dong Commune, Binh Son District, Quang Ngai Province.

FINDING THAT

Mr. Vo Van Binh is the son of Mr. Vo Van Ket and the stepson of Mrs. Tran Thi Phuong Ngon. In 1989, Mr. Binh went to university in Russian Federation, in 1994, he asked to settle in Russian Federation.

On June 21, 2004, Mr. Vo Van Binh initiated a lawsuit: in 1997, 1998, 1999, he sent a total of VND 454,584,500 to contribute capital to buy land and build a motel named Thanh Binh in Group 7, Le Hong Phong Ward, Quang Ngai Town (now is City) to run a joint business with Mr. Ket (his father) and Mrs. Ngon (his stepmother), so he requests the Court to recognize him as co-owner of Thanh Binh motel with Mr. Ket, Mrs. Ngon and receive Thanh Binh motel to run business.

The married couple Mr. Ket and Mrs. Ngon admitted that Mr. Binh had sent money to them, but they said that the money sent by Mr. Binh was a borrowed sum, not a joint investment and they only borrowed Mr. Binh VND 401,984,500, not VND 454,584,500 (they received the remaining amount, but then they transferred it to Mr. Binh’s relatives as required by Mr. Binh); in 2003, Mr. Binh claimed the debt, they had to mortgage land use right certificate of Thanh Binh motel to borrow Mrs. Nguyen Thi Bich Thanh VND 350,000,000 and borrow Mrs. Tran Thi Trinh VND 100,000,000 to repay Mr. Binh VND 400,000,000 in order for Mr. Binh and his wife to buy a house in Hanoi (received by Mrs. Ha, Mr. Binh’s wife with the receipt); they determined that Thanh Binh motel is under their ownership, and because of business losses, they leased out Thanh Binh motel to Mr. Le Va and the lease contract has not expired; therefore, they disagree with Mr. Binh’s request.

Persons with related interests and obligations:   

Representation of Mr. Le Va: On December 27, 2003, he signed a contract to lease Thanh Binh motel of Mr. Ket and Mrs. Ngon to do business, with a 3-year lease term, he paid the rent for 2 years in advance (he only has run business for 19 months until the date of first instance trial); during business process, he spent money to invest and upgrade the motel, so he requests the Court to resolve the case as per the law.

Representation of Mrs. Nguyen Thi Bich Thanh: On June 17, 2003, the married couple Mr. Ket mortgaged the land use right certificate (now is Thanh Binh hotel) to borrow her VND 350,000,000, now she requests Mr. Ket and Mrs. Ngon to repay principal and interest, if they do not have money, such collateral will be used to offset the loan.      

Representation of Mrs. Tran Thi Trinh: she lent the married couple Mr. Ket and Mrs. Ngon VND 100,000,000, now she requests them to repay principal and interest, if they do not have money, such collateral will be used to offset the loan.

In the first instance civil judgment No. 09/2005/DSST dated August 2, 2005, the People’s Court of Dong Nai province judged:

1. Recognize that Thanh Binh (Hoa Binh) motel is composed of: level-4.1 building (equivalent to old level-2B building), 3-storey house, concrete floor frame, tin-roofed, construction area of 234m2, worth VND 701,824,500; level-4.3A building (equivalent to old level-4A building), construction area 94.05m2, worth VND 64,360,296; building of other type NK1 (equivalent to old level-4.1 building), area of 35.26m2, worth VND 15,010,812; and ancillary facilities: garage area of 67.2m2, worth VND 8,930,000, fence walls, stone foundations, concrete pillars, chain-link fence area of 85.1m2, worth VND 5,106,000. Fence walls, stone foundations, brick walls, concrete pillars, chain-link fence area of 163.8m2, worth VND 19,901,700, concrete yard area of 629m2, worth VND 34,217,600 and furniture worth VND 118,296,500 as stated in the asset valuation record dated April 6, 2005 on the land area of 1,886.36m2, worth VND 2,263,632,000. Total asset value of Thanh Binh (Hoa Binh) motel is VND 3,231,278,180 at Group 7, Le Hong Phong Ward, Quang Ngai Town, Quang Ngai Province, is the joint property (ownership in common) of Mr. Vo Van Binh and the married couple Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon.

