Judgment no. 17/2018/HNGD-PT dated april 24, 2008 on division of property of cohabiting couples

PEOPLE’S COURT OF BAC GIANG PROVINCE

JUDGMENT NO. 17/2018/HNGD-PT DATED APRIL 24, 2008 ON DIVISION OF PROPERTY OF COHABITING COUPLES

On March 26 and April 24, 2018, at the office of People’s Court of Bac Giang Province, an appellate trial is conducted to hear the civil case No. 69/20112/TLST-DS dated December 26, 2017 on division of property of cohabiting couples.

Based on the appeal against the First Instance Civil Judgment No. 110/2017/DSST dated October 12, 2016 of People’s Court of District L.

According to the Decision to Bring the Case to Trial No. 05/2018/QDPT dated February 22, 2017 and the Decision to Suspend the Court Hearing No. 08/2018/QD-PT dated March 7, 2018 and Decision to Delay the Court Hearing No. 04/2018/QD-PT dated March 26, 2018, between the litigants:

-Petitioner:  Mrs. Vu Thi N, born in 1975 (absent), address: Village Y, Commune Y, District L, Bac Giang Province. Represented by Mr. Nguyen Van H, born in 1958 (Letter of Authorization dated March 22, 2016).

Address: No. 06, Street N, Ward T, City B, Bac Giang Province. (Mr. H presented at the court hearing dated March 26, 2018; Mr. filed a request for trial in absentia to the court hearing dated April 24, 2018)

Respondent: Mr. Nguyen Van C, born in 1976

Address: Village Y, Commune Y, District L, Bac Giang Province.

- Persons with related interests and obligations:

1. Mrs. Nguyen Thi G, born in: 1948

Address: Village Y, Commune Y, District L, Bac Giang Province.

Legal aid lawyer of Mrs. Nguyen Thi G: Mrs. Vo Thi An B, collaborator of the state legal aid center of Bac Giang Province

(Mr. C, Mrs. G, and lawyer Vo Thi An B presented at the court hearing on March 26, 2018; they were absent from the court hearing on April 24, 2018).

2. The People’s Committee of District L: represented by Mr. Giap Van O - Deputy President of the People’s Committee of District L (Power of Attorney dated July 29, 2016) (absent).

3. The People’s Committee of Commune Y: Represented by Mr. Vu Van T - President of Commune (absent).

-Appellant: Petitioner Mrs. Vu Thi N; respondent Mr. Nguyen Van C; persons with relevant rights and obligations Mrs. Nguyen Thi G

THE CASE

Representation of Mrs. Vu Thi N: Since 1994, she and Mr. C had lived together without marriage registration. In 1995, she and Mr. C gave Mrs. G (her mother-in-law) a sum of money to buy a piece of residential land in Village Y, Commune Y with the area of 300m2 valued at VND 900,000. In 1998, she and Mr. C continued buying a piece of 28m2 residential land, then she and Mr. C applied for land use right certificate. In October 2001, the People’s Committee of District L granted a land use right certificate to her household for 328m2 of residential land (the property ownership is put under the name of Mr. Nguyen Van C). In 2009, she worked abroad and then sent Mr. C a sum of money, in 2010, Mr. C built a 2-storey house. Now, she requests the Court to divide the property consisting of 328m2 of land and the 2-storey house as per the law. But she has no need to use the land and house, she requests the Court to hand them over to Mr. C, and then Mr. C must pay her portion of the common property. She does not request the Court to settle other property including yard, #, desks and chairs, cabinets, beds, plants on land, debts, paddy fields.

At the first instance court hearing, Mr. Nguyen Van H, representative of Mrs. Vu Thi N, still withholds Mrs. N’s deposition in the self-declaration and record of deposition made by the Court. Request the Court to consider determining property of Mrs. N and Mr. C acquired during their cohabitation, including a 2-storey house valued at VND 296403,800; 328m2 of residential land valued at VND 36,080,000 (according to the valuation report dated June 30, 2016 and re-valuation report dated August 25, 2017) and divide the property as per the law. However, Mrs. N has no need to use land and house, she requests the Court to hand them over to Mr. C and Mr. C must pay the value of her portion of the common property, and does not require the Court to settle other assets such as yards, #, desks and chairs, cabinets, beds, plants on land, debts, paddy fields.

