The content of the Precedent No. 35/2020/AL in Vietnam

The content of the Precedent No. 35/2020/AL in Vietnam (Image from the Internet)

According to Decision 50/QD-CA in 2020, the Precedent No. 35/2020/AL on Vietnamese people who transfer agricultural land back to domestic residents for use before settling abroad has the following content:

Source of the Precedent:

Cassation Decision No. 65/2018/GĐT-DS dated August 6, 2018 of the High People's Court in Da Nang on the civil case "Dispute over property subject to enforcement of judgment" in Dak province The difference is between the plaintiff, Mrs. Nguyen Thi K, and the defendant, Ms. Nguyen Thi T; People with related rights and obligations include 09 people.

Location of the Precedent content:

Paragraphs 4 and 5 of the "Court's Opinions" section.

Overview of case law content:

- The Precedent situation:

Before settling abroad, Vietnamese people 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.

- Legal solutions:

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.

Legal provisions related to the Precedent:

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

Keywords of the Precedent:

“Vietnamese people residing abroad”; "Return agricultural land to people in the country for use"; “Issued a certificate of land use rights”; “Request to reclaim land use rights”.

CONTENTS OF THE CASE:

In the Petition dated May 9, 2012 and the proceedings, the plaintiff, Mrs. Nguyen Thi K, presented: In 1978, the couple Mrs. Nguyen Thi K and Nguyen C wrote a letter to Mr. Nguyen Van D (son) 05 The land is surrounded by four neighbors: the East borders Mr. L, the West borders Ms. Nguyen Thi E, the South borders the Montagnards, the North borders Highway 14; But in 1982 and 1983 , Mr. D sold it all to Mr. Nguyen Dang N and Mr. Nguyen Van B. After that, Mr. on the land (the real estate for Mr. In 2005, Mrs. K established procedures to apply for a land use right certificate, so on March 9, 2006, the People's Committee of City P issued 02 land use right certificates, including: Land use right certificate No. AD 516166, for plot No. 9, map sheet 58, area 10,112.4m2, purpose of use for planting annual crops, expiry date until 2013 for Mrs. Nguyen Thi K; Land use right certificate No. AD 516165, for plot number 9A, map sheet 58, area 300m2 , urban land use purpose for Mrs. Nguyen Thi K and Mr. Nguyen C. November 2006, Mrs. K has an application to adjust and reissue the land use right certificate to suit the current situation of having built a house on the land, so on November 24, 2006, the City People's Committee issued Decision No. 762/QD -The People's Committee revoked land use rights certificates numbered AD 516165 and AD 516166 and replaced them with new land use rights certificates numbered AG 680769 and AG 680768 for Mrs. Nguyen Thi K and Mr. Nguyen C. Day 19- June 2009, Chairman of the People's Committee of City P issued Decision No. 1654/QD-UBND to revoke the land use rights certificates issued to Mrs. Nguyen Thi K and Nguyen C on the grounds of overlapping areas. area, identical to the number of plots that had issued a land use right certificate to Mr. Nguyen Van D.

Mrs. K initiated an administrative lawsuit against the Chairman of the People's Committee of City P for issuing Decision No. 1654/QD-UBND to revoke the land use rights certificates issued to the two men. First Instance Administrative Judgment No. 02/2010/HC-ST dated June 11, 2010 of the People's Court of Buon Ma Thuot City did not accept Mrs. K's request to sue; Administrative appeal judgment No. 07/2010/HC-PT dated September 17, 2010 of the People's Court of Dak Lak province amends the first instance judgment, accepting Mrs. K's request to sue. Administrative appeal judgment protested by the Director of the Supreme People's Procuracy, in Decision No. 10/2011/HC-GDT on cassation dated November 15, 2011, the Administrative Court of the Supreme People's Court annulled the preliminary administrative judgment. Appeal No. 02/2010/HC-ST dated June 11, 2010 of the People's Court of Buon Ma Thuot City and annulled the Court's Administrative Appeal No. 07/2010/HC-PT dated September 17, 2010. People of Dak Lak province; hand over the file to the People's Court of Buon Ma Thuot City for first instance resolution. After accepting the first instance of the case again, the People's Court of Buon Ma Thuot City duly summoned Mrs. K twice, but Mrs. K was absent, so the People's Court of Buon Ma Thuot City suspended the resolution of the case.

