Cassational review decision No. 26/2006/DS-GDT dated october 2, 2006 regarding inheritance dispute

JUDICIAL PANEL OF THE SUPREME PEOPLE’S COURT

CASSATIONAL REVIEW DECISION NO. 26/2006/DS-GDT DATED OCTOBER 2, 2006 REGARDING INHERITANCE DISPUTE

On October 2, 2006, at the office of the Supreme People’s Court held the cassation trial for the civil case of the dispute over inheritance of the estate between litigants:

Plaintiff: Mr. Quach Mieng, born in 1943; residing at 37/1 Nguyen Thai Hoc, Vinh Lac Ward, Rach Gia City, Kien Giang Province;

Defendant: Mr. Quach Tri (aka Quang), born in 1932; residing at 2A Nguyen Dinh Chieu, Vinh Thanh Van Ward, Rach Gia City, Kien Giang Province;

Person with associated rights and obligations:

Mrs. Quach Le Chu, born in 1924; residing at 19 Thanh Thai, Vinh Thanh Van Ward, Rach Gia City, Kien Giang Province.

REALIZING THAT

In the petition to sue filed on September 2, 1993 and subsequent testimonies at the court, Mr. Quach Mieng asked to split the house 2 A Nguyen Dinh Chieu, Rach Gia town (now Rach Gia city), Kien Giang province and the burial plot of land with an area of ​​1985 m² are the estate of Mr. Quach Minh and Mrs. Ly Thi Hien.

They had 7 children, including: Quach Tin (residing in China), Quach Le Van (residing in the US), Quach Liem (residing in France), Quach Le Nhon (residing in Australia), Quach Hoang (died without a spouse and children), Quach Tri and Quach Mieng. Mr. Minh and Mrs. Hien adopted a child, Mrs. Quach Le Chu.

During his lifetime, Mr. Minh and Mrs. Hien created many real estate in Rach Gia city, Kien Giang province. Before 1973, the couple distributed a number of houses and land plots among their children. In 1973, Mr. Tri sold the house 39 Bach Dang, Rach Gia city, Kien Giang province (given by Mr. Minh and Mrs. Hien) and returned to live with his parents at house 2A Nguyen Dinh Chieu, Vinh Thanh Van ward, city Rach Gia street, Kien Giang province.

In May 1973, Mr. Minh died intestate.

On December 31, 1974, Mrs. Hien prepared “Estate Inventory Checklist cum General Will statement”, and “Deed of gift of residential land and single-floor townhouse" to divide the property amongst her children with all of their agreements certified by the regulatory authority at the place where Mrs. Hien was living (Vinh Thanh Van ward, Rach Gia city, Kien Giang province). In the above documents, Mrs. Hien expressed her will to leave house No. 2 (now 2A) Nguyen Dinh Chieu, Vinh Thanh Van ward, Rach Gia city, Kien Giang province as an estate for worship purposes “From now on and forever, this house is used for ancestor worship purposes”,“the land plot and attached house is considered indisputable”.

On May 27, 1978, Mrs. Hien made a written document stating the donation of 27 houses and 2 land plots to the State, including houses and land plots that Mrs. Minh and Mrs. Hien had distributed among their children. Hien's children did not object to this.

The remaining property under Mrs. Hien and Mr. Minh’s ownership include house 2A Nguyen Dinh Chieu, Rach Gia city, Kien Giang province built on the land plot covering an area of ​​483.53 m² and grave land plot of 1985 m² (located across the Cao Dai temple) at Nguyen Trung street, Rach Gia City, Kien Giang Province.

In 1980, Mr. Hien died; Mr. Tri directly managed all of Mr. Minh and Mrs. Hien’s estates.  Mr. Tri already declared and paid taxes on the grave land. On March 1, 1990, the People's Committee of Rach Gia town (now Rach Gia city), Kien Giang province confirmed Mr. Tri and his wife, Mrs. To Thi Tam, as the owners of the land plot, located across the Cao Dai temple, according to the "Certificate of crop land" made by Mr. Quach Tri.