Representation of Nguyen Van C in the lawsuit petition dated February 19, 2016 and the record of deposition at the court hearing: Since 1994, she and Mr. C had lived together without marriage registration. During cohabitation time, they do not acquire any property. The piece of land of 300m2 is valued at VND 36,080,000 (according to the valuation report dated June 30, 2016 and August 25, 2017) and he was granted a land use right certificate by the People’s Committee of District L in 2001. This piece of land was bought by his mother in Village Y, Commune T in 1995, valued at VND 900,000. In 1998, he bought another piece of land of 28m2 in Village Y, Commune Y. The People’s Committee granted him a land use right certificate for the entire piece of land, and its ownership is put in his name to enable him to ask for a loan from banks. And the level-3 2-storey house built in August, 2010 valued at VND 296,403,800 ((according to the valuation report dated June 30, 2016) is under his ownership. While the house was being built, Mrs. N stayed abroad, she sent him money 3 times, totaling VND 55,700,000, then Mrs. N did not send any more. Now, Mrs. N claims that the house and land were established by both of them. He refuses her claim for division of property, he claims for return of the piece of land of 300m2 to Mrs. G granted by the land use right certificate whose ownership is put in his name, particularly 28m2 in the total area of 328m2 of the land use right certificate is owned by him. He does not request the Court to settle along with other assets and debts.

Representation of person with relevant rights and obligations Mrs. Nguyen Thi G: In 1995, she bought a piece of land of 300m2 valued at VND 900,000 in Village Y, Commune Y. She used her own money to buy that piece of land, not related to Mr. C and Mrs. N. After a period of time, Mr. C bought a piece of residential land of 28m2 in Village Y, Commune Y, and then he merged it into her 300m2 of land.  In 2001, Mr. C asked her to put the land ownership in his name to enable him to ask for a loan from the bank easily, therefore, she complete paperwork to enable the land use right certificate to be granted to Mr. C, not to Mrs. N. In 2001, Mr. C was granted the land use right certificate by the People’s Committee of District L, 328m2 of land and the 2-storey house are owned by her, not assets of Mrs. N and Mr. C. Now, she reclaims 328m2 of land and the 2-storey house built in August 2010 which was built by her money.

Representation of Mr. Giap Van O - Deputy President of the People’s Committee of District L: Regarding procedures for granting the land use right certificate of 328m2 of land in 2001 to Mr. C and Mrs. N, pursuant to the Law on land 1993, Circular No. 346/1998 dated March 16, 1998, Directive No. 18/1999 dated July 1, 1999, the People’s Committee of District granted the land use right certificate for 328m2 to the household of Mr. Nguyen Van C in Village Y, Commune Y, District L, Bac Giang Province according to the Decision No. 875/QD-CT dated December 18, 2001 of the People’s Committee of District. This grant was made as per the law.

Representation of Mr. Vu Van T - President of the People’s Committee of Commune:  In 2001, the household of Mr. Nguyen Van C was granted a land use right certificate of the People’s Committee of District L for 328m2 of land in Village Y, Commune Y, District L. This piece of land was originated in 1995, when the local government allowed Village Y to sell some pieces of land to build social utilities for the village. Mrs. G directly bought 300m2 of land and paid the village VND 900,000. In 1998, Mr. C and Mrs. N continued buying 28m2 of land, total area of land granted by the People’s Committee of District L a land use right certificate for 328m2 to the married couple Mr. C. This grant was made rightfully; the People’s Committee of Commune gives no opinion about that. However, during the land use, Mr. C has encroached 204.9m2 of the village since 2007. Mr. C still has used the encroached area since then. Now, request the Court to let Mr. C keep using and fulfill land-related financial obligations to the local government as per the law.