Mrs. K filed a civil lawsuit demanding Mr. D and his wife to return the land because he believed that: In 2005, Mr. D used a photocopy of a document for land from 1978, altered the entire land plot, then used the photocopy as a document to apply for a land use rights certificate, at the same time, Mr. D requested confirmation of the loss of the original document, which was confirmed by the People's Committee of Ward E; based on these documents submitted by Mr. D, the People's Committee of City P issued a land use rights certificate to Mr. D for a land area of 4,925.5m2 (Land use right certificate No. AD 579302 for plot No. 9A, map sheet No. 58, area 300.5m2 and Land use right certificate No. AD 579313 for plot No. 09, map sheet No. 58, area area 4,624m2). Now Mrs. K is suing to request Mr. D and his wife to return 4,652.7m2 of land (minus 272.8m2 of land recovered by the City People's Committee in Decision No. 4233/QD-UBND dated December 24- 2010); Mrs. K agreed to let Mr. D and his wife continue to use 183.74 m2 of land (including the 150 m2 previously given and an additional 33.74 m2 for building a house on this land area); request the Court to cancel the land use rights certificates that the People's Committee of City P issued to Mr. D and Mrs. T.

- Previously, Mr. Nguyen Van D (now deceased) and Ms. Nguyen Thi T presented: In 1978, Mr. K bordering Ms. Nguyen Thi E, south bordering the Montagnards, north bordering National Highway 14; but in 1982, Mr. K sold 01 plot of land to Mr. N and in 1985 Mr. C sold 4 plots of land to Mr. B, totaling 5 plots of land. The two grandparents had already given 5 plots of land to the couple in 1978, so the parents agreed to exchange and give the couple 5 adjacent plots of land; after that, the parents moved to settle in the Federal Republic of Germany.

Before settling in Germany, Mrs. K sent Mrs. Nguyen Thi E all the house and land documents. In 2004, Mrs. K returned home. In 2005, Mr. D and Mrs. K kept.

Mr. D and his wife brought the photocopy that Ms. E gave them, photocopied more, and then attached two decisions on land allocation for coffee growing in 1980 and 1990 of the People's Committee of P town to the People's Committee of Ward E to ask about the procedures for applying for a license. To certify land use rights, they were instructed to have the signatures of Mr K and his family members. In 1978, his parents gave his grandparents a house of 150 square meters and 3.5 plots of land to plant fruit trees, exactly like the paperwork for the original house. After that, Mr. D went back to talk to Mrs. K (at this time Mr. C had died). The confirmation form also has the signatures of Mr. Nguyen Van D (now deceased) and Ms. Nguyen Thi E. Based on this confirmation form, on December 26, 2005, the People's Committee of City P issued it to Mr. and Mrs. Land use right certificate No. AD 579302 for land plot No. 9A, map sheet 58, area 300.5m 2 of residential land and Land use right certificate No. AD 579313 for land plot No. 09, map sheet Plot 58, area 4,624.9m2 of agricultural land.

However, on March 9, 2006, the City People's Committee also issued a Certificate of Land Use Rights No. AD 516166, for plot number 9, map sheet 58, area 10,112.4m2 , for use purpose. annual tree planting for Mr. C is the overlap of the land area that has been granted use rights to the couple; However, later discovering this error, on November 24, 2006, the People's Committee of City P issued Decision No. 762/QD-UBND to revoke the land use rights certificates issued to Mr. C , Mrs. K.

Now, my grandparents do not accept Mrs. K's request to sue; At the same time, present the above two plots of land that they have mortgaged to borrow from Bank A for the amount of 3,000,000,000 VND; Because they could not repay the debt, the Bank sued, the Court resolved it, the Judgment Enforcement agency auctioned the judgment. After completing the judgment, the Court requested the Court to settle the case based on the provisions of law.

