Judgment no. 32/2022/DSPT date 23/02/2022 on dispute over the claim for performance of payment obligations

THE SUPERIOR PEOPLE’S COURT IN DA NANG

JUDGMENT NO. 32/2022/DSPT DATE 23/02/2022 ON DISPUTE OVER THE CLAIM FOR PERFORMANCE OF PAYMENT OBLIGATIONS

On February 23, 2022, at the head office of the Superior People's Court in Da Nang, a public appellate hearing was held to hear the civil case No. 12/2020/TLPT-DS dated October 27, 2020 on "Dispute over the claim for the performance of payment obligations".

As the first instance civil judgment No. 17/2020/DS-ST dated August 27, 2020 of the People's Court of Khanh Hoa province was appealed.

According to Decision to bring the case to appellate trial No. 1017/QDXX-PT dated February 12, 2022 between:

- Petitioner: 

Ms. Nguyen Thi H; residential address:  Karl Marx Str 34b-15859 Siorkow, Federal Republic of Germany; temporary residence address:  House No. 138A, N street, P ward, N1 city, Khanh Hoa province, not appeared in court.

Authorized representative (Power of attorney dated July 20, 2016):

Mr. Hoang Vinh Y, born in 1952, residential address:  House No. 04, T Street, L ward, N1 city, Khanh Hoa province, appeared in court.

Defender:

Lawyer Nguyen Dinh T1 - Law Office Nguyen Dinh T1, under the Bar Association of Khanh Hoa province; address: No. 119 N2 street, P1 ward, N1 city, Khanh Hoa province, appeared in court.

1 - Respondent:

1. Ms. Nguyen Thi T2, address: P3 Allee 103, 14532 Stahnsclort, Federal Republic of Germany, appeared in court.

Authorized representative (Power of attorney dated November 15, 2020):

Ms. Tang Thi Thuy, born in 1950; residential address:  No. 16, M street, P1 ward, N1 city, Khanh Hoa province, appeared in court.

2. Mr. Do Q; residential address: P3 Allee 103, 14532 Stahnsclort, Federal Republic of Germany, temporary residence address: NV16-03 Phuoc Long B Urban Area, Phuoc Long Ward, N1 City, Khanh Hoa Province, not appeared in court.

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Nguyen Thi T, the petitioner, presented:

On August 31, 2004, she transferred to her sister and brother-in-law, Nguyen Thi T2 and Do Q, a business store named "L-P" in the city of P3, Federal Republic of Germany, with the amount of 72,000 Euro, but being afraid that Ms. T2 and her husband have to prove the origin of the purchase amount and have to pay high taxes, so when doing the procedure to change the Business License, she and Mrs. T2 agreed to only write on paper 15,000 Euros and the support of 500 Euro/month until the debt of 72,000 Euro is paid off (according to the Certificate of Indebtedness dated September 1, 2004, signed by Ms. T2). In 2015, she asked Khanh Hoa Debt Recovery Joint Stock Company to collect this debt, but it has not been done.  Therefore, she filed a lawsuit asking the People's Court of Khanh Hoa province to force Ms. Nguyen Thi T2 and Mr. Do Q to pay her the transfer amount of the "L-P" store of 72,000 euros.

Respondent:

- Ms. Nguyen Thi T2 presented:

Ms. Nguyen Thi H suing her about the payment obligation is not true; furthermore, the People's Court of Khanh Hoa province was incorrect when determining that Mr. Do Q was the defendant; because the dispute between Ms. Nguyen Thi H and her was an event in 2004, but she and Mr. Do Q got married in 2010. In addition, the dispute was a civil transaction occurring in the Federal Republic of Germany, between people residing in Germany.  She did not agree with the Court's acceptance and settlement of the case, so she asked the Court to return the petition and suspend the settlement of the case.