According to the above matters, the First Instance Judgment No. 110/2017/DS-ST dated October 12, 2017 of People’s Court of District L applies Article 28; Article 147; Article 165; Article 227; Article 228, Article 273 of the Civil Procedure Code 2015 in Viet Nam; Article 214; 224 of the Civil Code 2005 in Viet Nam; Article 14; 16 of the Law on Marriage and Family in Viet Nam; Article 48 of Resolution No. 326/2016/UBTVQH14 in Viet Nam of Standing Committee of the National Assembly dated December 30, 2016. Judges:

[1] With reference to common property: Hand over Mr. Nguyen Van C the right to use 328m2 of residential land and own one 2-storey house in Village Y, Commune Y, District L, Bac Giang Province. Total property value is: VND 332,483,800 (three hundred thirty two million four hundred eighty three thousand eight hundred dong). However, he must pay Mrs. Vu Thi N VND 135,027,000, and pay Mrs. Nguyen Thi G VND 12,027,000 of common property.

2/ With reference to residential land: Hand over Mr. Nguyen Van C the right to use 328m2 of residential land in Village Y, Commune Y whose land use right certificate was granted by the People’s Committee of District L: bordered on the north side by the village road, 19.5m from Point A to Point B, to the east side, 16.8m from Point B to Point E, to the south side by the piece of land of Mr. Ng, 19.5m from Point E to Point F, to the west by the piece of land of Mr. H, 16.8m from Point F to Point A.

Hand over Mr. Nguyen Van 204.9m2 of residential land in Village Y, Commune Y whose land use right certificate has not been granted, which is:  bordered on the north side by the village road, 12.4m from Point B to Point C, to the east side by the village road, 16.8m from Point C to Point D, to the south side, 12m from Point D to Point E, to the west 16.8m from Point E to Point B (with enclosed diagram).

Turn down the reclaim for the 2-storey house of 115.44m2 valued at VND 296,403,800 and 218.67m2 of residential land valued at VND 24,053,000 in the total area of 328m2 of land whose land use right certificate was granted by the People’s Committee of District L to the household of Mr. Nguyen Van C in Village Y, Commune Y, District L, Bac Giang Province of Mrs. Nguyen G to Mrs. Vu Thi N and Mr. Nguyen Van C.

Compel Mr. Nguyen Van C to pay Mrs. Vu Thi N VND 1,500,000 of property valuation cost.

Court fees: Mrs. Vu Thi N has to pay VND 6,751,300 of court fee for division of property, which is deducted from VND 4,000,000 of the paid advance according to the receipt No. AA/2014/0003373 dated March 18, 2016 at the Sub-department of Judgment Enforcement of District L. Mrs. N must pay VND 2,751,300.

Mr. Nguyen Van C has to pay VND 9,271,540 of court fee for division of property.

In addition, the First Instance Judgment also decided the interest charged for judgment enforcement delay and the appeal right and judgment enforcement right for litigants.

Not concurring with First Instance Judgment, on October 23, 2017, Mr. Nguyen Van H, authorized representative of Mrs. Vu Thi N, appealed the entire of Judgment, on October 24, 2017, Mr. Hai paid the advance of appellate court fee. The appeal was made against the unfair and illegal judgment.

On October 25, 2017, Mr. Nguyen Van C appealed the entire judgment; Mr. C paid the advance of appellate court fee on the same day, Mr. C appealed against the judgment for the ground that the property was divided improperly, not ensuring his interests, 328m2 of land is owned by Mrs. G, the 2-storey house was built by himself, Mrs. N did not give any contribution, because Mrs. N worked abroad and only sent him VND 55,700,000.  So, he refuses to divide the property to Mrs. N.

On October 25, 2017, Mrs. Nguyen Thi G appealed the entire judgment, Mrs. G is exempt from paying the advance of appellate court fee, Mrs. G appealed the First Instance Judgment for the ground hat the property was divided improperly, not ensuring her interests, she bought 328m2 of land in 1995 and let the land ownership put in the name of Mr. C to enable him to ask for a loan from the bank, she refuses to division of land to Mr. C and Mrs. N.

At the appellate court hearing on March 26, 2018: Mr. Nguyen Van H, authorized representative of Mrs. Vu Thi N, does not withdraw either lawsuit petition or appeal petition; Mr. Nguyen Van C, person with relevant rights and obligations Mrs. Nguyen Thi G, does not withdraw the appeal petition. The litigants fail to agree on lawsuit settlement.

