Judgement No. 75/2017/DSST dated july 20, 2018 on dispute over claim for property

PEOPLE’S COURT OF THUAN AN TOWN, BINH DUONG PROVINCE

JUDGEMENT NO. 75/2017/DSST DATED JULY 20, 2018 ON DISPUTE OVER CLAIM FOR PROPERTY

On June 29 and July 20, 2017, the first instance trial court is conducted at the office of People’s Court of Thuan An town to hear the civil case No. 140/2016/TLST-DS dated June 16, 2016 regarding claim for property according to the Decision to Bring the Case to Trial No. 55/2017/QDST-DS dated May 3, 2017 between the following litigants:

- Petitioner:  Mr. Chang Ming Y, born in 1953; permanent residence: 13-10F, Lane, C Road, B Village, Wu Fung Hsiang, Tai Chung Hsien, Tai Wan; temporary residence: H Co., Ltd, Lot F-8A, M industrial zone branch, town B, Binh Duong province.

Authorized legal representative of petitioner: Mr. Lam Phu X, born in 1974; residing in: Neighborhood L, ward L, Thuan An town, Binh Duong province, authorized representative of the petitioner (letter of authorization dated June 16, 2016). Present.

- Respondent:  Mrs. Nguyen Thi D1, born in 1982, owner of Sole Proprietorship C, address: Neighborhood N, ward L, Thuan An town, Binh Duong province. Absent.

- Persons with related interests and obligations:

1. Mr. Chang Wen C, born in 1982; permanent residence: 13-10F, Lane, C Road, B Village, Wu Fung Hsiang, Tai Chung Hsien, Tai Wan; temporary residence: H Co., Ltd, Lot F-8A, M industrial zone branch, town B, Binh Duong province.

Authorized legal representative of Mr. C:  Mr. Lam Phu X, born in 1974; residing in: Neighborhood L, ward L, Thuan An town, Binh Duong province, authorized representative of Mr. C (letter of authorization dated July 27, 2016). Present.

2. Mrs. Liu A M, born in 1952; permanent residence: 13-10F, Lane, C Road, B Village, Wu Fung Hsiang, Tai Chung Hsien, Tai Wan; temporary residence: H Co., Ltd, Lot F-8A, M industrial zone branch, town B, Binh Duong province.

Authorized legal representative of Mr. M:  Mr. Lam Phu X, born in 1974; residing in: Neighborhood L, ward L, Thuan An town, Binh Duong province, authorized representative of Mr. M (letter of authorization dated July 27, 2016). Present.

3. Mrs. Lam Thi My D2, born in 1965, residing at: D Street,  ward,  district, Ho Chi Minh City. Present.

4. B Trade Co., Ltd; headquarters: residential block , street , ward B, district B, Ho Chi Minh City.

Legal representative of B Trade Co., Ltd:  Mr. Nguyen Van K, born in 1959; residing in:  residential block , street , ward B, Ho Chi Minh City, legal representative of B Trade Co., Ltd (Director of B Trade Co., Ltd). With the request for trial in absentia.

5. H Co., Ltd - representative office in B; headquarters: No. 17, Binh Duc neighborhood, ward B, Thuan An town, Binh Duong province. Absent.

6. the People’s Committee of Binh Duong province.

Legal representative of the People’s Committee of Binh Duong province: Mr. Tu Phuong T, Deputy Manager of Sub-department of Land Management affiliated to Department of Natural Resources and Environment, authorized representative of the People’s Committee of Binh Duong province (letter of authorization dated January 25, 2017), with the request for trial in absentia.

THE CASE

+) Representation of Mr. Chang Ming Y in lawsuit petition dated April 11, 2016 and during legal proceedings:

In early 1993, Mr. Y (Nationality: China “Taiwan”) came to Vietnam to visit and invest in business. Mr. Y asked Mrs. D2 to act as his interpreter and since Mr. Y is foreigner who is not eligible for having his name on the land title or business registration certificate of a household business or sole proprietorship, Mr. Y asked Mrs. D2 to have her name on the title on his behalf.