- Mr. Do Q presented:

The dispute between Ms. Nguyen Thi H and Ms. Nguyen Thi T2 was an event in 2004, but he and Ms. T2 got married in 2010. So, he did not agree with the Court's determination that he participated in the proceedings as a respondent, and he asked the Court to return the petition and suspend the settlement of the case

At the first instance court hearing:

The authorized representative of the petitioner presented:

The People's Court of Khanh Hoa province accepted and settled the civil case according to its jurisdiction and the petitioner's claim was grounded, because in fact, in 2004, Ms. Nguyen Thi H sold to Ms. Nguyen Thi T2 and her husband the store “L-P”, for 72,000 Euro.  Due to the fear of paying high taxes, the two sides agreed to write down on paper only 15,000 Euros and Mrs. H agreed to let Mrs. T2 and her husband pay 500 Euros each month until the debt was discharged, but then the defendant did not perform the debt obligation.  Therefore, the petitioner filed a lawsuit and asked the Court to force the respondent to pay the petitioner 72,000 euros, equivalent to a value of 1,963,296,000 VND (with the exchange rate of 1 Euro = 27,268 VND of Vietcombank on July 21, 2020); also, continued to apply temporary emergency measures to freeze the house of Mr. Do Q and Ms. Nguyen Thi T2 at 72 Nguyen Thien Thuat, L ward, N1 city, Khanh Hoa province to secure the judgment enforcement.

The authorized representative of the respondent presented:

The People's Court of Khanh Hoa province’s acceptance and settlement of this case was not within its jurisdiction according to the provisions of the Civil Procedure Code, so it proposed to suspend the settlement of the case and return the petition.  In case the Court does not suspend the settlement of the case but continues the trial, it is proposed not to accept the lawsuit petition of Ms. Nguyen Thi H; and request the Court to annul the decision on adoption of temporary emergency measures to the house at 72 Nguyen Thien Thuat, ward L, city N1, Khanh Hoa province of Ms. Nguyen Thi T2 and Mr. Do Q.

The respondent, Mr. Do Q, presented:

He and Mrs. Nguyen Thi T2 registered their marriage in 2010, but it was just because they want to reside for a long time in the Federal Republic of Germany, each person must register their marriage with a person with German nationality. In fact, Mr. and Mrs. T2 have been living together as husband and wife in the Federal Republic of Germany since 1999, having a child named Julia, born in 2002 and in the same year 2002, both sides of the family had an engagement ceremony for him and Mrs. T2, at No. 05A T Street, L ward, N1 city, Khanh Hoa province.  While he and Mrs. T2 lived and did business in Germany, in 2004, Ms. Nguyen Thi H transferred to him and Mrs. T2 the "L-P" store exactly as Ms. H presented.  Because the store was the real estate in Vietnam, he and his wife were allowed by Ms. H to buy on credit and pay monthly installments. The paperwork, the person’s name registered in the ownership certificate and payments were all done by Ms. T2, he did not know the specifics.

The first instance civil judgment No. 17/2020/DS-ST dated August 27, 2020 of the People's Court of Khanh Hoa province states as follows:

Pursuant to Clause 469, Clause 3 Article 26, Clause 3 Article 35, Article 37 and Clause 11 Article 114 of the Civil Procedure Code; Articles 2 and 438 of the Civil Code 2005; Section 1 of Resolution No. 45/2005/NQ-QH11 dated June 14, 2005 of the National Assembly; Clause 1 Article 27 of the Civil Procedure Code 2009; the Court judges as follows:

1. Turn down the Nguyen Thi H's petition against Mr. Do Q.

2. Accept the petition of petitioner, Ms. Nguyen Thi H, against the respondent, Ms. Nguyen Thi T2.

Force Ms. Nguyen Thi T2 to pay Ms. Nguyen Thi H an amount of VND 1,931,544,000 (one billion nine hundred and thirty one million five hundred and forty four thousand dong).

3. Affirm the Decision on application of temporary emergency measures No. 05/2016/QD-DS dated October 12, 2016 of the People's Court of Khanh Hoa province to secure the judgment enforcement.

In addition, the first-instance judgments also held the first-instance court fee and notified the right to appeal in accordance with law.

- On September 1, 2021, the authorized representative of the respondent, Mr. Tran Manh, appealed the entire judgment.

- On September 3, 2021, the authorized representative of the petitioner, Mr. Hoang Vinh Y, appealed the entire judgment.

Pursuant to the documents contained in the case file which have been examined at the court hearing; based on the results of the litigation at the court hearing on the basis of fully considering documents and evidence, presentations of the involved parties, defenders of the litigants' legitimate rights and interests, opinions of the Procurator.

