Precedent No. 03/2016/AL in Vietnam

Precedent No. 03/2016/AL

Approved by the Judicial Council of the Supreme People's Court of Vietnam on April 06, 2016, and published according to Decision No. 220/QD-CA dated April 06, 2016, by the Chief Justice of the Supreme People's Court of Vietnam.

Source of the Precedent:

Supervisory Decision No. 208/2013/DS-GDT dated May 03, 2013, of the Civil Court of the Supreme People's Court regarding the "Divorce" case in Hanoi between the plaintiff Ms. Do Thi Hong and the defendant Mr. Pham Gia Nam; related parties: Mr. Pham Gia Phac, Ms. Phung Thi Tai, Mr. Pham Gia On, Ms. Pham Thi Lu, Mr. Bui Van Dap, Ms. Do Thi Ngoc Ha.

Summary of the Precedent:

In cases where parents have given a couple a piece of land, and the couple has built a permanent house on that land without any objection from the parents or other family members; the couple has continuously, openly, and stably used the house and land, declared the land, and received a land use right certificate, it should be determined that the couple has been given the land use right.

Legal Provisions Related to the Precedent:

- 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.

Keywords of the Precedent:

"Divorce"; "Marital common property"; "Gifting property"; "Basis for establishing ownership"; "Establishing ownership by agreement".

CASE CONTENT

Ms. Do Thi Hong and Mr. Pham Gia Nam married in 1992, registered at the People's Committee of Van Tao Commune, Thuong Tin District, Hanoi. After a period of living together, conflicts arose, and the couple has been separated since September 2008. On April 18, 2009, Ms. Hong filed for divorce from Mr. Nam, and Mr. Nam also agreed.

Regarding children: The couple has two children, Pham Gia Khang, born in 1992, and Pham Huong Giang, born in 2000. Both Ms. Hong and Mr. Nam wish to raise both children and do not require the other party to contribute to child support. Khang wishes to live with Mr. Nam, and Giang wishes to live with Ms. Hong.

Regarding property: During their marriage, the couple built a two-storey house in 2002 (in 2005, they added an attic to prevent heat), the house was built on an 80m² plot in Van Hoa Hamlet, Van Tao Commune, Thuong Tin District. The couple agreed that the house is their joint property. However, they could not agree on the land.

According to Ms. Hong: The land belongs to the family of Mr. Pham Gia Phac (Mr. Nam's father), who was allocated the land in 1992. The family met and declared gifting the land to the couple, although no documents were made. In 2001, Mr. Phac informed and Mr. Nam completed the procedures for the red book, and thus, the land use right certificate was issued in the name of Mr. Pham Gia Nam's household, making it the couple's joint property.

Ms. Hong requested to use the house and land mentioned above and to pay half the value of the land and property on the land to Mr. Nam as per the valuation by the valuation council.

According to Mr. Nam: The land was allocated to his parents for population distribution in 1992, and his parents only let the couple live there temporarily, not gifting it, as his family still has many siblings. In 2001, he personally declared and completed the land registration procedures, and his family did not know. His position is to return the land to Mr. Phac.

According to Mr. Phac and Ms. Tai (Mr. Nam's parents): The land originated from the population distribution land allocated by the People's Committee of Van Tao Commune in 1992, and they built a one-storey house on it. In 1993, they allowed the couple Nam and Hong to live there temporarily without gifting the land because his wife has been paralyzed for 15 years, and he and On (Nam's brother) have to take care of her. Their wish is to give the land to On, as he does not have a home. When the land was allocated, the family had four members: Phac, Tai, Lu (sister), and On (brother). Mr. Nam had already left the locality. When Ms. Hong filed for divorce from Mr. Nam, the family found out that Mr. Nam had independently transferred the land title in 2001. They requested Ms. Hong and Mr. Nam to return the land to them.

Additionally, during the case proceedings, Ms. Hong disclosed that Mr. Nam was allocated a 125m² plot of land in Thach That District by the Army Officer School I. Initially, she requested to divide this plot but later withdrew this request.

Regarding debts: According to Ms. Hong, the couple borrowed 7.5 chi of 9999 gold from Ms. Hoang Thi Chu (her mother), 1 cay of 9999 gold from Ms. Do Thi Ngoc Ha (her sister), and VND 150,000,000 from Mr. Bui Van Dap, at an interest rate of 1.25%/month, without any loan documents. She requested Mr. Nam to jointly repay these debts.

According to Mr. Nam, the couple only owes Ms. Chu 7.5 chi of gold, and he has already paid VND 13,875,000 (equivalent to 3.75 chi of gold). He is unaware of the other debts and does not agree to pay them as requested by Ms. Hong.

On November 03, 2010, the valuation council valued the property as follows:

Land: 80m² x VND 22,000,000/m² = VND 1,760,000,000.House: VND 475,865,000.Total property value: VND 2,235,865,000.