Total value of the property in dispute is VND 3,231,2778,180 less VND 105,300,000 VND of land use right value of 85.65 m2  which is the common passage and 42m2 of fence walls, concrete pillars, chain-link fence is common use area. S the value of property of Thanh Binh motel is VND 3,231,278,180 - VND 105,300,000 = VND 3,125,979,228. The ownership in common consists of:

- 57.65% of the capital of Mr. Vo Van Binh

- 42.35% of the capital of the married couple Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon.

2. Mr. Vo Van Binh is entitled to own, manage and use the level-4.1B building. (equivalent to level-2B building), 3-storey house, concrete floor frame, tin-roofed, construction area of 234m2 (16.6m x 14.1m), worth VND 701,824,500; level-4.3A building (equivalent to old level-4A building), construction area 94.05m2 (5.7m x 16.5m), worth VND 64,360,296; building of other type NK1 (equivalent to old level-4.1 building), area of 35.26m2 (8.6mx 4.1m), worth VND 15,010,812; brick walls + chain-link fence area of 90.75m2 (60.5m x 1.5m), worth VND 11,026,125 (90.75m2 x VND 80,000 x 75%), concrete yard area of 397.30m2 (13.7m x 29m), worth VND 21,613,120 (397.30m2 x VND 162,000 x 75%). The value of buildings and ancillary facilities: VND 813,834,223 (1) on the land area of 1002.71m2 which is the land area of Section A (according to the master plan of Thanh Binh motel) and equipment of the motel (according to the valuation record dated April 6, 2005), includes:

-     19 DEAWOO TVs worth VND 14,820,000.

-     01 ARIKA television worth VND 812,500.

-     10 Ariston water heaters worth VND 8,505,000.

-     10 air conditioners, including 2 air conditioners (split type) worth VND 12,800,000 and 8 air conditioners (window type) worth VND 32,000,000.

-     Telephone system includes 1 switchboard and 24 telephones, including computer system for charging in the switchboard worth VND 24,500,000.

-     01 TUBODRUM 6 kg washing machine worth VND 2,975,000.

-     01 set of sofa worth VND 680,000.

-     12 shower column set with single lever mixer, worth VND 1,680,000.

-     12 sets of 7-item mirrors worth VND 560,000.

-     3 phase electric system worth VND 480,000.

-     8 tables worth VND 1,120,000.

-     16 chairs worth VND 1,680,000.

-     8 1.4m beds worth VND 1,920,000.

-     15 1.2m beds worth VND 4,000,000.

-     20 iron cabinets worth VND 4,000,000.

-     4 chandeliers worth VND 1.840.000.

-     1 Toan My stainless water bottle 2000L worth VND 1,440,000.

-     1 cabinet with aluminum frame + mirror + wood, 1m high, 2.5m long, 0.5m wide, worth VND 2,484,000.

-     Electrical system, fan, water supply and drainage attached to the property of the motel.

 Total value of equipment of the motel VND 118,296,500 (2)

Value of land use right VND 1,203,252,000 (1002.71m2 x 1,200,000 VND/m2) (3)

Total asset value of Thanh Binh motel that Mr. Vo Van Binh is entitled to is VND 2,135,382,723 (1 + 2 + 3). All properties of motel, auxiliary facilities and interior equipment located on the area of ​​1002.71m2 worth VND 2,135,382,723 at Group 7, Le Hong Phong Ward, Quang Ngai Town, Quang Ngai Province. Determine the division of the land area of Section A (according to the master plan of Thanh Binh motel) for Mr. Vo Van Binh.

The dividing boundary line is a straight line, with boundary marker (1) to boundary marker (8) parallel to NK1 house (old 4.1) is 4m and level-4.3A building (old level-A building) is 6,4m of Section A.