- In later 1993, Mr. Y bought a piece of land of 415m2 from Mr. Le Van D and bought a piece of land of 1,049m2 from Mrs. Phan Chi Phan, which are located in the village (now is neighborhood) Binh Duc, commune (now is ward) B, district (now is town) T. When buying these pieces of land, as Mr. Du and Mrs. Phan had not been granted land use right certificates, Mr. Y asked Mrs. D to write a handwritten transfer agreement with Mr. D and Mrs. P.

In 1997, the parties completed paperwork for transfer as prescribed, Mrs. D2 was granted the land use right certificate No. 289925 by the People’s Committee of district T, volume No. 10QSDD/BH.TA dated August 21, 1997, land plot No. 74, map No. E3, area of 1,117m2.

In 2002, Mr. Y asked Mrs. D2 to have her name on the establishment license of Ngoc Chau household business, business place is situated on the said land plot at 17 Binh Duc village, commune B, district T according to the business registration certificate No. 020292TA/HKD dated February 1, 2002 of the People’s Committee of district T.

- On June 8, 2000, Mr. Y continued buying a piece of land of 3,213.4m2 from Mr. Quach Ngoc C in neighborhood N, town L, district T (now is ward L, Thuan An town), on July 10, 2002, the People’s Committee of district T granted the land use right certificate No. 48975, volume No. 00278QSDD to Mrs. Lam Thi My D2, on land plot No. 229, map No. 48, area of 2,790m2 (after subtracting 178m2 HLLG).

In 2002, Mr. Y wished to rent out buildings, so he asked Mrs. D2 to have her name on business registration certificate of Sole Proprietorship C (business registration certificate No. 4601000570 dated January 20, 2003 of the Department of Planning and Investment of Binh Duong province). As required by law, Mr. Y must transfer a part of these land plots to the enterprise for the purpose of using land for business and construction of industrial works.

So, land plot No. 74, Binh Duong province E3, area of 1,117m2 (after subtracting 121HLBVDB) in Binh Duc village, commune B, district T in the name of Mrs. Lam Thi My D2 was confiscated and separated as follows:

1. Land plot No. 144, map No. 11, area: 119.6m2, according to the land use right certificate No. 722238, volume No. T00371/CN/05 granted by the People’s Committee of Binh Duong province on July 8, 2005 to Sole Proprietorship C) (1).

2. Land plot No. 74, map No. E3, area: 473.5m2, according to the land use right certificate No. T00371/CN/05 granted by the People’s Committee of Binh Duong province on July 8, 2005 to Sole Proprietorship C) (2).

3. The remaining residential land plot of 300m2 is still in the name of Mrs. D2 (3).

On the land plots (1) + (2) + (3) there are buildings with area of: (width 18m x length 60m) x 2 = 2,160m2 (without certificate of construction ownership).

The land plot No. 229, map No. 48, area of 3,090m2 (after subtracting 178m2 HLLG) in neighborhood N, town L, district T in the name of Mrs. Lam Thi My D2 was confiscated and separated as follows:

1. The land plot No. 229, map No. 48, area: 2,796.7m2 (after subtracting 247.1m2 HLBVDB), according to the land use right certificate No. 751815, volume No. 273/QSDD/2003 granted by the People’s Committee of Binh Duong province on September 1, 2003 to Sole Proprietorship C) (4).

2. The remaining residential land plot of 300m2 is still in the name of Mrs. D2 under the land use right certificate No. 748975 (5).

On the land plots (4) + (5) there are buildings with area of: 1,965m2 (with certificate of construction ownership).

- In 2007, Mr. Chang Wen C, Mr. Y’s son, got married to Mrs. Nguyen Thi D1. Then, Mr. Y asked his daughter-in-law (Mrs. D1) to have her name on business registration certificate as owner of Sole Proprietorship C and on titles of the mentioned land plots. Thus, Mrs. D2 completed paperwork to transfer ownership to Mrs. D1 (business registration certificate No. 3700780752) granted by the Department of Planning and Investment of Binh Duong province on August 12, 2011).

However, Mrs. Nguyen Thi D1 appropriated all of land plots and property on land of Mr. Y, leased out buildings on the land plots in neighborhood N, ward L, Thuan An town to B Trade Co., Ltd and leased out buildings on the land plots in Binh Duc neighborhood, ward B, Thuan An town to H Co., Ltd - representative office in B. Thus, Mr. Y filed a lawsuit petition which requests Mrs. Nguyen Thi D1, owner of sole proprietorship C, to return land use right and property on land.

