Lessons learned from the administrative judgment on granting Certificates of land use rights twice for the same parcel of land in Vietnam

I. CONTENT OF THE JUDGMENT

- The complainant Ms. Huynh Thi Thu H presented:

On April 14, 2005, Mrs. H's family was granted the Certificates of land use rights No. AB 493267 by the People's Committee of Krong B district for the land plot No. 159, map sheet No. 70, area 8,756 m" in village 1, commune Y, Krong B district, Dak L province. On September 4, 2014, Krong B district People's Committee continued to promulgate the Certificates of land use rights No. BS 145474 for land plot No. 642, map sheet No. 39, area 10,222.3 square meters in Y village, Y commune, Krong B district, Dak L province for her family (which coincides with the area granted on the Certificates of land use rights No. AB 493267: 8,765 m). During the process of participating in the proceedings at the People's Court of Krong B district, Dak L province in the case filed by Bank N - Krong B branch Dak L in 2019 she heard that the two land plots above were overlapping but did not know if precisely no. After working with the People's Committee of commune Y in 2021, she learned the correct information that the People's Committee of Krong B district issued LURCs to her family for two land plots on the same area.

Therefore, Ms. H filed a lawsuit to request the People's Court of Dak L province to cancel the Certificates of land use rights No. BS 145474 for land plot No. 642, map sheet No. 39, area 10,222.3 m2 issued by the People's Committee of Krong B district to Ms. H's family on September 4, 2014.

- The defendant Krong B District People's Committee presented:

Current LURC No. AB 493267 dated  April 14, 2005: Mr. Nguyen Xuan T is keeping it at home. Land use right certificate No. BS 145474, issued on September 4, 2014: Mr. Nguyen Xuan T and his wife, Ms. Huynh Thi Thu H, are mortgaged at Bank N - Krong B branch Dak L,

About the current land use status: Household Mr. Nguyen Xuan T and his wife, Ms. Huynh Thi Thu H, are using land at the location of land plot No. 642, map sheet No. 39, land use purpose for growing perennial crops, location at Buon Y, Y commune, Krong B district. At the time of working on the land, there were no plants, assets and structures on the land.

Regarding the order and procedures for issuance of LURC No. BS 145474 issued on September 4, 2014: The issuance of LURC No. BS 145474 by the People's Committee of Krong B District on September 4, 2014 ensures the correct order and procedures. At the time of issuance, the People's Committee of Commune Y has made public the application for issuance of LURCs of Mr. T and his wife, Ms. Huynh Thi Thu H and households in Y commune as prescribed (15 days), the People's Committee of Y commune did not receive any complaint letter related to the issuance of LURC, BS 145474, issued on September 4, 2014 by Mr. Thanh and Mrs. H. However, the People's Committee of Commune Y, the Advisory Council of the commune's land registration Y made mistakes, the inspection was not strict, leading to the issuance of LURC No. BS 145474 dated September 4, 2014 for land plot No. 642, map sheet No. 39, area 10,222.3 m' overlapping with land plot No. 159, map sheet No. 70, area 8,765 m2, was issued LURC No. AB 493267 by the People's Committee of Krong B district on April 14, 2005.

II. THE COURT'S SETTLEMENT PROCESS

- The first-instance administrative judgment No. 06/2022/HC-ST dated February 23, 2022 of the People's Court of DL province decided:

Pursuant to Clause 1, Article 30; Clause 4 Article 32; Point a, Clause 2, Article 116; Point b, Clause 2, Article 193; Article 194; Article 206 of the Law on Administrative Procedures of Vietnam;

Pursuant to Point d Clause 2 and Clause 3 Article 106; Article 204; Article 209 Land Law 2013 ; Clause 5, Article 87 of Decree No. 43/2014/ND-CP dated May 15, 2014 of the Vietnamese Government detailing the implementation of a number of articles of the 2013 Land Law.

Applying Clause 1, Article 32 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee of Vietnam stipulating the rates of collection, exemption, reduction, payment, management, and use of court fees and fees Court fees;

Sentencing.

Accepting lawsuit request of Ms. Huynh Thi Thu H. Announced partial cancellation of Decision No. 1904/QD-UBND dated May 23, 2014 on granting LURC, ownership of houses, and other properties attached to land for Ms. H's household, declaring the legal value of the LURC No. BS 145474 issued by the People's Committee of Krong B district on September 4, 2014 to Mrs. Huynh Thi Thu H's household at land plot No. 642, map sheet No. 39,

In addition, the judgment also selects the court fees and the right to appeal of the litigants.

