Judgment no. 03/2019/HC-ST dated november 28, 2019 on lawsuit against administrative act in the field of state management of land

THE PEOPLE’S COURT OF DISTRICT 3, HO CHI MINH CITY

 JUDGMENT NO. 03/2019/HC-ST DATED NOVEMBER 28, 2019 ON LAWSUIT AGAINST ADMINISTRATIVE ACT IN THE FIELD OF STATE MANAGEMENT OF LAND

On November 28, 2019, at the courtroom of the People's Court of District 3, Ho Chi Minh City, the first-instance hearing is publicly held to try the case No. 534/2019/TLST-HC dated May 13, 2019 about the “Lawsuit against administrative act in the field of state management of land” according to the Decision to bring the case to first-instance trial No. 292/2019/QDXXST-HC dated October 10, 2019 and the Decision to adjourn the trial No. 413/2019/QDST-HC dated November 8, 2019, between the litigants:

1. The petitioner: Mrs. T.T.P - Born in 1958

Address: No. 453/90, Street S, Ward MH, District B, Ho Chi Minh City.

(with request for trial in absentia)

2. Respondent:  The People's Committee of MH Ward, District B, Ho Chi Minh City.

Address: No. 407/2-4, Street S, Ward MH, District B, Ho Chi Minh City. (not appearing in court)

FACTUAL AND PROCEDURAL BACKGROUND

Mr. T.D.D (died in 1986) and Mrs. NTQ (died in 1987) lived together and had two children, Mrs. NTM, born in 1945 and Mr. T.D.D, born in 1948. In 1987, Mr. D and Mrs. Quy died leaving two houses at 491/15 and 453/90, Street S. Mrs. M and Mr. D agreed to divide the inheritance and complete the paperwork to regularize the above two houses, specifically as follows:

+ House No. 453/90 Street S, Ward HH (now Ward MH), District B belongs to Mr. T.D.D., according to the License to regularize the sale, purchase and relocation of houses No. 193/GP-UB dated on June 26, 1987.

+ House No. 491/15 Street S, Ward HH (now Ward MH), District B belongs to Mrs. N.T.M., according to the License to regularize the sale, purchase and relocation of houses No. 194/GP-UB dated on June 26, 1987.

In 1987, Mrs. M sold the house at 491/15 S Street and went to share a house with Mr. D, Mrs. M was on the first floor, and Mr. D was on the ground floor. Before entering this house, Mrs. M gave Mr. D 2 (two) taels and 5 (five) maces of 24K gold, certified by the Family Council in the Minutes of the Family Council meeting on January 8, 1988.

(According to the statement of Mrs. N.T.M in the Minutes of Conciliation dated June 7, 1991 of the People's Court of District 3).

When they moved in together, there was a conflict, so they could not live together, so Mr. D agreed to return Mrs. M 25 maces of 24K gold and asked Mrs. M to return the house to him. (According to the statement of Mr. T.D.D in the Minutes of Conciliation dated June 7, 1991 of the People's Court of District 3).

After sorting the problem out and conciliating, the People's Court of District 3 recorded the arrangement of the two parties specifically as follows:  "Mr. D agrees to let Mrs. M continue to stay on the first floor of the house 453/90 Street S, Ward MH, District B, area 12m x 3.8m, with a separate staircase behind the house and he agrees to let Mrs. M park the vehicle on the ground floor of the house. When Mrs. M moves out, he will refund her 25 maces of 9.6-year-old 24K gold at the People’s Court of District 3. Mrs. M agrees with the above solution.” (According to the Minutes of Successful Conciliation dated June 7, 1991 of the People's Court of District 3).

In 1992, Mr. T.D.D died (According to Death Certificate No. 8-KT, volume number 5/92 dated February 10, 1992).

According to the petitioner's statement, Mrs. T.T.P:

+ In 1998, Mrs. N.T.M and her husband, Mr. N.V.T, settled abroad. At this time, Mr. T.D.D.'s wife proposed to return the gold amount of 2 (two) taels 5 (five) maces according to the content of the agreement in the Decision on recognition of successful reconciliation No. 56/HGT dated on June 22, 1991 by the People's Court of District 3, but Mrs. M refused to accept it and suggested leaving the first floor of house 453/90 for her 4 children for continued stay. Before going abroad, in Mrs. M's application for going abroad dated November 15, 1990 (certified by the People's Committee of Ward MH, District 3 (abbreviated as People's Committee)), Mrs. M declared to be held liable for the fact that "the house is shared with the younger brother, owned by the younger brother, has no means of production and business" (attached copy of this document is submitted to the Court).

+ In 2001, Mr. N.T.D, the son of Mrs. M, got married, bought a house located at 108/18A, street T, ward MM, G.V district and moved there to settle down.

+ In mid-2009, after Mrs. M's 3 remaining children had all moved to the US one by one, Mr. D asked to move in to her house on the 1st floor for his family could stay for a while, and then by the end of 2009, the family would move to the US to settle down.

+ In March 2018, the People's Committee of Ward MH sent a notice to her family based on the plan No. 61/KH-UBND of the People's Committee of District 3 on the issuance of certificates of land use rights, ownership of houses and other property on land for households and individuals in District 3.