The person with related rights and obligations, the representative of the City People's Committee, presented: The order and procedures for granting land use rights certificates to Mr. D and Mrs. T are in accordance with the law. .

The person with related rights and obligations is the representative of Bank A to present: The loan mortgage contract signed between the Bank and Mr. D and Mrs. T.

- In First Instance Civil Judgment No. 124/2013/DS-ST dated September 6, 2013, the People's Court of Buon Ma Thuot City, Dak Lak Province rejected the plaintiff's entire lawsuit request.

- In Civil Court of Appeal No. 07/2014/DSPT dated January 14, 2014, the People's Court of Dak Lak province amended the first instance judgment to accept the plaintiff's entire lawsuit request; forced Mr. D and his wife, Mrs. T to return the land to Mr. City P issued to Mr. D and Mrs. T.

Mr. D and his wife; Bank A and Mr. Dispute over the credit contract and land use rights mortgage contract between the Bank and Mr. D) and his wife has an application for cassation.

- In Decision No. 343/2014/KN-DS dated September 16, 2014, the Chief Justice of the Supreme People's Court protested according to cassation procedures against Civil Appeal Judgment No. 07/2014/DSPT dated January 14, 2014 of the People's Court of Dak Lak province; request a cassation trial to annul the appellate judgment and the first instance judgment; hand over the case file to the Court of First Instance to re-resolve the case. In Decision No. 461/2014/DS-GĐT dated November 24, 2014, the Civil Court of the Supreme People's Court annulled the first and appeal judgments; Handed over the file to the People's Court of Buon Ma Thuot City for first instance resolution with the following comments (summary):

+ When he was born, Mr. C and his wife K used 29,418.27m 2 of land; In 1983 , the two men settled in Germany, so they handed over the land to their children 300.5 m2 of residential land and 4,624.9m2 of agricultural land). In 2004, Mrs. K returned home; In 2006, Mrs. K was granted a certificate of land use rights for the entire land area that Mr. D and his wife were using; But later, the Committee discovered that it issued a decision to cancel the land use right certificate issued to Mrs. K and determined that the grant of land use right certificate to Mr. D and his wife were legal. Thus, although the disputed land area originated from Mrs. K and Mr. C; But the two of them went abroad and handed it over to Mr. D and his wife to use since 1983 and Mr. D and his wife were granted a land use right certificate in 2005; Particularly, 4,624.9 square meters of agricultural land, if not allocated, will also be revoked by the State; As for 300.5m2 of residential land, Mrs. K agreed to give Mr. D 150m2 , the rest is Mr. C's inheritance, so Mrs. K has no right to reclaim it.

+ On the other hand, in 2009, Mr. D and his wife mortgaged their land to borrow money from the Bank; Due to non-payment of debt, the Bank sued, the Court resolved it, and the Judgment Enforcement Agency auctioned it. After completing the judgment, the Court of Appeal forced Mr. D and his wife to return all the land ( except 180m2 to built the house) is incorrect and does not ensure the legal rights and interests of the Bank and Mr. H (the land auction winner).

- In First Instance Civil Judgment No. 98/2014/DS-ST dated January 14, 2014, the People's Court of Buon Ma Thuot City decided to reject the plaintiff's entire lawsuit request.

- In Civil Court of Appeal No. 06/2016/DS-PT dated January 11, 2016, the People's Court of Dak Lak province decided to uphold the above first instance judgment.

After the appeal trial, Ms. Nguyen Thi K filed a request to protest according to cassation procedures against the Civil Court of Appeal No. 06/2016/DS-PT dated January 11, 2016 of the People's Court in Dak Lak province.