At the first-instance judgment No. 03/2011/HNGD-ST dated May 17, 2011, the People's Court of Thuong Tin District, Hanoi decided:

1. On Marriage: Ms. Do Thi Hong is granted a divorce from Mr. Pham Gia Nam.

2. On children: Custody of Pham Huong Giang, born on August 14, 2000, is granted to Ms. Hong until adulthood. Mr. Nam’s contribution to child support is temporarily postponed until requested by Ms. Hong. Mr. Nam has visitation rights.

3. Common property, contribution: The two-story house and all constructions on plot No. 63, map No. 5, in Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi, are recognized as joint property of Ms. Do Thi Hong and Mr. Pham Gia Nam valued at VND 475,865,000.

4. The 80m² land use right of plot No. 63, map No. 5, in Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi, belongs to Mr. Pham Gia Phac. Ms. Hong and Mr. Nam must return the land to Mr. Phac's family, who will own all properties on this plot. Mr. Phac must pay Ms. Hong and Mr. Nam VND 237,932,500 each.

5. Recommending the People's Committee of Thuong Tin District to revoke the land use certificate No. U060645 issued on December 21, 2001, under Mr. Pham Gia Nam's household to reissue it to Mr. Pham Gia Phac upon request.

6. Acknowledging Mr. Nam's voluntary support to Ms. Hong of VND 800,000,000.

7. Ms. Hong must repay Mr. Bui Van Dap VND 179,820,000.

8. Other requests of Ms. Hong are denied.

Additionally, the first-instance court ruled on court fees and the right to appeal.

On May 19, 2011, Ms. Hong filed an appeal against the entire first-instance judgment.

On May 24, 2011, Mr. Nam appealed against supporting Ms. Hong VND 800,000,000 for a new residence. However, he withdrew this appeal at the appellate trial.

At the appellate judgment No. 105/2011/LHPT dated August 30, 2011, and September 06, 2011, the People's Court of Hanoi decided:

To uphold the first-instance family law judgment No. 03/2011/HNGD-ST dated May 17, 2011, by the People's Court of Thuong Tin District, Hanoi (as mentioned above).

Additionally, the appellate court ruled on court fees.

After the appellate trial, Ms. Hong and Ms. Hoang Thi Chu filed a request for supervisory review of the appellate judgment.

At the Supervisory Petition No. 05/2013/KN-HNGD-LD dated January 03, 2013, the Chief Justice of the Supreme People's Court petitioned against the appellate judgment No. 105/2011/LHPT dated August 30, 2011, and September 06, 2011, of the People's Court of Hanoi. This petition proposed that the Civil Court of the Supreme People's Court conduct a supervisory review to overturn the appellate judgment, as well as the first-instance judgment No. 03/2011/HNGD-ST dated May 17, 2011, by the People's Court of Thuong Tin District, Hanoi, regarding property relations; and remand the case to the People's Court of Thuong Tin District, Hanoi for a new first-instance trial in accordance with the law.

At the supervisory review trial, the representative of the Supreme People's Procuracy opined that during the dispute, when the land was allocated to Mr. Phac’s family, Mr. Nam was not present, and there is no basis to assert that the parents had given the land to the couple; therefore, the land remains Mr. Phac’s family property. The lower courts correctly identified the land as belonging to Mr. Nam's parents. However, there were errors in the debt claim by Ms. Chu. As such, the representative recommended not to accept the Chief Justice's petition.

The Civil Court of the Supreme People's Court's Supervisory Panel stated:

Regarding marital and child relations, the lower courts have resolved these issues, and the parties have not raised any objections.

Regarding property relations: The disputed property is the 80m² land plot at Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi, in the name of Mr. Pham Gia Nam's household.

The records indicate that the land originally belonged to Mr. Pham Gia Phac, who was allocated the land in 1992 by the People's Committee of Van Tao Commune, Thuong Tin District. According to the land transfer record by the Commune People's Committee to Mr. Phac, at the time of transfer, Ms. Hong was already married to Mr. Nam. However, based on investigations by the first-instance court at Van Tao Commune, Thuong Tin regarding land allocation procedures, the commune had decided to allocate population distribution land from 1991. Although the family then only consisted of Mr. Phac, Ms. Tai, and their children Lu and On (as Mr. Nam was in the military at that time), the land was allocated to a large family including Mr. Phac, his wife, and their children, making Mr. Nam an eligible recipient. Upon receiving the land, Mr. Phac’s family built a one-storey house. In 1993, Mr. Phac allowed the couple Nam and Hong to live independently on the land, and they have managed and used it continuously till now.

Ms. Hong claimed that Mr. Phac's family declared gifting the land to them; however, both Mr. Phac and Mr. Nam denied this.