+ On December 6, 2018, she submitted all necessary documents and records as prescribed by law to apply for a certificate of land use rights, ownership of houses, and other property on land at Branch of Land Registry Office District 3.

+ On January 3, 2019, the Branch of Land Registry Office District 3 sent Document No. 12/CV.VPDK.Q3 to her, with the content:  “In carrying out the application process, the Branch has transferred documents to the People's Committee of Ward MH to post and confirm the application as prescribed. On December 24, 2018, the People's Committee of Ward MH, District 3 confirmed on her application for a certificate in Part II, Section 5 “Status of the dispute over land and property on land as follows:  “The application for suspension of issuance of certificate of house title filed by Mr. N.T.D dated December 22, 20218 has been processed”. Please receive the application file back and contact the People's Committee of Ward MH, District 3 to completely resolve the above dispute. After the dispute is settled, you may re-submit the application to Branch for issuance of a certificate in accordance with regulations.”

+ On January 24, 2019, the People's Committee MH Ward held a conciliation meeting between Mr. T.T.V and Mr. T.A.V ​​as authorized representatives of her and Mr. N.T.D as those who applied for suspension of issuance of certificate of ownership of the house 453/90. At the conciliation, Mr. T.T.T, on behalf of the People's Committee of MH Ward, argued that Mr. D had his identity card and household registration at House 453/90 and Mr. D had the inheritance right from Mrs. M, so Mr. D had the right to prevent the granting ownership of House 453/90.

+ On January 30, 2019, she filed a complaint against Mr. T.T.T's illegal acts in conciliation and dispute resolution at the conciliation meeting on January 24, 2019.

+ On February 15, 2019, the MH Ward People's Committee continued to hold another conciliation session between the parties. At this conciliation, the People's Committee of MH Ward requested Mr. D to provide Mrs. M's power of attorney, stating that Mrs. M authorized Mr. D to submit an application to suspend granting ownership of House 453/90. Mr. T.T.T argued that this power of attorney was granted in accordance with the provisions of the law.

+ On February 21, 2019, Mr. TTT issued Official Letter No. 25/UBND in response to her complaint dated January 30, 2019, which outlined events that were not related to the case and did not resolve the issue and could not explain the reason or provide evidence to prove that Mr. D had the right to House 453/90.

+ She disagreed with the response of the People's Committee of Ward MH in Document No. 25/UBND dated February 21, 2019 to her complaint. On April 18, 2019, she filed a lawsuit against Mr. T.T.T - Chairman of the People's Committee of Ward MH, District 3 for administrative acts in settling land disputes.

+ On June 24, 2019 and September 18, 2019, she filed a petition to amend and supplement the petition, thereby determining:  The respondent is the People's Committee of Ward MH, District 3, Ho Chi Minh City and the specific lawsuit petition is as follows: request the Court to declare the act below of the People's Committee of Ward MH, District 3, Ho Chi Minh City is illegal: certifying the application for registration and issuance of a certificate of land use rights and house title and other property on land in Part II, Section 5. The status of disputes over land and property on land with the content:  “Currently receiving the application to suspend granting house title filed by Mr. N.T.D dated December 22, 2018"; force the People's Committee of Ward MH, District 3, Ho Chi Minh City to confirm the status of no dispute on the application for registration and issuance of a certificate of land use rights, ownership of houses and other property on land Part II, Section 5. The status of disputes over land, properties on land.

According to the statement of the respondent, People's Committee of Ward MH, District 3, Ho Chi Minh City in Document No. 107/UBND dated July 30, 2019: The certification made by the People's Committee of Ward MH, District 3, Ho Chi Minh City TTP's in the application for a certificate of land use rights, ownership of houses and other property on land at 453/90 Street S, Ward MH, District 3, Ho Chi Minh City is appropriate accordance with Articles 20 and 70 of Decree No. 43/2014/ND-CP in Viet Nam on guidelines for the Land Law 2013 in Viet Nam and the order and procedures according to local authority.  Therefore, the MH Ward People's Committee proposes the Court to reject Mrs. T.T.P's petition because there is no valid reason for her to file a lawsuit.

At the hearing today:

- The petitioner, Mrs. T.T.P, has a petition for trial in her absence.

- The respondent, the People's Committee of Ward MH, District 3, Ho Chi Minh City, does not appear in court.

Opinions of the representative of the People’s Procuracy of District 3: During the process of settlement, taking of evidence and at the trial, the Judge and the Trial Panel have complied with the provisions of law. Regarding the content of the case, the representative of the People’s Procuracy of District 3 finds that: Mrs. T.T.P's petition is grounded to accept, and proposes that the Trial Panel accept the entire petition of Mrs. Phuong.

