07/10/2022 15:40

Issue of the People's Court's jurisdiction in settling land disputes in Vietnam

Issue of the People's Court's jurisdiction in settling land disputes in Vietnam

The jurisdiction of the People's Court of Vietnam in settling land disputes over land use rights is to determine which of the parties has the right to use the disputed land. However, in reality, the determination of this authority is inconsistent in many cases.

1. Jurisdiction of the People's Court in settling land disputes

Article 22 of the Land Law 1987 stipulates as follows: "When settling disputes over houses, other structures or perennial trees, the People's Courts shall also settle the land use rights with houses, other structures or perennial trees that year." This provision is essentially the assignment of the People's Court to have the authority to settle land disputes when there are houses, other structures, or perennial trees on that land, and the involved parties include, in addition to disputes over this land use right, disputes with each other over the above-mentioned properties. Other land disputes, under the 1987 Land Law, fall under the jurisdiction of the People's Committees at all levels and the National Assembly.

After more than five years of implementation, many contents of the Land Law 1987 were no longer relevant to the country's socio-economic development in this period, so on July 14, 1993, the new Land Law passed by the National Assembly took effect on October 15, 1993. Regarding the jurisdiction of the People's Court in settling land disputes, Clause 3, Article 38 of the Land Law 1993 stipulates as follows: "Disputes over land use rights in which the land user has obtained a certificate from the agency." The State has jurisdiction and disputes over properties attached to such land use shall be settled by the courts.

Thus, until the 1993 Land Law, the type of land dispute under the jurisdiction of the People's Court under the 1987 Land Law continued to be assigned to the People's Court for settlement (there was a change in word usage, but the content content is still the same), in addition, the People's Court's authority to settle land disputes is supplemented to settle disputes when the land user has a certificate of land use right (LURC).

After more than 10 years of implementation, Land Law 1993 continued to be replaced by the  Land Law 2003, which took effect on July 1, 2014. Regarding the jurisdiction of the People's Court in settling land disputes, Clause 1, Article 136 of the Land Law 2003 stipulates as follows: "1. Disputes over land use rights in which the involved parties have a certificate of land use rights or one of the papers specified in Clauses 1, 2 and 5, Article 50 of this Law, and disputes over assets attached to land shall be settled by the People's Court."

Thus, the Land Law 2003 continues to maintain the provisions on the People's Court's jurisdiction to settle land disputes under the Land Law 1993, and co-adds the People's Court with the authority to settle land disputes in which the involved parties have a among the papers specified in Clauses 1,2 and 5, Article 50 of the Land Law 2003.

On November 29, 2013, the National Assembly passed a new land law, replacing the Land Law 2003. This law took effect on July 1, 2014. Regarding the jurisdiction of the People's Court in settling land disputes, Clauses 1, 2, and 3 of Article 203 of the Land Law 2013 stipulate as follows: "1. Land disputes in which the involved parties have a certificate or one of the papers specified in Article 100 of this Law and disputes over land-attached assets shall be settled by the People's Courts;

2. In a land dispute in which neither party has a certificate or one of the papers specified in Article 100 of this Law, the involved party may only choose one of two forms of land dispute settlement under the law. following provisions:

a) File a request for dispute settlement at the People's Committee of the competent level as prescribed in Clause 3 of this Article;

b) File a lawsuit at a competent People's Court in accordance with the law on civil procedures;

3. In case the involved parties choose to settle their dispute at the People's Committee at a competent level, the land dispute shall be settled as follows:

a) In the case of a dispute between households, individuals, and communities, the chairperson of the district-level People's Committee shall settle it; if they disagree with the settlement decision, they have the right to complain to the President of the provincial People's Committee or initiate a lawsuit at the People's Court in accordance with the law on administrative procedures;

b) In the case of a dispute in which one of the disputing parties is an organization, religious establishment, overseas Vietnamese or foreign-invested enterprise, the President of the provincial People's Committee shall settle it; if they disagree with the settlement decision, they have the right to complain to the Minister of Natural Resources and Environment or initiate a lawsuit at the People's Court in accordance with the law on administrative procedures.