* Length:

- marker (1) to marker (8) is 42m long

- marker (1) to marker (2) is 29m long

- marker (2) to marker (3) is 26.5m

- marker (3) to marker (4) is 1m

- marker (4) to marker (5) is 3.5m

- marker (5) to marker (6) is 21.4m

- marker (6) to marker (7) is 12.5m

- marker (7) to marker (8) is 8.2m

- marker (8) to marker (1) is 42m

3. The married couple Mr. Vo Van Ket and Mrs. Ngon are entitled to own, manage and use a -level-4.2A 2-storey house (equivalent to old level-3.A house) with the construction area of ​​93.50m2 (18.70m x 5m) with a garage area of 67.2 m2 (6m x 11.2m) worth VND 8,930,000, brick fence + chain-link fence area of ​​73.05m2 (48.7m x 1.5m) worth VND 8,875,575 (73.05m2 x 162,000 VND x 75%).

- Stone foundation fence, concrete pillars + chain-link fence area of ​​43.1m2 (28.75m x 1.5m) worth VND 2,586,000 (43.1 m2 x VND 80,000 x 75%).  Concrete yard 231.7m2 (629m2 - 397.3m2) worth VND 12,604,480 (231.7m2 x VND 68.000 x 80%).  Total garage + auxiliary facilities worth VND 32,996,055 (1) on the land area of ​​798m2 is the land area of ​​Section B (according to the master plan of Thanh Binh motel) at Group 7, Le Hong Ward Phong, Quang Ngai Town, Quang Ngai Province. The value of land use right is VND 957,600,000 (2) (VND 1,200,000 x 798m2). The total value of the property received by Mr. Ket and Mrs. Ngon is VND 990,596,055 (1 + 2) (the level-4.2A house of the old level-3A built by Mr. Le Va, Mrs. Ngon delivered the money to Mr. Le Va, Mr. Va handed over the house to Mr. Ket and Mrs. Ngon, so such house will not be included in value of the disputed property).

Boundary of land area of Section B divided to Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon:

The dividing boundary line is a straight line, from boundary marker (13) to boundary marker (8), 45m long parallel to NK1 house (old 4.1) is 4m and level-4.3A building (old level-A building) is 6.4m of Section A.

Length next to Section B:

-     marker (8) to marker (9) is 19.7m

-     marker (9) to marker (11) is 39m

-     marker (11) to marker (13) is 18.3m

-     marker (13) to marker (8) is 45m

4. Cancel the lease contract of Thanh Binh (Hoa Binh) motel between Mr. Le Va and the married couple Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon dated December 27, 2003

- Mr. Le Va must hand over all assets of Thanh Binh motel, 3-storey house (level 2B), construction area of 2354m2, including: 1^st floor: reception room, 101, 123, 124, 116, 117, 118, 119, 121, Osin 1, Osin 2 room (former room of Mr. Ket and Mrs. Ngon), physiotherapy room, living room, storage room.

- 2^nd floor: living room, 221, 226, 224, 223, 233, 234, 231, 230

- 3^rd floor: 301, 302, 303, 304, 305, 306, 307, 308

One-storey house level 4.3A; construction area of ​​94.05m2 of one-storey house of NK1, construction area of ​​35.26m2 of all interior equipment of Thanh Binh (Hoa Binh) motel according to the valuation report dated April 6, 2005, with the garage, other ancillary facilities received by Vo Van Ket and Tran Thi Phuong Ngon.

- Mrs. Ngon and Mr. Ket must return the rent to Mr. Le Va the amount of VND 25,000,000 {(VND 120,000,000 - (19 months x VND 5,000,000)} (because of termination of the lease contract).