- On March 7, 2022, the Procurator General of the People's Procuracy of DL province issued Decision on appeal No. 179/QD-VKS-HC deciding to protest against the above judgment, requesting the Court of Appeal to cancel the judgment. The first-instance administrative office 06/2022/HC-ST dated February 23, 2022 of the People's Court of DL province, suspended the settlement of the case due to the expiration of the statute of limitations for initiating a lawsuit.

- The Appellate Administrative Judgment No. 160/2022/HC-PT dated June 10, 2022 of the High People's Court in Da Nang decided:

Pursuant to Clause 2, Article 3, Article 118 and Clause 2, Article 241 of the Law on Administrative Procedures of Vietnam

Accept the appeal of people with related interests and obligations - Bank N- Krong B district branch Dak L; accepted the Appeal Decision No. 179/QD-VKS-HC dated March 7, 2022 of the Procurator General of the People's Procuracy of Dak L province, Amending the first-instance administrative judgment No. 06/2022/HC-ST dated February 23, 2022 of People's Court of Dak Province L.

Huynh Thi Thu H's petition to cancel a part of Decision No. 1904/QD-UBND dated May 23, 2014 on the issuance of the Certificate of land use rights, house ownership and other property attached to the land for Mrs. H's household and declares to cancel the legal value of the LURC No. 1 BS 145474 issued by the People's Committee of Krong B district on September 4, 2014 for the household N 7 Mrs. Huynh Thi Thu H at land plot number 642, map sheet number 39.

- Proposing Krong B District People's Committee to revoke and cancel LURC No. BS 145474 dated April 14, 2005 issued to Mr. Nguyen Xuan T and Ms. Huynh Thi Thu H.

III. ISSUES NEED TO LEARN US EXPERIENCE

The first-instance court, when considering and assessing the evidence in the case, did not objectively and comprehensively accept Ms. H's petition as incorrect; The Procuracy issued an appellate protest, but the content of the protest did not have enough solid grounds. Specifically:

1. About the statute of limitations for initiating lawsuits

Ms. H presented the process of participating in the proceedings at the People's Court of Krong B district, Dak L province as a defendant in the case sued by the Bank in April 2019 and Mrs. H only heard that her family's two land plots were level of infection. At the beginning of 2021, after working with the People's Committee of Y Commune, Ms. H learned that the correct information about her family's land plot had been issued a LURC by the People's Committee of Krong B district in 2005, but in 2014 the People's Committee of Krong B district continued to issue LURCs to her family. If your family is on the same plot of land, the area of ​​the next land use right certificate is 1,457m larger than the previous one? (10.222m - 8765m).

In 2016, Ms. H's family mortgaged the above land to borrow money from the bank. Mr. T admitted that his family had a lot of land and was issued many land use certificates, so when receiving the certificate, he did not find that the People's Committee of Krong B district had issued the same land use certificates to the family.

Seeing that there is not enough basis to force Ms. H, Mr. Thanh must know that there was an error of the People's Committee of Krong B district in granting the land use right certificate at the time of accepting a bank loan (January 22, 2016). Therefore, there is no solid basis to determine that Ms. H's lawsuit is the expiration of the statute of limitations for initiating a lawsuit under Article 116 of the Law on Administrative Procedures.

2 . About content

At the trial, the representative of the People's Committee of Krong B district, Dak L province admitted that the error in granting the land use right certificate in 2014 was not to recover the land use right certificate granted in 2005 and asked the jury to consider ensuring the interests of the Bank is the third person righteous. The Bank also changed the appeal request to amend the first-instance judgment.

Considering that, the fact that Ms. H filed a lawsuit requesting to cancel the land use right certificate issued to herself by the People's Committee of Krong B district when she mortgaged it to the Bank for a loan and failure to pay the debt is a sign of fraud and unwillingness to perform the guarantee obligation. In fact, the area issued with a land use right certificate in 2014 is larger than the area granted in 2004 on a land plot and is used by Mrs. H's family, without any dispute with anyone. Therefore, in this case, Ms. H's rights and interests are not infringed. The first-instance judgment to accept Ms. H's petition is not correct.