Thus, in terms of the People's Court's authority to settle land disputes, the Land Law 2013 continues, in addition to maintaining the provisions on the People's Court's jurisdiction to settle land disputes under the 2013 Land Law, also adding giving the People's Court the authority to settle land disputes. Additional content includes:

1. Expansion is not only to settle disputes over land use rights but also to settle land disputes in general.

2. Settlement of land disputes where the involved parties do not have LURCs, as well as the papers specified in Article 100 of the Land Law 2013, and the litigants choose to initiate a lawsuit at the People's Court (according to civil procedure procedures). the).

3. In the above-mentioned land dispute, the involved parties do not choose to initiate a lawsuit at the People's Court but request the competent People's Committee to settle it. According to administrative procedures, after receiving the settlement decision of the People's Committee, the involved parties who do not accept it are entitled to sue to the People's Court for the abovementioned settlement decisions of the People's Committee.

2. The current situation of land dispute settlement at the People's Courts

The summary of the process of stipulating the jurisdiction of the People's Courts in settling land disputes from the Land Law 1987 up to now shows that continuously throughout the process from the effective date of the Land Law 1987 to the present. Up to now, the People's Court has been assigned by the State the authority to settle disputes over land use rights in cases where the disputed land has not yet been granted a LURC. The first stage is for the dispute to fall under the jurisdiction of the People's Court, and at the same time as with the land use right dispute is the property-attached dispute. From the Land Law 2003 , adding the case that the land does not have a LURC but has papers belonging to one of the types of papers specified in Clauses 1, 2 and 5 of the Land Law 2003, the jurisdiction to settle disputes over land use rights under the People's Courts And until the Land Law 2013, the case continued to be added to the case where the land does not have any papers, but if the litigants initiate a lawsuit to request the People's Court to settle a dispute over land use rights, the People's Court's jurisdiction.

Thus, the issue that the People's Court has jurisdiction to settle disputes over land use rights in the event that one or both parties do not have a LURC has been raised for a long time and is regulated by the Land Law 1987. However, the trial of the courts on this dispute shows that there is a problem with the perception of legal workers towards this legal regulation. Please cite the following case:

The Case sumary:

According to the petition, plaintiff Mr. Nguyen The H presented: In 1994, Mr. Nguyen The H was granted a parcel of land by the People's Committee of commune N in N commune, city H, size 10m x 22m, adjacent as follows: the North of Mr. L's land; the South of the dermatology clinic area; the East of Mrs. G; Mr. K's land; and the West of the road. Since being granted the land, Mr. H has let his neighbors grow vegetables on the land. At the same time, the People's Committee of Commune N granted two households to Mr. Le Tan L, Mrs. Nguyen Thi H (whose land is adjacent to Mr. Nguyen The H's land) and Mr. Phan Van T and Mrs. Dang Thi Thuy L (whose land is adjacent to Mr. Nguyen The H's land). next to the land of Mr. Le Tan L and Mrs. Nguyen Thi H). Three adjacent land plots, adjacent to each other, of the same size, each with an area of 220m2. In 2004, Mr. Nguyen The H started building the foundation to keep the land, but Mr. Phan Van H and Mrs. Cao Thi T stopped, and a dispute occurred.

Through research, Mr. Nguyen Thi H learned that Mr. and Mrs. Phan Van H and Mrs. Cao Thi T had transferred two land plots to Mr. and Mrs. Le Tan L, Ms. Nguyen Thi H, and Mr. and Mrs. Phan Van T, Ms. Dang Thi Thuy L. Mr. Phan Van H and Ms. Cao Thi T were issued the LURC by the City People's Committee on August 7, 2017 at land plot No. 39, map sheet No. 71, area 234 m2 and LURC No. BD 835758, issued on 10/12/2010, at land plot No. 75, map sheet No. 71, area 264 m2. Mr. Nguyen The H said that according to the cadastral map approved by the Department of Natural Resources and Environment in 1996, his land plot has an area of 291.2 m2, while the 2 plots belonging to Mr. Le Tan L and Mr. Phan Van. T have a total area of 446 m2. Mr. H went through the procedures for granting the LURC but discovered that Mr. Phan Van H and Mrs. Cao Thi T had encroached on the land plot that Mr. Nguyen The H was granted by the People's Committee of commune N with 4m horizontally. The encroachment area was 88m2. The cause comes from the land plots No. 39 and 75 map sheets 71, each plot encroaching 2m in width. Therefore, Mr. Nguyen The H petitioned the Court to settle the following issues:

1. Ordering Mr. Phan Tan H and Mrs. Cao Thi T to return the encroached land with a frontage of 4 meters, a length of 22 meters, and an area of 88 meters.