- Mr. Le Va must clean up the assets in 2 rooms Osin 1 and Osin 2 (to deliver 2 rooms to Thanh Binh motel) including:

-     Chinese Tozokita fans: 2 pieces

-     TV Akina 14inch: 2 pieces

-     Stained-glass aluminum cabinet is 1m high, 0.6m wide: 1 piece-     Oval table: 2 sets-     Chandelier: 2 sets

-     seat mattress: 20 pieces

-     Toilets: 2 sets

Mr. Le Va is not entitled to use the business registration certificate No. 34A 8000942 dated May 5, 2004 of the Planning and Finance Department of Quang Ngai Town for Hoa Binh motel business (because of termination of the lease contract)

Mr. Le Va must hand over the entire property of Thanh Binh motel, auxiliary facilities and furniture mentioned above to Mr. Vo Van Ket and his wife, Tran Thi Phuong Ngon. Mr. Ket and Ms. Ngon have to hand over to Mr. Binh all the assets of Thanh Binh motel (Hoa Binh), auxiliary facilities and interior equipment on the land area of ​​1002.71m2 (divided to Mr. Binh as above) so that Mr. Binh could fully own, manage and use those assets.

Mr. Binh shall register house ownership and land use management rights and apply for re-issuance of motel business license with the competent authority.

6. Mr. Ket and Mrs. Ngon are not allowed to use the land use right certificate No. 00166/QSDD/770/QD-UB dated March 25, 2002 and the land use right certificate No. 00189/QSDD/373/QD-UB dated June 28, 2002. Mr. Ket and Ms. Ngon shall register house ownership and land use rights in accordance with the law with the competent authority.

7. Recognize the agreement of the litigants not dividing perennial crops: two pine trees, a star fruit tree, two mango trees, a rambutan tree, a ivy tree, because the plants are small and not valuable, a perennial plant will belong to the party having the divided piece of land on which the plant has grown.

8. Section C land according to the master plan of Thanh Binh motel has an area of ​​85.65m2 (28.1m + 29m): 2 x 3 is the common passage area and 42m2 (28m x 1.5m) fence walls, concrete pillars fence + chain-link fence is a common use area for land Section A and Section B (the piece of land divided to Mr. Vo Van Binh and Mr. Ket and Mrs. Ngon). Land boundary section C; marker (13) to marker (1) is 3m; marker (1) to marker (2) is 29m; marker (2) to marker (15) is 3m; marker (15) to marker (13) is 28.10m. 

9. Cancel mortgage of land use right contract No. 00166/QSDD/770/QD-UB dated March 25, 2002 between Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon and Mrs. Tran Thi Trinh. Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon have to pay Mrs. Tran Thi Trinh the principal of VND 100,000,000.

10. Cancel mortgage of land use right contract No. 00189QSDD/373/QD-UB dated June 28, 2002 between Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon and Mrs. Nguyen Thi Bich Thanh. Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon have to pay Mrs. Nguyen Thi Bich Thanh the principal of VND 350,000,000.

11. Reject the claim of Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon, requesting the married couple Mr. Vo Trong Thanh (Vu Trong Thanh) and Mrs. Nguyen Thi Hong Cam to pay VND 73,000,000, Mr. Vo Van Binh to pay VND 43,000,000, to pay Mrs. Vo Thi Lien VND 6,000,000.

12. Reject the claim of Mr. Vo Van Binh's for motel business interests (from February 2002 to July 28, 2005) of VND 243,844,078 (VND 400,000,000 - VND 156,155,922 (i.e. 270,868,902 x 57.65%) interest earned on capital structure).  

13. Mr. Vo Van Binh must pay Vo Van Ket and his wife, Tran Thi Phuong Ngon, the amount of VND 577,099,777 (in which the interest is not accepted: VND 243,844,078, the change of differences in divided assets: VND 333,255,699). In addition, the first instance court decided the court fee and expertising fee, and announced the appeal right to litigants as per the law and liability for the delay of judgment enforcement

On August 10, 2008, Mr. Ket and Mrs. Ngon filed an appeal, claiming that: the amount of money sent by Mr. Binh to them is a borrowed sum, not joint investment; Mr. Binh is an overseas Vietnamese who is not allowed to buy real estate in Vietnam; on the other hand, on July 5, 2003, Mr. Binh took back VND 400 million to buy a house for his wife in Hanoi, so Mr. Binh had no connection to Thanh Binh motel.

