Is the land exchange by hand paper still recognized by the Court of Vietnam?

Specifically, in Judgment 128/2017/DS-PT dated September 12, 2017 on the dispute over the land use right conversion contract, the request for cancellation of the land use right certificate has the following summary:

“ In 1996, Mr. D's parents and Mr. B gave Mr. D a land area of ​​603m2, giving Mr. B a land area of ​​681m2, in ward T, city B (in 1999, Mr. D and B jointly carried out the declaration procedures apply for a land use right certificate). On January 1, 2003, Mr. D and B signed a handwritten paper to exchange land use rights that were given to each party by their parents. Due to the difference in land area, Mr. D had to pay Mr. B more money. 40,000,000 VND, the payment and land delivery has been completed. Since 2003, Mr. D and Mr. B have both managed, used, and built houses, and architectural works, and planted trees on the land that they received for conversion. However, Mr. B did not register the name transfer later, so Mr. D filed a lawsuit to ask the Court to settle.

The People's Court of Dong Nai province said that the land use right conversion contract signed between Mr. D and Mr. B did not meet the legal requirements in terms of form, but according to the guidance in Resolution 02/2004/NQ-HDTP dated August 10, 2004 of the Judicial Council of the Supreme People's Court, the contract took effect, so the court decided to recognize the land use right conversion contract signed on January 1, 2003, between Mr. Le Truong D and Mr. Le Quoc B.

In the above case, the involved parties only made a handwritten paper to exchange the land for each other without performing any notarization or authentication procedures. However, both have been using the land they converted for many years, stably and long-term, and have built houses, architecture and planted trees in that area. This leads to the settlement of disputes causing many difficulties when the Court has to comply with the law and ensure the legitimate rights and interests of each involved party.

Since between the involved parties, it is determined that each party's obligations have been fulfilled under the land use right conversion agreement and each party has stable and long-term use of that land, the current law regulates this case as follows: after:

The 2015 Civil Code of Vietnam stipulates:

Article 129. Invalidity of civil transactions due to non-compliance with form

2. If the form of a civil transaction, required to be established in writing, violates against regulations on notarizing or authorization, but a party or the parties has/have fulfill at least two third of the obligations in the transaction, a court, at his/her/their request(s), shall issue a decision on recognition of the validity of such transaction. In this case, the parties need not perform the notarizing or authorization.

Therefore, according to the current Civil Code provisions of Vietnam, the Court's recognition of the validity at the request of the plaintiff is grounded. The above civil transaction has been fully exercised by both rights and obligations, this has met the condition of "performing at least two-thirds of the obligations in the transaction". With the above grounds and arguments, the dispute settlement in accordance with the current law is completely consistent with the conclusion of the Court.

However, the Court relied on Resolution 02/2004/NQ-HDTP to determine whether the contract was valid, specifically in Resolution 02, there was only a part referring to the settlement of disputes over contracts for transfer of use rights. land after 1993 due to a breach of contract form as follows:

2. Dispute settlement of land use right transfer contract

2.3. The settlement of disputes over contracts for the transfer of land use rights established after October 15, 1993

…

a.6) The land use right transfer contract is made in writing, certified by the State Notary Public, or certified by the People's Committee of the competent level.

…

b.3) With regard to a land use right transfer contract that violates the conditions guided at Points a.4 and Point a.6, subsection 2.3, Section 2, if, after performing the transfer contract, the receiver the transferor has planted perennial trees, built a permanent house...and the transferor does not object to and is not administratively handled by a competent state agency according to the State's regulations on the handling of administrative violations in the land field, the court shall recognize the contract. If the transferee only builds a house on a part of the land, the Court shall recognize the part of the contract for the transfer of the right to use the land with houses and cancel the contract for the remaining land area, forcing the transferee to hand over the land. return the land to the assignor, unless the return does not guarantee the use purpose for both parties to the contract,

In case the Court follows the guidance in this provision to settle, the Court's declaration to recognize the entire contract is not entirely consistent with the provisions, because even in point b.3 it simultaneously separates two cases. fit:

First, if both parties agree to recognize the transaction, the Court will recognize the contract.

Second, is the case of recognizing part of the contract and having to hand over the land without houses. So, in both cases specified, there is no basis for the Court to declare the contract to be fully valid.

With the legal grounds given by the Court, it seems that it is still not convincing enough to recognize the validity of the land use right conversion contract, but looking at the solution and results of the case, the above solution is very compatible with the current legal regulations and has ensured the legitimate rights and interests of each involved party.

Although the transactions are made by handwritten paper related to land use rights, although there are serious violations of the transaction form, when considering the settlement of disputes and conflicts in each case, the legitimate interests and interests of the land use rights are considered. litigants always consider resolving. Although it is still possible to be recognized, each party should be careful with the risks that the handwriting brings, because after all, the recognition of transactions made by hand is "rare" cases in countless cases of transactions declared invalid by the Court.