JUDGEMENT OF THE COURT

[1]. After the first-instance trial, the authorized representatives of the petitioner and the respondent both appealed the judgment; the appeals of the involved parties were filed within the time limit specified in Article 273 of the Civil Procedure Code, so the Trial Panel decided to bring the case to appellate trial.

At the appellate court hearing, the authorized representative of the petitioner upheld the appeal and suggested that Mr. Do Q be obliged together with Ms. Nguyen Thi T2 to pay Ms. Nguyen Thi H 72,000 Euros, because Mr. Q and Ms. T2 have been living together as husband and wife since 2001, both of them bought Ms. H's store to do business together and serve their common life.  The authorized representative of the respondent claimed that the first-instance judgment had not properly assessed the nature of the case, has not objectively considered the evidence and did not comply with the provisions of law, so it is recommended for the Trial Panel of the appellate court to amend the first-instance judgment and does not accept the petitioner's claim.  Thus, the litigants failed to agree on lawsuit settlement.

The representative of the Superior People's Procuracy in Da Nang proposed the Appellate Trial Panel, based on Clause 1, Article 308 of the Civil Procedure Code, to:

- Not accept the appeal of the authorized representative of the petitioner and the appeal of the authorized representative of the respondent; affirm the first-instance civil judgment.

[2]. Considering the appeals of the litigants:

[2.1]. In terms of court procedures:

The petitioner, Ms. Nguyen Thi H, sued Ms. Nguyen Thi T2 and Mr. Do Q to claim the transfer amount of the "L-P" store in the city of P3, the Federal Republic of Germany with a value of 72,000 Euros, equivalent to 1,963,296,000 VND.

The People's Court of Khanh Hoa province accepted and determined that the legal relationship settled in the case was "Dispute over the claim for performance of payment obligation". That was in accordance with the provisions of Clause 3, Article 26 of the Civil Procedure Code.

Ms. Nguyen Thi T2 and Mr. Do Q are Vietnamese, but have lived and worked in the Federal Republic of Germany. Although the subject matter of the transaction is the right to manage and use property in the Federal Republic of Germany, Ms. T2 and Mr. Q are both Vietnamese nationals and have real estate in Vietnam at 72 Nguyen. Thien Thuat, L ward, N1 city, Khanh Hoa province and real estate at NV16-03 Phuoc Long B urban area, Phuoc Long ward, N1 city, Khanh Hoa province.  Therefore, based on Clause 3, Article 35, Point a Clause 1, Article 37, and Point b, Clause 2, Article 469 of the Civil Procedure Code, the People's Court of Khanh Hoa province accepted the case within its jurisdiction.

During the settlement of the case; on November 2, 2016, Ms. Nguyen Thi T2 gave up her Vietnamese nationality, but by the time of the first-instance trial (August 27, 2020), Ms. T2 had Vietnamese nationality and was living in the Federal Republic of Germany. Thus, according to Article 471 of the Civil Procedure Code, the jurisdiction to settle the case does not change.

According to the presentation of the litigants (the petition - case file p. No. 01, 05, 06, 07 and 08; complaint - case file p.75), the transfer of "L-P" store was carried out in 2004, Ms. Nguyen Thi T2 paid monthly installments of 500 Euro, starting in September 2004. Therefore, the People's Court of Khanh Hoa province was right when it applied Article 2 of the 2005 Civil Code; Section 1 of Resolution No. 45/2005/NQ-QH11 dated June 14, 2005 of the National Assembly to apply the 2005 Civil Code, to settle the dispute.

[2.2]. Regarding the content:

[2.2.1]. For the appeal of the authorized representative of the respondent:

To prove the lawsuit claim, the petitioner (Ms. Nguyen Thi H) provided the original of the working minutes dated July 13, 2015 (case file p.325), between Khanh Hoa Debt Recovery Joint Stock Company and Ms. Nguyen Thi T2 and Ms. Nguyen Thi H, the content shows that Ms. Nguyen Thi T2 acknowledges that she owes Ms. Nguyen Thi H an amount of money from the purchase and sale of the "L-P" store; photocopy of the handwritten paper dated September 1, 2004, in a foreign language with the signatures and full names of Ms. Nguyen Thi H, Ms. Nguyen Thi T2 and a translation of this handwritten paper into Vietnamese dated August 20, 2015 (case file p.393, 394 and 395), showing the content:  “I am Nguyen Thi T2 acknowledges that I will pay my sister Nguyen Thi H 500-€ monthly to cover her living expenses.  Ms. Nguyen Thi H sells her store to me on August 31, 2004. The price is 15,000€, I must pay monthly installments of 500-€ to her, starting in September 2004” - signed by interpreter Nguyen Van Nghia and stamped by the company (certified/legalized by the Embassy of Vietnam in the Federal Republic of Germany on July 11, 2016) and provide a photocopy of the acknowledgement of indebtness dated June 10, 2016 of a person named Nguyen Thi Minh Hong (case file p.49), with the content that Ms. Nguyen Thi T2 and Mr. Do Q bought the store "L-P" of Ms. Nguyen Thi H. In addition, to prove the appeal request, the authorized representative of the petitioner also said that at the first instance court on August 26, 2020, Mr. Do Q acknowledged the purchase of Ms. Nguyen Thi H's "L-P" store, but because Ms. H did not have a payroll, they wrote the price of 15,000 Euro to avoid having to prove it to the host country agency.

The authorized representative of the respondent said that when he received the authorization, Ms. Nguyen Thi T2 confirmed that there was no purchase and sale of the "L-P" store with Ms. Nguyen Thi H; Ms. T2 does not work and does not sign any documents with Khanh Hoa Debt Recovery Joint Stock Company.  If the petitioner asserted that the working minutes dated July 13, 2015, between Khanh Hoa Debt Recovery Joint Stock Company and Ms. Nguyen Thi T2 and Ms. Nguyen Thi H was real true, it needs to be proved by requesting the Court to seek expert assessment of the handwriting and signature of Ms. T2. If the handwriting and signature are from Ms. Nguyen Thi T2, whether there is any basis for considering the purchase and sale of the store; how the monthly installments were made. Therefore, the respondent did not accept the petitioner's petition.

Considering the documents and evidence provided by the petitioner, the Appellate Trial Panel found that:

- For the working minutes dated 13-7-2015, between Khanh Hoa Debt Recovery Joint Stock Company and Ms. Nguyen Thi T2 and Ms. Nguyen Thi H:

(1) With reference to methods: the front side of the working minutes says that the representatives of Khanh Hoa Debt Collection Joint Stock Company are Mr. Do Hoang V and Mr. Nguyen Minh D, but the back of the working minutes is signed by the person who represents the Company, Mr. Nguyen Huu Tri.  (2). Regarding the content: on the front, it says:  "Ms. T2 said that Ms. H's purchase was 72,000 Euros, Ms. T2 paid it all for Ms. H, for the reason of trusting her siblings, so when giving money there was no paper", but there is no signature to confirm this content of Ms. Nguyen Thi T2.

Thus, the form and content of the working minutes dated July 13, 2015 are not in accordance with the law on debt acknowledgement, because:  At the section stating the debt acknowledgement, there is no signature of Ms. Nguyen Thi T2; on the other hand, if there is a signature and full name of Nguyen Thi T2, it is not enough ground to confirm that it is the signature and handwriting of Ms. Nguyen Thi T2. In addition, in the voluntary statement dated March 3, 2020 (case file p.325), Mr. Do Hoang V confirmed:  "In 2015, Khanh Hoa Debt Recovery Joint Stock Company received authorization to recover debts from Ms. Nguyen Thi. H. After many times of working, she found that Ms. H's file had many disputes between the two parties, so the company returned the file and canceled the contract with Ms. Nguyen Thi H”.  This confirmation does not show whether the representative of Khanh Hoa Debt Collection Joint Stock Company, Mr. Do Hoang V, worked directly with Ms. Nguyen Thi T2.  Therefore, the respondent’s claim that they did not work and sign any documents with Khanh Hoa Debt Recovery Joint Stock Company is grounded.

- For a handwritten paper dated September 1, 2004 in a foreign language signed by Ms. Nguyen Thi H and Ms. Nguyen Thi T2:

Attached with the handwritten note dated September 1, 2004 is a translation into Vietnamese, with the content showing that Ms. Nguyen Thi T2 bought Ms. Nguyen Thi H's store for 15,000 Euros (certified/legalized by consular July 11, 2016).