2. Cancel the LURCs issued by the H City People's Committee on August 7, 2017 to Mr. and Mrs. Phan Van H and Ms. Cao Thi T.

Defendants Mr. Phan Van H and Ms. Cao Thi T presented: Land plot No. 75, map sheet No. 71, Mr. Phan Van T and Ms. Dang Thi Thuy L were granted LURC on February 20, 2005, an area of 264 m2; granted according to the application for land use right allocation dated April 15, 1994, and approved by the People's Committee of Commune N on April 25, 1994. In 2010, Mr. and Mrs. Phan Van T and Mrs. Dang Thi Thuy L transferred this land plot to Mr. and Mrs. Phan Van H and Mrs. Cao Thi T. On December 10, 2010, Mr. and Mrs. Phan Van H and Mrs. Cao Thi T were granted a LURC for the above land plot. This land plot has nothing to do with Mr. Nguyen The H's land plot. For land plot No. 39, map sheet No. 71, Mr. Le Tan L and Ms. Nguyen Thi H were issued with the LURC dated February 27, 2006, with an area of land of 234m2, granted according to the application for land use right allocation dated February 25, 1991, approved by the People's Committee of Commune N on March 20, 1991. In 2017, Mr. and Mrs. Le Tan L and Mrs. Nguyen Thi H transferred this land plot to Mr. and Mrs. Phan Van H and Mrs. Cao Thi T. On August 7, 2017, Mr. Phan Van H and Ms. Cao Thi T were granted the LURC for the above parcel of land. Therefore, the defendant did not accept the entire petition of the plaintiff.

Persons with related rights and obligations are Mr. and Mrs. Phan Van T, Dang Thi Thuy L, Le Tan L, and Nguyen Thi H, who have the same testimony as the defendant's above.

The person with related rights and obligations is the People's Committee of City H, who sent a document to the Court, stating that the issuance of LURCs to Mr. and Mrs. Phan Van T, Dang Thi Thuy L, Le Tan L, Nguyen Thi H, Phan Van H, and Ms. Cao Thi T is in accordance with the law.

Judgment of the Court

As the first instance court heard, the content of the judgment's decision is summarized as follows:

1. Mr. Phan Van H and Ms. Cao Thi T are responsible for returning the area of 127.6 m2 to Mr. Phan Van H and Ms. Cao Thi T in the land plot No. 39, map sheet No. 71, because of the overlapping level of land plot number 46, map sheet number 71, and the technical dossier on the land plot made in 1996 named after Nguyen The H.

2. Cancel the LURCs issued to Mr. and Mrs. Le Tan L and Mrs. Nguyen Thi H, Mr. and Mrs. Phan Van T, and Ms. Dang Thi Thuy L; Mrs. Cao Thi T for Mr. and Mrs. Phan Van H.

3. The involved parties themselves contact the competent land management agencies to register the land use rights if they satisfy the conditions prescribed by the Land Law.

The Court of Appeal upheld the first instance judgment.

3. Discussion

The author only wishes to comment on the Court's adjudication related to the Court's jurisdiction in settling disputes over land use rights in this case.

a. The sumary of the settlement of disputes over land use rights

When settling this case, the Court considered that there were grounds to determine that for the disputed land, the People's Committee of Commune N granted Mr. Nguyen the H, and this fact was recorded on the cadastral map that the Department of Natural Resources and Environment approved in 1996. But because Mr. Nguyen The H has not been granted a LURC by a competent state agency, nor has one of the documents specified in Article 100 of the Land Law of the year, In 2013, the Court only canceled the LURCs issued to the defendant and Mr. and Mrs. Le Tan L, Nguyen Thi H, Phan Van T, and Dang Thi Thuy L, without having grounds to determine that Mr. Nguyen Thi H had the right to use them. applicable to the disputed land area. This issue falls under the jurisdiction of the state administrative agencies to consider and settle, so after the court hears, the involved parties should contact the above agencies to be resolved.

