Summary of 46 answers to questions related to Precedents in Vietnam

Recently, the Precedent Department of the Department of Legal Affairs and Scientific Management of the Supreme People's Court has compiled answers to questions related to precedents in Vietnam. Specifically:

1. Answering questions related to Criminal Precedents:

Question 1: In an accomplice case, if it can be proven that the mastermind's subjective intention was to only hire others to injure the victim without the intention of taking their life (the mastermind only requests to cause injury to the victim's legs and arms but does not request to attack vital parts of the body that could potentially lead to death); the practitioner also complied with the mastermind's request; the victim's death is beyond the subjective consciousness of the mastermind. In this case, the mastermind must bear criminal responsibility for what crime?

Reply:

Precedent No. 01/2016/AL guides as follows: "In a case involving accomplices, if it can be proven that the mastermind's subjective intention was to only hire others to injure the victim without the intention of taking their life (the mastermind only requests to cause injury to the victim's legs and arms, but does not request to attack vital parts of the body that could potentially lead to death); The practitioner also complied with the mastermind's request; If the victim's death is beyond the subjective consciousness of the conspirator, the conspirator must be criminally responsible for the crime of "Intentionally causing injury" with the framing circumstance being "causing injury leading to death".

Therefore, in the above case, the mastermind will be criminally responsible for the crime of "Intentionally causing injury" with the framing detail being "causing injury leading to death".

- Relevant legal regulations:

Clause 3, Article 104 of the Penal Code 1999 (Point a, Clause 4, Article 134 of the Penal Code 2015)

Question 2: In the case of accomplices, just because of a small conflict in daily life, the accomplices invited each other to beat the victim. When doing so, the practitioner uses a machete to repeatedly slash the victim's head, face, legs, and arms; The fact that the victim does not die is beyond the subjective wishes of the practitioner. The instigator was not present when the perpetrator committed the crime. He did not know that the practitioner was using a machete to slash vital areas of the victim's body but allowed the consequences to occur. In this case, what crimes are the accomplices prosecuted for?

Reply:

According to Precedent No. 17/2018/AL, in this case, the practitioner must be prosecuted for criminal liability for the crime of "Murder" with the framing circumstance being "Hooligan nature". The instigator is only criminally prosecuted for the crime of "Murder" but is not subject to the framing circumstance "Having a hooligan nature" at Point n, Clause 1, Article 93 of the Penal Code 1999.

Relevant legal provisions:

- Point n, Clause 1, Article 93 of the Penal Code 1999 (corresponding to Point n, Clause 1, Article 123 of the Penal Code 2015);

- Clause 2, Article 93 of the Penal Code 1999 (corresponding to Clause 2, Article 123 of the Penal Code 2015).

Question 3: The defendant was asked by the traffic police to stop his car to handle the violation, but he did not comply and drove the car straight into the traffic police. When the traffic policeman stopped him, the defendant continued to drive the vehicle at high speed. As a result, the traffic policeman was injured. For what crime was the defendant prosecuted?

Reply:

In this case, applying Precedent No. 18/2018/AL, the defendant must be criminally responsible for the crime of "Murder" with the framing circumstance being "Murder while on duty." according to point d, clause 1, Article 93 of the Penal Code 1999 (corresponding to point d, clause 1, Article 123 of the Penal Code 2015).

Relevant legal provisions:

Point d, Clause 1, Article 93 of the Penal Code 1999 (corresponding to Point d, Clause 1, Article 123 of the Penal Code 2015).

Question 4: The defendant took advantage of loopholes in the bank's management, many times directly carrying out procedures to withdraw and spend savings from the bank branch's funds managed by the defendant, but did not actually pay anyone for whom the defendant used this money. During the investigation process, the defendant recovered part of the money that the defendant had appropriated, so what crime should the defendant be held criminally responsible for? How is the value of the property appropriated by the defendant determined?

Reply:

In this case, according to Precedent No. 19/2018AL, the defendant must be criminally responsible for the crime of "Embezzlement of property". The value of the property appropriated by the defendant must be determined as the entire amount of money that the defendant has withdrawn and spent false savings from the bank branch's fund which includes the amount of money the defendant recovered during the investigation process.

Relevant legal provisions:

Points b and p, Clause 1, Clause 2, Article 46; Article 47; Article 60; Point c, Clause 2, Article 278 of the Penal Code 1999 (corresponding to Points b and s, Article 51; Article 54; Article 65, Point c, Clause 2, Article 353 of the Penal Code 2015);

Question 5: In a state of loss of self-control, the victim committed a series of illegal acts that continuously and prolongedly attacked the defendant, causing the defendant to be psychologically inhibited and mentally agitated, so the defendant used a knife to stab the victim to escape the victim's attack, leading to the victim's death. In this case, what crime must the defendant be prosecuted for?

Reply:

According to Precedent No. 28/2019/AL, the victim committed a series of illegal acts of continuous and prolonged attacks on the defendant, causing the defendant to be psychologically inhibited and mentally agitated. In a state of loss of self-control, the defendant used a knife to stab the victim to escape the attack. The defendant was not fully aware of the nature and level of danger of the act he committed. The consequences lead to death. In this case, the defendant must be prosecuted for criminal liability for the crime of "Murder in a highly agitated mental state" according to Clause 1, Article 95 of the Penal Code 1999 (corresponding to Clause 1, Article 125 of the Penal Code 2015).

Question 6: A person who uses force to attack the victim, causing them to fall into a state where they cannot resist, with the aim of not paying the amount of money that person is obliged to pay to the victim, will be punished. about what crime?

Reply:

According to Precedent No. 29/2019/AL, in cases where the defendant uses force to attack the victim, leaving them in a state where they cannot resist for the purpose of not paying the amount of money that the person is obliged to pay to the victim, the defendant will be prosecuted for criminal liability for robbery according to the provisions of Article 133 of the Penal Code 1999 (corresponding to Article 168 of the Penal Code 2015).

Question 7: What is the criminal offense of intentionally driving a vehicle over a victim after causing an accident?