Mr. Quach Mieng filed a lawsuit to make his claim on the house 2A Nguyen Dinh Chieu, Vinh Thanh Van ward, Rach Gia city, Kien Giang province and the grave plot of land with an area of ​​1985 m² mentioned above.

Mr. Tri did not agree to his claim for inheritance of this estate because the house 2A Nguyen Dinh Chieu, Vinh Thanh Van ward, Rach Gia city, Kien Giang province is an estate used for worshipping purposes; In the process of managing and using the grave land plot, he sold part of such land to several buyers and shared part of money and gold with Mr. Mieng.

Mrs. Quach Le Chu did not make any inheritance claim.

At the first-instance Civil Judgment No. 12/DSST dated July 25, 1995, the People's Court of Kien Giang province decided:

- Accepting Mr. Quach Mieng’s claim for the house No. 2A Nguyen Dinh Chieu Street that he has the right to inherit according to the law.

- The court ruled that: Mr. Quach Mieng was entitled to 77,881,381 VND as his inheritance part which was 1/6 as much as the total of the house No. 2A.

- Accepting Mr. Quach Mieng’s claim on the rear of the house No. 2A covering an area of ​​111,19m², which was worth 126,185,816 VND.  Mr. Quach Mieng must be obliged to pay 5 heirs, including Quach Tin, Quach Le Van, Quach Le Nhon, Quach Tri and Quach Liem, the difference in value which was 48,304,435 VND. Whenever these 5 heirs made their requests, Mr. Mieng must make full payment.

- When using the rear of ​​the house, Mr. Mieng must save space for the entrance way through his house without any infringement upon the front.

- Rejecting Quach Mieng's claim on the money and gold that Mr. Quach Tri earned from transfer of the land.

- The People's Committee of Rach Gia town shall be authorized to settle the dispute over the grave land at No. 18, Quarter 3, Vinh Lac ward, Rach Gia town, Kien Giang province between Mr. Quach Mieng and Mr. Quach Tri.

- In terms of court cost: Mr. Quach Mieng is liable for 5% of the court cost with quota for the portion of his inherited estate, which equals 3,894,700 VND. As Mr. Mieng has paid 1,000,000 VND in advance, he has to pay the rest of 2,894,700 VND.

In addition, the preliminary ruling made an official pronouncement on the right to appeal of litigants.

On August 1, 1995, Mr. Mieng appealed to claim on his part of the grave land plot, the amount of money, and gold that Mr. Tri earned from sale of land and petitioned the Court to recompute the court cost.

On August 4, 1995, Mr. Tri appealed against the division of the inheritance because house 2A Nguyen Dinh Chieu, Rach Gia city, Kien Giang province was the worshipping house.

At appellate civil judgment No. 242 / DSPT dated November 28, 1995, the Court of Appeal of the Supreme People's Court in Ho Chi Minh City decided:

Pursuant to Article 2 of clause 69 of the Ordinance on procedures for handling of civil cases. Revising the preliminary judgement:

Pursuant to Article 13, 23 and 21 of the Ordinance on inheritance. Making the following pronouncements:

1, Dismissing Mr. Quach Mieng’s claim on the house 2A Nguyen Dinh Chieu, Vinh Thanh Van ward, Rach Gia city, Kien Giang province.

2, Allowing Mr. Quach Tri to continue to manage and preserve the worshipping house No. 2A Nguyen Dinh Chieu and fulfilling the obligation to worship ancestors according to the testament of Mrs. Ly Thi Hien founded and attested to by her children on December 31, 1974.

Prohibiting the transfer, exchange or trading of the above house.

3, Separating the disputed part of the grave land located at Nguyen Trung Truc street, neighborhood 18, quarter 3, Vinh Lac ward, Rach Gia town, Kien Giang province so that the People’s Committee of the town continues to resolve that dispute between Mr. Quach Mieng and Mr. Quach Tri. 

4, Regarding the first-instance civil court cost with quota, Mr. Quach Mieng must pay 9,801,000 VND, plus 50,000 VND of appellate civil court cost, which is a deduction from the cost worth 1,000,000 VND that Mr. Mieng paid in advance.