On October 21, 2016, Mr. Y filed a supplemental petition which requests Mrs. Nguyen Thi D1 to return the rents earned from lease of warehouses, buildings, and offices to B Trade Co., Ltd and H Co., Ltd, in specific:

- The rent collected from B Trade Co., Ltd from March 2015 to October 2016: 60 months x VND 50,000,000/month = VND 3,000,000,000.

- The rent collected from H Co., Ltd - representative office in B from August 2011 to August 2016: 19 months x VND 80,000,000/month = VND 1,520,000,000.

Total rent is:  VND 4.520.000.000.

+) Representation of person with relevant rights and obligations, Mrs. Lam Thi My D2, in the voluntary statement dated July 5, 2016 and record of statement dated July 15, 2016:

Mrs. D2 has been employed by Mr. Y since 1993. Mrs. D2 concurs with representation of Mr. Y. Since Mr. Y is a foreigner, she had her name on the business certificate and establishment license and title transfer documents and land use right certificates of land plots on behalf of  Mr. Y.

On September 26, 2000, Mrs. D2 wrote a commitment as follows:  “Certifying that all of above land plots, business capital and capital construction costs of 2 offices and buildings thereon are owned by Mr. Y; if Mr. Y wishes to transfer them or ask his relatives to have their names on the documents on his behalf, Mrs. D2 accepts to do that at the request of Mr. Y”.

After Mr. C and Mrs. D1 got divorce, at the request of Mr. Y, on December 25, 2008, Mrs. D2 signed a transfer contract with Mrs. D1 to transfer all of these land plots and property on land (in fact there were no transfer and receipt of money between Mrs. D2 and Mrs. D1) and Mrs. D2 also transferred the name of owner of sole proprietorship C to Mrs. D1. Mrs. D2 concurs with the lawsuit petition of the petitioner without making any other independent claim.

+) Representation of Mr. Chang Wen C, represented by Mr. Lam Phu X, in the voluntary statement dated July 14, 2016:

Mr. C is the biological son of Mr. Chang Ming Y and Mrs. Liu A M. Mr. C concurs with the representation of Mr. Y and Mrs. D2. All assets invested by Mr. Y in Vietnam are in the name of Mrs. Lam Thi My D2.

In 2004, Mr. C came to Vietnam to help Mr. Y in business. In 2007, Mr. C got married in Mrs. D1, Mr. Y asked the daughter-in-law to have her name on the business certificate and land use right certificate on his behalf for continued business, then Mr. Y asked Mrs. D2 to transfer all ownership documents to the name of Mrs. D1. When completing the paper for ownership transfer, Mrs. D1 made a certification that all of above assets are owned by Mr. C but in fact they are owned by Mr. Y. Therefore, Mr. C concurs with the lawsuit petition of Mr. Y and make no independent claim in this case.

+) Representation of Mrs. Liu A M, represented by Mr. Lam Phu X, in the voluntary statement dated July 14, 2016:

Mr. M is the wife of Mr. Y and mother of Mr. C. Mr. M concurs with the representation of Mr. Y and Mr. C, concurs with the lawsuit petition of Mr. Y. All of above assets are owned by Mr. Y from his investment and business in Vietnam and subject to decision of Mr. Y, she is not related to them and makes no independent claim in this case.

+) Representation of B Trade Co., Ltd, represented by Mr. Nguyen Van K, in the record of statement dated July 19, 2016:

On March 5, 2015, B Trade Co., Ltd and Mrs. D1, owner of sole proprietorship C, concluded a lease agreement of buildings but it was not notarized. Under the agreement, Mrs. D1 leased out facilities at 494 Boulevard B, neighborhood N, ward L, Thuan An town with the floor area of 3,000m2, including buildings, offices and equipment, however, there was no transfer note, the term of the lease was 2 years since March 20, 2015, the rent was VND 88,000,000/month, B Trade Co., Ltd paid Mrs. D1 a deposit of VND 250,000,000.