Representation of Mr. Nguyen Van H, authorized representative of Mrs. Vu Thi Ng: Mrs. N appealed the First Instance Judgment for the ground that: The piece of land and the 2-storey house established on 328m2 of land by her and Mr. C are their common property, as the Court decided the portion of Mrs. C VND 50,000,000 more than her portion, she disagrees with it.  She requests equal division of the property. Mrs. N will receive money and Mr. C will use all property. If Mr. C does not agree to divide Mrs. N VND 150,000,000.

Representation of Mr. Nguyen Van C: He disagrees with appeal of Mrs. N, he will not divide any property to Mrs. N with the following reason: his mother bought 328m2 of land in 1995 and let land ownership put in his name to enable him to ask for a loan from bank, he did not declare#: Mrs. N had worked abroad, since 2008 she had not sent money to him; in 2010, he built a 2-storey house with rough and incomplete construction, the total cost incurred in the house construction was paid from VND 125,000,000 he borrowed. He did not complete the house construction until 2012 - 2013, at that time, he worked in China and sent VND 100,000,000 to his mother to build the house completely; the cost of USD 5,300 paid for Mrs. N working abroad was totally from his loans from some banks.  He fully repaid the debt, Mrs. N went abroad from 2009, in 2010 she returned to Vietnam but not stayed in the house; in addition, he had 4 children to raise, he takes wife for his son and gives his daughter in marriage. He claims that Mrs. N has no common property with him. Request the Court of Appeal to consider his appeal.

The lawyer Vo Thi An B, legal aid provider of the legal aid center for Mrs. G, claims that Mrs. G requests the Trial Panel to consider her appeal, determine that she bought 328m2 in 1995 and she has lived there since then. She disagrees that this is marital property of Mr. C and Mrs. N.

At the appellate court hearing on April 24, 2018, authorized representative of the petitioner asks for trial in absentia, Mr. C and Mrs. G are absent without reasons; the lawyer asks for trial in absentia and withholds the point of view at the court hearing on March 26, 2018.

Representative of the People’s Procuracy of Bac Giang Province affirms that the Judge, Trial Panel, Court Reporter have resolved the case in accordance with laws and regulations; and litigants including the petitioner, the respondent, person with related rights and obligations has not performed their rights and obligations in accordance with the Civil Procedure Code.

With reference to the content of the case: Request the Trial Panel to consider denying the appeals of Mrs. Vu Thi N, Mr. Nguyen Van C, Mrs. Nguyen Thi G. Pursuant to Clause 2 Article 308 of the Civil Procedure Code, revise the First Instance Judgment in terms of temporary handover of 204m2 of land to Mr. C.

Mr. C and Mrs. N have to pay appellate court fee.

JUDGEMENT OF THE COURT

After considering the case files assessed and the adversarial process at the court hearing, and opinions of the People’s Procuracy, the Trial Panel judges as follows:

[1] With reference to the proceedings:   The petitioner Mrs. Vu Thi N authorized Mr. Nguyen Van H to appear at the court hearing, he was present at the court hearing on March 26, 2018, and he filed a request for trial in absentia to the court hearing on April 24, 2018; the person with related rights and obligations the People’s Committee of District L represented by Mr. Giap Van O and the People’s Committee of Commune Y, District L represented by Mr. Vu Van T filed requests for trial in absentia; Mr. Nguyen Van C and Mrs. Nguyen Thi G received the decision on court hearing delay and court hearing re-opening at 7:30 on April 24, 2018, but they are absent without any reason. Thus, the Trial Panel, pursuant to Clause 2 Article 296 of the Civil Procedure Code, conducts the trial in the absence of the litigants.