From the second month onwards after the judgement takes effect, Mr. Quach Mieng is also subject to the additional interest rate set by the bank savings fund on the court fee payable to the State that he has not yet paid.

After the appellate trial, Mr. Mieng filed a cassation appeal.

In Decision No. 34 / KNDS dated September 16, 1997, the Chief Justice of the Supreme People's Court had a protest against the above-mentioned appellate civil judgment based on the following arguments:

Both The Court of First Instance and Appeal determined that house No. 2A Nguyen Dinh Chieu, Rach Gia town was an estate of Mrs. Ly Thi Hien that was not yet distributed. Before her death, Mrs. Hien made a will under which the house was used as a worshipping house which was indisputable. Moreover, among the children of Mrs. Hien, only Mr. Mieng asked to split the estate while 6 others disagreed to do so, leaving the house as a place of worship. Therefore, the Court of Appeal’s dismissal of Mr. Mieng's request for splitting of Mrs. Hien’s estate is founded and corresponds to Mrs. Hien’s will.

However, in the will made on December 31, 1994, Mrs. Hien did not assign anyone to manage the worshipping house.

In fact, only Mr. Tri and Mr. Mieng wanted to manage the house while others were overseas. Moreover, the house in dispute has two separate parts, including the front part which has an area of ​​195 square meters of the house built on 372.3 m² of land, and the rear part which has the area of 111.19 m² of the house built on 111.19 m². Thanks to this separate parts, it was possible to allocate each part to either of them. On the other hand, at present, Mr. Mieng has no home to stay and is wishing to manage the rear of the house. Therefore, both parts of the house could be allocated to Mr. Tri and Mr. Mieng (Mr. Tri in charge of the front of the house, Mr. Mieng in charge of the rear of the house). That is the way to solving the case in a sentimental, reasonable and practical manner.

Concerning the dispute on the land plot across Cao Dai temple (an area of ​​1985 m²) Nguyen Trung Truc street, upon finding that Although the land plot originally belonged to Mrs. Hien, after her death, Mr. Tri directly managed and used the land, at the same time he made registration for the land and was issued the certificate of land use right by the People's Committee of Rach Gia town. Moreover, the above land is an agricultural land for annual crops. It is concluded that the assignment of responsibility for resolution of the dispute between Mr. Mieng and Mr. Tri over the above land plot by the Court of first instance and Court of appeal to the People's Committee of Rach Gia town is founded.

Therefore, it is suggested that the Judicial Panel of the Supreme People's Court conducts the cassation review to cancel the above-mentioned appellate judgment and hand over the case file to the People's Court of Kien Giang province for the first-instance retrial.

In the Conclusion No. 28/KL-DS dated January 24, 1998, the Chief Procurator of the Supreme People's Procuracy requested the Judicial Panel of the Supreme People's Court to conduct the cassation review trial, upholding the appellate civil judgment No. 242 / DSPT of November 28, 1995 of the Court of Appeal of the Supreme People's Court in Ho Chi Minh City.

In the Decision No. 01/UBTP-DS dated February 19, 1998, the Judicial Panel of the Supreme People's Court made its judgement as follows: Temporarily adjourning the civil case of inheritance of the land and house involving the plaintiff Mr. Quach Mieng and the defendant Mr. Quach Tri until new regulations on civil transactions regarding residential houses acquired before July 1, 1991 with the involvement of overseas Vietnamese are expected to come in use.

At the cassation review session, the Supreme People's Procuracy’s attorney requests the Judicial Panel of the Supreme People's Court to dismiss the first-instance civil judgment No. 12 / DSST of July 25, 1995 of the People's Court of Kien Giang province and revoke the above appellate civil judgment, referring the case file to the People's Court of Kien Giang province for re-trial in accordance with law.