JUDGEMENT OF THE COURT

After studying the evidence and documents available in the case file which have been verified at the trial, the Trial Panel determines:

[1]. In terms of court procedures:

[1.1]. Regarding subject matter of lawsuit: Mrs. T.T.P requests the Court to declare the act below of the People's Committee of Ward MH, District 3, Ho Chi Minh City is illegal: certifying the application for registration and issuance of a certificate of land use rights and house title and other property on land in Part II, Section 5. The status of disputes over land and property on land with the content:  “Currently receiving the application to suspend granting house title filed by Mr. N.T.D dated December 22, 2018"; force the People's Committee of Ward MH, District 3, Ho Chi Minh City to confirm the status of no dispute on the application for registration and issuance of a certificate of land use rights, ownership of houses and other property on land Part II, Section 5. The status of disputes over land, properties on land. This is an administrative act of the People's Committee of Ward MH, District 3 assigned to perform tasks in accordance with the law (specifically, according to the Land Law 2013 and point c, clause 2, Article 70 of Decree No. 43/2014/ND-CP dated May 15, 2014 of the Government elaborating the Land Law), which are specified in Clauses 3 and 4, Article 3 of the Law on Administrative Procedures 2015 in Viet Nam.

[1.2]. Dispute relationship:  Based on Mrs. T.T.P's lawsuit petition, the case belongs to the dispute relationship "Lawsuit against administrative acts in the field of state management of land", which is specified in Clause 1, Article 30. of the Law on Administrative Procedure 2015.

[1.3]. Regarding jurisdiction:  As the administrative act being sued of the People's Committee of MH Ward, District 3 belongs to the commune level, so the case falls under the jurisdiction of the People's Court of District 3, based on Clause 1, Article 31 of the Law on Administrative Procedures 2015.

[1.4]. Regarding prescriptive period for instituting lawsuit: According to Mrs. T.T.P's statement in the Application for trial in absentia on November 27, 2019, she received Document No. 12/CV.VPDK.Q3 dated January 3, 2019 from the Branch of Land Registry Office District 3 by post a few days later. On April 18, 2019, Mrs. T.T.P filed a lawsuit against the People's Committee of MH Ward, District 3 for certification on her application for issuance of a certificate of land use rights, ownership of houses and other property on land dated December 6, 2018. Thus, Mrs. T.T.P's lawsuit request is still within the prescriptive period for initiating a lawsuit, according to the provisions of Clause 1 and Point a, Clause 2, Article 116 of the Law on Administrative Procedure 2015.

[2]. Regarding the procedure for trial in absentia:

[2.1]. In the application for trial in absence dated November 27, 2019, the petitioner of Mrs. T.T.P asked to be absent for the reason that she had an appointment with a doctor to re-examination in the afternoon of November 28, 2019 as her health was not good, and she determines that she still keeps the request to sue the People's Committee of Ward MH, District 3, Ho Chi Minh City that the act below of the People's Committee of Ward MH, District 3, Ho Chi Minh City is illegal: certifying the application for registration and issuance of a certificate of land use rights and house title and other property on land in Part II, Section 5. The status of disputes over land and property on land with the content: “Currently receiving the application to suspend granting house title filed by Mr. N.T.D dated December 22, 2018"; force the People's Committee of Ward MH, District 3, Ho Chi Minh City to confirm the status of no dispute on the application for registration and issuance of a certificate of land use rights, ownership of houses and other property on land Part II, Section 5. The status of disputes over land, properties on land, so that she can continue to complete the procedures for applying for a certificate, for the following reasons:

1/. The illegal administrative act of the People's Committee of MH Ward in confirming that the land is in dispute which prejudices her legitimate rights and interests, which is the subject matter of lawsuit falling under jurisdiction of the court as prescribed in Clause 1, Article 30 of the Law on Administrative Procedures 2015:

- Firstly, according to Point c, Clause 2, Article 70 of Decree 43/2014/ND-CP on elaboration of the Land Law (referred to as “Decree 43”), the certification of land in dispute is the responsibility and duty of the People's Committee of MH Ward in accordance with the law in the process of applying for a certificate of land use rights, ownership of houses and other property on land (referred to as "Certificate"). In case the land user submits an application for a Certificate at the People's Committee of Ward MH under the provisions of Clause 2, Article 70 of Decree 43, the People's Committee of the MH Ward is required to carry out this verification procedure (without any official letter or written request from the Land Registry Office). Therefore, this is an administrative act, an independent task and procedure that only the People's Committee of MH Ward performs in the process of granting the Certificate, but not the duty and responsibility of any other agency or organization.

- Secondly, according to the provisions of Articles 5 and 3, Article 70 of Decree 43 and Article 2 of Joint Circular 15/2015/TTLT-BTNMT-BNV-BTC in Viet Nam (hereinafter referred to as “Circular 15”) on guidelines for functions, tasks, powers, organizational structure and operation mechanism of the Land Registry Office under the Department of Natural Resources and Environment, the Land Registry Office does not have any responsibility and duty required by law to check and re-verify the land dispute that the People's Committee of Ward MH has certified.  The law does not stipulate the responsibility of the Land Registry Office in checking and verifying the land dispute is reasonable because only the People's Committee of ward is the local authority that is qualified and well-informed to certify the land in dispute located in the ward under management. The Land Registry Office only continues to carry out other procedures in the Certificate issuance process and will rely on certification of the land dispute status by the MH Ward People's Committee to issue the Certificate to the land user. Thereby, it can be determined that the act of certifying the land dispute is an administrative act of the People's Committee of MH Ward in performance of tasks and public duties as prescribed by law according to the definition of “administrative act” in Clause 3, Article 3 of the Law on Administrative Procedures 2015.