On May 18, 2016, for the purpose of repairing and expanding the warehouse, when the agreement had not had expired, they renewed such lease agreement for 3 more years from March 20, 2017 (after the expiry date of the first lease agreement) to March 2020.

After that, B Trade Co., Ltd expanded 2 sides of the warehouse about 300m2 each, structure: iron frame, metal roofing, rafter, for the cost of VND 150,000,000.Considering the lawsuit petition of the petitioner, B Trade Co., Ltd makes no independent claim, B Trade Co., Ltd requests to maintain the agreement until its expiry. B Trade Co., Ltd shall pay the rent to whom whose land use right, and facility ownership is recognized by the court.

If the lessor defaults on agreement, B Trade Co., Ltd shall request the refund of deposit and payment of damages as mentioned in the agreement.

+) Representation of person with relevant rights and obligations, the People’s Committee of Binh Duong province, in the written statement dated February 22, 2017:

Pursuant to Point k Clause 1 Article 169 of the Land Law 2013 in Viet Nam, Mr. Y is not entitled to be granted land use right certificates as to the land plots in dispute. In this circumstance, Mr. Y has to apply for establishment of an enterprise as prescribed in the Law on Investment in Viet Nam, Law on Enterprises in Viet Nam and apply for project policy to the People’s Committee of Binh Duong province.

At the court hearing:

- The petitioner changes the lawsuit petition and supplemental petition, in specific:

Being a foreigner who is not entitled to have the name on land use right certificate in Vietnam, Mr. Y asked Mrs. D1 who is the owner of sole proprietorship C to pay the value of foregoing land plots and property on land of VND 38,553,530,650 according to the valuation report.

As for the rent of facilities, he only requires Mrs. D1 to return a half, in specific: VND 4,520,000,00 : 2 = VND 2,260,000,000, the he will pay Mrs. D1 a half as her contribution to preservation of land and property thereon.

- Opinions of representative of the People’s Procuracy:

Regarding adherence to law of the Judge, Trial Panel and court reporter: The Judge who is assigned to accept and resolve the case has complied with Article 203 of the Civil Procedure Code 2015. At the court hearing, the Trial Panel and court reporter have complied with the Civil Procedure Code concerning first-instance trial.

The extent of observance of regulations by the litigants: From acceptance of the case to first instance court hearing, the petitioner has performed proper litigation rights and obligations as prescribed in the Civil Procedure Code. The absence of the respondent shall be considered as the waiver of her rights and obligations.

Regarding lawsuit settlement: According to materials and evidence available in the case file which are assessed and adversarial process at the court hearing, request the Trial Panel to accept the lawsuit petition and supplemental petition of the petitioner in whole and the change to contents of the lawsuit petition and supplemental petition.

Requests and proposals for correction of procedural errors: None.

JUDGEMENT OF THE COURT

[1] In terms of court procedures:

After the case was accepted, on August 11, 2016, the respondent Mrs. Nguyen Thi D1 - owner of sole proprietorship C came to the court and applied for photocopies of materials and evidence provided by the petitioner. Then Mrs. D1 and H Co., Ltd - representative office in B was duly summoned, but they have been still absent during the lawsuit settlement. Their absence shall be considered as the waiver of their burden of proof.

Mr. Tu Phuong T, the authorized representative of the People’s Committee of Binh Duong province, and Mr. Nguyen Van K, the legal representative of B Trade Co., Ltd, filed requests for trial in absentia. Pursuant to Article 227, 228 of the Civil Procedure Code 2015, the court conducts the trial in their absence.

The change to content of the lawsuit petition and supplementary petition of the petitioner at the court hearing does not exceed the scope of lawsuit request, so the court accepts it as prescribed in Clause 1 Article 244 of the Civil Procedure Code 2015.

[2] In terms of content of the case:

[2.1] In terms of lawsuit request of the petitioner:

According to the documents provided by the branch of land registry of Thuan An town and center for natural resources and environment information in Binh Duong province, the origin of the land plots are as follows: the land area of 1,049m2 of land plot No. 74, map No. E3 in Binh Duc village, commune B, district T was previously owned by Mrs. Lam Thi Thuy L, this land plot borders on the east side by the land plot of Mr. Le Van D. On March 1, 1997, Mrs. L transferred it to Mrs. Lam Chi P. On May 24, 1997, Mrs. Phan continued transferring it to Mrs. Lam Thi My D2. 

