The content of the Precedent number 32/2020/AL in Vietnam

The content of the Precedent number 32/2020/AL in Vietnam (Image from the Internet)

According to Decision 50/QD-CA in 2020, the Precedent No. 32/2020/AL on the case of land explored by an individual who is settled abroad and managed and used stably and long-term by another person has the following content:

Source of the Precedent:

Cassation Decision No. 19/2019/DS-GDT dated August 20, 2019 of the Council of Judges of the Supreme People's Court on the case of "Dispute claiming land use rights" in Bac Lieu province between the plaintiff and Ms. Ly Kim S with the defendant Mr. Tran Van N; People with related rights and obligations include 16 people.

Location of the Precedent content:

Paragraph 1 of section “Opinions of the Court”.

Overview of the Precedent content:

- The Precedent situation:

The 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.

- Legal solutions:

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 accept.

Legal provisions related to the Precedent:

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

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

Keywords of the Precedent:

“Sue for land use rights”; “Land developed by individuals”; “Settling abroad”; “Other people have managed and used the land”; “Stable, long-term land use”; "Issued a certificate of land use rights".

CONTENTS OF THE CASE:

In the petition dated September 18, 2012 and during the process of resolving the case, the plaintiff, Ms. Ly Kim S, represented by Ms. Tran Thi Phuong L1 under authorization, presented:

In 1958, Mrs. S's parents, Mr. Ly Ma C and Mr. Tran Thi K, explored about 50,450m2 of agricultural land, now belonging to plot No. 135 with an area of ​​47,250m2 , and plot No. 138 with an area of 3200 m2 in X hamlet, N commune, H district, Bac Lieu province. In 1971, Mr. K and his wife assigned their son, Mr. Ly Kim Q, to manage and use the above land area. In 1978, Mr. Q leased the above land area to Mr. Tran Van C1 (Mr. K's younger brother), but did not prepare documents and Mr. C1 leased the land area mentioned above). In 1997, Mr. C1 self-declared and was granted a Certificate of Use Rights for an area of ​​47,250m2 , plot number 135. However, Mr. C1 also signed a "Land Ownership Certificate" on May 30, 2004, confirming that Mr. C1 borrowed the above land from Mr. K and his wife.

When Mrs. S intended to move the grave of Mr. K and his wife to the above land, Mr. Tran Van N (the person using the land) did not agree. Therefore, the children of Mr. K and his wife, Mrs. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, and Mrs. Ly Kim H, agreed to authorize Mrs. S to sue to request that Mr. N return the entire area. 50,450m2 of land mentioned above. At the first instance trial, Ms. L1 (Ms. S’s authorized representative) withdrew part of the lawsuit request, only asking Mr. receive compensation due to the State recovering an area of ​​3,184 m2 of land at plot number 135.

The defendant, Mr. Tran Van N, presented:

The origin of the disputed land was that Mr. Tran Van C1 (his father) used it before 1975 and was granted a Land Use Rights Certificate in 1997. After that, Mr. C1 completed the procedures to donate this land area. for him; He was granted a Land Use Rights Certificate in 2009 and has directly managed and used this land since then. Regarding the Certificate dated May 30, 2004 provided by Ms. S, he determined that the signature on the paper was not the signature of Mr. C1, but he did not request an appraisal. During the land use process, the State reclaimed part of the land to build a road. His family had stably used the above land area before 1975 and was granted a Land Use Rights Certificate, so they did not accept the land claim of Mr. K and his wife's children.

Persons with related rights and obligations:

- Mr. Vo Thi B presented: Around 1970-1971, when he came to live with Mr. C1, Mr. C1 was farming and using the disputed land. Mr. C1 said that this land was rented from Mr. K. When Mr. K's family left the country and settled in the US, Mr. K transferred the above land to Mr. C1. During the use process, Mr. C1 registered, declared and was granted a Land Use Rights Certificate in 1997; In 2009, Mr. C1 completed the procedures to donate to Mr. N. He did not agree to return the disputed land to the children of Mr. K and Mr. C.

Tran Thi D, Tran Thi D, Tran Thi T and Tran Van Q1 presented: Mr. Tran Van C1 (died in 2009) and Mr. Dang Thi V (unknown year of death) had 4 children. After Mr. V died, Mr. C1 lived with Mr. Vo Thi B and had 07 children including: Tran Van H1, Tran Thi Cam H2, Tran Van L, Tran Van N1, Tran Thi M, Tran Thi G and Tran Van N. The origin of the disputed land previously belonged to Mrs. C and Mr. K. Due to difficult circumstances, Mr. C1 borrowed the disputed land from Mrs. C and Mr. K. After that, when Mr. K's family went to live abroad, Mr. C1 self-registered and was granted a Land Use Rights Certificate. When the children of Mr. K and his wife knew, Mr. C1 wrote a paper acknowledging that the land in Mr. C1's name was lent by Mr. K and his wife. The grandparents all agreed with Mrs. S's request to sue.