2/. The illegal certification by the MH Ward People's Committee is not an "internal administrative act of an agency or organization" as defined in Clause 6, Article 3 of the Law on Administrative Procedures 2015:

- Firstly, according to the provisions of Clause 4, Article 3 of the Law on Administrative Procedures 2010, "administrative acts of internal nature of an agency or organization" are only acts performed within an agency or organizations, in specific, "Administrative decisions and administrative acts of internal nature of an agency or organization are decisions and acts of management, direction and administration of activities to perform functions, duties within that agency or organization”.

- Secondly, in Clause 6, Article 3 of the Law on Administrative Procedures 2015, although it is not clearly defined as the Law on Administrative Procedures 2010: “Administrative decisions and administrative acts of internal nature of an agency or organization mean decisions and acts of directing and administering the performance of tasks and work plans; managing and assigning staff, funds and assets; examining and inspecting the performance of tasks, official duties, policies and laws for officials, public employees, workers and affiliates under the management of the agency or organization”. However, similar to the Law on Administrative Procedures 2010, "administrative acts of internal nature of an agency or organization" are just normal management and administration acts within the agency or organization itself.

- Thirdly, as analyzed in Section 1, the certification of the land status by the MH Ward People's Committee in the ward is an administrative act, a task, an independent procedure in accordance with the law in the process of issuance of a Certificate which includes varied procedures to issue a Certificate to a land user, not at the request or direction of the Land Registry Office, nor according to the internal direction and administration of the People's Committee of Ward MH. Therefore, this cannot be considered as an internal administrative act.

- Fourthly, the application for issuance of the Certificate made, drafted, signed, and submitted by the land user to the competent authority. The MH Ward People's Committee's illegal certification of the land dispute on the application for registration and issuance the Certificate will be considered an administrative act of the MH Ward People's Committee toward the land user. The application for registration and issuance of a Certificate is not a document issued separately by the MH Ward People's Committee or answered separately to the Land Registry Office, so it is not an "internal administrative decision or administrative act".

3/. Legal foundation to prove that she has legal ownership of the house No. 453/90 Street S, Ward MH, District 3 (referred to as “House 453/90”) to carry out the procedures for applying for a Certificate:

- Firstly, the License for sale, purchase, and relocation of houses No. 193/GP-UB issued by the People’s Committee of District 3 dated on June 26, 1987 proves that her husband legally owns the house No. 453/90 Street S, Ward HH, District 3 (currently MH Ward, District 3).

- Secondly, the Decision on recognition of successful reconciliation No. 56/HGT dated on June 22, 1991 by the People's Court of District 3 prove that her husband has the right to own House 453/90, so he can agree and allow Mrs. M to use the first floor area, namely:

Her husband allowed Mrs. M to stay and occupy the area of ​​​​the 1st floor of the house 453/90, Street S, MH Ward, District 3, 12m x 3.8m wide, and at the same time, there is a separate entrance behind the house from the stairs down;

Her husband agreed to allow Mrs. M to park her vehicle on the ground floor;

Later, when Mrs. M is able to move out, her husband is responsible for returning Mrs. M 2 taels and 5 maces of 24k gold (kind of 9.6 years old) at the People's Court of District 3.

- Thirdly, according to Ms. M's case report dated March 22, 1991, sent to the People's Court of District 3, Mrs. M repeatedly affirmed that House 453/90 was owned by her husband.

- Fourthly, according to the curriculum vitae of Mrs. NTM declared on November 15, 1990, certified by the People's Committee of Ward MH, District 3 on November 15, 1990 (attached to the application for going abroad on November 15, 1990 of Mrs. N.T.M, Mrs. M confirmed and committed to take responsibility before the law that "the house shared with her younger brother, owned by the younger brother, has no means of production or business". That is, Mrs. M has confirmed that Mrs. M does not own any property in Vietnam before leaving the country.

From the above documents, it is proved that her husband obtains legal ownership of House 453/90 and Mrs. M does not have any ownership rights to House 453/90. Therefore, it is also legal for her to accept the inheritance and have ownership rights to the inherited property as the House 453/90. 4/. The legal foundation proves that the People's Committee of Ward MH, District 3, Ho Chi Minh City has illegally certified on the Application for Certificate:

After her husband passed away, on December 6, 2018, she submitted all necessary documents and records as prescribed by law to apply for a Certificate at the Branch of Land Registry Office District 3.

The Branch of Land Registry Office District 3 has received all the documents and carried out the procedures for publicly posting the results of the examination of the records, certifying the existing status of the property in dispute, origin and time of land use at the headquarters of the People's Committee of Ward MH within 15 days as prescribed in Clause 2 and Point a, Clause 3, Article 70 of Decree 43/2014/ND-CP dated May 15, 2014 on elaboration of the Land Law (referred to as Decree 43). According to the provisions of Point c, Clause 2, Article 70 of Decree 43, the People's Committee of MH Ward is only allowed to consider and handle complaints about the contents of the public posting and send the dossier together with the feedback to the Land Registry Office District 3 land within 15 days from the date of receiving the dossier sent by the Land Registry Office District 3 to the People's Committee of Ward MH for public posting procedures.