On August 9, 2005, Mrs. Nguyen Thi Bich Thanh filed an appeal, on August 10, 2005, Mrs. Tran Thi Trinh also filed an appeal, claiming that: They legally lent Mr. Ket and Mrs. Ngon money secured by the entire house and land in their names. Now, the Court hands over nearly all the land and house to Mr. Binh, but forces Mr. Ket and Mrs. Ngon to repay their debt to them is infringement of their lending right, moreover, the Court only forces them to pay the principal, not to pay interest, this causes great damage to their rights.

On August 17, 2005, Mr. Le Va filed an appeal, claiming that because Thanh Binh motel's ownership is in the name of Mr. Ket and Mrs. Ngon, the lease contract he signed with Mr. Ket and Mrs. Ngon is legal. The court canceled the lease contract with Mr. Ket and Mrs. Ngon before the lease term, but the court is wrong when not compelling them to return his investment to upgrade the motel or compensation for damage.

In Decision No. 35/QDKNPT-P5 dated August 15, 2005, the Chief Procurator of Quang Ngai People's Procuracy protested the above first instance civil judgment.

In the appellate civil judgment No. 37/2006/DSPT dated June 29, 2006, the Appellate Court of People’s Court of Ho Chi Minh City decided to uphold the first instance judgment.

After the appellate trial, Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon and Mrs. Nguyen Thi Bich Thanh, Ms. Tran Thi Trinh and Mr. Le Va all filed complaints.

In Official Letter No. 236/BC-GDT dated August 2, 2006, the Institute of prosecution and appellate trial supervision affiliated to the Supreme People's Procuracy in Da Nang proposes the Supreme People's Court to appeal the above Appellate Civil Judgment.

In the Decision No. 53/2008/KN-DS dated March 25, 2008, 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 Appellate Judgment and quash the First Instance Judgment No. 09/2005/DSST dated August 2, 2005 of People’s Court of Quang Ngai Province; refer the case file to the People’s Court of Quang Ngai Province for first instance re-trial as per the law, with the following judgment:

“...Although there is no written agreement on the capital contribution to do business between Mr. Binh and the married couple Mr. Ket and Mrs. Ngon, but the record book of Mr. Ket states that “The total initial investment capital of 2 people, Binh's capital: VND 401,000,000, family's capital: VND 387,000,000... and the content of “receipt” written by Mrs. Ha (Mr. Binh’s wife) when receiving 400 million VND paid by Mr. Ket and Mrs. Ngon paid to buy a house in Hanoi: “This is the amount Mr. Binh receives from Mr. Binh’s father from Thanh Binh motel ..."; and, based on some testimonies of the litigants and witnesses, there is enough basis to identify that Mr. Binh sent money to contribute capital to buy land, build Thanh Binh motel and run business with Mr. Ket and Mrs. Ngon. Therefore, the Court of First Instance and the Court of Appeal had valid grounds for determining that Mr. Binh sent money to contribute capital with Mr. Ket and Mrs. Ngon to buy land, build Thanh Binh motel and run business. However, the Court of First Instance and the Court of Appeal has not verified the actual amount Mr. Binh has contributed capital with Mr. Ket and Mrs. Ngon to build the motel, but determined that Mr. Ket and Mrs. Ngon used all VND 454,584,500 sent by Mr. Binh to buy land, build Thanh Binh motel on the basis that the division of common property between the couple and Mr. Binh. It is well-grounded, because:

- According to Mr. Ket's testimony, they received VND 454,584,500 sent by Mr. Binh, but only VND 401,500,000 was used to buy land and build Thanh Binh motel, they transferred the rest of money to Mr. Binh's relatives at the request of Mr. Binh;

- The book recorded by Mr. Ket in the process of investing in buying land, building the Thanh Binh motel only shows: "Binh's capital: VND 401,000,000..."; meanwhile, the Court of First Instance and the Court of Appeal have not compared the total amount of actual land purchase, motel construction and the amount of money that Mr. Ket and Mrs. Ngon contributed.

