What is the content of the Precedent No. 33/2020/AL in Vietnam?

What is the content of the Precedent No. 33/2020/AL in Vietnam? (Image from the Internet)

According to Decision 50/QD-CA in 2020, the Precedent No. 33/2020/AL on cases where individuals are allocated land by the state but do not use it but let others manage and use it stably and long-term, the content is as follows:

Source of the Precedent:

Cassation Decision No. 34/2018/DS-GDT dated June 26, 2018 of the Committee of Judges of the High People's Court in Hanoi on the case "Sue for property of house, land and compensation for support when the State recovers land" in Hung Yen province between the plaintiff Ms. Bui Thi P, Mr. Le Ngoc T1, Ms. Le Thi Thanh X and the defendant Mr. Le Ngoc T2; People with related rights and obligations include 06 people.

Location of the Precedent content:

Paragraph 4 of section “Opinions  of the Court”.

Overview of the Precedent content:

- The Precedent situation:

Individuals are granted land by the State but do not use it but let others manage and use it in a stable and long-term manner 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 any comments from the land grantee.

- Legal solutions:

In this case, the Court does not accept the request to reclaim land use rights.

Legal provisions related to the Precedent:

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

- Article 184 of the 2015 Civil Code.

Keywords of the Precedent:

“Sue for land use rights”; "Let others manage and use the land stably and long-term"; “Building stable housing”; “Registering and declaring land use rights”.

CONTENTS OF THE CASE

In the petition and proceedings, the plaintiffs, Ms. Bui Thi P, Mr. Le Ngoc T1 and Ms. Le Thi Thanh X, represented by Ms. Bui Thi P as the authorized representative, presented:

Mr. Le Ngoc U and Mrs. Bui Thi T are from village D, commune D1, district P, Hung Yen province. The two elders lived and died in Lang Son province. Mr. U and Mrs. T have only one child, Mr. Le Ngoc H, the husband of Ms. Bui Thi P. In 1973, Mr. U returned to his hometown and asked the People's Committee of D1 commune to grant him a plot of land with an area of ​​1,079m2 in D village, D1 commune, P district, Hung Yen province. In 1976, Mr. H returned to his hometown and built a three-room house with a flat roof, an attic room and all auxiliary buildings including kitchen, well, bathroom, and toilet on the above plot of land for Mr. retired and returned to his hometown. Mr. U and Mrs. T lived in that house for a while then moved into the village to the house and land left by Mrs. T's parents. In 1977, Mr. Le Ngoc C1, Mr. U's younger brother, borrowed the house and land for his son, Mr. Le Ngoc T2, to stay.

In 1985, Mrs. P married Mr. H. At that time, Mr. U, Mrs. T and Mr. H all lived at 53C, Ward D, City L, Lang Son province.

On January 22, 1994, Mrs. T died and on December 20, 1995, Mr. U died without leaving a will (both died in Lang Son). According to Mrs. P's presentation, before Mrs. T passed away, he entrusted Mrs. P with the land transfer paper for Mr. U in village D in 1973, but in 2008, there was a historic flood in Lang Son, causing Mrs. P's house to be flooded, resulting in all personal documents being completely damaged.

In 2008, Mr. Le Ngoc T2 went to Lang Son to meet Mr. H and asked to write an authorization letter for Mrs. T2 to receive compensation due to the State recovering land to open Road 38B. In June 2009, Mr. H died without leaving a will, but he told Mrs. P and her mother to return to their hometown to reclaim the house and land lent to Mrs. T2.

Mrs. P and her children asked Mrs. T2's family to return the entire house, land and 398,638,000 VND in compensation when the State recovered the land in 2008.

The defendant, Mr. Le Ngoc T2, presented:

The plot of land that his family is managing and using is because his father, Mr. Le Ngoc C1, asked Mr. Le Ngoc U (Mr. receive land. In 1975, his father allowed his wife and him to build a house on this land. From the time his wife and him lived on the land until the deaths of Mr. U and Mr. H, the family of Mr. U never claimed the land as their own, and Mr. U or Mr. H never returned to build a house on this land. The entire house and assets on land today were built and created by him and his wife. In 1998, he declared the land owner's name. In 2008, when the State recovered land to expand Road 38B, his family was compensated more than 300 million VND; Because the books did not show his family's name, the People's Committee of D1 commune required him to have a written commitment from the person whose name was on file 299, so he went to Lang Son to meet Mr. H and asked to write a written commitment. Mr. H wrote him a commitment paper dated April 10, 2008, determining that the entire plot of land that Mr. U had been given by the commune since 1974 was assigned to him for use; Up to now and from now on, the family has no opinion on that land. He did not accept the entire lawsuit request of Ms. P and her children.

