Judgment no. 17/2018/DS-PT dated october 26, 2018 on dispute over a loan agreement

THE PEOPLE'S COURT OF DIEN BIEN PROVINCE

JUDGMENT NO. 17/2018/DS-PT DATED OCTOBER 26, 2018 ON DISPUTE OVER A LOAN AGREEMENT

On October 26, 2018, at the headquarters of the People's Court of Dien Bien province, the public appellate hearing of the case No. 13/2018/TLPT-DS is held on August 3, 2018 in the matter of "dispute over a loan agreement"

as the first instance judgment No. 27/2018/DS-ST dated June 28, 2018 of the People's Court of district Y was appealed by the litigant and by the People's Procuracy of district Y.

According to Decision to bring the case to appellate trial No. 22/2018/QD-PT dated October 3, 2018 between:

* Petitioner: Ms. Nguyen Thi H, born in 1964; Address: House No. A, Neighborhood B, Ward C, City D, Dien Bien Province (appearing in court).

- Authorized representative of Mrs. Nguyen Thi H: Mr. Bui Cong L, address:  House Number D, Neighborhood E, Ward N, City D, Dien Bien Province (according to the authorization contract and the decision on assignment dated July 2, 2018, appearing in court).

* Respondent: Ms. Vu Thi H1, born in 1983; Address: Team 2B, village M, commune T, district Y, Dien Bien province (Currently residing and working in Denmark).

- Authorized representative of Ms. H1, Ms. Nguyen Thi H2, address: Team 2B, village M, commune T, district Y, Dien Bien province (according to the Power of Attorney dated July 6, 2018, appearing in court).

FACTUAL AND PROCEDURAL BACKGROUND

* Representation of Ms. Nguyen Thi H in the lawsuit petition filed on July 2, 2017, during the process of solving the case and at the trial:

In 2011, Ms. H lent Ms. H1 money many times. Until August 6, 2011, Ms. H lent Ms. H1 an amount of VND 690,000,000 (six hundred and ninety million dong), Ms. H1 mortgaged the land use right certificate (aka the red book) as collateral for the loan agreement, with interest rate 5% per month.  Both parties had mutually made a written loan document, Ms. H1 committed to repay the loan 5 days later; the loan document bears the signatures of the lender, Nguyen Thi H and the borrower, Vu Thi H1. After borrowing money, Ms. H1 did not make the repayment as committed but fled abroad until 2017 to return to Vietnam.  Therefore, Ms. H filed a lawsuit to request the Court to force Ms. H1 to pay the principal amount of VND 69,000,000 and interest of VND 300,000,000.

* Representation of Ms. Vu Thi H1 in the statement dated July 6, 2017 and the voluntary statements dated July 6, 2017:

There is no loan agreement between Ms. H1 and Ms. Nguyen Thi H. Ms. H invited Ms. H1 to contribute capital to do business with the interest rate of 10% per month. At first, Ms. H1 agreed to participate, because she had no cash, she gave Ms. H 01 red book, Ms. H said that if it was pledged, she would only get 30,000,000 VND.  After a night of thinking, the next afternoon, Ms. H1 called Ms. H to refuse to participate and asked to get her red book back, but Ms. H did not return it.  After that, Ms. H1 moved to Hanoi to do business and in October 2012, Ms. H1 moved to Denmark to live and work.  From October 2012 to July 2017, Ms. H1 returned to Vietnam twice and met with Ms. H to clear everything. Ms. H1 declared that she did not borrow Ms. H an amount of 690,000,000 VND, the story Ms. H told was completely made up without any ground.  Due to the limited leave time, Ms. H1 authorized Ms. H2's biological mother, Ms. Nguyen Thi H2, to participate in solving the case.

During the settlement of the case, during the conciliation session on October 13, 2017, the authorized representative of the respondent solicited judicial expertise of the handwriting in the debt acknowledgement letter dated August 6, 2011. The People's Court of District Y issued the decision to solicit judicial expertise No. 15/2017/QD-TCGD dated October 18, 2017.

The Section 5.2 of the Expertise Conclusion No. 66/GD-PC54 dated November 2, 2017 of Criminalistics Department of Dien Bien Police indicates that: The handwriting “Vu Thi H1” under the section: "Borrower" on the “Debt acknowledgment letter” dated August 6, 2011 symbol A and the handwriting on the documents: “Statement” dated July 6, 2017 symbol M1, “Voluntary statement” dated July 6, 2017 M2 symbol; an A4 sheet of paper with the content: "I have received the full amount of VND 6,300,000 under the contract dated June 26, 2008 between facility No. 2 and the vocational school" with the symbol M3 are written by the same person. At the first-instance court hearing on June 28, 2018, the authorized representative of the petitioner requested to withdraw part of the lawsuit claim concerning the interest rate of VND 300,000,000, the petitioner only asked the Court to force Ms. pay the principal amount of VND 69,000,000 (six hundred and ninety million dong).

The Judgment No. 27/2018/DS-ST dated June 28, 2018 of the People's Court of District Y:

1. Judge: Accept the petition of petitioner Nguyen Thi H forcing Ms. Vu Thi H1 to repay the principal amount of VND 690,000,000 (six hundred and ninety million dong) to Ms. Nguyen Thi H and Ms. Nguyen Thi H must return to Ms. Vu Thi H1 the certificate of land use rights No. BC574716, book No. CH00163- QSDD dated March 10, 2011.

Accept and suspend the trial regarding the petitioner's withdrawal of the lawsuit petition asking the Court to force the respondent to pay the interest of VND 300,000,000.