- At cassation appeal No. 11/2017/KN-DS-VC2 dated February 7, 2017, the Director of the High People's Procuracy in Da Nang requested the Committee of Judges of the High People's Court in Da Nang Nang tried cassation to annul the First Instance Civil Judgment No. 98/2014/DS-ST dated January 14, 2014 of the People's Court of Buon Ma Thuot City and annul the Civil Appeal Judgment No. 06/2016/ DS-PT dated January 11, 2016 of the People's Court of Dak Lak province for first instance resolution because:

+ In the process of declaring and preparing procedures for applying for a land use right certificate, Mr. Nguyen Van D used photocopies and forged papers for house and land dated January 2, 1978 (repaired all four parts), supplemented Confirmation by Mr. Nguyen Van S, Chairman of the Farmers' Union and Chairman of the People's Committee of Commune E on November 25, 1983 (more than 5 years after the date of land donation) is illegal, City People's Committee P issued Land Use Rights Certificate No. AD 579302 at plot 9A, map sheet 58, area 300.5m 2 and Land Use Rights Certificate No. AD 579313 at plot 09, map sheet 58, area 4,624.9m 2 on the same date December 26, 2005 for Mr. Nguyen Van D's household is incorrect. On the other hand, Mr. Nguyen Van S, Chairman of the Farmers' Union and Chairman of the People's Committee of Commune E, confirmed the date of November 25, 1983 on the land and house allocation document made on January 2, 1978 mentioned above, but the Court The first instance and appellate levels did not verify and take testimonies from these people and did not fully clarify the case.

+ The defendant claims that in 1982, Ms. Nguyen Thi K sold Mr. Nguyen Dang N 01 plot of the land area that Mr. C and Ms. K gave her and her husband, and in 1985, Mr. Nguyen Van B. After Mr. C and Mrs. K sold the land, Mr. C and Mrs. K gave Mrs.T and her husband 05 adjacent plots. Regarding the land area that Mr. C and Mrs. Entering, it is adjacent to Mr. B, adjacent to the house land and requires confirmation from the State Cinema Project of Dak Lak Provincial Cultural Department, Commune E Collective Farmers Association.

However, according to the land sale documents, it shows that Mr. D directly sold the land to Mr. N and Mr. B. The land donation according to the evidence provided by Ms. , but for photocopies that are edited all the way around, not blank. As for Ms. T's statement that after selling 5 plots of land, Mr. C and Mrs. K gave back 5 plots of land next to it, it is unfounded because there is no evidence to prove this.

The defendant also said that Ms. Mrs. K and her family members, including: Nguyen Van D (died in 2008), Nguyen Thi E, all signed to legalize the real estate deed using the photocopy mentioned above. However, a review of this application only shows that Mrs. T and her husband have several plots of land planted with fruit trees.

Regarding proceedings: In 2005, Mr. D and Mr. 1978, considering that Mr. Nguyen C died in 1998, at this time the inheritance rights of Ms. K and 14 children of Mr. C and Ms. K arose. The first instance and appellate courts did not include these people in participating. Proceeding as a person with related rights and obligations is a violation of Article 61 of the 2004 Civil Procedure Code (Article 73 of the 2015 Civil Procedure Code).

At the cassation trial, the representative of the High People's Procuracy in Da Nang requested the Judges Committee of the High People's Court in Da Nang to accept the protest of the Director of the High People's Procuracy in Da Nang. Da Nang.

COURT'S OPINION:

[1] Regarding the fact that Mrs. K and his wife have the right to reclaim the 4,924 m2 area of ​​land that Mr. D and Mrs. or not, the Committee of Judges of the High People's Court in Da Nang finds:

[2] Mr. Nguyen C and Mrs. Nguyen Thi K and his wife have 14 common children. Mr. Nguyen Van D is one of the 14 common children of Mr. C and Mrs. K; The area of ​​4,924 m2 of land (including 300.5 m 2 of residential land and 4,624.9 m2 of agricultural land) currently in dispute between Mrs. K and Mr. D and his wife is part of the total area of ​​29,418.27 m 2 of land between Mr. C, Mrs. K). On October 2, 1978, the couple Mr. C and Mrs. K prepared documents for the house and land, the contents for his son, Mr. Nguyen Van D, a house with an area of ​​4m x 12m, located on an area of ​​5 plots of land, with the East bordering Mr. L's land, the West bordering Mrs. Nguyen Thi's land. E, South borders the land of the Montagnards, North borders National Highway 14; However, in 1982 and 1983, Mr. Nguyen Dang N and Mr. Nguyen Van B received the transfer of all 5 plots of this land. Considering Mrs. K's statement that Mr. D is the one who transferred these 5 plots of land to Mr. N and Mr. B; While Mr. D did not admit it but said that Mr. C and Mrs. K were the transferors, the cassation level found that Mr. D's presentation was consistent with Mr. The land belonged to Mr. C and Mrs. K and gave money to Mr. C and Mrs. K are still in the name of the land owner.