According to the People's Committee of Commune D1, the plot of land that Mrs. T2's family is managing and using, shown on map 299 prepared in 1981, has an area of ​​1073 m2 and plot number 117, map sheet number 15; The 1986 inventory book on page 128 records the land owner's name as Le Ngoc U1. The People's Committee of D1 commune conducted verification and concluded that Mr. Le Ngoc U1 is from the same village D, but is not the owner of this land plot, but the owner's name in the inventory book is Le Ngoc U. 

According to the D1 commune cadastral map completed in December 1998, in Map Sheet No. 31, the land plot that Mrs. T2's household is managing and using includes 4 plots: Plot No. 269 (T) with an area of ​​574.4 m2 ; Plot 251 (pond) area 261.2 m2; Plot No. 286 (pond) area 152.9 m2; Plot number 301 has an area of ​​149.1m 2 and is land along the corridor of Road 38B. The total area of ​​plots and corridors is 1,177.6 m2. According to the index book prepared in 1998, on pages 86 and 87, the above land plots all have the name of the land owner named Le Ngoc T2.

In First Instance Civil Judgment No. 01/2015/DS-ST dated March 31, 2015, the People's Court of Phu Cu District decided:

1. Partially accept the lawsuit request of Ms. Le Thi Thanh.

2. Assigned to Mr. Le Ngoc T2 and Ms. V to manage and use according to actual measurement data on August 8, 2014 of 990 m2; of which: residential land is 816 m2; Pond land is 174 m2 (attached diagram), Mr. Le Ngoc T2 and Ms. Doan Thi V are obliged to register the assigned land use rights at the competent state agency, according to the provisions of land law. 

Houses, construction works, trees, and crops located on the plot of land are owned by Mrs. T2 and Ms. V.

3. Forced Mr. Le Ngoc T2 and Ms. Doan Thi V to pay to Ms. Le Thi Thanh X and Mr. Le Ngoc T1 the value of the inheritance that Ms. The amount is 191,864,200 VND (One hundred ninety-one million eight hundred sixty-four thousand two hundred VND).

In addition, the Court of First Instance also decides on court fees and the litigants' right to appeal.

On April 15, 2015, defendant Mr. Le Ngoc T2 appealed part of the verdict.

In the Civil Court of Appeal No. 25/2017/DS-PT dated September 28, 2017 of the People's Court of Hung Yen province decided:

1. Partially accept the lawsuit request and appeal request of Ms. Le Thi Thanh X and Mr. Le Ngoc T1, Ms. Bui Thi P (other name: Bui Thi Huong P).

2. Amend the first instance civil judgment No. 01/2015/DS-ST dated March 31, 2015 of the People's Court of Phu Cu district, Hung Yen province as follows:

3. Allocate to Mr. Le Ngoc T2 and Ms. Doan Thi V an area of ​​621.2 m2 of land plot No. 117, map sheet No. 15, map 299 prepared in 1981, village D, commune D1, district P in the name of Mr. Le Ngoc U.

4. Allocate to Ms. Le Thi Thanh Map sheet No. 15, Map 299, created in 1981 in village D, commune D1, district P, in the name of Mr. Le Ngoc U, along with assets on the land are 01 level four house with corrugated iron roof, 01 shed, 01 livestock barn, western boundary wall on the allocated land area. Ms. Bui Thi P manages the assets of Ms. Le Thi Thanh

5. Ms. Bui Thi P (other name: Bui Thi Huong P) must pay back to Mr. Le Ngoc T2 and Ms. Doan Thi V the value of the project on the assigned land in the amount of 47,068,000 VND (Forty-seven million and sixty-eight thousand dong).

6. Force Mr. Le Ngoc T2 and Ms. Doan Thi V to pay to Ms. Bui Thi P, Ms. Le Thi Thanh X and Mr. Le Ngoc T1 the value of the inheritance that Ms. P, Ms. Mr. Le Ngoc U and Mrs. Bui Thi T amounted to 199,319,000 VND (One hundred ninety-nine million, three hundred and nineteen thousand VND).

In addition, the judgment also declares court fees and liability for delayed execution of the judgment.

On October 25, 2017, Mr. Le Ngoc T2 submitted a request for review according to cassation procedures for the above civil appeal judgment.