Reply:

According to Precedent No. 30/2020/AL, after causing a traffic accident for the victim, it was not determined whether the victim was alive or dead, but the driver continued to drive the car over the victim. The consequence is death. This case must be prosecuted for criminal liability for the crime of "Murder".

2. Answering questions related to Civil Precedents:

Question 8: In the case of a Vietnamese residing abroad who has spent money to receive a transfer of land use rights and asked someone in the country to accept the transfer of land use rights on their behalf. When deciding, how does the Court determine the effort to manage and preserve assets in the household's name?

Reply:

According to Precedent No. 02/2016/AL, "In cases where Vietnamese people residing abroad have spent money to receive land use rights transfers and ask someone in the country to transfer land use rights on their behalf, when resolving disputes, the Court must consider and calculate the effort to preserve, preserve, and embellish to increase the value of land use rights for the person in whose name the household is named. In cases where it is not possible to determine the exact effort of that person, it is necessary to determine whether the person who actually paid to receive the transfer of land use rights and the person whose name was transferred to the household's land use rights had equal efforts to divide the additional value of the difference compared to the original amount received from the original transfer of land use rights."

Based on the above regulations, when resolving disputes, the Court must consider and calculate the effort to preserve, preserve, and embellish to increase the value of land use rights for the person in whose name the household is named; In case it is not possible to accurately determine the effort of the person in whose name the household is named, it is necessary to determine the person who actually paid and the person in whose name the household's name is credited with equal efforts.
to divide the additional value of the difference compared to the original amount received from the original transfer of land use rights.

- Relevant legal regulations:

Article 137 and Article 235 of the Civil Code 2005.

Question 9: The child and his wife were given an area of land by their parents, and the child and his wife built a solid house on that land area as a place to live. when the child and his wife built a house, the parents and other family members had no objections; The child and his wife have used the house and land continuously, publicly, and stably, and they have declared and been granted a land use right certificate. In this case, is the land use right the common property of the child and his wife?

Reply:

Precedent No. 03/2016/AL guides as follows: "In cases where the parents have given the son and his wife an area of land and the child and his wife have built a permanent house on that land area for a residence, when the son and his wife built a house, the parents and other family members had no objections; if the son and his wife have used the house and land continuously, openly, and stably, and have conducted a land declaration and been granted a land use right certificate, it must be determined that the son and his wife have been given land use rights." Based on the above regulations, the Court must determine that the above land area is the common property of the child and his wife, whose parents have given them land use rights.

Relevant legal provisions:

- Article 14 of the Law on Marriage and Family 1986;

- Article 242 of the Civil Code 1995;

- Clause 2, Article 176 of the Civil Code 1995.

Question 10: A real estate transfer is the common property of a husband and wife to another person, but only one person signs the transfer contract. If there are enough grounds to determine that the transferee has received the full amount as agreed, the person who did not sign the contract knows and uses the real estate transfer money; the transferee of the real estate has received, managed, and used that real estate publicly; and the person who did not sign the contract knew without any objection. In this case, will the Court recognize the above real estate transfer contract?

Reply:

Precedent No. 04/2016/AL guides as follows: “In case the real estate is the common property of husband and wife, only one person signs the contract to transfer the real estate to another person; the other person does not sign the contract; if there are enough grounds to determine that the transferor has received the full amount as agreed, the person who did not sign the contract knows and uses the real estate transfer money; the transferee of the real estate has received, managed, and used that real estate publicly; if the person who does not sign the contract knows and has no objections, it must be determined that he or she agrees with the transfer of real estate." Therefore, in this case, the Court must determine that the person who did not agree with the above contract agreed to the real estate transfer, thereby recognizing the above real estate transfer contract.

Relevant legal provisions:

- Clause 2, Article 176 of the Civil Code 1995;

- Article 15 of the Law on Marriage and Family 1986.

Question 11: In a dispute over the division of inheritance, there is a litigant who is entitled to part of the inheritance and has contributed to the management and improvement of the inheritance but does not agree to divide the inheritance (because the statute of limitations for filing lawsuits regarding inheritance has expired); there is no specific requirement to consider their contributions to the management and improvement of the inheritance. In this case, when the Court decides to divide the inheritance among the heirs, will it consider this litigant's contributions to managing and enhancing the inheritance?

Reply:

Precedent No. 05/2016/AL provides instructions as follows:

“In an inheritance dispute case, there is a litigant who is entitled to part of the inheritance and has contributed to the management and improvement of the inheritance but does not agree to divide the inheritance (because the statute of limitations for initiating lawsuits regarding inheritance has expired), and there is no specific requirement to consider their contributions to the management and improvement of the inheritance; If the Court decides to divide the inheritance among the heirs, it must consider their contributions because the request not to divide the inheritance is greater than the request to consider their efforts."

Pursuant to the above regulations, in this case, although the litigant is entitled to part of the inheritance, he does not request that the Court consider his contributions to the management and restoration of the inheritance. However, when the Court decides to divide the inheritance among the heirs, the Court must still consider the effort contributed to the management and improvement of the inheritance of this litigant because the request for non-inheritance of this litigant's inheritance is greater than the requirement to consider the effort contributed to the management and improvement of the inheritance.

Relevant legal provisions:

Clause 1, Article 5 and Article 218 of the Civil Procedure Code 2004;

Question 12: Does an individual have the right to make a will to determine the compensation value for land in case land is recovered by the State and will there be compensation?

Reply:

According to Precedent No. 34/2020/AL, taking effect on April 15, 2020, the State shall provide compensation for land with land use rights legally created by an individual while that person is still alive upon land recovery. In this case, it must be determined that the value of the recovered land use rights is guaranteed by the compensation value, so the person whose land is recovered has the right to make a will to determine that compensation value.

Relevant legal provisions:

- Articles 163, 181, 634, 646, and 648 of the Civil Code 2005 (corresponding to Clause 1, Article 105, Articles 115, 612, 624, and 626 of the Civil Code 2015);

- Article 42 of the Land Law 2003 (corresponding to Article 74 of the Land Law 2013).