[2] With reference to content: Since 1994, she and Mr. C had lived together without marriage registration. While living together, Mr. C and Mrs. N bought 328m2 valued at VND 36,080,000 in Village Y, Commune Y whose land use right certificate was granted by the People’s Committee of District L on October 24, 2001, certifying that the household of Mr. Nguyen Van C has the land use right and in August 2010 Mrs. N and Mr. C built a 2-storey house with area of 115.44m2 valued at VND 296,403,800 on the land area of 328m2, now Mrs. N claims for division of property as per the law. The First Instance Judgment accepted the claim of Mrs. N: hand over the entire 2-storey house on the land area of 328m2 to Mr. C for management and use, and Mr. C has to divide Mrs. N VND 135,027,000, and divide Mrs. G VND 12,027,000. Mr. C, Mrs. N, Mrs. G appealed the First Instance Judgment. Considering the appeals of Mrs. Vu Thi N, Mr. Nguyen Van C, Mrs. Nguyen Thi G, the Trial Panel considers that:

Regarding 328m2 of residential land valued at VND 36,080,000 in Village Y, Commune Y, the People’s Committee granted a land use right certificate to the household of Mr. Nguyen Van C on December 18, 2001. This piece of land was originated in 1995, when the Village Y, Commune Y sold 300m2 of land valued at VND 900,000 to Mrs. G; in 1998, Mr. C continued buying 28m2 from Village Y, Commune Y. In 2001, Mr. C applied for a land use right certificate of 328m2 of land. The People’s Committee of District L confirms that the grant of the land use right certificate of 328m2 of land in Village Y, Commune Y to Mr. C and Mrs. N was made as per the law; the People’s Committee of Commune Y confirms that Mrs. H bought 300m2 of land from the Commune, then in 1998, Mr. C bought 28m2 of land from the Village, so total land area is 328m2. Mrs. G has no valid ground for claiming that this 328m2 is under her ownership, and she let the land ownership is put in the name of Mr. C to enable him to ask for a loan from bank. Therefore, the Trial Panel considers that 328m2 of land valued at VND 36,080,000 in Village Y, Commune Y whose land use right certificate was granted by the People’s Committee of District L to household of Mr. Nguyen Van C is common property of Mr. C and Mrs. N. There is no satisfied ground for Mrs. G and Mr. C to appeal and request reorganization of this piece of land as owned by Mrs. G.

Regarding the 2-storey house of 115.44m2 valued at VND 296,403,800 (according to the valuation report dated June 30, 2016) built in August 2010 by Mr. C, when it was built, Mrs. N was working abroad. In depositions and record of depositions and at the appellate court hearing, Mr. C admits that when he was building the house, although Mrs. N was not in Vietnam and was working abroad, she sent him money 3 times, totaling VND 55,700,000 to build such house. Thus, the First Instance Judgment is well-grounded to determine that the 2-storey house on land area of 328m2 is the common property of Mrs. N and Mr. C.

Accordingly, total value of property acquired by Mr. C and Mrs. N during their cohabitation is VND 332,483,800. As the origin of the common property is the land use right of 328m2 of Mrs. G, Mr. C’s mother, and his greater contribution in the construction of the 2-storey house, the First Instance Judgment divided him greater portion than portion of Mrs. N. This is a well-grounded judgment. Because Mrs. N has no need to use the land and property on land, the First Instance Judgment allocates 328m2 of land and the 2-storey house to Mr. C and he is required to pay Mrs. N her equivalent portion in cash. This is also an appropriate decision. Therefore, there is no valid ground for accepting the appeals of Mrs. N, Mr. C and Mrs. G. Allocate all the piece of land and the 2-storey house to Mr. C for management and use, but Mr. C must pay Mrs. N VND 135,027,000.

Apart from 328m2 of land area granted to the household of Mr. C, 204.9m2 of land encroached by Mr. C has not been granted with a land use right certificate, but First Instance Judgment allocates it to Mr. C for management and use. This is not an appropriate decision, such Trial Panel just should have temporarily allocated to Mr. C. So, pursuant to Clause 2 Article 308 of the Civil Procedure Code, the Trial Panel should revise the First Instance Judgment to ensure the judgment enforcement.        

In addition, the Trial Panel requests the Court of First Instance to draw on experience: Mrs. Nguyen Thi G, the person with related rights and obligations, filed an independent request, claiming Mr. C and Mrs. N to return 328m2, on July 18, 2016, Mrs. H paid the advance of court fee for the independent request, the Court of First Instance accepted the independent request of Mrs. G. On August 9, 2017, Mr. Gan requested withdrawal of the lawsuit petition and the People’s Court of District L issued a decision No. 36/2017/QDST-HNGD dated August 10, 2017 to suspend lawsuit settlement concerning independent request of Mrs. G and returned Mrs. G the paid advance of court fee, but the First Instance Judgment still determines that this is the common property of Mrs. G, Mr. C and Mrs. N and compel Mr. C to pay Mrs. G VND 12,027,000. This is a wrong decision. Because Mr. C and Mrs. N do not appeal this matter, the Trial Panel does not consider it further.