In Decision No. 07/QDKNGDT-VC1-DS dated March 28, 2017, the Director of the High People's Procuracy in Hanoi protested against the Civil Appeal Judgment No. 25/2017/DS-PT dated March 28. -9-2017 of the People's Court of Hung Yen province, requesting the Judges Committee of the High People's Court in Hanoi to conduct a cassation trial, annul the above-mentioned Civil Appeal Judgment and the First Instance Civil Judgment No. 01/2015/DS-ST dated March 31, 2015 of the People's Court of Phu Cu district, Hung Yen province; hand over the case file to the People's Court of Phu Cu district, Hung Yen province for first instance trial in accordance with the provisions of law.

At the cassation trial, the representative of the High People's Procuracy in Hanoi added a protest about court fees and requested the Judges' Committee of the High People's Court in Hanoi to accept the Procurator's protest. The High People's Procuracy in Hanoi, annulled the First Instance Civil Judgment No. 01/2015/DS-ST dated March 31, 2015 of the People's Court of Phu Cu District, Hung Yen Province and the Civil Judgment Appeal No. 25/2017/DS-PT dated September 28, 2017 of the People's Court of Hung Yen province; hand over the case file to the People's Court of Phu Cu district, Hung Yen province for first instance trial in accordance with the provisions of law.

COURT'S OPINION:

[1] Based on the testimony of the litigants, all admitted that the land area belongs to factor 31 (actual land area is 990.2m 2 ), map sheet number 269 in village D, commune D1, district P, Hung Yen province originated from the People's Committee of Commune D1 granted to Mr. Le Ngoc U in 1973. This plot of land is currently managed and used by Mr. Le Ngoc T2 (BL 181,184) and Mrs. T2 has not been granted a certificate of land use rights.

[2] Ms. P (Mr. Le Ngoc U's daughter-in-law said that) after Mr. U was granted land, Mr. U and his wife and Mr. Le Ngoc H (Mr. U's son and her husband) brought materials from Lang Son to build houses and projects on land. Mr. U and his wife stayed for a short time, then moved to Lang Son to live with her and her husband. The family of Mr. C1 (Mr. U's younger brother) lent the house above for Mrs. T2 (Mr. C1's son) to live in. Meanwhile, Mrs. T2 and Mr. S (Mr. C1's wife) did not admit to borrowing the house and land from Mrs. To reduce the population, Mr. U asked Mr. U to apply for land grant to Mr. C1's family. Mr. C1 was the one who directly received the land and let Mr. At the same time, present the confirmation of the people who took over the land, built houses and structures on Mrs. T2's land to prove it. Based on the confirmation of the witnesses, the appraisal record of Mrs. T2's house bricks and the bricks brought by Mrs. P from Lang Son for comparison, there is a basis to determine that the house and assets on the land belong to the family.

[3] Regarding the disputed land area, it is found that: Ms. P and Mrs. T2 were both unable to provide documents proving legal use rights for the disputed land area. However, based on the testimonies of the litigants and the verification record at the People's Committee of Commune D1 (BL253), Mrs. Ta Quang H (a cadastral officer of Cooperative D1 in 1960-1978) has the opportunity to The department determined that in 1973, Mr. Le Ngoc U (Mr. Le Ngoc C1) worked in Lang Son and returned to his hometown to request land to relax the population. The People's Committee of Commune D1 granted land to Mr. U. In the minutes of verification with officials D1 commune cadastral shows that Mr. statistics in 1998 (BL37). According to the verification record at the People's Committee of D1 commune, the origin of the land managed and used by Mrs. T is a certificate issued by the People's Committee of D1 commune in 1973 under the name of Mr. U. The locality does not have information on whether Mr. U applied for the land for himself or on behalf of Mr. C1, and there are no documents related to the transfer of land use rights. In reality, Mr. U's family and Mr. H (Mr. U's son) do not reside on this land, but it is managed and used by Mrs. T2 since 1975 and has been paying land tax (BL253). Mrs. Ta Quang H, who handed over the land to Mr. U, also confirmed that Mr. U did not use the land, but it was used by Mrs. T2. Later, Mr. U applied for another piece of land because the previous piece that Mrs. T2 had used was given to him by the Cooperative (currently used by Mr. B - Mrs. T2's younger brother - BL262).