Question 13: Can Vietnamese people residing abroad reclaim the right to use agricultural land that was allocated to people in the country for use before settling abroad?

Reply:

According to Precedent No. 35/2020/AL, taking effect on April 15, 2020, Vietnamese people, before settling abroad, handed over agricultural land to people in the country to use; People living in the country have used that land stably and long-term and have been granted a land use right certificate. In this case, it must be determined that people in the country have legal land use rights. The Court will not accept the request to reclaim land use rights.

Relevant legal provisions:

- Section 3, Part III, Section 3, Part V, Decision No. 201-HDCP/QD dated July 1, 1980 of the Government Council on unifying land management and strengthening land management throughout the country;

- Article 14 of the Land Law 1987; Article 26 of the Land Law 1993; Clause 11, Article 38, Article 50 of the Land Law 2003 (corresponding to Point h, Clause 1, Article 64; Article 100 of the Land Law 2013).

Question 14: In case the Land Use Rights Certificate is revoked or canceled due to errors in the land area and procedures for granting land use rights certificates. If the revocation cancels the user's legal land use rights certificate and the validity of the land use rights mortgage contract does not take away the land user's legal land use rights, will the mortgage contract be valid?

Reply:

According to Precedent No. 36/2020/AL, taking effect on April 15, 2020, the land use rights mortgage contract complied with the law, but then the land use rights certificate was revoked or canceled due to errors in the land area and order and procedures for granting land use rights certificates. The revocation or cancellation of a land use right certificate does not take away the legal land use rights of the land user. In this case, it is necessary to determine whether the land use rights mortgage contract is legally effective.

Relevant legal provisions:

- Articles 322, 343 of the Civil Code 2005; Articles 342, 411 of the Civil Code 2005 (corresponding to Articles 317, 408 of the Civil Code 2015);

- Articles 61 and 62 of the Land Law 2003; Articles 46 and 106 of the Land Law 2003 (corresponding to Articles 95 and 167 of the Land Law 2013).

Question 15: After the premium payment period ends, the insurance buyer will pay the insurance premium to the insurance company. The insurance company has no opinion and no written notice to the insurance buyer about the termination of the contract but still receive insurance premiums, issue value-added invoices, and report taxes on insurance premium payments. When an insured event occurs, will the insurance buyer receive insurance?

Reply:

According to Precedent No. 37/2020/AL, taking effect on April 15, 2020, after the end of the insurance premium payment period as agreed in the property insurance contract, the insurance buyer only pays the insurance premium to the insurance company. The insurance company has no opinion and no written notice to the insurance buyer about the termination of the contract but still receives insurance premiums, issues value-added invoices, and reports taxes on insurance premium payments. Then the insurance event occurs. In this case, the insurance contract is effective, and the insurance company is responsible for compensating the insured for damages.

Relevant legal provisions:

- Articles 285,287 of the Civil Code 2005 (corresponding to Articles 278, 354 of the Civil Code 2015);

- Articles 15 and 23 of the Law on Insurance Business 2000 (amended in 2010).

Question 16: Assets are home ownership and land use rights that have been divided by legally effective judgments or decisions of the Court. Does a person who is not a litigant in that case have the right to initiate a new lawsuit to claim ownership of that house and land use rights?

Reply:

According to Precedent No. 38/2020/AL, taking effect on November 15, 2020, after the assets of house ownership and land use rights have been divided by a legally effective judgment or decision of the Court, someone else (not a litigant in that case) sues to claim ownership of the house and land use rights. In this case, the Court will not accept a new case. The person who claims home ownership and land use rights shall notify in writing the competent person to review the legally effective judgment or decision of the Court according to cassation or retrial procedures, according to the regulations of the Law.

Relevant legal provisions:

Point c, Clause 1, Article 192, Point g, Clause 1, Article 217, Clause 2, Article 327, Clause 1, Article 353 of the Civil Procedure Code 2015.

Question 17: The tenant of a state-owned house (seller) commits that after purchasing the house from the state, it will transfer ownership of the house to the buyer. The seller received the money and delivered the house to the buyer, but then the State did not price it and did not recognize home ownership. Is the above civil transaction valid?

Reply:

According to Precedent No. 39/2020/AL, taking effect on November 15, 2020, the tenant of state-owned housing (the seller) commits that after purchasing the house, the state will transfer home ownership to the buyer. The seller received the money and delivered the house to the buyer, but then the State did not price it and did not recognize home ownership. In this case, it must be determined that the house ownership transfer contract is a civil transaction with conditions but is invalid because the conditions of the contract cannot occur.

Relevant legal provisions:

- Article 23 of the Ordinance on Civil Contracts 1991 (corresponding to Clause 6, Article 406 of the Civil Code 2005, Clause 6, Article 402 of the Civil Code 2015);

- Article 21 of the 2005 Housing Law (corresponding to Article 10 of the 2014 Housing Law);

- Article 256 of the Civil Code 2005 (corresponding to Article 166 of the Civil Code 2015).

Question 18: Is the conversion of land use rights recognized in cases where the parties exchange land use rights but do not have a written agreement; Have the parties used the land stably, long-term, without disputes, registered, declared and been granted a certificate of land use rights for the converted land?

Reply:

According to Precedent No. 40/2021/AL, taking effect on April 15, 2021, the parties exchange land use rights in reality, without a written agreement; The parties have used the land stably, long-term, without disputes, registered, declared, and been granted a certificate of land use rights for the converted land. In this case, the actual conversion of land use rights must be recognized; The parties have land use rights for the converted land area.

Relevant legal provisions:

- Clause 2, Article 3 of the Land Law 1993 (corresponding to Clause 1, Article 106 of the Land Law 2003; Clause 1, Article 167 of the Land Law 2013);

- Clause 2, Article 170 of the Civil Code 2005 (corresponding to Clause 2, Article 221 of the Civil Code 2015).

Question 19: Determining the actual termination of marriage in cases where a man and woman lived together as husband and wife without registering their marriage, but after that, they no longer lived together; and before the Law on Marriage and Family 1986 took effect, they lived together as husband and wife. The first marriage relationship and the second marriage relationship are both de facto marriages.