Other decisions of First Instance Judgment which are not appealed shall not be considered further.

[3] With regard to court fees: Mr. C, Mrs. N have to pay first instance court fee as prescribed in Article 147, Article 184 of the Civil Procedure Code. As a senior citizen, Mrs. G is exempt from the civil court fee as prescribed in Point dd Clause 1 Article 12 of Resolution No. 326/NQ-UBTVQH14 dated December 30, 2016 of Standing Committee of the National Assembly on Court Fees and Charges

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Pursuant to Clause 2 Article 308 of the Civil Procedure Code; the Trial Panel does not accept the appeals of Mr. Nguyen Van C, Vu Thi N, Mrs. Nguyen Thi G. Revise the First Instance Judgment.

Pursuant to Article 28; Article 147; Article 148, Article 165; Article 227; Article 228 of the Civil Procedure Code; Article 214; 224 of the Civil Code 2005; Article 14; 16 of the Law on Marriage and Family; Point dd Clause 2 Article 12; Point b Clause 5 Article 27; Article 48 of Resolution No. 326/2016/UBTVQH14 of Standing Committee of the National Assembly dated December 30, 2016. Judges:

1/ With reference to property: Hand over Mr. Nguyen Van C the right to use 328m2 of residential land in Village Y, Commune Y, District L, Bac Giang Province, which is: bordered on the north side by the village road, 19.5m from Point A to Point B, to the east side 16.8m from Point B to Point E, to the south side by the piece of land of Mr. Ng 19.5m from Point E to Point F, to the west by the piece of land of Mr. H 16.8m from Point F to Point A, and temporarily allocates Mr. Nguyen Van C 204.9m2 of residential land in Village Y, Commune Y whose land use right certificate has not been granted, which is: bordered on the north side by the village road, 12.4m from Point B to Point C, to the east side by the village road, 16.8m from Point C to Point D, to the south side, 12m from Point D to Point E, to the west 16.8m from Point E to Point B; a 2-storey house of 115.44m2 on the land area of 328m2 in Village Y, Commune Y, District L, Bac Giang Province (with enclosed diagram). Total property value is: VND 332.483.800. But he must pay Mrs. G VND 12,027,000; and pay Mrs. Vu Thi Nguyen VND 135,027,000.

Since the judgment takes effect and the judgment creditor requests judgment enforcement until all the payable amounts are paid, the judgment debtor must bear the interest on the remaining amount of the payable amount with the interest rate of 10% per year corresponding to the remaining judgment enforcement period.

First instance civil court fee: Mrs. Vu Thi N has to pay VND 6,751,300 of court fee for division of property, which is deducted from VND 4,000,000 of the paid advance according to the receipt No. AA/2014/0003373 dated March 18, 2016 at the Sub-department of Judgment Enforcement of District L. Mrs. N must pay VND 2,751,300.

Mr. Nguyen Van C has to pay VND 9,271,540 of court fee for division of property.

Regarding appellate civil court fee: Mrs. Vu Thi N has to pay VND 300,000 of appellate court fee, which is deducted from VND 300,000 of the paid advance of appellate court fee according to the receipt No. AA/2017/0002783 dated October 24, 2017, paid by Mr. Nguyen Van H at the Sub-department of Civil Judgment Enforcement of District L, Bac Giang Province.

Mr. Nguyen Van C has to pay VND 300,000 of appellate court fee. which is deducted from VND 300,000 of the paid advance of appellate court fee according to the receipt No. AA/2017/0002789 dated October 24, 2017, paid by Mr. Nguyen Van H at the Sub-department of Civil Judgment Enforcement of District L, Bac Giang Province.

Mrs. Nguyen Thi G is exempt from the appellate court fee.

Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

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, 7b and 9 of the amended 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.

The Appellate Verdict shall take legal effect from the date of pronouncement.