From the date on which Ms. H files a written request for judgment enforcement, if Ms. H1 does not voluntarily repay the said amount to Ms. H, then Ms. H1 will also have to pay interest on the amount of late payment corresponding to the late payment period.  The interest accrued due to late payment is determined according to the Articles 357 and Article 468 of the Civil Code in Viet Nam.

2. In addition, the judgment also pronounced the court fee, the cost of proceedings, appeal right of the litigants.

On July 5, 2018, the authorized representative of the respondent filed an appeal against the entire first-instance judgment because she did not take out a loan from Mrs. H, so she is not responsible for repayment.  On July 11, 2018, the People's Procuracy of District Y issued the Decision on Appeal No. 221/QDKNPT-VKS-DS with the content:  Appeal against the judgment No. 27/2018/DSST dated 28/ 6/2018 because the People's Court of District Y handled the case without due jurisdiction and with serious procedural error - violating Clause 3, Article 35; Point c, Clause 1, Article 37 of the Civil Code 2015.

At the appellate court hearing, the authorized representative of the respondent upholds the appeal, because in fact, Ms. H1 neither borrow money nor sign a loan document, the loan was not real; request the Court to investigate and verify the petitioner's financial condition to see if it was possible for her to lend the amount as stated in the petition.  The representative of the People's Procuracy of Dien Bien province sustains the content of the appeal, the litigants request the People's Court of Dien Bien province to resolve the content of the People's Procuracy's appeal in accordance with the law.

During the litigation, the representative of the People's Procuracy of Dien Bien province comments that during the process of settling the case at the appellate level, the presiding judge, the presiding officers, and the participants in the proceedings have strictly complied with the Civil Procedure Code in Viet Nam.

Based on the documents available in the case file and the opinions of the litigants at the trial, the representative of the People's Procuracy of Dien Bien province assesses as follows:  the respondent in the case is Ms. H1 who has resided and worked abroad in Denmark since 2012.  The district Y People's Court's handling of the case violates its jurisdiction as prescribed in Clause 3, Article 35; Point c, Clause 1, Article 37 of the Civil Procedure Code 2015. So, the appeal of the representative of the respondent is groundless to accept.  Therefore, the People's Procuracy of Dien Bien province proposes the Appellate Trial Panel to, based on Clause 3, Article 308, Article 310 of the Civil Procedure Code:  Reverse the first-instance judgment No. 27/2018/DS-ST dated June 28, 2018 of the People's Court of Dien Bien province.

JUDGEMENT OF THE COURT

After considering the documents contained in the case files which have been verified at the trial and based on the results of the oral argument at the trial, the Trial Panel determines:

[1] Considering the content of the People's Procuracy's appeal:

Pursuant to the petitioner's lawsuit claim which has been accepted as prescribed in Article 26; Article 35 of the Civil Code 2015. However, during the investigation, verification and collection of evidence, it has been shown that:  Vu Thi H1 is currently living in Denmark; according to the guidance at point b, Article 7 of Resolution No. 03/2012 dated December 3, 2012 of the Council of Judges, Ms. H1 is an overseas litigant at the time Ms. H initiated the lawsuit.  Therefore, applying Clause 3, Article 35 of the Civil Code 2015, the case does not fall under the jurisdiction of the district-level People's Court.  However, the People's Court of District Y did not transfer the case to the People's Court of Dien Bien province, but continued to settle and adjudicate the dispute between the parties, which was an undue jurisdiction and serious procedural error.  Therefore, the content of the appeal of the People's Procuracy is completely accordant with regulations, the Appellate Court considers it necessary to apply Clause 3, Article 308, Article 310 of the Civil Procedure Code to:  Reverse the first-instance judgment and remand the case file to the People’s Court of Dien Bien province for further proceedings with due jurisdiction.

[2] Since the first-instance judgment is reversed, the case file is accepted and re-resolved by the People's Court of Dien Bien province, so the Appellate Trial Panel, based on Clause 1, Article 289, Point g, Clause 1, Article 217, Clause 1. Article 192 of the Civil Code 2015, does not consider the appeal of the authorized representative of the respondent.

[3] Regarding first instance civil court fee: Since the first-instance judgment is reversed, the case file is remanded to the People's Court of Dien Bien province to re-settle the case according to first-instance procedures, so the obligation to bear the first-instance court fee will be re-determined when the case is re-resolved according to first-instance procedures.

[4] Regarding appellate civil fee: Pursuant to Clause 3, Article 148/ the Civil Procedure Code; Point c, Clause 1, Article 24, Clause 3, Article 29 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016.

Ms. Vu Thi H1 does not have to bear the appellate civil court fee, refund Ms. H1's authorized representative the amount of 300,000 VND in advance of appellate court fee paid at the Civil Judgment Execution Sub-Department of District Y according to the receipt No. AA/2016/0002849 dated July 11, 2018.

For the foregoing reasons,

DISPOSITION

Pursuant to Clause 3, Article 308 of the Civil Procedure Code; Clause 3, Article 148 of the Civil Procedure Code; Point c, Clause 1, Article 24, Clause 3, Article 29 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016.

Declare:

1. Reverse the first-instance judgment No. 27/2018/DS-ST dated June 28, 2018 of the People's Court of Dien Bien province.  Remand the case file to the People's Court of Dien Bien province for further proceedings under first instance procedure.

2. With reference to court fees:

Regarding appellate civil fee: Ms. Vu Thi H1 does not have to bear the appellate civil court fee, refund Ms. H1's authorized representative the amount of 300,000 VND in advance of appellate court fee paid at the Civil Judgment Execution Sub-Department of District Y according to the receipt No. AA/2016/0002849 dated July 11, 2018.

3. The appellate judgment takes legal effect from the date of pronouncement (October 26, 2018).