Reply:

According to Precedent No. 41/2021/AL, taking effect on April 15, 2021, men and women lived together as husband and wife; they did not register marriage, but after that, they no longer lived together; and before the Law on Marriage and Family 1986 took effect, they lived together as husband and wife with another person. The first marriage relationship and the second marriage relationship are both de facto marriages. In this case, it must be determined that the first de facto marriage has ended.

Relevant legal provisions:

- Article 676 of the Civil Code 2005 (corresponding to Article 651 of the Civil Code 2015);

- Resolution No. 35/2000/QH10 dated June 9, 2000 of the National Assembly on the implementation of the Law on Marriage and Family 2000;

- Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 of the Council of Judges of the Supreme People's Court on guiding the application of a number of provisions of the Law on Marriage and Family 2000.

Question 20: In case the mortgaged property is real estate transferred by the mortgagor from another person, the mortgagor has been granted a certificate of house ownership and land use rights but has not paid the seller in full; the parties have not yet delivered the house; If the seller knows and agrees to let the buyer mortgage the real estate, is the mortgage contract valid?

Reply:

According to Precedent No. 43/2021/AL, taking effect on April 15, 2021, the contract to transfer house ownership and land use rights has been notarized, the buyer has been issued a certificate of house ownership and land use rights but has only paid part of the house and land purchase price; and the parties have not yet carried out the house delivery. The buyer mortgages the real estate to the Bank, registering the mortgage in accordance with the provisions of the law; The seller knew and agreed to let the buyer mortgage the house and land, but then requested to cancel the contract to transfer house ownership and land use rights. In this case, it is necessary to determine whether the mortgage contract is legally effective and not accept the request to cancel the contract to transfer housing ownership and land use rights.

Relevant legal provisions:

- Articles 168, 323, 342, 425, 438, and 689 of the Civil Code 2005 (corresponding to articles 161, 298, 318, 423, 440, and 502 of the Civil Code 2015); Articles 439, 692 of the Civil Code 2005;

- Article 10 of Decree No. 163/2006/ND-CP dated December 29, 2006 of the Government on secured transactions

Question 21: The parties voluntarily agreed verbally with each other on the conversion of agricultural land use rights before October 15, 1993; Registered and declared the changed land area and recorded it in the cadastral book; If the transaction has been directly cultivated and used stably, continuously, and long-term, will the transaction be recognized?

Reply:

In this case, according to Precedent No. 15/2017/AL, the land exchange must be recognized as reality, and the Court must recognize the oral agreement of the parties on the conversion of agricultural land use rights to determine the parties who have the right to use the changed land area.

Relevant legal provisions:

- Clause 2, Article 16 of the Land Law 1987.

- Clause 2, Article 170 of the Civil Code 2005.

Question 22: Inheritance is real estate that has been transferred by one of the co-heirs. The other co-heirs knew and did not object to that transfer. The transferred money was used to take care of the lives of the co-heirs. If the transferee has been granted a certificate of land use rights, is the transfer contract invalid?

Reply:

In this case, the Court must recognize the land use rights transfer contract as legal, and the transferred land area is no longer part of the inheritance block but belongs to the transferee's right to use according to Precedent No. 16/2017/AL.

Relevant legal provisions:

Clause 2, Article 170, Article 234, Article 634, and Article 697 of the Civil Code 2005 (equivalent to Clause 2, Article 221, Article 223, Article 612, and Article 500 of the Civil Code 2015).

Question 23: The property lease contract has a term, there is no agreement on the conditions for terminating the contract. The lessee terminates the contract ahead of time without the consent of the lessor. The time between the lessee's written notice and the termination of the contract is so short that the lessor cannot have another replacement contract within the remaining term of the lease. Is it acceptable for the lessor to request that the lessee pay the property rental for the remaining term of the contract?

Reply:

In this case, based on Precedent No. 21/2018/AL, it must be determined that the lessee is at fault and must be responsible for the damage caused to the lessor. The actual damages to consider are the vehicle rental payments for the remaining period of the contract.

Relevant legal provisions:

- Article 426 of the Civil Code 2005 (corresponding to Article 428 of the Civil Code 2015);

- Articles 269, 302, and 303 of the Commercial Law 2005.

Question 24: The life insurance contract, insurance rules, and insurance application have unclear requirements regarding the declaration of the insured's medical condition. If the information required to be declared is not the basis for deciding whether the parties establish a life insurance contract, is it considered a dishonest declaration and a violation of the obligation to provide information?

Reply:

In this case, it must be determined that the insurance buyer does not violate the obligation to provide information when signing an insurance contract or insurance request, according to Precedent No. 22/2018/AL.

Relevant legal provisions:

- Clause 2, Article 407 of the Civil Code 2005 (corresponding to Clause 2, Article 405 of the Civil Code 2015);

- Clause 4, Article 409 of the Civil Code 2005 (corresponding to Clause 3, Article 404 of the Civil Code 2015);

- Article 21 of the Law on Insurance Business 2000 was amended and supplemented in 2010.

Question 25: The life insurance request document shows that the insurance buyer chooses the method of collecting insurance premiums at the insurance buyer's home address. When the insurance premium payment deadline comes and during the premium payment extension period, if the insurance company employee does not come to collect the premium from the insurance buyer, will the insurance buyer get a refund, and will the insurance contract become invalid?

Reply:

According to Precedent No. 23/2018/AL, in this case, it must be determined that the insurance buyer is not at fault for not paying the premium. A life insurance contract does not become invalid because the policyholder does not pay the insurance premium within the agreed-upon period.

Relevant legal provisions: Article 23 of the Law on Insurance Business 2000 was amended and supplemented in 2010

Question 26: One party mortgages his/her land use rights and assets attached to the land to ensure the performance of civil obligations, but on the land there are also assets owned by another person; The form and content of the contract are in accordance with the provisions of law. In this case, will the Court recognize the above mortgage contract?

Reply:

- Precedent No. 11/2017/AL provides instructions as follows:

“- Precedent situation:

One party mortgages his/her own land use rights and assets attached to the land to ensure the performance of civil obligations, but there are also assets owned by another person on the land; The form and content of the contract are in accordance with the provisions of the law.