- Tran Van H1, Tran Thi Cam H2, Tran Van L, Tran Van N1, Tran Thi M, Tran Thi G presented: They do not know the origin of the disputed land, but since he was born and raised, Mr. C1 (the their father) has been cultivating this land. In 1997, Mr. C1 was granted a Certificate of Land Use Rights. In 2009, Mr. C1 gave it to Mr. N and Mr. N was granted a Certificate of Land Use Rights. They do not agree with Ms. S's lawsuit request.

In First Instance Civil Judgment No. 05/2015/DS-ST dated July 15, 2015, the People's Court of Bac Lieu province decided:

Accept part of Ms. Ly Kim S's lawsuit request against Mr. Tran Van N. Force Mr. Tran Van N to be responsible for returning Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1 and Ms. Ly Kim H The value of the land area of ​​30,674.7m2 at plot 13 5, map sheet number 09 in hamlet X, commune N, district H, Bac Lieu province is equal to the total amount of 788,389,547 VND.

Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1 and Ms. Ly Kim H are all responsible for contacting the District H Capital Construction Investment Project Management Board to receive the compensation amount for the land area. Area of ​​3,184 m2 is 636,800,000 VND.

Recognize and assign Mr. Tran Van N the right to manage and use the area of ​​30,674.7m2 in plot 135, map sheet No. 09 in hamlet X, commune N, district H, Bac Lieu province, the land areas with specific locations are as follows:

Part I land: Area 757.7 m2 with the following edge dimensions: East direction adjacent to Mr. Truong Thanh H's land 26.3m2; West direction adjacent to canal 14000 and Cai Chanh river 00 m; South direction adjacent to canal 14000 with a measurement of 66m; North direction adjacent to Cai Chanh river 57.9m.

Part II of land: Area 6,892 m2 (excluding site clearance and route V corridor) has the following edge measurements: East facing Mr. Truong Thanh H's land 129.5m; West direction borders irrigation canal 180.1 m; The south direction borders Ms. Truong Thi H's land 63.9m; The north direction adjacent to canal 14000 is 50.8m.

Part III of land: Area 23,025 m2 (excluding site clearance and road corridor V) has the following edge measurements: East facing the irrigation canal with measurement of 217.1 m; West direction borders Mr. Truong Van T's land 232.7m; The south direction borders Mr. Truong Van's land N2 91.1m; The North side borders canal 14000 and Mr. Truong Van T's land of 162.3m.

Cadastral measurement extracts of the above land sections are attached to the Judgment and are an inseparable part of the Judgment.

After the first instance trial, Mr. Tran Van N and Mr. Tran Van L filed an appeal.

In Civil Court of Appeal No. 210/2016/DS-PT dated September 8, 2016, the High People's Court in Ho Chi Minh City decided:

Amending the First Instance Judgment, recognizing the agreement between Ms. Tran Thi Phuong L1 (authorized representative of Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, Ms. Ly Kim H) and Mr. Tran Van N as follows: after:

- Mr. Tran Van N has the right to manage and use the land area of ​​30,674.7m 2 in plot 135, map sheet No. 09 in hamlet X, commune N, district H, Bac Lieu province, the lands are located as follows: after:

Part I land: Area 757.7 m2 with the following edge dimensions: East direction adjacent to Mr. Truong Thanh H's land 26.3m2; West direction adjacent to canal 14000 and Cai Chanh river 00 m; South direction adjacent to canal 14000 with a measurement of 66m; North direction adjacent to Cai Chanh river 57.9m.

Part II of land: Area 6,892 m2 (excluding site clearance and route V corridor) has the following edge measurements: East facing Mr. Truong Thanh H's land 129.5m; West direction borders irrigation canal 180.1 m; The south direction borders Ms. Truong Thi H's land 63.9m; The north direction adjacent to canal 14000 is 50.8m.

Part III of land: Area 23,025 m2 (excluding site clearance and road corridor V) has the following edge measurements: East facing the irrigation canal with measurement of 217.1 m; West direction borders Mr. Truong Van T's land 232.7m; The south direction borders Mr. Truong Van's land N2 91.1m; The North side borders canal 14000 and Mr. Truong Van T's land of 162.3m.

Cadastral measurement extracts of the above land sections are attached to the Judgment and are an inseparable part of the Judgment.

- Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1 and Ms. Ly Kim H with Ms. Tran Thi Phuong L1 as the authorized representative has the right to contact the District Capital Construction Investment Project Management Board H to receive compensation for the area of ​​3,184m2 is 636,800,000 VND.

Mr. Tran Van N is responsible for paying Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, and Ms. Ly Kim H with Ms. Tran Thi Phuong L1 as the authorized representative the amount of 72,246,970 VND.

After the appeal trial, Mr. Tran Van N filed a request for review according to cassation procedures for the above mentioned civil appeal judgment.