According to the agreement on transfer of land use right dated June 20, 1993 and the record of statement of Mr. Le Van D dated December 15, 2016, on June 20, 1993, Mr. Du transferred Mr. Y (in the name of Mrs. D2) the land area of 415m2 in Binh Duc village, commune B, district T for VND 36,000,000, this land area is adjacent to the land area which Mr. Y previously bought for business but they have not completed paperwork for transfer as prescribed.

On August 21, 1997, Mrs. D2 was granted the land use right certificate by the People’s Committee of district T.

- The land area of 3,213.4m2 of land plot No. 229, map No. 48 in neighborhood N, town L, district T is originated from Mr. Quach Ngoc C. On June 8, 2000, Mr. C transferred this land plot to Mrs. Lam Thi My D2. On July 10, 2002, Dung was granted the land use right certificate by the People’s Committee of district T. 

After receiving transfer of these land plots, Mr. Y built offices, buildings and bought equipment on the land and established a sole proprietorship for business, in specific:

Mr. Y asked Mrs. D2 to have her name on the business registration certificate of household business N.C at village B, commune B, district T under the business registration certificate No. 020292TA/HKD dated February 1, 2002 of the People’s Committee of district T, however, the building on this land plot has not been granted the certificate of ownership. After that, in order to lease out facilities, Mr. Y asked Mrs. D2 to have her name on the business registration certificate of sole proprietorship C, located on the land plot in neighborhood N, town L, district T (business registration certificate No. 4601000570 dated January 20, 2003 of the Department of Planning and Investment of Binh Duong province and notice No. 108/TB-DKKD dated January 30, 2002 of the Department of Planning and Investment of Binh Duong province on revocation of business registration certificate of N.C Trade and Production Co., Ltd). The buildings on this land plot were granted certificates of ownership No. 150808/SHCT dated April 8, 2003 and No. 150980/SHCT dated December 25, 2003 by Department of Construction of Binh Duong province.

Pursuant to the Land Law 1993 in Viet Nam and the Law on the amendments to the Land Law 1998 in Viet Nam and the Law on the amendments to the Land Law 2001 in Viet Nam dated June 29, 2001, Government's Decree No. 04/2000/ND-CP in Viet Nam dated February 11, 2000 on implementation of the Law on the amendments to the Land Law and Government's Decree No. 66/2001/ND-CP in Viet Nam dated September 28, 2001 on amendments to Government's Decree No. 04/2000/ND-CP dated February 11, 2000, when Mrs. D2 established sole proprietorship C, the People’s Committee of Binh Duong province repossessed a part of the land areas of these land plots to legalize the land lease of sole proprietorship C. Thus, Mr. Y must transfer a part of these land plots to the enterprise for the purpose of using land for business and construction of industrial works.

Under the commitment dated September 26, 2000 Mrs. D2 certified that all of above land plots, business capital and capital construction costs of 2 offices and buildings thereon are owned by Mr. Y; if Mr. Y wishes to transfer them or ask his relatives to have their names on the documents on his behalf, Mrs. D2 accepts to do that at the request of Mr. Y.

After Mr. C (Mr. Y’s son) got married to Mrs. D1, Mr. Y asked Mrs. D1 to have her name on the business certificate of sole proprietorship C, Mrs. D2 completed paperwork for transfer to Mrs. D1 (business registration certificate dated August 12, 2011 of Business Registration Department of the Department of Planning and Investment of Binh Duong province) and Dung signed transfer contract of all above land plots and property on land to the name of Mrs. D1, in specific:

Land plots No. 71 (E3), 144 (E4), the map No. 10 (E3), 11 (E4), area: 600m2, in Binh Duc neighborhood, ward B, Thuan An town, land use right certificate No.  AM 188511 granted by the People’s Committee of Thuan An town on January 19, 2009 in the name of Mrs. Nguyen Thi D1.