- Legal solutions:

In this case, the Court must determine that the mortgage contract is legally valid." Based on the above regulations, in this case, the Court must recognize the mortgage contract.

Relevant legal provisions:

Article 342 of the Civil Code 2005 (corresponding to Article 318 of the Civil Code 2015);

Article 715 of the Civil Code 2005;

Section 4, Clause 19, Article 1 of Decree No. 11/2012/ND-CP dated February 22, 2012 of the Government amending and supplementing a number of articles of Decree No. 163/2006/ND-CP dated December 29, 2006 of the Government on secured transactions (codified in Clause 2, Article 325 of the Civil Code 2015).

Question 27: The mortgagor and the mortgagee agree that the mortgagee can sell the secured asset, which is land use rights on which there is a house that is not owned by the land user. In the case of selling secured assets, how does the Court ensure the legal rights and interests of the party whose assets are not owned by the land user?

Reply:

Precedent No. 11/2017/AL provides instructions as follows:

“Precedent situation:

The mortgagor and mortgagee agree that the mortgagee is allowed to sell the secured asset, which is land use rights on which there is a house that is not owned by the land user.

Legal solution:

In this case, when resolving, the Court must give the home owners on the land the priority right to transfer land use rights if they have a need." Therefore, in this case, when the Court resolves the sale of secured assets, it must give priority to receiving the transfer of that land use right to the party whose assets are not owned by the land user if they have a need.

Relevant legal provisions:

Article 342 of the Civil Code 2005 (corresponding to Article 318 of the Civil Code 2015); Article 721 of the Civil Code 2005.

Question 28: The court decided to postpone the trial, and the reason for the postponement was not due to the fault of the litigant (plaintiff, defendant, or person with related rights and obligations) or the representative or protector of the litigant's legitimate rights and interests. The trial is reopened, but there is a litigant, representative, or person protecting the legitimate rights and interests of the litigant who was duly summoned and is absent. How many times is it determined to be absent after being duly summoned?

Reply:

According to Precedent No. 12/2017/AL, taking effect on February 15, 2018, the court must determine that this is the case where the litigant or the litigant's representative or protector of the litigant's legitimate rights and interests is legally summoned for the first time but is absent from the trial.

Relevant legal provisions:

Clause 1, Article 199, Article 202, Clause 2, Article 266 of the Civil Procedure Code 2004 (Clause 1, Article 227, Article 228, Clause 2, Article 296 of the Civil Procedure Code 2015).

Question 29: If the land use transfer contract does not explicitly state the conditions of the transfer but other documents indicate that the parties have reached an agreement and consensus on the conditions of the transfer, and these conditions are legal, can the transfer contract be considered a conditional gift contract?

Reply:

In this case, the litigant can present documents such as a power of attorney or commitments proving that the parties have agreed on the conditions for the gift, then recognize the conditions of the contract to donate land use rights and determine that the contract to donate land use rights is a conditional contract to donate assets according to Precedent No. 14/2017/AL.

Relevant legal provisions:

Article 125, Article 126, and Article 470 of the Civil Code 2005 (corresponding to Article 120, Article 121, and Article 462 of the Civil Code 2015).

Question 30: In an inheritance dispute case with an heir abroad, if the Court has implemented a judicial mandate and collected evidence in accordance with the provisions of the law, the addresses of those people still cannot be determined. In this case, will the Court resolve the plaintiff's lawsuit request? How will the court resolve to ensure the legal rights and interests of absent heirs?

Reply:

Precedent No. 06/2016/AL provides instructions as follows:

“In an inheritance dispute case where an heir is overseas, if the Court has performed a judicial mandate and collected evidence in accordance with the provisions of law but still cannot determine the addresses of those people, the Court will still resolve the plaintiff's request; if the inheritance is determined, the inheritance is identified, and the person leaving the inheritance does not have a will, the inheritance will be resolved for the plaintiff according to the provisions of law; the inheritance assets of absent people whose addresses cannot be determined will be temporarily handed over to those living in the country to manage and later handed over to the absent heirs."

- Point a, Clause 3, Article 6 of Resolution No. 04/2017/NQ-HDTP dated May 5, 2017 of the Council of Judges of the Supreme People's Court guiding a number of provisions in Clause 1 and Clause 3, Article 192 of the Civil Procedure Code No. 92/2015/QH13 on returning the lawsuit petition, the right to file a lawsuit again, and instructions:

“a) For a dispute over property inheritance involving a person with related rights and obligations who is subject to inheritance but the plaintiff cannot provide an address and the Court has taken measures to collect and verify the address in accordance with the provisions of law but still cannot determine the address of that person, the Court will still resolve the case according to the provisions of law. The portion of property that the person with related rights and obligations as an heir has not yet found an address to receive will be temporarily assigned by the Court to that person's relatives or other heirs for management. The rights and obligations of the person with related rights and obligations in the inheritance category whose address has not yet been found will be resolved by the Court in another case upon request;”

Based on the above instructions, in this case, the Court will still consider and resolve the plaintiff's request; If the inheritance is determined, the inheritance is identified, and the person leaving the inheritance does not have a will, the inheritance shall be resolved according to the provisions of law; The inheritance of the absent person is received by the Court and temporarily assigned to that person's relatives or other heirs to manage. The rights and obligations of absent heirs whose addresses have not been found will be resolved by the Court in another case upon request.

Relevant legal provisions:

- Article 93; Point dd, Clause 1, Article 168 of the Civil Procedure Code 2004;

- Articles 676 and 685 of the Civil Code 2005.

Question 31: The house purchase contract was made in writing before July 1, 1991, signed by the seller, clearly stating that the seller had received full payment; Although the buyer has not signed the contract, he is the holder of the contract and has managed and used the house stably for a long time without the seller having any dispute claiming money to buy the house. When a dispute arises, will the Court recognize the above house purchase contract?