The investigation at the Van Tao Commune People's Committee revealed that in 2001, the commune organized inhabitants to register and declare land use for certification, with households submitting declarations at hamlet offices (BL 103). Mr. Phac, the landowner, did not register. Mr. Nam, living on the land, registered and completed the procedures, receiving the certificate U060645 on December 21, 2001, in the name of Mr. Pham Gia Nam's household. The couple built a two-storey house in 2002 and an attic in 2005. Mr. Phac and other family members knew but raised no objections. Therefore, from the certificate issuance in 2001 to the divorce in 2009, no one from Mr. Phac's family contested the land allocation or house construction, indicating the family's intent to gift the land to Nam and Hong. Thus, the claim that Mr. Nam independently registered the land unknown to Mr. Phac is unfounded. Verily, Ms. Hong's claim about the gift is credible.

Consequently, the lower courts' decisions that Mr. Nam independently registered the land, unknown to Mr. Phac, and Ms. Hong’s unproven gift claim, were incorrect in determining the 80m² land as Mr. Phac’s family property. This misjudgment necessitates recognizing the disputed land as joint property of Nam and Hong. When dividing, consider Mr. Nam's contributions to be more significant and divide based on each party's contribution and accommodation needs to protect their rights.

Regarding Ms. Chu’s claims (Ms. Hong's mother), on May 07, 2011 (before the first-instance trial), she sent a letter to the People's Court of Thuong Tin District, stating: "Today, May 07, 2011, I have received the refund from the children. I do not request the court to resolve this issue anymore." The first-instance court ordering the confiscation of Ms. Chu’s advance payment for court fees (VND 200,000) without dismissing her debt claim contravenes Point d, Clause 1, Article 192 Civil Procedure Code. However, Ms. Chu did not appeal, and the Supreme People's Procuracy did not protest after the first-instance trial. Therefore, the appellate court, under Article 263 of the Civil Procedure Code, reviewed the issues appealed or protested, making the Chief Justice’s protest unnecessary.

Thus, the Civil Court of the Supreme People's Court agrees with the Chief Justice’s protest regarding the disputed property of Nam and Hong (the 80m² land at Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi).

On these grounds, based on Clause 2, Article 291; Clause 3 Article 297 and Article 299 of the Civil Procedure Code:

DECISION

To annul the appellate family judgment No. 105/2011/LH-PT dated August 30, 2011, and September 06, 2011, of the People's Court of Hanoi, and the first-instance family judgment No. 03/2011/HNGDST dated May 17, 2011, by the People's Court of Thuong Tin District, Hanoi, regarding the property relation, addressing the "Divorce" case between plaintiff Ms. Do Thi Hong and defendant Mr. Pham Gia Nam;

To remand the case to the People's Court of Thuong Tin District, Hanoi, for a new first-instance trial in accordance with the law.

CONTENT OF THE PRECEDENT

“According to the verification at the Van Tao Commune People's Committee, in 2001 the commune organized for households in Van Tao Commune to register and declare for the issuance of land use right certificates, and the households declared at the village offices (Record 103). All households in the commune were aware of this land declaration policy. Mr. Phac was the landowner but did not go to declare. Mr. Nam was living on the land and went to declare the procedures for issuance of the certificate. On December 21, 2001, Mr. Nam was issued the land use right certificate number U060645 in the name of Mr. Pham Gia Nam’s household. Mr. Nam and his wife built a solid two-story house in 2002 and added a third-floor attic in 2005. Mr. Phac and Mr. Nam's siblings all knew about the construction by Mr. Nam and Mrs. Hong, but no one raised any objections. Thus, from the issuance of the certificate (2001) until Mr. Nam and Mrs. Hong's divorce (2009), Mr. Phac’s family did not lodge any complaints about the land allocation or this construction. This indicates the intent of Mr. Phac's family was to give the above-mentioned land area to Mr. Nam and Mrs. Hong. Therefore, Mr. Phac and Mr. Nam's claim that Mr. Nam independently declared the land documents without Mr. Phac's knowledge is baseless. Hence, there are grounds to confirm Mrs. Hong's statement that Mr. Phac's family gave the above-mentioned land area to Mr. Nam and Mrs. Hong.

Therefore, the courts’ conclusions that Mr. Nam registered for the land documents without Mr. Phac's knowledge and Mrs. Hong's statement about the in-law family’s gift, albeit unproven, to determine the 80m² land area in Van Hoa village, Van Tao commune, Thuong Tin district, Hanoi, to be the property of Mr. Pham Gia Phac's family; and ordering Mr. Nam and Mrs. Hong to return the land to Mr. Phac’s family, is incorrect. It must be concluded that the disputed land area is the joint property of Mr. Nam and Mrs. Hong, and when divided, Mr. Nam's greater contribution must be considered to allocate assets based on each party's efforts and housing needs to ensure the rights of the involved parties.”

TABLE OF CONTENTS:

1. Precedent Number 01/2016/AL involving “Murder”

2. Precedent Number 02/2016/AL involving “Dispute over Reclaiming Property”

3. Precedent Number 03/2016/AL involving “Divorce”

4. Precedent Number 04/2016/AL involving “Dispute over Land Use Rights Transfer Contract”

5. Precedent Number 05/2016/AL involving “Dispute over Inheritance”

6. Precedent Number 06/2016/AL involving “Inheritance Dispute”

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