On December 24, 2018, Mr. T.T.T, the Chairman of the People's Committee of Ward MH, on its behalf, certified on her application for a certificate in Part II, Section 5 “Status of the dispute over land and property on land as follows:  “Currently receiving the application to suspend granting house title filed by Mr. N.T.D dated December 22, 2018".

She filed a request for photocopying of documents with the People's Court of District 3 on October 1, 2019 to ask for copies of all documents and records to prove that the house 453/90 Street S, MH Ward, District 3 is in dispute that the MH Ward People's Committee sent to the Branch of Land Registry Office District 3. After reviewing these documents, she discovered that:

(i) in the dossier, there is only Mr. N.T.D's application to suspend granting house title dated 12/07/2013; and (ii) in that dossier there is not any application to suspend granting house title by Mr. N.T.D dated 22/12/2018.

Thus, through the documents and records that the People's Committee of MH Ward, District 3, Ho Chi Minh City has sent to the Branch of the Land Registry Office in District 3, it can be confirmed that the People's Committee of MH Ward has made illegal certification on the Application for Certificate in Part II, Section 5 – The status of dispute over land and properties on land, although the People's Committee of Ward MH did not receive the application to stop granting house title from Mr. NTD dated December 22, 2018 during the public posting period.  5/. The legal foundation proves that Mr. N.T.D did not have ownership rights to House 453/90 to file an Application to suspend grant of house title on 12/07/2013:

(1) Mr. N.T.D and the People's Committee of Ward MH did not keep and provide any documents proving his land use rights and ownership of House 453/90 through the following forms: creation, gift, or inheritance according to the provisions of the Civil Code 2015 in Viet Nam, Land Law 2013 and Housing Law 2014 in Viet Nam and guiding documents.

In specific, Article 100 of the Land Law 2013 regulates the grant of the certificate of land use rights and ownership of houses and other property on land to households, individuals and communities that are using land and have documents on land use rights:

1. Households and individuals that are using land stably and have one of the following documents shall be granted a certificate of land use rights and ownership of houses and other property on land without having to pay land use levy:

a) The documents on land use rights before October 15, 1993, which were granted by a competent agency in the process of implementing the land policy of the Democratic Republic State of Vietnam, the Provisional Revolutionary Government of the Republic of South Vietnam or the Socialist Republic of Vietnam;

b) Temporary certificates of land use rights granted by competent state agencies, or having their names recorded in the Land Register Book or Cadastral Book before October 15, 1993;

c) Lawful papers on inheritance or donation of land use rights or property on land, documents on hand-over of gratitude house or charity house on land;

d) The document on the transfer of land use rights or purchase of houses on residential land before October 15, 1993, and such houses were certified as being used before October 15, 1993, by the commune-level People’s Committee;

dd) The document on liquidation of houses on residential land by the State or document on purchase of a state-owned house in accordance with law;

e) The document on land use rights issued by a competent authority of the former regime to land users;

g) Other documents issued before October 15, 1993, in accordance with the Government’s regulations.” (2) Mr. N.T.D and MH Ward People's Committee failed to keep and provide any documents proving the land use right and ownership of House 453/90 of Mrs. M and the legal power of attorney of Mrs. M for Mr. NTD, on behalf of Ms. M, to file an application to suspend the grant of ownership of House 453/90.

6/. Legal foundation and procedures as prescribed by law for the People's Committee of MH Ward to handle Mr. N.T.D's application to suspend the granting of house title dated July 12, 2013:

On July 12, 2013, when Mr. N.T.D filed the Application to suspend the grant of house title to the People's Committee of MH Ward, she did not carry out any procedures to apply for a Certificate and the MH Ward People's Committee did not carry out any procedures for public posting as prescribed in Clause 2 and Point a, Clause 3, Article 70 of Decree 43. As analyzed in Section 5 above, the People's Committee of Ward MH is only allowed to consider and settle the Application to suspend the grant of house title and send it to the Land Registry Office of District 3 within 15 days from the date of receipt of the dossier submitted by the Land Registry Office of District 3 to the People's Committee of Ward MH for public posting procedures. In addition, there is no legal foundation for the MH Ward People's Committee to receive and process the application to suspend granting house title without any public posting procedures being carried out at that time.

Therefore, it is completely illegal for the MH Ward People's Committee to receive and process the application to suspend the granting of house title filed by Mr. N.T.D dated July 12, 2013. In this case, based on Clause 1, Article 203 of the Land Law 2013 stipulating the competence to settle land disputes, the People's Committee of MH Ward should have refused the application to suspend the granting of house title from Mr. N.T.D and guide him to carry out the procedure to initiate a lawsuit with the competent People's Court if he has legal documents to prove his claim. Even in this case, even if Mr. N.T.D has a full legal power of attorney from Mrs. M, Mr. N.T.D can only request the competent judgment enforcement agency to execute the Decision on recognition of the successful conciliation No. 56/HGT dated June 22, 1991, issued by the People's Court of District 3 and asked her to return to Mrs. M 2 (two) taels and 5 (five) maces of 24k gold only if the prescriptive period is still valid as prescribed by law on judgment enforcement. It is impossible to ask a competent Court to settle the ownership dispute over House 453/90, because according to point c, clause 1, Article 192 of the Civil Procedure Code 2015 in Viet Nam, the Court will return the lawsuit petition because the case has been settled by a legally effective decision of the Court (Decision recognizing the successful conciliation as No. 56/HGT dated June 22, 1991 of the People's Court of District 3) or an effective decision made by the competent state agency (License to regularize the sale, purchase and relocation of houses No. 193/GP-UB dated on June 26, 1987 issued by the People's Committee of District 3 to her husband - Mr. T.D.D). 7/. The legal foundation proves that the People's Committee of Ward MH covered up Mr. N.T.D's act of providing fake power of attorney during the settlement of the case:

At this conciliation on February 15, 2019, Mr. T.T.T - Chairman of the People's Committee of MH Ward requested Mr. D to provide Mrs. M's power of attorney, stating that Mrs. M authorized Mr. D to submit an application to suspend granting ownership of House 453/90 and confirmed that this power of attorney was granted in accordance with the provisions of the law.

Mrs. M's power of attorney for Mr. N.T.D is a fake power of attorney and the authorization is invalid for the following reasons:

(1) The power of attorney of Mrs. M was made after the date Mr. N.T.D submitted the application to suspend granting house title No. 453/90 in 2013 and December 22, 2018 (according to the certification of the People's Committee of Ward MH). According to Articles 140 and 563 of the Civil Code 2015, Ms. M's authorization is only effective from the date the power of attorney is legally and validly made. Thus, the fact is that Mr. NT filed an application and documents enclosed to suspend granting the title of House 453/90 in 2013 and on December 22, 2018 (as confirmed by the People's Committee of Ward MH) is a unilateral act of Mr. D without authorization from Mrs. M;

“Article 140. Term of representation

1. The term of representation shall be determined according to a written authorization, a decision of a competent authority, a charter of a legal entity, or a provision of law.

Article 563. Authorization period The authorization period shall be agreed upon by the parties or prescribed by law; if there is no agreement and there is no law provision, the authorization contract is valid for 1 year from the date of establishment of the authorization.”

(2) Mrs. M's power of attorney bears no signature of Mrs. M;

(3) The power of attorney of Mrs. M is made in Vietnamese, accompanied by a certification page in English by a competent authority in the United States. Meanwhile, according to the process of consular legalization in the United States and the provisions of Vietnamese law, Mrs. M's power of attorney must be made in English so that the competent authority in the United States can read, understand, and confirm thereon. After that, this power of attorney must be sent to Vietnam for notarization and authentication in Vietnam and translated into Vietnamese by a competent notary office in Vietnam and certified on the legitimacy of such power of attorney. Thus, Mrs. M's power of attorney does not comply with the formalities prescribed by the law, specifically, there is no English version certified by a competent authority in the United States, and no Vietnamese version is available certified by an authorized notary office in Vietnam. Regulations on consular legalization of foreign documents in Vietnam of Decree No. 111/2011/ND-CP in Viet Nam on consular certification and legalization issued by the Government on December 5, 2011 stipulate as follows:

“Article 2. Interpretation of terms […]

2. “Consular legalization” means the competent Vietnamese agencies' certification of stamps, signatures, and titles on foreign papers and documents for being recognized and used in Vietnam.

Article 4. Requirement of consular certification and legalization […]

2. To be recognized and used in Vietnam, papers, and documents of foreign countries must be consularly legalized, except the cases specified in Article 9 of this Decree.

Article 5. Vietnamese agencies competent to carry out consular certification and legalization

1. The Ministry of Foreign Affairs is competent to carry out consular certification and legalization.

The Ministry of Foreign Affairs may authorize foreign affairs agencies of provinces and centrally run cities to receive dossiers of request for consular certification or legalization.

Article 14. Order and procedures for consular legalization at the Ministry of Foreign Affairs

1. A requester for consular legalization shall submit a dossier comprising:

a) One declaration for consular legalization, made according to a set form;

b) A personal identification paper, for production in case of direct submission;

c) One copy of the personal identification paper, in case of submission by post;

d) Papers and documents requested for consular legalization, which have been certified by a foreign diplomatic representative mission or consulate or another foreign agency authorized to perform the consular function;

dd) One Vietnamese or English translation of each paper or document requested for consular legalization, if such papers and documents are not made in these languages;

e) Copies of papers and documents mentioned at Points d and e above, one copy each for filing at the Ministry of Foreign Affairs.

[…]” (4) The process mentioned in item (3) above takes about 2 months. However, within 3 weeks from the conciliation session on January 24, 2019 (at this conciliation, Mr. NTD confirmed that there was no power of attorney from Mrs. M and would provide it later) to the conciliation meeting on February 15, 2019, Mr. NT was able to provide a power of attorney from Mrs. M. This further proves that this power of attorney is fake.

From the above reasons, she proposes the Trial Panel to accept her petition.

Pursuant to Clause 1, Article 158 and Point a, Clause 1, Article 168 of the Law on Administrative Procedures 2015 , the Court settled the case in the absence of the petitioner, Mrs. T.T.P.