FINDING THAT

- Regarding legal process:

The fact that the Court of First Instance and the Court of Appeal settled the inheritance dispute between Mrs. Minh and Hien, but did not involve Quach Tin, Quach Le Van, Quach Liem and Quach Le Nhon, who are children of Mr. Minh and Mrs. Hien currently living abroad, in the case as persons with associated rights and obligations  The joint participation of Mrs. Minh and Mr. Hien who are residing overseas to participate in the proceedings as persons with related interests and obligations constitutes a serious violation against the civil procedure law..

- Regarding case contents:

Mr. Mieng filed a petition to sue to claim the inheritance of the house No. 2A Nguyen Dinh Chieu, Vinh Thanh Van ward, Rach Gia town, Kien Giang province, left by Mr. Minh and Mrs. Hien, but Mieng also admitted that Mrs. Hien made a will under which the house was intended for worshipping purposes and all of children of Mr. Minh and Mrs. Hien agreed.

The first-instance court's ruling on splitting the above-stated house is in breach of laws on inheritance. The appellate court’s dismissal of Mr. Mieng's claim for the estate is founded and lawful.

- Concerning the grave land plot across Cao Dai temple covering an area of 1985 m² at Nguyen Trung Truc street, Rach Gia town, Kien Giang province: Although this land plot was originally owned and left by Mr. Minh and Mrs. Hien, Mr. Tri made registration and obtained attestation by the People's Committee of Rach Gia town, Kien Giang province on March 1, 1990 in the "Certificate of crop land" made by Mr. Quach Tri in which Mr. Tri and Mrs. Tam (Mr. Tri’s) are the owners of the land plot. The court of first instance and court of appeal assigned the People's Committee of Rach Gia town, Kien Giang province to settle the case in accordance with the law at the time of the trial in 1995. However, at present, according to the Law on land in 2003 (Article 50, Article 136), the dispute over the right to use this land plot falls under the jurisdiction of the People's Court.

Since the court of first instance and appellate court have seriously violated the law on civil procedures, it is necessary to cancel the appellate civil judgment and the first-instance civil judgment mentioned above, and refer the case file to the Court of first instance to settle it in accordance with the law. If Mr. Mieng changes his request to manage the estate used for worship, the Court shall settle it according to the provisions of Article 670 of the 2005 Civil Code and must consider the fact that Mr. Tri has directly managed the land and house since 1973. In addition, it is necessary to take into account the request of heirs who, during the trial in 1995, resided abroad in accordance with the provisions of the Commission's Resolution 1037/2006/NQ-UBTVQH11 of the National Assembly’s Standing Committee on civil transactions on housing acquired before July 1, 1991 with the involvement of overseas Vietnamese. Furthermore, due to changes in land legislation, the Court of First Instance shall need to verify the following: If the People's Committee of Rach Gia city, Kien Giang province has not settled the above-mentioned graveyard land parcel and the involved parties’ claims, the court shall settle the dispute over the same land plot in the same case.

For the above reasons, based on Clause 3 Article 291, Clause 3 Article 297, Clause 3 Article 299 of the Civil Procedure Code and Article 22, Chapter VII of Resolution No. 1037/2006/NQ-UBTVQH11 of the National Assembly’s Standing Committee on civil transactions on housing acquired before July 1, 1991, involving Vietnamese people residing overseas;

HEREBY DECIDES

1. Dismissing the appellate civil judgment No. 242/DSPT of November 28, 1995 of the Court of Appeal of the Supreme People's Court in Ho Chi Minh City and the first-instance civil judgment No. 12 / DSST of July 25, 1995 of the People's Court of Kien Giang province on the inheritance dispute between the plaintiff Mr. Quach Mieng and the defendant, Mr. Quach Tri with the persons with related rights and obligations, who is Mrs. Quach Le Chu.

2. Referring the case file to the People’s Court of Kien Giang province to conduct the first-instance trial of the case in accordance with law.

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- Rationales for dismissal of the first-instance and appellate judgements:

The first-instance and appellate court’s failure to involve children of the testators residing overseas in the court proceedings constitutes a serious violation against the legal procedures.

- Causes of dismissal of the first-instance and appellate judgements:

There exist shortcomings in the enforcement of the provisions of the civil procedure law on the determination of persons involved in court proceedings.