Reply:

Precedent No. 07/2016/AL provides instructions as follows:

“Consideration of Precedent:

The house purchase and sale contract was made in writing before July 1, 1991, signed by the seller, clearly stating that the seller had received full payment; Although the buyer has not signed the contract, he is the holder of the contract and has managed and used the house stably for a long time without the seller having any dispute claiming money to buy the house.

Legal solution:

In this case, the contract is valid and determines that the buyer has paid the seller in full, and if the buyer's will agrees with that house sale contract, the house sale contract is recognized. Based on the above regulations, when a dispute occurs, the Court must determine whether the house sale contract is valid, whether the buyer has paid the seller in full, and whether the buyer's will agrees with the house sale contract thereby recognizing the above house purchase and sale contract.

Relevant legal provisions:

- Articles 81, 82, and 83 of the Civil Procedure Code 2004 (corresponding to Articles 93, 94, 95 of the Civil Procedure Code 2015);

- Resolution No. 58/1998/NQ-UBTVQH10 dated August 20, 1998 of the National Assembly Standing Committee on civil housing transactions established before July 1, 1991.

Question 32: In a credit contract concluded before the effective date of the Civil Code 2015 (January 1, 2017), the parties have an agreement on loan interest rates, including: current loan interest rates, overdue debt interest rates, and adjusting lending interest rates from time to time by banks or credit institutions that lend, but at the time of the first instance, the borrower has not paid or has not fully paid the principal and interest according to the credit contract. In this case, what interest rate must the Court apply from the next day of the first instance trial?

Reply:

Precedent No. 08/2016/AL provides instructions as follows:

- Precedent situation:

In the credit contract, the parties have an agreement on loan interest rates, including: current loan interest rates, overdue debt interest rates, and adjusting lending interest rates from time to time by banks or credit institutions that lend, but at the time of the first instance, the borrower has not paid or has not fully paid the principal and interest according to the credit contract.

- Legal solutions:

In this case, the borrower must continue to pay the bank or credit institution the unpaid principal and interest on the due principal (if any); overdue interest on the unpaid principal amount is at the interest rate agreed upon by the parties in the contract until this principal debt is completely paid. In case the parties have an agreement on adjusting the lending interest rate from time to time by the lending bank or credit institution, the interest rate that the borrower must continue to pay according to the Court's decision will also be adjusted to suit the interest rate adjustment of the lending bank or credit institution.

Based on the aforementioned guidelines, in this case, starting from the day after the date of the trial, the customer must continue to make payments to the Credit Institution for the outstanding principal debt, accumulated interest on the principal within the term (if any) , and overdue interest on the unpaid principal amount at the interest rate agreed upon in the contract until this principal debt is fully paid.

In the event that the parties have an agreement on adjusting the lending interest rate from time to time by the lending bank or credit institution, the interest rate that the borrower must continue to pay according to the Court's decision will also be adjusted to suit the interest rate adjustment of the lending bank or credit institution.

Relevant legal provisions:

- Articles 471, 474, and 476 of the Civil Code 2005;

- Clause 2, Article 91 of the Law on Credit Institutions 2010;

- Article 1 of Circular No. 12/2010/TT-NHNN dated April 14, 2010 of the State Bank guiding credit institutions on lending in Vietnam dong to customers at agreed interest rates;

- Clause 2, Article 11 of Credit Institutions' Lending Regulations to Customers were issued under Decision No. 1627/2001/QD-NHNN dated December 31, 2001 of the Governor of the State Bank, which was amended and supplemented by Decision No. 127/2005/QD-NHNN dated February 3, 2005.

Question 33: House and land are the common property of husband and wife, and one person dies first. The remaining person and the heirs of the deceased have agreed to divide the house and land. The division agreement does not violate the rights of any heir. The division of houses and land has been done in reality and has been adjusted on land documents. After the remaining person dies, a dispute arises, do those who have been divided into real estate have the right to sue to request a division of inheritance?

Reply:

According to Precedent No. 24/2018/AL, in this case, it must be determined that the house and land have been converted into the legal ownership and use rights of individuals. These people only have the right to sue to reclaim the divided house or land that is being illegally possessed or used by others, but they do not have the right to request the division of the inherited house and land.

Relevant legal provisions:

Articles 219, 223, and 226 of the Civil Code 2005 correspond to Articles 213, 218, and 220 of the Civil Code 2015.

Question 34: The individual signs a deposit contract to ensure the conclusion of an agreed house purchase and sale contract within a certain period of time. The deposit recipient must complete the procedures to be granted a certificate of home ownership; if they are violated, they must pay a deposit. At the end of the agreed term, if the deposit recipient has not been granted a certificate of home ownership due to reasons from a competent state agency, will the deposit recipient lose the deposit?

Reply:

According to Precedent No. 25/2018/AL, in this case, it must be determined that the deposit recipient's inability to comply with the commitment is objective and that the deposit recipient is not subject to a deposit penalty.

Relevant legal provisions:

Article 358 of the Civil Code 2005 (corresponding to Article 328 of the Civil Code 2015.

Question 35: The person leaving behind an inheritance of real estate died before the announcement of the Inheritance Ordinance on August 30, 1990. At the time the Court of First Instance hears that Civil Code No. 91/2015/QH13 is in effect, how is the time to start calculating the statute of limitations and the statute of limitations for requesting division of inheritance determined? ?

Reply:

According to Precedent No. 26/2018/AL, in this case, the time to start calculating the statute of limitations for requesting division of inheritance must be determined as the date of announcement of the Inheritance Ordinance on August 30, 1990. The statute of limitations for requesting division of inheritance is determined according to the provisions of Civil Code No. 91/2015/QH13.

Relevant legal provisions:

- Clause 1, Article 623 of the Civil Code 2015

- Clause 4, Article 36 of the Inheritance Ordinance dated August 30, 1990.

Question 36: Is the right to rent a house or buy a house owned by the State according to Decree No. 61/CP dated July 5, 1994 of the Government on buying, selling, and trading houses a property right?