[2.2]. The respondent, People's Committee of Ward MH, District 3, Ho Chi Minh City has been duly served by the Court with legal documents below:  Notice of acceptance of the case, summons to present opinions, notices of meetings to check the handover, access, disclosure of evidence and dialogues, the decision to bring the case to trial, the decision to adjourn the court hearing and the summons to appear in court but the respondent was still absent, despite being duly summoned for the second time by the Court.  Pursuant to Point b, Clause 2, Article 157, Clause 3, Article 158 and Point b, Clause 1, Article 168 of the Law on Administrative Procedures 2015, the People's Court of District 3 conducts the trial in the absence of the respondent, the People's Committee of MH Ward, District 3, Ho Chi Minh City.

[3]. Regarding the petitioner's petition, Mrs. T.T.P:

 [3.1]. In Section 5. The status of disputes over land and property on land, Part II. Certification of the People’s Committee of commune, ward, town” in the application dated December 6, 2018 of Mrs. T.T.P, born in 1958, for registration and issuance of a certificate of land use rights and house title and other property on land at 453/90, Street S, Ward MH, District 3, confirmed by Mr. T.T.T - Chairman on behalf of the People's Committee of Ward MH, District 3, Ho Chi Minh City to confirm “Currently receiving the application to suspend granting house title filed by Mr. N.T.D dated December 22, 2018”.During the course of the Court's acceptance of the case until today's trial, despite being properly summoned by the Court many times, the head of the MH Ward People's Committee did not come to the Court nor authorize the deputy to participate in the proceedings to settle this administrative lawsuit, according to the provisions of Article 60 of the Law on Administrative Procedures, nor submit a request for trial in his absence, causing prejudice to the Court to settle the case as well as taking of documents and evidence.  On August 2, 2019, after the Court held the first meeting to consider evidence and hold the first dialogue, the People's Committee of MH Ward sent a judicial officer of the ward to the Court to submit a statement of opinion, Document No. 107/UBND dated July 30, 2019, attached unauthenticated copies of a number of documents, including: Decision on recognition of successful conciliation No. 56/HGT dated June 22, 1991 of the People's Court of District 3; Minutes of the meeting of the Family Council; License for legalization of house purchase, sale and relocation No. 193/GP-UB dated June 26, 1987; Mrs. T.T.P's application for issuance of a certificate; Minutes of conciliation at MH Ward on January 24, 2019 and February 15, 2019; Official Dispatch No. 25/UBND dated February 21, 2019 of the People's Committee of Ward MH responding to the Complaint dated January 30, 2019 of Mrs. T.T.P; Mr. N.T.D's application to prevent the granting of house title dated December 22, 2018, Power of attorney (not dated) of Mrs. N.T.M; English document) without the original for comparison, the head of the MH Ward People's Committee did not come nor send anyone to the Court to explain these documents. In addition, the People's Committee of Ward MH did not submit nor explain the reason for not being able to submit the evidence according to the Notice of evidence submission dated July 9, 2019 of the Court. Therefore, there is no legal foundation for the Trial Panel to consider these documents.

The Official Letter No. 1527/CN.VPDK.Q3 dated September 25, 2019 of the Branch of the Land Registry Office of District 3 responding to the People's Court of District 3 on the provision of real estate evidence shows:

“On December 10, 2018, the District 3 Branch received an application for issuance of a certificate of land use rights, ownership of houses and other property on land for the house 453/90 S Street, Ward MH, District 3 filed by Mrs. T.T.P. The Branch shall send the application for public posting to the People’s Committee of Ward MH, District 3 as prescribed.

On December 24, 2018, the People's Committee of Ward MH, District 3 certified the application in Section 5 “Status of the dispute over land and property on land as follows:  Currently receiving the application to suspend granting house title filed by Mr. N.T.D dated December 22, 2018, attached photocopies include:  the application to prevent granting house title made by Mr. N.T.D dated July 12, 2013, estate declaration dated July 6, 1987, consent form dated August 28, 1987 of Mr. T.D.D, minutes of meeting of the Family Council dated January 8, 1988, household guarantee document dated August 12, 1987 made by Mr. T.D.D, death certificate of Mr. T.D.D."  At Point c, Clause 2, Article 70 of Decree 43/2014/ND-CP dated May 15, 2014 of the Government on elaboration of the Land Law concerning procedures for registration of land and property on land and grant of certificates of land use rights and ownership of houses and property on land for the first time and additional registration of property on land:

“2. If a household, an individual, a community or an overseas Vietnamese entitled to own houses in Vietnam requests registration of land and property on land or grant of a certificate of land use rights and ownership of houses and other property on land, the commune-level People’s Committee shall examine the dossier and perform as follows:

c) Publicly posting up for 15 days the results of dossier examination, certification of current land use status and state of dispute, origin and use time of land at its office and in the residential area where the land and property on land are located; considering and settling feedback on the publicized contents, and sending the dossier to the land registration office.”

Thus, at the time the People's Committee of Ward MH, District 3 certified the land dispute on Mrs. T.T.P's application for Certificate dated December 6, 2018, there was no "application to prevent the grant of house title by Mr. N.T.D on December 22, 2018".

Therefore, the above certification of the People's Committee of Ward MH, District 3 is illegal, based on Point c, Clause 2, Article 70 of the Government's Decree No. 43/2014/ND-CP dated May 15, 2014 on elaboration of the Land Law.