In addition, the Court of First Instance and the Court of Appeal also have the following errors:

- Mr. Binh is an overseas Vietnamese. Under the provisions of Clauses 1 and 2, Article 3 of Decree No. 81/2001/ND-CP dated November 5, 2001 of the Government, the State only allows a number of overseas Vietnamese, including: “an overseas Vietnamese who engages in long-term investment in Vietnam; who has meritorious contributions to the country; who is the great man or scientist wishing to do regular activities in Vietnam; or who wishes to live in Vietnam stably" is allowed to" own a house to live in (apartment, house, villa)". In this case, Thanh Binh motel was built for business not to live; the Court of First Instance and the Court of Appeal has not verified whether Mr. Binh has repatriated to reside in Vietnam; if Mr. Binh is still residing in a foreign country, is Mr. Binh eligible to own a house in accordance with the above regulations and is Mr. Binh allowed to own a motel business? but decided to give Mr. Binh the ownership of the motel and handed over the entire Thanh Binh motel to Mr. Binh, which does not have substantial grounds.

- According to the actual measurement results, the land area attached to Thanh Binh motel is 1,886.6m2, of which only 1,596.6m2 has been granted the land use right certificate, the remaining 289.76m2 has not been issued land use right certificate. The Court of First Instance and the Court of Appeal have not consulted the competent People's Committee on the use of this area of ​​289.76m2; but decided to divide this whole land area to the litigants in contravention of law provisions (in case the competent state agency permits the use, the Court may only temporarily assign it to the litigants for use).

- According to the presentation of Mr. Ket and Mrs. Ngon, in order to have money to pay Mr. Binh VND 400,000,000, they had to mortgage the land use right certificate of Thanh Binh motel to borrow Mrs. Thanh VND 350,000,000, borrow Mrs. Trinh VND 100,000,000, they have not repaid such amount so far. The Court of First Instance and the Court of Appeal had not enough basis to not verify but determine that this is the private debt of Mr. Ket and his wife and Mrs. Thanh and Mrs. Trinh; and did not did not guarantee the legitimate rights of Mrs. Thanh and Mrs. Trinh when only forcing they to return to Mrs. Thanh and Mrs. Trinh the principal, not the interest.

- From December 27, 2003, Mr. Ket and his wife signed a contract with Mr. Le Va to lease out Thanh Binh motel to run business (the contract was certified and issued with a certificate by the Finance and Planning Department of Quang Ngai Town); but the Court of First Instance and the Court of Appeal did not guarantee the legitimate rights of Mr. Le Va when announcing cancellation of the lease and declaring Mr. Le Va only receive the money he has paid for the remaining months of the lease term (did not determine Mr. Le's damage due to termination of lease contract before lease term), and not forcing Mr. Le Va to pay the money he spent on renovating and repairing the motel, it does not guarantee Le Va's legal rights.

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. 

CONSIDERING THAT

Based on the testimonies of the litigants and the witnesses; based on the contents of Mr. Ket's record book, it states: "The total initial investment capital of 2 people, Binh’s capital: VND 401,000,000 and the family capital: VND 387,000,000 ..."; based on the "Receipt" written by Mrs. Ha (Mr. Binh's wife) when receiving VND 400,000,000 from Mr. Ket and his wife, it states:  “This is the amount Mr. Binh receives from Mr. Binh’s father from Thanh Binh motel ..."; there is enough basis to identify that Mr. Binh sent money to contribute capital to buy land, build Thanh Binh motel and run business with Mr. Ket and Mrs. Ngon.