In Decision No. 33/2019/KN-DS dated June 18, 2019, the Chief Justice of the Supreme People's Court appealed Civil Appeal Judgment No. 210/2016/DS-PT dated June 8. -September 2016 of the High People's Court in Ho Chi Minh City; request the Council of Judges of the Supreme People's Court to conduct a cassation trial in the direction of annulling the above-mentioned Civil Court of Appeal and canceling the First Instance Civil Judgment No. 05/2015/DS-ST dated July 15, 2015 of the People's Court of Bac Lieu province; hand over the case file to the People's Court of Bac Lieu province for retrial according to first instance procedures, in accordance with the provisions of law.

At the cassation trial, the representative of the Supreme People's Procuracy agreed with the appeal decision of the Chief Justice of the Supreme People's Court.

COURT'S OPINION:

[1] Plot of land number 135 in hamlet X, commune N, district H, Bac Lieu province was originally discovered by Mr. 1975 until now. During the use process, Mr. C1 registered, declared and was granted a Certificate of land use rights in 1997, then Mr. C1 completed the procedures to gift it to Mr. N and Mr. N was granted a Certificate of Land Use Rights in 2009. Mr. K and his wife did not register, declare, and use the above land area and did not have one of the documents according to Article 100 of the 2013 Land Law (formerly Article 50 of the 2003 Land Law). On the other hand, Mr. K's family has all left the country and settled in the US, so they are not eligible for the State to recognize land use rights, allocate land, or lease land according to the provisions of Article 54, Article 55, Article 56, Article 183 of the 2013 Land Law. Therefore, Mr. K and his wife do not have legal use rights to the disputed land area mentioned above. The first instance court's acceptance of Ms. S's lawsuit request was incorrect.

[2] At the appeal court, the plaintiff and the defendant reached an agreement, according to which Mr. N had the right to use an area of ​​30,674.7m2, land plot number 135, but had to pay the plaintiff 1/ 2 value of the right to use an area of ​​30,674.7 m2 of land and 1/2 of the State compensation amount (minus 163,450,000 VND to support households living on the land) When recovering 3,184m2 of land. From there, the Court of Appeal decided that Ms. L1 (authorized representative of Ms. S, Mr. S1, Ms. H, Mr. 636,800,000 VND in compensation for land recovery and 73,246,970 VND paid by Mr. N; Mr. N has the right to use an area of ​​30,674.7 m2, land plot number 135. However, according to the cadastral measurements of the land sections attached to the First Instance Judgment and the Court of Appeal, the total area is 30,674.7m2. The land that Mr. N is entitled to use according to the decision of the Judgment, includes 813.7 m2 of land plot No. 545 (in the name of Mr. Truong Van N2) and 1,233.6m2 of land plot No. 136 (managed by the State). The court of first instance and the court of appeal do not involve the owners of this land plot in the litigation as parties with rights and obligations related, but decide to allocate the areas of the land plots mentioned above for Mr. N to use, which does not ensure their rights and seriously violates the litigation procedures stipulated in Clause 4, Article 68 of the 2015 Civil Procedure Code.

For the above reasons,

DECISION:

Pursuant to Point a, Clause 2, Article 337, Clause 3, Article 343 and Article 345 of the 2015 Civil Procedure Code.

1. Accept the Decision on cassation appeal No. 33/2019/KN-DS dated June 18, 2019 of the Chief Justice of the Supreme People's Court.

2. Cancel Civil Appeal Judgment No. 210/2016/DS-PT dated September 8, 2016 of the High People's Court in Ho Chi Minh City and annul First Instance Civil Judgment No. 05/2015/DS -ST dated July 15, 2015 of the People's Court of Bac Lieu province on the case of "Dispute claiming land use rights" between the plaintiff, Ms. Ly Kim S, the defendant, Mr. Tran Van N, and other interested parties, other related obligations.

3. Hand over the case file to the People's Court of Bac Lieu province for retrial according to first instance procedures, in accordance with the provisions of law.

CONTENTS OF THE PRECEDENT

“[1] Plot of land number 135 in hamlet X, commune N, district H, Bac Lieu province was originally discovered by Mr. 1975 until now. During the use process, Mr. C1 registered, declared and was granted a Certificate of land use rights in 1997, then Mr. C1 completed the procedures to give it to Mr. N and Mr. N was granted a Certificate of Land Use Rights in 2009. Mr. K and his wife did not register, declare, and use the above land area and did not have one of the documents according to Article 100 of the 2013 Land Law (formerly Article 50 of the 2003 Land Law). On the other hand, Mr. K's family has all left the country and settled in the US, so they are not eligible for the State to recognize land use rights, allocate land, or lease land according to the provisions of Article 54, Article 55, Article 56, Article 183 of the 2013 Land Law. Therefore, Mr. K and his wife do not have legal use rights to the disputed land area mentioned above. The first instance court's acceptance of Ms. S's lawsuit request was incorrect."

Above is the content of the Precedent No. 32/2020/AL on the case of land explored by an individual but then settled abroad and someone else managed and used it stably and long-term.

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

Best regards!