[3] After selling 5 plots of land and writing to Mr. D in 1978, around 1983, Mr. C and his wife K left to settle in the Federal Republic of Germany; The remaining house and land area are managed and used by Mr. D and Mrs. T. The cassation trial panel found that the statement of Mr. D and Mrs. for Mr. N and Mr. B, there is a basis because it is consistent with Mr. N and Mr. B's presentation that The two men bought land and paid money to Mrs. K and his wife; consistent with Mrs. K's signature on October 15, 2005 (The application is signed by the children, including Mr. Nguyen Van D, Ms. Nguyen Thi E, the witness neighbor is Mr. Nguyen Van H1 and authenticated by the local government.) confirmed that in 1978, Mr. D and his wife gave Mr. D the house and land, but the documents for the house and land were lost. So now Mrs. K signs this application so that Mr. D and his wife can carry out the procedures to register land and housing use rights according to the provisions of law.

[4] On the other hand, of the total area of ​​4,924 square meters of land that Mr. D and Mrs. 2 is residential land (Land Use Rights Certificate No. AD 579302, plot number 9A, map sheet 58) the remaining 4,624.9m 2 of land, at plot 09, map sheet 58 is agricultural land (Certificate of Rights land use number AD 579313). According to the provisions of Clause 5, Article 14 of the 1987 Land Law, Clause 3, Article 26 of the 1993 Land Law, the State will recover land if the land user does not use the land for more than 6 months or 12 months without permission from the State. According to the provisions of Clause 11, Article 38 of the 2003 Land Law and Point h, Clause 1, Article 64 of the 2013 Land Law, some cases of land use in violation of the land law will have the land recovered by the State such as: "Arable land". Annual crops must not be used for a period of 12 consecutive months, land for growing perennial crops must not be used for a period of 18 consecutive months; Forestry land must not be used for a period of 24 consecutive months;...", the cassation level considered that although before that, Mr. C and Mrs. K had used 4,624.9m 2 of agricultural land; But the two elderly people have settled abroad and have not used the land for many years, so this agricultural land is subject to confiscation by the State; Mr. D and his wife directly use, annually declare and pay taxes to the State and have been recognized by the State to issue land use rights certificates in 2005, so they have the right to legally use this land area.

[5] Thus, from the above arguments, the cassation level finds sufficient basis to determine: Mr. C and his wife K, before settling in the Federal Republic of Germany, gave Mr. C and his wife K gave Mr. D and Mrs. T 05 plots of land, and now Mr. D and Mrs. T have been granted a land use right certificate to compensate for the 05 plots of land that the two grandparents gave to Mr. D in 1978, but the two grandparents sold to Mr. N and Mr. B in 1982, 1983.; On the other hand, Mr. C and his wife K have not used the land for many years, so the land is subject to confiscation by the State, while Mr. D and his wife have the legal right to use this land area. Therefore, First Instance Civil Judgment No. 98/2014/DS-ST dated January 14, 2014 of the People's Court of Buon Ma Thuot City and Civil Appeal Judgment No. 06/2016/DS-PT dated January 11 -January 2016 of the People's Court of Dak Lak province did not accept the lawsuit request of Mrs. K demanding the return of the land area mentioned by his family, Mr. D and Mrs. T, is justified, in accordance with the law.