In the process of resolving the case, Mr. Ket and his wife admitted to receive the amount of VND 454,584,500 sent by Mr. Binh; but they presented that they only borrowed VND 401 million, they transferred the rest of the money to Mr. Binh's relatives at the request of Mr. Binh. This presentation is consistent with the contents of the book record of Mr. Ket on January 31, 2002: "Total initial investment capital of 2 people, Binh’s capital: VND 401,000,000, family capital: VND 387,000,000, totaling VND 788,500,000 ... ".  Therefore, there is only basis to determine Mr. Binh's capital contribution of VND 401,000,000; the remaining amount, if Mr. Ket and his wife could not prove the transfer to Mr. Binh's relatives at the request of Mr. Binh, it is supposed to be considered a debt to force Mr. Ket and Mrs. Ngon to repay it to Mr. Binh. The Court of First Instance and the Court of Appeal were wrong when determining that the amount of money contributed by Mr. Binh was VND 454,584,000.

The record book of Mr. Ket on January 31, 2002 also states: “…Value of house and land: VND 1,422,160,000 - Initial investment capital of 2 sources: VND 788,500,000 = VND 633,660,000; so after deducting business expenses, the actual profit in 2 years is: VND 633,660,000, this interest has been repaid to the house and land with the total value of VND 1,422,160,000... ” and according to the tax statement with the Tax Department of Quang Ngai Province, the business profit of Thanh Binh motel for 4 years (2000-2003) is VND 280,201,138. Thus, the Court of First Instance and the Court of Appeal should have to verify clearly the amount of interest earned from the Thanh Binh motel business in each period, from which to determine the actual interest amount. However, the Court of First Instance and the Court of Appeal determined the amount of VND 400,000,000 that Mr. Ket and Mrs. Ngon paid in 2003 (received by Mrs. Ha) is to pay the interest earned from the motel business, which is not enough grounds; on the other hand, the Court of First Instance and the Court of Appeal have not yet considered the contribution of Mr. Ket and his wife in buying the land, building and managing Thanh Binh motel when determining the total value of Thanh Binh motel, which does not guarantee the rights of Mr. Ket and his wife.

According to the presentation of Mr. Ket and his wife, in order to have money to pay Mr. Binh VND 400,000,000, he and his wife had to mortgage the land use right certificate of Thanh Binh motel to borrow from Mrs. Nguyen Thi Bich Thanh 350,000,000. VND and loan Mrs. Tran Thi Trinh VND 100,000,000; The Court of First Instance and the Court of Appeal have not verified this issue yet, but it is determined that this is the private debt of Mr. and his wife who is not enough basis; At the same time, forcing the couple to return Mrs. Thanh and Mrs. Trinh to their original debt without forcing interest payment, they did not guarantee the legal rights of Ms. Thanh and Mrs. Trinh.

Due to the business losses, on December 27, 2003, the married couple Mr. Ket signed a contract to lease out Mr. Le Va Thanh Binh motel to do business, the contract was certified by the Finance - Planning Department of Quang Ngai Town and he was granted business registration certificate. Thus, the above contract is legal, but the Court of First Instance and the Court of Appeal canceled the lease contract without giving priority of continued lease to the tenant and only let Mr. Le Va receive back the paid amount for remaining months of lease term; moreover, the damage suffered by Mr. Le Va due to the termination of the contract ahead of time, and did not consider Mr. Le Va’s money spent on renovating and repairing the motel, which is not in accordance with the law and do not guarantee the legal rights of the litigants.