In Clause 3, Article 96 of the Civil Procedure Code on handing over documents and evidence, it is stipulated that:  “3) The involved parties hand over to the Court documents and evidence in ethnic minority languages ​​and foreign languages must be accompanied by a translation into Vietnamese, which is legally notarized and authenticated”; Points a, b, Clause 2, Article 478 of the Civil Procedure Code on recognition of papers and documents sent to Vietnamese courts by foreign agencies, organizations and individuals stipulates that:  “2) Vietnamese courts recognize papers and documents made by individuals residing abroad in the following cases:

a) Papers and documents made in foreign countries are notarized and authenticated in accordance with foreign laws and have been consularly legalized;

b) Papers and documents made in Vietnamese by Vietnamese citizens abroad, signed by the maker of such papers and documents, and notarized and authenticated in accordance with Vietnamese law” and Article 3 of Decree No. 111/2011/ND-CP dated August 24, 2010 of the Government on consular certification and legalization stipulates that:  “Consular certification and legalization is certification of seals, signatures, titles on papers, excluding certification of the content and form of papers and documents”.

Thus, the content of the translation (typed), was signed and stamped by the interpreter Nguyen Van Nghia, but this document was not notarized or authenticated according to the provisions of the law of the host country. The consular legalization at the document only means certifying the seal, signature and title of Mr. Nguyen Van Nghia, not implying certification of the content of this document.  In addition, the document that the petitioner provided and confirmed as the debt acknowledgement letter of Ms. Nguyen Thi T2 is just a photocopy; during the settlement of the case, the petitioner said that due to the long time, the original was lost, so it could not be handed over to the Court for assessment. However, the first-instance Court used this document to settle the case, which was erroneous in its assessment of evidence.

- For the Confirmation dated June 10, 2016:

Clause 1, Article 95 of the Civil Procedure Code stipulates: “A readable document shall be considered as evidence if it is an original or a copy that is notarized or legally authenticated or provided or confirmed by a competent agency or organization”.

The confirmation dated June 10, 2016, the person named Nguyen Thi Minh Hong states that: “Ms. Nguyen Thi T2 and Mr. Do Q bought Ms. Nguyen Thi H's L-P store for 72,000 Euros, but because of short of money and tax declaration reasons, Ms. T2 wrote a promissory note for Ms. H with a debt of only €15,000”.  However, this document is only a photocopy and is not notarized or authenticated according to the regulations of the host country, not consular legalized or notarized or authenticated according to the provisions of Vietnamese law. Therefore, according to the provisions of Clause 1, Article 95 of the Civil Procedure Code, this document is not considered as evidence.

- For the testimony of Mr. Do Q confirming the purchase of "Late Shop" from Ms. Nguyen Thi H: 

The first instance court determined that: “…At the first instance court, Mr. Do Q determined that in 1998, when he first came to Germany to do business, he knew Ms. Hoa and Ms. Tam.  When I and Ms. Tam got married, my wife and I bought from Ms. Hoa a stall for trading, worth 72,000 Euros.  Due to fear of paying high taxes, the two sides agreed to only write 15,000 Euros.  Later we (Tam - Quang) divorced, I don't know if Ms. Tam paid Ms. Hoa yet, but the purchase of Ms. Hoa's stall was real”.  Through checking the minutes of the first-instance court hearing in the case file, there was no testimony that Mr. Do Q identified the content as the first-instance judgment cited above.  In the minutes of the first-instance court hearing dated March 5, 2020, Mr. Do Q stated, "I have lived as husband and wife with Ms. Nguyen Thi T2, have lived in the same house and have 04 children, but the fact that I do not know if Ms. T2 bought the shop from Ms. H", "I do not agree with Ms. Nguyen Thi H's petition, because I do not know anything about the purchase " and in the Court Minutes dated August 26, 2020, Mr. Do Q declared:  "In 2004, Ms. T2 and I bought the L-P store from Ms. H, I did not ask or know anything about the purchase contract, the payment, the register of store ownership with authorities. All the things were done by Ms. T2 and Ms. H".  Thus, Mr. Do Q has many testimonies and these testimonies contradict each other.  There is a testimony that Mr. Q asserts that he does not buy the store or does not know about buying the store, there is a testimony that Mr. Q says that he buys the shop, but he does not know the procedure for buying and paying money.  Although, at the first instance court on August 26, 2020, Mr. Do Q stated that he had a shop purchase, but this testimony was at the time when Mr. Q and Ms. Nguyen Thi T2 were divorced and there was a dispute about the house and land at 72 Nguyen Thien Thuat, ward L, city N1, Khanh Hoa province, so this statement is not valid enough to prove.