[6] After being granted a land use right certificate by the City People's Committee on December 26, 2005 (Land use right certificate No. AD 579302, for plot number 9A, map sheet 58, area of ​​300.5m2 of residential land and Land Use Rights Certificate No. AD 579313 for plot number 09, map sheet 58, area of ​​4,624.9m2 of agricultural land), in 2009, Mr. D and Mrs. mortgaged at Bank A to borrow money. Because Mr. D and Mrs. T and his wife did not pay their debt on time, the Bank sued; The People's Court of Dak Lak province has resolved in the Decision recognizing the agreement of the litigants No. 47/2011/QDST-KDTM dated June 17, 2011 with the decision to force Mr. D and Mrs. T to pay their debt. If the Bank does not pay, the Bank has the right to sell the use rights of the 2 plots of land that Mr. D and his wife mortgaged above. After that, the rights to use the 02 plots of land mentioned above were auctioned and the judgment was completed to the Bank; The winning bidder was Mr. H, so according to the provisions of Article 138 and Article 258 of the 2005 Civil Code, Mr. H is a bona fide third person with the right to legally use the above two plots of land without any relationship related to the dispute. dispute between Mrs. K and Mr. D and Mrs. T.

[7] From the above analysis, the Committee of Judges of the High People's Court in Da Nang considered the cassation appeal No. 11/2017/KN-DS-VC2 dated February 7, 2017 of the Director of the Institute. The high-level People's Procuracy in Da Nang regarding the Civil Appeal Judgment No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak Province has no basis, so it does not accept it and uphold it. Original decision in Civil Court of Appeal No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province.

For the above reasons,

DECISION:

Pursuant to Point b, Clause 1, Article 337, Clause 1, Article 343 of the 2015 Civil Procedure Code; Treat:

1. Do not accept the cassation appeal No. 11/2017/KN-DS-VC2 dated February 7, 2017 of the Director of the High People's Procuracy in Da Nang; uphold the Civil Appeal Judgment No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province;

2. Civil Court of Appeal No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province continues to have legal effect.

The cassation decision takes effect.

CONTENTS OF THE PRECEDENT

“[4] On the other hand, out of the total area of ​​4,924 m2 of land for which Mr. D and Mrs. 5m2 is residential land (Land Use Rights Certificate No. AD 579302, plot number 9A, map sheet 58) and the remaining 4,624.9m2 of land, at plot 09, map sheet number 58 is agricultural land (Certificate land use rights number AD 579313). According to the provisions of Clause 5, Article 14 of the 1987 Land Law, Clause 3, Article 26 of the 1993 Land Law, the State will recover land if the land user does not use the land for more than 6 months or 12 months without permission from the State. allow. According to the provisions of Clause 11, Article 38 of the 2003 Land Law and Point h, Clause 1, Article 64 of the 2013 Land Law, some cases of land use in violation of the land law will have the land recovered by the State such as: "Arable land". Annual crops must not be used for a period of 12 consecutive months, land for growing perennial crops must not be used for a period of 18 consecutive months; Forest land must not be used for a period of 24 consecutive months;... ". The cassation level considered that before that, Mr. C and Mrs. K had used 4,624.9m 2 of agricultural land; But the two elderly people have settled abroad and have not used the land for many years, so this agricultural land is subject to confiscation by the State; Mr. D and his wife directly use, annually declare and pay taxes to the State and have been recognized by the State to grant land use rights certificates in 2005, so they have the right to legally use this land area.

[5] ... First Instance Civil Judgment No. 98/2014/DS-ST dated January 14, 2014 of the People's Court of Buon Ma Thuot City and Civil Appeal Judgment No. 06/2016/DS- PT dated January 11, 2016 of the People's Court of Dak Lak province did not accept the lawsuit request from Mrs. K demanding that Mr. D's family return the land area mentioned above is justified and in accordance with the law. ”

Above is the content of Precedent No. 35/2020/AL on Vietnamese people, before settling abroad, handing over agricultural land to people in the country for use.

In addition, you can refer to the comprehensive list of 39 Precedents published and applied in Vietnam (Latest) here.

Best regards!