Land plot No. 74, map No. E3, area: 473.5m2, in Binh Duc neighborhood, ward B, Thuan An town, land use right certificate No. AB 722237,  granted by the People’s Committee of Binh Duong province on July 8, 2005 in the name of sole proprietorship C.

Land plot No. 144, map No. 11, area: 119.6m2, according to the land use right certificate No. 722238 granted by the People’s Committee of Binh Duong province on July 8, 2005 in the name of sole proprietorship C.

Land plot No. 229, the map No. 48, area of 300m2, in neighborhood N, ward L, Thuan An town, land use right certificate No.  AM 058909 granted by the People’s Committee of Thuan An town on January 19, 2009 in the name of Mrs. Nguyen Thi D1.

The land plot No. 229, map No. 48, area: 2,796.7m2, in neighborhood N, ward L, Thuan An town, land use right certificate No. T 751815,  granted by the People’s Committee of Binh Duong province on September 1, 2003 in the name of sole proprietorship C.

Under the certificate dated April 2, 2007 of Mrs. D1 - owner of sole proprietorship C certifies:  “All amounts of enterprise purchase, investment capital and assets of sole proprietorship C, including current assets, fixed assets - offices and buildings located on the leased land plots are invested by my husband, Mr. Chang Wen C”.

Mr. C admits that the amount of transfer of above land plots and investment in construction is owned by Mr. Y. But as Mrs. D1 is Mr. C’s wife, she claims that these are his assets. Therefore, there are valid grounds for determining that the amount of transfer and investment in construction of buildings and property on land is owned by Mr. Y.

- According to the actual measurement and valuation of the said land plots, the area and value of buildings and property on land are as follows:

Land plots No. 74, 144, new map No. 111 in neighborhood B, ward B, Thuan An town: area of 1,321.6m2, total value: VND 8,352,000,000 and property on land includes: buildings, offices, warehouses, security booths, canopies, parking plot and generators, fence with value of:  VND 1,982,804,200. Land plot No. 229, new map No. 481, area of 3,317m2 in neighborhood N, ward L, Thuan An town, total value: VND 24,719,000,000 and property on land includes: Buildings, offices, warehouses, security booths, gate piers with total value: VND 3,499,716,450. Total:  VND 38,553,520,650.

[2.2] In terms of supplemental petition of the petitioner:

Under the lease agreement dated March 5, 2015, Mrs. D1 - owner of sole proprietorship C leased out the floor area of 3,000m2, including buildings, offices and equipment on land No. 229, neighborhood N, ward L, Thuan An town for the rent of VND 88,000,000/month, the term of the lease was 2 years since May 20, 2015. On May 18, 2016, both parties renewed the agreement for more 3 years from March 20, 2017 (expire date of the first lease agreement is March 20, 2020) for the rent of VND 88,000,000/month.

Under the lease agreement of buildings dated August 26, 2011, Mrs. D1 - owner of sole proprietorship C concluded with H Co., Ltd - representative office in B to lease out the whole house including ground floor, second floor, back yard, equipment, elevators, generators, water pumps, automatic water pump pressure generating device, water meters, rolling shutter doors,  1 office voltage cylinder and 1 outside voltage cylinder, a water purifier on the land plots No. 74, 144 of Binh Duc neighborhood, ward B, Thuan An town for the rent of USD 2,500/month, the term of lease is 5 years from August 26, 2011 to August 26, 2016. On June 20, 2016, both parties renewed the lease agreement for more 3 years from August 26, 2016 to August 26, 2019, for the rent of USD 3,500/month. Therefore, Mr. Y filed the supplemental petition, requesting Mrs. D1 - owner of sole proprietorship C returned the rent from March 2015 to October 2016 collected from B Trade Co., Ltd:  60 months x VND 50,000,000/month = VND 3,000,000,000 and the rent from August 2011 to August 2016 collected from H Co., Ltd:  19 months x VND 80,000,000/month = VND 1,520,000,000, total: VND 4,520,000,000.

However, at the court hearing, the petitioner changes the supplementary petition, he only requires Mrs. D1 to return the rent of VND 2,260,000,000, and pays her the remaining rent as her contribution to the preservation of land and property. This is the voluntary consent of the petitioner.