[4] Although Mr. U was the one who was granted the land, after being granted the land, Mr. U did not use the land but let Mrs. T2 used it from 1975 until now. In the land use process, because the land granted to Mr. U is a swampy land, so Mr. C1's family and Mrs. T2 had to hire people to fill and build the foundation, construct and repair the house many times, both Mr. U and Mr. H knew about filling, repairing and building houses but there was no dispute. The People's Committee of D1 commune and the witnesses who are local residents all confirmed that Mr. U and Mr. H do not live there, do not build houses, occasionally visit and stay at Mr. C1's house in the village. After Mr. U's husband and wife passed away, Mr. H, the only son of Mr. U, also had a written commitment confirming that Mr. U could not live there, so he transferred the right to use the land to Mrs. T2, the family had no objection to that land. Thus, Mr. U is the one who was granted the land, but he did not use it and entrusted it to Mrs. T2 to manage, using this land since after Mr. U was granted the land (in 1974) until now. In the land use process, Mrs. T2 has built a stable house, registered and paid taxes for the use of this land, so according to the land law regulations, Mrs. T2 falls under the case to be considered for granting a land use right certificate. The fact that Mr. U did not use the land but his name is on the cadastral map 299 and the land register in 1982 is not accurate and not a basis to determine that Mr. U is the legitimate owner of this land. The first-instance court and the appellate court only relied on the fact that Mr. U was granted the land to determine that the disputed land belonged to Mr. U's husband and wife to accept the plaintiff's lawsuit and unfairly attributed part of the effort to Mrs. T2.

[5] On the other hand, this case is a lawsuit to claim assets such as house, land and compensation for support when the State recovers land, so it falls into the case of determining court fees without a quota. The Court of Appeal determined that the legal fee having a quota price was incorrect. Therefore, the protest of the Director of the High People's Procuracy in Hanoi has grounds for acceptance. However, considering that the Court of First Instance also made errors, but these errors can be overcome at the Court of Appeal, it is not necessary to annul the first instance judgment to re-solve the case according to procedure. first instance to avoid prolonging the settlement of the case.

For the above reasons, based on point a, clause 1, Article 337, clause 3, Article 343, clause 1, Article 345 of the 2015 Civil Procedure Code;

DECISION:

1. Cancel the entire Civil Appeal Judgment No. 25/2017/DS-PT dated September 28, 2017 of the People's Court of Hung Yen on the case of "sue for property assets of house, land and compensation for support When the State recovers land" between the plaintiff Ms. Bui Thi P (also known as Bui Thi Huong P), Mr. Le Ngoc T1, Ms. Le Thi Thanh X and the defendant Mr. Le Ngoc T2; People with related rights and obligations are Mr. Vu Thi S, Ms. Doan Thi V, Mr. Le Ngoc C2, Ms. Tran Thi N, Ms. Le Thi D1 and Ms. Le Thi D2.

2. Hand over the case file to the People's Court of Hung Yen province for retrial in accordance with the provisions of law.

CONTENTS OF THE PRECEDENT

“[4] Although Mr. U was the one who was granted the land, after being granted the land, Mr. U did not use the land but let Mrs. T2 used it from 1975 until now. In the land use process, because the land granted to Mr. U is a swampy land, so Mr. C1's family and Mrs. T2 had to hire people to fill and build the foundation, construct and repair the house many times, both Mr. U and Mr. H knew about filling, repairing and building houses but there was no dispute. The People's Committee of D1 commune and the witnesses who are local residents all confirmed that Mr. U and Mr. H do not live there, do not build houses, occasionally visit and stay at Mr. C1's house in the village. After Mr. U's husband and wife passed away, Mr. H, the only son of Mr. U, also had a written commitment confirming that Mr. U could not live there, so he transferred the right to use the land to Mrs. T2, the family had no objection to that land. Thus, Mr. U is the one who was granted the land, but he did not use it and entrusted it to Mrs. T2 to manage, using this land since after Mr. U was granted the land (in 1974) until now. In the land use process, Mrs. T2 has built a stable house, registered and paid taxes for the use of this land, so according to the land law regulations, Mrs. T2 falls under the case to be considered for granting a land use right certificate. The fact that Mr. U did not use the land but his name is on the cadastral map 299 and the land register in 1982 is not accurate and not a basis to determine that Mr. U is the legitimate owner of this land. The first-instance court and the appellate court only relied on the fact that Mr. U was granted the land to determine that the disputed land belonged to Mr. U's husband and wife to accept the plaintiff's lawsuit and unfairly attributed part of the effort to Mrs. T2. ”

Above is the content of Precedent No. 33/2020/AL on cases where individuals are allocated land by the state but do not use it but let others manage and use 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!