The author believes that this is an incorrect perception because the content of the settlement of disputes over land use rights is nothing but the determination of land use rights for the land plot (or land area) in dispute. No matter which party belongs to whom, the parties involved have no right to use it. Therefore, for this case, the jurisdiction and responsibility of the court is to determine for this disputed land area, which side of Mr. Nguyen The H or the wife of Mr. Phan Van H, Ms. Cao Thi T., is authorized to use, or whether both parties are not entitled to use it. If the issue has not been determined, the dispute has not been resolved. It should be noted that this dispute previously, Mr. Nguyen The H had repeatedly contacted the state administrative agencies to be resolved, but to no avail, so he sued the People's Court. Therefore, it is unreasonable for the court to hear the case without declaring who has the right to use the disputed land and handing it back to state administrative agencies for settlement.

There is an opinion that what is the basis to determine whether Mr. Nguyen The H has the right to use the land in dispute when Mr. Nguyen The H has not been granted a LURC and the Court is a judicial authority, not an administrative agency, to have the right to consider the land allocation, thus forcing the Court to settle as above.

According to the author, in the settlement of this dispute, the Court must base itself on the Land Law of 1993, 2003, and 2013, documents and evidence provided by the involved parties and provided by the Court. collected to determine whether Mr. Nguyen The H is eligible to be granted a LURC for this disputed land area. If the conditions are not met, the petition will be rejected. If all conditions are met, it is determined that Mr. Nguyen The H has the right to use the disputed land. This is the basic content of the court's settlement of this case. The state administrative agency must rely on the court's judgment to grant the LURC to Mr. Nguyen The H for this disputed land area (in Mr. N's determination by the Court).

b. It is necessary to understand the concept of "returning land" according to the judgment that the Court has declared, when the Court has not yet determined who has the right to use the land.

In the process of settling land disputes, when it is determined that a person has the right to use land for a certain area of land that is being illegally used by others, the Court will order the land user to pay to return land use rights to other land users. However, in this case, the area of land in dispute, the Court has not determined who has the right to use it, but only determined that Mr. Nguyen The H's land was previously assigned by the People's Committee of Commune N, but forced the defendant to return it and did not specify to whom it was returned to. According to the author, the intention of the court was to return Mr. Nguyen to the H, but due to a lack of expression, it was not clear. However, the declaration of returning Mr. Nguyen The H's land use right is incorrect because the Court cannot determine whether Mr. Nguyen The H has the right to use this disputed area of land, so it is not understood. What does the declaration of return to Mr. Nguyen The H for Mr. Nguyen The H to do and what legal rights and obligations does Mr. Nguyen The H have for this paid land? This is essentially a concept that the Court introduced without a clear connotation because it is not based on any legal provisions.

c. The Court's cancellation of LURCs granted to Mr. and Mrs. Le Tan L, Nguyen Thi H, Phan Van T, Dang Thi Thuy L; are Phan Van H, Cao Thi T right?

Clause 1, Article 34 of the Court's jurisdiction over particular decisions of agencies and organizations under the Civil Code in 2015 stipulates as follows: "1. When settling a civil case, the Court has the right to annul specific illegal decisions of competent agencies, organizations, or persons infringing upon the lawful rights and interests of the involved parties in specific civil cases which the Courts are not aware of." has a duty to solve it." As mentioned above, the court could not determine whether Mr. Nguyen The H had the right to use the land in dispute for the part of the land in dispute. Thus, the Court has not proved that the decisions to grant LURCs to Mr. and Mrs. Le Tan L, Nguyen Thi H, Phan Van T, Dang Thi Thuy L, Phan Van H, and Cao Thi T infringe on legitimate rights and interests. Mr. Nguyen, The H. Therefore, there are no grounds to cancel these LURCs. Therefore, the court's cancellation of these LURCs is not satisfactory.

4. Conclusion

The jurisdiction of the People's Court in settling land disputes over land use rights is to determine which of the parties has the right to use the disputed land. And based on the Court's judgment, the competent state administrative agency will be responsible for granting LURCs for cases that have not yet been granted LURCs but are determined by the Court to have land use rights.

However, it is a fact that for some judgments, those who have issued judgments have not fully grasped this, saying that if the Court settles this way, it is "encroaching" on the state administrative agencies in their activities. On the other hand, it may also be because they do not know how to deal with who has the right to use the land, so they have not fulfilled their responsibilities according to the law. This is not an isolated phenomenon and this is contributing to the complexity of land disputes in society.

Therefore, through this article, the author wishes to exchange and contribute to solving the above difficulties and problems.

Nguồn: Electronic People's Court Magazine

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE

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