Pursuant to the Precedent No. 02/2016/AL in Viet Nam on “Dispute over claiming property” collected from Cassation Decision No. 27/2010/DS-GDT dated July 8, 2010 and published in the Decision No. 220/QD-CA in Viet Nam dated April 6, 2016 of the Chief Justice of the Supreme People’s Court, documents in the case file show that Mr. Y, at his cost and expense, received land transfer, constructed facilities, invested property on land, established enterprises and run business but since Mr. Y is a foreigner, he was not allocated land and allowed to have his name on the business registration certificate of household business, sole proprietorship, Mr. Y asked Mrs. D2 to do that on his behalf.  After Mr. C got married to Mrs. D1, Mr. Y asked Mrs. D1 to have her name on the business certificate, so Mrs. D2 completed paperwork for transfer to Mrs. D1. The Trial Panel considers that nature and legal facts in this case are similar to those in the Precedent. Therefore, pursuant to Articles 137, 234, 235, 256 of the Civil Code 2005 and Precedent No. 02/2016/AL, there are sufficient grounds for accepting the lawsuit petition and supplementary petition of the petitioner.

Mr. M, Mr. Y’s wife, determined the amount of transfer and investment on land are owned by Mr. Y, she gives no opinion and does not claim any investment, yield, or income. So, request the respondent to return the petitioner the value of land and property on land, including VND 38,553,530,650 and VND 2,260,000,000 of the rent of the land and property on land, totaling VND 40,813,520,650.

If the parties have dispute in the lease agreements between Mrs. Nguyen Thi D1, owner of sole proprietorship C, and B Trade Co., Ltd and H Co., Ltd - representative office in B, this dispute shall be settled in another case.

Opinions of the representative of the People’s Procuracy at the court hearing is deemed well-grounded.

Other proceeding costs: As for expenditures on consideration and on-site assessment, valuation, drawing is VND 7,600,000, the petitioner voluntarily pays it in full.

Regarding court fee: The respondent has to pay it as prescribed.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Pursuant to  Articles 26, 35, 39, 227, 228, 244 of the Civil Procedure Code 2015 in Viet Nam; Articles 137, 234, 235, 256 of the Civil Code 2005 in Viet Nam; Ordinance on Court Fees and Charges 2009 in Viet Nam.

1/ Accept the lawsuit petition and supplementary petition of the petitioner, Mr. Chang Ming Y, for “claiming property” against Mrs. Nguyen Thi D1, owner of sole proprietorship C. 

Mrs. Nguyen Thi D1 - owner of sole proprietorship C is obliged to pay Mr. Chang Ming Y VND 40,813,520,650 (including VND 38,553,530,650 of land and property on land and VND 2,260,000,000 of the rent).

From the effective date of the judgment (for cases where judgment enforcement agencies have the right to take initiative in issuing judgment execution decisions) or from the date of issuance of judgment execution requests of judgment creditors (for the amounts payable to the judgment creditors) until the judgment execution is completed, all the monthly sums of money to be executed by the judgment debtors shall also be subject to the interest amount of the money amounts still subject to judgment execution at the interest rates. stipulated in Clause 2 Article 468 of the 2015 Civil Code.

2/ First instance civil court fee:

Mrs. Nguyen Thi D1, owner of sole proprietorship C is obliged to pay VND 148,813,520 of first instance civil court fee.

Refund Mr. Chang Ming Y the paid advance payment of VND 61,000,000 according to receipt No. 0019220 dated June 15, 2016 of the Sub-department of Civil Judgment Execution of Thuan An town.

3/ Other proceeding costs: As for expenditures on consideration and on-site assessment, valuation, drawing is VND 7,600,000, the petitioner voluntarily pays it in full.

4/ Right to appeal:

Litigants may rightfully appeal this judgment within 15 days from the judgment announcement.

The parties who are absent may appeal the judgment within 15 days from the date of receiving the posted judgment or judgment.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7, 7a and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.


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Judgement No. 75/2017/DSST dated july 20, 2018 on dispute over claim for property

Số hiệu:75/2017/DSST
Cấp xét xử:Sơ thẩm
Agency issued: Tòa án nhân dân Thành phố Thuận An - Bình Dương
Field:Dân sự
Date issued: 20/07/2017
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