Reply:

According to Precedent No. 31/2020/AL, individuals who are eligible to purchase state-owned residential houses under Government Decree No. 61/CP dated July 5, 1994, on the sale and business of residential houses but have not completed the procedures for purchasing the houses at discounted prices during their lifetime, must establish the right to lease or purchase state-owned residential houses as property rights, which can be transferred to their heirs.

Relevant legal provisions:

- Articles 172, 188, and 634 of the Civil Code 1995 (corresponding to articles 163, 181, and 631 of the Civil Code 2005; articles 105, 115, 609 of the Civil Code 2015);

- Decree No. 61/CP dated July 5, 1994 of the Government on housing purchase, sale and business.

Question 37: The land was originally exploited by an individual but then settled abroad and was managed and used by others in a stable and long-term manner. During the process of using the land, this person improved the land, built a stable house, registered, and was granted a land use right certificate. In this case, is the individual who mined the land still the legal land user of that cleared land?

Reply:

According to Precedent No. 32/2020/AL, land was originally exploited by an individual but then settled abroad and was managed and used stably and long-term by others. During the process of using the land, this person improved the land, built a stable house, registered, and was granted a land use right certificate. Therefore, in this case, it must be determined that the individual who cleared the land no longer has legal land use rights, so the request to reclaim land use rights has no basis to be accepted.

Relevant legal provisions:

- Clause 2, Article 10, Clause 1, Clause 4 of Article 50 of the Land Law 2003 (corresponding to Clause 5, Article 26, Clause 1, Clause 4, Article 100 of the Land Law 2013);

- Clause 1, Article 164, Article 176, Clause 2, Article 177, Articles 192, 196, 201 of the Civil Code 1995 (corresponding to Clause 1, Article 155, Article 170, Clause 2, Article 171, Articles 185, 190, 195 of the Civil Code 2005; Clause 1, Article 150, Article 221, Clause 2, Article 237, Articles 187, 182, 192 of the Civil Code 2015).

Question 38: Individuals are allocated land by the State but do not use it but let others manage and use it stably and long-term. During the process of using the land, this person improved the land, built stable housing, and registered to declare land use rights without the land grantee having any comments. In this case, does the individual who is allocated land have the right to reclaim the property?

Reply:

According to Precedent No. 33/2020/AL, individuals are granted land by the State but do not use it but they let others manage and use it stably and long-term from the time the land is allocated. During the process of using the land, this person improved the land, built stable housing, and registered to declare land use rights without the land grantee having any comments. In this case, the Court does not accept the request to reclaim land use rights.

Relevant legal provisions:

- Articles 176, 192, and 196 of the Civil Code 1995 (corresponding to articles 170, 185, and 190 of the Civil Code 2005; articles 221, 187, and 182 of the Civil Code 2015);

- Article 184 of the Civil Code 2015.

Question 39: Can Vietnamese people residing abroad reclaim the right to use agricultural land that was allocated to people in the country for use before settling abroad?

Reply:

According to Precedent No. 35/2020/AL, taking effect on April 15, 2020, Vietnamese people, before settling abroad, handed over agricultural land to people in the country to use; People living in the country have used that land stably and long-term and have been granted a land use right certificate. In this case, it must be determined that people in the country have legal land use rights. The Court will not accept the request to reclaim land use rights.

Relevant legal provisions:

- Section 3, Part III, Section 3, Part V, Decision No. 201-HDCP/QD dated July 1, 1980 of the Government Council on unifying land management and strengthening land management throughout the country;

- Article 14 of the Land Law 1987; Article 26 of the Land Law 1993; Clause 11, Article 38, Article 50 of the Land Law 2003 (corresponding to Point h, Clause 1, Article 64; and Article 100 of the Land Law 2013).

 3. Answering questions related to Administrative Precedents in Vietnam:

Question 40: If the accusatory challenges an administrative decision that does not accept the claim for the recovery of land and property that the State has managed and allocated during the implementation of land management policies and socialist renovation policies related to land before July 1, 1991, as regulated in Resolution No. 23/2003/QH11 dated November 26, 2003, by the National Assembly, and if the decision was issued with proper jurisdiction, content, and procedural sequence, can the Court accept and resolve the case?

Reply:

According to Precedent No. 27/2019/AL, this case must be accepted by the Court to resolve in the direction of rejecting the lawsuit request if the decision has been issued with the correct authority, content, and procedure.

Relevant legal provisions:

- Article 94 of the Law on Organization of the People's Council and People's Committee 2003;

- Article 7 of the Law on Complaints 2011;

- Clause 1, Article 28, Point a, Clause 2, Article 163 of the Law on Administrative Procedures 2010 (corresponding to Clause 1, Article 30, Point a, Clause 2, Article 193 of the Law on Administrative Procedures 2015);

Clause 1, Article 28, Point a, Clause 2, Article 163 of the Law on Administrative Procedures 2010 (corresponding to Clause 1, Article 30, Point a, Clause 2, Article 193 of the Law on Administrative Procedures 2015);

- Article 1 of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly on real estate managed and arranged for use by the State in the process of implementing real estate management policies and socialist renovation policies before July 1, 1991;

- Article 5 of Resolution No. 755/2005/NQ-UBTVQH11 dated April 2, 2005 of the National Assembly Standing Committee stipulates the resolution for some specific cases of real estate in the process of implementing real estate management policies and socialist renovation policies before July 1, 1991;

- Clause 1, Article 4, Decree No. 127/ND-CP dated October 10, 2005 of the Government guiding the implementation of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly.

Reply:

- Precedent No. 10/2016/AL on administrative decisions that are the subject of an administrative lawsuit provides the following instructions:.

“Precedent situation:

The decision approving the support and resettlement plan of the Provincial People's Committee contains references to other documents that directly impact the rights and interests of the plaintiff.

Legal solution:

In this case, the content of the referenced document belongs to the administrative decision, and that administrative decision is the subject of the administrative lawsuit." In this case, the content of the referenced document belongs to the administrative decision, and that administrative decision is the subject of the administrative lawsuit.