[3.2]. Based on the documents and evidence provided by Mrs. N.T.M, Mr. T.D.D as well as the statements of Mrs. N.T.M and Mr. T.D.D in the reports, records of testimonies, and minutes of reconciliation. The minutes of successful conciliation, collected by the People's Court of District 3 in the file with the Decision on recognition of successful conciliation No. 56/HGT dated June 22, 1991:

Mr. T.D.D (died in 1986) and Mrs. NTQ (died in 1987) lived together and had two children, Mrs. NTM, born in 1945 and Mr. T.D.D, born in 1948. In 1987, Mr. D and Mrs. Quy died leaving two houses at 491/15 and 453/90, Street S. Mrs. M and Mr. D agreed to divide the inheritance and complete the paperwork to regularize the above two houses, specifically as follows:

+ House No. 491/15 Street S, Ward HH (now Ward MH), District B belongs to Mrs. N.T.M., according to the License to regularize the sale, purchase and relocation of houses No. 194/GP-UB dated on June 26, 1987.

+ House No. 491/15 Street S, Ward HH (now Ward MH), District B belongs to Mrs. N.T.M., according to the License to regularize the sale, purchase and relocation of houses No. 194/GP-UB dated on June 26, 1987.

In 1987, Mrs. M sold the house at 491/15 S Street and went to share a house with Mr. D, Mrs. M was on the first floor, and Mr. D was on the ground floor. Before entering this house, Mrs. M gave Mr. D 2 (two) taels and 5 (five) maces of 24K gold, certified by the Family Council in the Minutes of the Family Council meeting on January 8, 1988.

When they moved in together, there was a conflict, so they could not live together, so Mr. D agreed to return Mrs. M 2 (two) taels and 5 (five) maces of 24K gold and asked Mrs. M to return the house to him.

On June 7, 1991, the People's Court of District 3 made a record of successful reconciliation, recording the agreement of Mrs. M and Mr. D as follows: "Mr. D agreed to let Mrs. M continue to stay on the first floor of the house 453/90 Street S, Ward MH, District B, area 12m x 3.8m, with a separate staircase behind the house and he agreed to let Mrs. M park the vehicle on the ground floor of the house. When Mrs. M moves out, he will refund her 25 maces of 9.6-year-old 24K gold at the People’s Court of District 3. Mrs. M agrees with the above solution.” From the above analysis, it is shown that neither Mr. N.T.D. nor Mrs. N.T.M. has the right to make an application to prevent the grant of title over the house at 453/90 Street S, Ward MH, District 3, Ho Chi Minh City.

Therefore, the entire petition of Mrs. T.T.P is grounded for the Trial Panel to accept.

[4]. Regarding the first-instance administrative court fee: Since the plaintiff's entire lawsuit claim is accepted, the respondent must bear the first-instance administrative court fee in accordance with law.

For the foregoing reasons, 

DISPOSITION

- Pursuant to Clauses 3 and 4, Article 3; Article 29; Clause 1 Article 30; Clause 1, Article 31; Clause 1 and Point a, Clause 2, Article 116; Point b Clause 2 Article 157, Clause 1 Article 158, Article 164, Article 168, Point c Clause 2 Article 193 and Articles 194, 195, 204, 206 and 213 of the Law on Administrative Procedures 2015;

- Pursuant to the Land Law 2013;

- Pursuant to Point c, Clause 2 of Decree No. 43/2014/ND-CP dated May 15, 2014 of the Government on elaboration of the Land Law;

- Pursuant to Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee on court fees and charges, collection, exemption, reduction, management, and use thereof (enclosed);

Declare:

1/. Accept the entire petition of the petitioner, Mrs. T.T.P:

- Declare the act below of the People's Committee of Ward MH, District 3, Ho Chi Minh City is illegal: certifying the application for registration and issuance of a certificate of land use rights and house ownership and other property on land in Part II, Section 5. The status of disputes over land and property on land with the content:  “Currently receiving the application to suspend granting house title filed by Mr. N.T.D dated December 22, 2018”; force the People's Committee of Ward MH, District 3, Ho Chi Minh City to stop the above-mentioned illegal administrative act;

- Force the People's Committee of MH Ward, District 3 to be responsible for certifying no dispute in the "Application for a certificate of land use rights, ownership of houses and other property on land of Mrs. T.T.P, born in 1958, with address at 453/90 S Street, MH Ward, District 3, Ho Chi Minh City”, so that Ms. Phuong continues to complete the Certificate issuance procedure.

2/. Regarding the first-instance administrative court fee: The People's Committee of MH Ward, District 3, Ho Chi Minh City must bear the first-instance administrative court fee of 300,000 (Three hundred thousand) dong.

3/. With reference to right to appeal: The litigants are entitled to file an appeal within 15 (Fifteen) days from the date the judgment is given or posted.

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 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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Judgment no. 03/2019/HC-ST dated november 28, 2019 on lawsuit against administrative act in the field of state management of land

Số hiệu:03/2019/HC-ST
Cấp xét xử:Sơ thẩm
Agency issued: Tòa án nhân dân Quận 3 - Hồ Chí Minh
Field:Hành chính
Date issued: 28/11/2019
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