According to Lawyer Nguyen Van Tuan, TGS Law Firm, Bar Association in Hanoi, Vietnam, to know if a land user can both complain and sue for a land dispute, we will need to know what a complaint is, what lawsuit against land dispute is about and the settlement procedure:
What is a complaint or lawsuit against land dispute?
What is a complaint in land dispute settlement?
Clause 1, Article 2 of Vietnam's Law on Complaints 2011 stipulates: "Complain means that a citizen, agency, organization, cadre or civil servant, according to the procedures prescribed in this law, requests a competent agency, organization or person to review an administrative decision or act of a state administrative agency or competent person in such agency, or a disciplinary decision against a cadre or civil servant when having grounds to believe that such decision or act is unlawful and infringes upon his/her/its rights and lawful interests."
Therefore, it can be understood that when administrative decision or act of a state administrative agency or competent person in such agency, or a disciplinary decision against a cadre or civil servant having grounds to believe that such decision or act is unlawful and infringes upon land users' rights and lawful interests or people with related interests, they can make complaints according to the procedure in the Law on Complaints.
According to the regulation, the object of complaint in the settlement of land disputes includes administrative decisions and administrative acts of state administrative agencies, competent individuals in administrative agencies when settling land disputes, specifically:
- Decisions to settle land disputes, decisions to refuse to settle land disputes even though there are sufficient grounds for settlement, etc.
- Administrative decisions of competent individuals in land dispute settlement when settling land disputes are slow, improper implementation, cause difficulties for land users, etc.
Thus, when parties are in the middle of a land dispute, it is not possible to complain for settlement because this is a conflict of rights and interests between two or more parties in that dispute.
Complaints in the settlement of land disputes can only be made when the parties request the state administrative agency to settle, but that agency or competent individual in the agency does not settle, delay settlement or the parties disagree with the decision given after the settlement.
What is a lawsuit against land dispute?
Lawsuit against a land dispute means that the subject of a land dispute in accordance with the provisions of the land law and the Civil Procedure Code decides to bring the land dispute to the People's Court for settlement.
Thus, complaints in land dispute settlement and land dispute lawsuits follow the provisions of different laws. Complaints will be based on the Law on Complaints, while lawsuits against land disputes will be based on the provisions of the land law and the Civil Procedure Code.
However, different procedures and legal bases for settlement do not mean that they are conducted in parallel to resolve a dispute.
Can you submit complaint and at the same time?
Article 203, Land Law 2013 stipulates that if the conciliation at a commune-level People’s Committee fails, a land dispute shall be settled as follows:
(1) File a lawsuit at the People's Court in accordance with the Civil Procedure Code
The land dispute in which the concerned party possesses a certificate or any of the papers prescribed in Article 100 of this Law and the dispute over land-attached assets shall be settled by the People’s Court;
(2) Choose to settle at the Court or the People's Committee of the competent level
For the land dispute in which the concerned party does not possess a certificate or any of the papers prescribed in Article 100 of this Law, the parties may choose between the following two options of settlement:
- Filing a written request for dispute settlement with a competent People’s Committee as prescribed in Clause 3 of this Article;
- Filing a lawsuit with a competent People’s Court in accordance with the law on civil procedures;
+ In case the dispute occurs among households, individuals and communities, the chairperson of the district-level People Committee is responsible for the settlement.
If the concerned parties disagree with the settlement decision, they are entitled to lodge a complaint with the chairperson of the provincial-level People’s Committee or to file a lawsuit at a People’s Court in accordance with the law on administrative procedures;
+ In case the dispute involves one party being an organization, a religious institution, an overseas Vietnamese or a foreign-invested enterprise, the chairperson of the provincial-level People’s Committee is responsible for the settlement.
If the concerned parties disagree with the settlement decision, they are entitled to lodge a complaint with the Minister of Natural Resources and Environment or to file a lawsuit with a People’s Court in accordance with the law on administrative procedures;
Thus, it is not possible to initiate a lawsuit and complain about a land dispute at the same time.
This content is also clearly stated in the complaint procedure prescribed in Article 7, Law on Complaints 2011 as follows:
- When having grounds to believe that an administrative decision or administrative act is unlawful or directly infringes upon his/her rights and lawful interests, a person may make a first-time complaint with the person who has issued such administrative decision or the agency that manages the person who has committed such administrative act, or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.
- In case the complainant disagrees with the first-time complaint settlement decision or the complaint remains unsettled although past the prescribed time limit, he/she may make a second-time complaint with the direct superior of the person competent to settle the first-time complaint or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.
- In case the complainant disagrees with the second-time complaint settlement decision or the complaint remains unsettled though past the prescribed time limit, he/she has right to institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.
Conclusion: Although it can be resolved using different procedures, it is not possible to both complain and initiate a lawsuit against a land dispute. This is not difficult to understand, because if it is solved simultaneously by many procedures, it will take time and resources and it is impossible to have 02 decisions to resolve at the same time take effect.
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