Based on the above analyzed evidence and documents, the Appellate Trial Panel has sufficient grounds to assert that the documents provided by the petitioner are not valid enough to be used as evidence for the resolution of the case.  The first-instance court used these documents as evidence and determined that Ms. Nguyen Thi T2 bought the "L-P" store in the Federal Republic of Germany from Ms. Nguyen Thi H, and: “Accept the petition of Ms. Nguyen Thi H; force Ms. Nguyen Thi T2 to pay Ms. Nguyen Thi H an amount of VND1,931,544,000”. This decision was made on a non-solid basis, seriously affected the legitimate rights and interests of Ms. Nguyen Thi T2.

Thus, the evidence provided by the petitioner has no legal value to prove the legitimacy, so it cannot be used by the Appellate Trial Panel as evidence in the settlement of the case; therefore, the appeal of the authorized representative of the respondent to refuse to accept the petitioner's petition is grounded and should be accepted by the Appellate Trial Panel.

[2.2.2]. For the appeal of the authorized representative of the petitioner:

The authorized representative of the petitioner suggested that Mr. Do Q be obliged together with Ms. Nguyen Thi T2 to pay Ms. Nguyen Thi H 72,000 Euros, because Mr. Q and Ms. T2 have been living together as husband and wife since 2001, both of them bought Ms. H's store to do business together and serve their common life.  However, because the respondent's appeal is well-founded, the Appellate Trial Panel did not accept the petitioner's appeal.  In case, if the petitioner's appeal is considered, there is no basis to force Mr. Do Q to be obliged to pay for the purchase of "L-P" store together with Ms. Nguyen Thi H, because:  Although at the first instance court on August 26, 2020, Mr. Do Q admitted that in 2004, he and Ms. Nguyen Thi T2 lived together as husband and wife, but because they had not yet acquired citizenship in the Federal Republic of Germany, they had not completed the procedures for marriage registration.  In 2011, Mr. Q and Ms. T2 registered their marriage and were granted the Marriage Certificate No. 165/2011/CNKH, Volume 17 dated September 22, 2011 of the Embassy of Vietnam in the Federal Republic of Germany (case file p.72). In 2016, Mr. Q and Mrs. T2 divorced and were resolved by the Berlin State Court, Federal Republic of Germany.  Therefore, according to the provisions of Vietnamese law, in 2004, Mr. Do Q and Ms. Nguyen Thi T2 were not husband and wife, so there were no obligations of husband and wife under the provisions of the Law on Marriage and Family in 2000; therefore, Mr. Do Q is not obliged to join Ms. Nguyen Thi T2 to pay the amount of 72,000 Euro to Ms. Nguyen Thi H (if there is a purchase and sale of the "L-P" store).

Thus, the appeal of the authorized representative of the petitioner has been considered by the Appellate Trial Panel, but there is no basis for acceptance.

[2.2.3]. For the application of temporary emergency measures:

Pursuant to the "Application for prohibition of property transfer" dated August 8, 2016 by Ms. Nguyen Thi H (case file p.47); on October 12, 2016, the People's Court of Khanh Hoa province issued the Decision to apply temporary emergency measures No. 05/2016/QD-DS to freeze the property, which is the house No. 72 Nguyen Thien Thuat, Ward L, N1 city, Khanh Hoa province of Ms. Nguyen Thi T2 and Mr. Do Q (case file p.55) and to secure the enforcement of the judgment, at the first-instance civil judgment No. 17/2020/DS-ST dated August 27, 2020, the People's Court of Khanh Hoa province affirmed the decision to apply temporary emergency measures to the (above) house and land.  However, because the appeal of the authorized representative of the respondent was accepted, the Appellate Trial Panel decided to annul the decision on temporary emergency measures so that the involved parties can exercise their right to possession, use and disposition of this property.

[3] Regarding court fees:

- Since the first-instance judgment is corrected not to accept the petitioner's lawsuit, Ms. Nguyen Thi H must bear the first-instance civil court fee with related to monetary claim as prescribed by law; and because the appeal is not accepted, the petitioner must bear the appellate civil court fee.