Relevant legal provisions:

- Clause 1, Article 3 and Clause 1, Article 28 of the Law on Administrative Procedures 2010 (corresponding to Clause 1, Article 3, and Clause 1, Article 30 of the Law on Administrative Procedures 2015);

- Articles 41 and 42 of the Land Law 2003;

- Decree No. 197/ND-CP dated December 3, 2004 of the Government on compensation, support, and resettlement when the State recovers land;

- Decree No. 69/2009/ND-CP dated August 13, 2009 of the Government providing additional regulations on land use planning, land prices, land recovery, compensation, support, and resettlement.

 4. Answering questions related to Commercial Business Precedents in Vietnam:

Question 42: Do consumers have the right to sue in Vietnamese court if the form contract has an arbitration agreement?

Reply:

According to Precedent No. 42/2021/AL, taking effect on April 15, 2021, in the form of a contract signed with consumers, there is a provision for selecting a foreign arbitrator to resolve disputes. When a dispute occurs, consumers sue in a Vietnamese court. In this case, it must be determined that the consumer does not choose arbitration and has the right to choose the Vietnamese Court to resolve the matter.

Relevant legal provisions:

- Article 38 of the Law on Consumer Rights Protection 2010;

- Article 17 of the Law on Commercial Arbitration 2010;

- Clause 3, Article 26, Clause 1, Article 35 of the Civil Procedure Code 2015;

- Clause 5, Article 4 of Resolution No. 01/2014/NQ-HDTP dated March 20, 2014 of the Council of Judges of the Supreme People's Court guiding the implementation of a number of provisions of the Law on Commercial Arbitration.

Question 43: The goods purchase and sale contract between the two companies is violated because the seller does not deliver or does not deliver enough goods to the buyer, leading to the seller's obligation to repay the advance payment and interest due to late payment. In this case, how does the Court determine interest due to late payment?

Reply:

Precedent No. 09/2016/AL provides instructions as follows:

“- Precedent situation:

The goods purchase contract is violated because the seller does not deliver or does not deliver enough goods to the buyer, resulting in the seller being obliged to refund the advance payment and interest due to late payment.

- Legal solutions:

In this case, interest due to late payment is calculated according to the average overdue debt interest rate on the market equal to the average overdue debt interest rate of at least three local banks at the time of payment (first instance trial), unless otherwise agreed or otherwise prescribed by law.”

In Article 11 of Resolution No. 01/2019/NQ-HDTP dated January 11, 2019 of the Council of Judges of the Supreme People's Court, guiding the application of a number of legal provisions on interest, interest rates, and penalties for violations, the instructions are as follows:

“In cases where the contract is governed by Article 306 of the Commercial Law 2005, when determining the late payment interest rate for the late payment amount, the Court bases its decision on the average overdue debt interest rate on the market of at least 03 (three) commercial banks. (Joint Commercial Bank for Foreign Trade of Vietnam, Joint Stock Commercial Bank for Industry and Trade of Vietnam, Vietnam Bank for Agriculture and Rural Development,...) have headquarters, branches, or transaction offices in the province or centrally run city where the Court is resolving or adjudicating at the time of payment (time of first instance trial) to decide the late payment interest rate, unless the parties agree otherwise or the law has other provisions.”

Based on the above regulations, in this case, to determine interest due to late payment, the Court will base the average overdue debt interest rate on the market of at least 03 (three) commercial banks. (Joint Commercial Bank for Foreign Trade of Vietnam, Joint Stock Commercial Bank for Industry and Trade of Vietnam, Vietnam Bank for Agriculture and Rural Development,...) have headquarters, branches, or transaction offices in the province or centrally run city where the Court is resolving or adjudicating at the time of payment (time of first instance trial) to decide the late payment interest rate.”

Relevant legal provisions:

- Article 34, Article 37, Clause 3, Article 297, and 306 of the Commercial Law 2005;

Question 44: The goods purchase and sale contract between the two companies creates an obligation to pay fines for violations and compensation for damages. In this case, will the Court accept your request to pay interest on the fine and compensate for damages?

Reply:

- Precedent No. 09/2016/AL provides instructions as follows:

“- Precedent situation:

The goods purchase and sale contract creates an obligation to pay fines for violations and compensation for damages.

- Legal solutions:

In this case, the person obliged to pay fines for violations or compensation for damages does not have to pay interest on the amount of fines for violations or compensation for damages." Based on the above instructions, the Court determines that the party obligated to pay fines for violations and compensation for damages does not have to pay interest on the amount of fines for violations or compensation for damages.

Relevant legal provisions:

- Articles 300, 301, 302, 307 Commercial Law 2005;

- Articles 307, 422 of the Civil Code 2005.

Question 45: The international goods sale contract has an agreement on payment method by letter of credit (L/C), an agreement to implement the L/C according to international trade practices (Uniform Code of Practice for Documentary Credits 6th 2007 (UCP 600) of the International Chamber of Commerce), and in accordance with the provisions of Vietnamese law. If the international goods sales contract that is the basis of the L/C is canceled, will the L/C lose its payment validity?

Reply:

According to Precedent No. 13/2017/AL, in this case, the Court must determine that the letter of credit (L/C) is not invalidated for payment due to the cancellation of the international sale and purchase contract, which serves as the basis for the letter of credit (L/C).

Relevant legal provisions:

- Article 3 of the Civil Code 2005 (corresponding to Article 5 of the Civil Code 2015);

- Decision No. 226/2002/QD-NHNN dated March 26, 2002 of the State Bank on "Regulations on payment activities through payment service providers";

- Amendment to the 6th Uniform Code of Practice for Documentary Credits 2007 (UCP 600) of the International Chamber of Commerce.

 5. Answering questions related to Labor Precedents in Vietnam:

Question 46: The employer has a job offer letter with content determining the type of labor contract and probationary period. The employee has been on probation according to the probationary period in the job offer letter. At the end of the probationary period, if the employee continues to work but the employer and employee have no other agreement, have the employee and employer established a labor contract?

Reply:

In this case, according to Precedent No. 20/2018/AL, it must be determined that the employee and the employer have established a labor contract relationship.

Relevant legal provisions:

Article 26, Article 27, Article 28, and Article 29 of the Labor Code 2012.

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