According to Mr. Binh's petition on June 21, 2004, in 1989, Mr. Binh was sent to the Soviet Union to study, in 1994 Mr. Binh graduated and settled in the Russian Federal Republic so far; thus, Mr. Binh is an overseas Vietnamese and according to the provisions of Clauses 1 and 2, Article 3 of Decree No.81/2001/ND-CP dated November 5, 2001 of the Government, the State only allows some overseas Vietnamese to own a house:  “an overseas Vietnamese who engages in long-term investment in Vietnam; who has meritorious contributions to the country; who is the great man or scientist wishing to do regular activities in Vietnam; or who wishes to live in Vietnam stably" is allowed to" own a house to live in (apartment, house, villa)"; meanwhile, Mr. Binh contributed capital to buy land, build Thanh Binh motel to do business with Mr. Ket and Mrs. Ngon (not to live). Therefore, it must be clarified that at the time when Mr. Binh sent money to contribute capital to Mr. Ket and Mrs. Ngon, whether Mr. Binh completes the procedure for repatriation in accordance with the law or not; the Court of First Instance and the Court of Appeal have not clearly verified the above issue, but assigned Mr. Binh to own and use a part of the motel, which is not enough grounds, the Court should have handed over the entire motel to Mr. Ket and Mrs. Ngon and force them to repay the property value to Mr. Binh in proportion to the capital contribution ratio of Mr. Binh.

The land area attached to Thanh Binh motel is 1,886.6m2, of which only 1,596.6m2 has been granted the land use right certificate, the remaining 289.76m2 has not been issued land use right certificate. The Court of First Instance and the Court of Appeal have not consulted the competent People's Committee on the use of this area of ​​289.76m2; but decided to divide this whole land area to the litigants in contravention of law provisions (in case the competent state agency permits the use, the Court may only temporarily assign it to the litigants for use).

In addition, the Court of First Instance and the Court of Appeal also have the following procedural errors:

- According to documents at the case file, on July 5, 2003, Mrs. Ha (Mr. Binh's wife) received VND 400,000,000 from Mr. Ket and Mrs. Ngon; while Mr. Binh said that this is the amount of interest he gets from the Thanh Binh motel business, Mr. Ket and Mrs. Ngon claimed that this is the sum of money they repaid to Mr. Binh; but the Court of First Instance and the Court of Appeal made errors when not taking Mrs. Ha into the proceedings.

- Mrs. Nguyen Thi Bich Thanh and Mrs. Tran Thi Trinh asked Mr. Ket and Mrs. Ngon to repay the loan with the same interest rate, this is an independent request of the person with related rights and obligations in the case; but the Court of First Instance did not require Mrs. Thanh and Mrs. Trinh to pay the advance of court fees, but both the Court of First Instance and the Court of Appeal still resolved the request of Mrs. Thanh and Mrs. Trinh, which is not compliant with the law.

- After the first instance trial, Mrs. Thanh and Mr. Le Va filed appeals; The Court of Appeal has not yet completed the procedure to summon Mr. Le Va properly and summoned Mrs. Thanh the wrong address (Mrs. Thanh resides at 163 Tran Hung Dao, Quang Ngai City, the address in the summon is "Khe Thanh, Tinh Khe, Son Tinh, Quang Ngai "), so Mr. Le Va and Mrs. Thanh are not present at the Appellate Court session; but the Court of Appeal still heard the case, it was a violation of law.

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 the appellate civil judgment No. 37 dated June 29, 2006 of the Court of Appeal of the Supreme People’s Court of Da Nang and quash the first instance civil judgment no. 09/2005/DSST dated August 2, 2005 of People’s Court of Quang Ngai Province to resolve the “Dispute over property right” between the petitioner Mr. Vo Van Binh and the respondent Mr. Vo Van Ket and Mrs. Tran Thi Phuong Ngon; persons with relevant rights and obligations Mr. Le Va, Mrs. Nguyen Thi Bich Thanh, Mrs. Tran Thi Trinh, the married couple Mr. Vo Trong Thanh (Vu Trong Thanh), Mrs. Nguyen Thi Hong Cam and Mrs. Vo Thi Lien.

2. Refer the case file to People’s Court of Quang Ngai Province for re-conducting the first-instance trial as per the law.

Grounds for quashing the First Instance Judgment and Appellate Judgment:

The Court of First Instance and the Court of Appeal had made many errors in the review and evaluation of evidence leading to decisions that failed to ensure the interests of the litigants; there are also procedural errors.