- Since the appeal is accepted, the respondent shall not be liable to the appellate civil court fee.

For the foregoing reasons;

DISPOSITION

1. Pursuant to clause 2 Article 308 and Article 309 of the Civil Procedure Code.

- Do not accept the appeal of the authorized representative of the petitioner, Mr. Hoang Vinh Y.

- Accept the appeal of the authorized representative of the respondent, Mr. Tran Manh.

- Correct the first-instance civil judgment No. 17/2021/DS-ST dated August 27, 2021 of the People's Court of Khanh Hoa province.

2. Pursuant to Clause 3 Article 26, Clause 1 Article 95, Clause 3 Article 96, Point g Clause 1 and Clause 2 Article 138, Points a and b Clause 2 Article 478, Point c Clause 1 Article 469 of the Civil Procedure Code the; Articles 116, 119 and 122 of the Civil Code, judge as follows:

2.1. Do not accept the petition of Ms. Nguyen Thi H against Ms. Nguyen Thi T2 and Mr. Do Q about "forcing Ms. Nguyen Thi T2 and Mr. Do Q to pay Ms. Nguyen Thi H 72,000 Euros, equivalent to the value of 1,963,296,000 VND”.

2.2. Annul the decision on temporary emergency measures No. 05/2016/QD-DS dated October 12, 2016 of the People's Court of Khanh Hoa province (with the decision attached to the appellate judgment).

2.3. Return Mr. Hoang Vinh Y; Residential address:  House No. 04 T Street, L Ward, N1 City, Khanh Hoa Province, the amount of VND 80,000,000 (eighty million VND) deposited at a Term Savings Card No. PK 4935468 on the day of issue October 13, 2016 of Vietnam Joint Stock Commercial Bank for Industry and Trade (Vietinbank) - Khanh Hoa Branch.

3. Regarding court fee:

Pursuant to Clause 1, Article 147, Clauses 1 and 2, Article 148 of the Code Civil Procedure; Clause 3, Article 26, Clause 1 and Clause 2, Article 29 of Resolution No. 326/2016/UBTVQH14 of the National Assembly Standing Committee dated December 30, 2016 on the amounts of collection and exemption, reduction, collection, payment, management and use of court fees and charges.

3.1. Regarding first-instance civil court fee:

- Ms. Nguyen Thi H must bear VND 74,411,754 for first-instance civil court fee related to monetary claim, but this will be deducted from the paid court fee advance of VND 16,366,500 according to the receipt of court fee advance No. AA/2016/0000038 dated August 2, 2016 of the Civil Judgment Execution Department of Khanh Hoa province; Ms. Nguyen Thi H also has to bear 58,045,254 VND (fifty eight million zero hundred forty-five thousand two hundred and fifty four dong) of first-instance civil court fee.

- Ms. Nguyen Thi T2 is not liable for a civil first instance fee.

3.2. Regarding appellate civil fee:

- The petitioner, Ms. Nguyen Thi H, must bear 300,000 VND (three hundred thousand dong) of appellate civil court fee, but this will be deducted from the paid appellate court fee advance of 300,000 VND (three hundred thousand dong) according to the receipt of court fee advance No. AA/2016/0001322 dated September 25, 2020 (paid on behalf of Mr. Hoang Vinh Y) of the Civil Judgment Enforcement Department of Khanh Hoa province, now converted into court fee; Ms. H has fully paid the appellate civil court fee.

- The respondent, Ms. Nguyen Thi T2 is not subject to appellate civil court fee; return Ms. T2 the paid appellate court fee advance of 300,000 VND (three hundred thousand VND) according to the court fee advance receipt No. AA/2016/0001326 dated October 1, 2020 (paid by Mr. Tran Manh) of the Civil Judgment Enforcement Department of Khanh Hoa province.

4. The appellate judgment takes legal effect from the date of pronouncement.


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Judgment no. 32/2022/DSPT date 23/02/2022 on dispute over the claim for performance of payment obligations

Số hiệu:32/2022/DSPT
Cấp xét xử:Phúc thẩm
Agency issued: Tòa án nhân dân cấp cao
Field:Dân sự
Date issued: 23/02/2022
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