Precedent No. 02/2016/AL

About the case of "Property Reclaiming Dispute"

Approved by the Council of Judges of the Supreme People's Court on April 6, 2016 and promulgated under Decision No. 220/QD-CA dated April 6, 2016 of the Chief Justice of the Supreme People's Court.

Source of case law

Final judgment No. 27/2010/DS-GDT dated July 8, 2010 of the Council of Judges of the Supreme People's Court on the case of "Dispute over property recovery" in Soc Trang province between the plaintiff Ms. Nguyen Thi Thanh and the defendant Mr. Nguyen Van Tam; the person with related rights and obligations is Ms. Nguyen Thi Yem.

Overview of case law

In case a Vietnamese person residing abroad has paid money to receive the transfer of land use rights and asked someone in the country to receive the transfer of land use rights on his/her behalf, when resolving the dispute, the Court must consider and calculate the efforts to preserve, maintain, and enhance the value of the land use rights for the person whose name is on the transfer; in case the exact efforts of that person cannot be determined, it is necessary to determine that the person who actually paid money to receive the transfer of land use rights and the person whose name is on the transfer of land use rights have equal efforts to divide the difference in value compared to the original money for receiving the transfer of land use rights initially.

Legal provisions relating to precedents

Article 137 and Article 235 of the 2005 Civil Code.

Keywords of case law

“Invalid civil transactions”; “Reclaiming property”; “Bases for establishing ownership rights”; “Establishing ownership rights to income”; “Vietnamese people residing abroad”.

Contents of the case

In the petition dated January 24, 2005, the declaration dated February 7, 2005 and the process of resolving the case, Ms. Nguyen Thi Thanh, the plaintiff, stated:

Ms. Thanh is an overseas Vietnamese in the Netherlands who came back to visit relatives in Vietnam and intended to transfer land use rights, so on August 10, 1993, she received a transfer of 7,595.7 square meters of rice field land ⁱⁿ Ward 7, Soc Trang town, from Mr. Heng Tinh and Ms. Ly Thi Sa Quenh for 21.99 taels of gold. She was the person who directly transacted, agreed on the transfer and paid money and gold to Mr. Heng Tinh and his wife. Ms. Thanh's purpose was to transfer the land to her younger brother, Mr. Nguyen Van Tam and Ms. Nguyen Thi Chinh Em, to cultivate and support her parents and Mr. Tam. Because she is a Vietnamese residing abroad, she let Mr. Tam be the name on the transfer documents. At the same time, Ms. Thanh presented the "Riceland Transfer Paper" dated August 10, 1993, certified by the People's Committee of An Hiep commune. After receiving the transfer, she let Mr. Tam and his wife cultivate it, but in 2004, without her consent, Mr. Tam transferred the entire area of ​​7,595.7 square meters of ^land to Minh Chau Limited Liability Company with the land use right value of VND 1,260,000,000. Therefore, she asked Mr. Tam to return the money earned from the transfer of her land.

Mr. Nguyen Van Tam, the defendant, stated:

The area of ​​7,595.7 square meters ^of land that Ms. Thanh disputed was the land that he and his wife had transferred with money and gold from Mr. Heng Tinh and his wife. He was the person whose name was on the "Land Transfer Paper" made on August 10, 1993. This transfer paper was not confirmed by the local authorities. However, later, he and Mr. Heng Tinh and his wife signed a contract and an application for land use rights transfer on the same day, August 11, 1993. These documents were confirmed by the People's Committee of An Hiep Commune and the People's Committee of My Tu District agreeing to the transfer. After the transfer, he registered and declared that he was granted a land use rights certificate on May 28, 1994. Therefore, in 2004, he transferred all of the above land to Minh Chau Limited Liability Company with a value of 1,260,000,000 VND. He said that the "Land Transfer Paper" dated August 10, 1993, certified by the People's Committee of An Hiep Commune, presented by Ms. Thanh, was fake because according to the Conclusion of the appraisal No. 2784/C21 (P7) dated October 25, 2005 of the Institute of Criminal Science of the General Department of Police, it was not his signature on the land transfer paper presented by Ms. Thanh. Therefore, he did not agree with Ms. Thanh's request to file a lawsuit.

Ms. Nguyen Thi Yem (Mr. Tam's wife) is a person with related rights and obligations, stating: In 1993, she and her husband transferred Mr. Heng Tinh's land. When completing the transfer procedures, she did not participate, but she gave Mr. Tam money and gold to pay for Mr. Heng Tinh and his wife, so she did not accept Ms. Thanh's request.

Mr. Heng Tinh and his wife, Mrs. Ly Thi Sa Quenh (also known as Ly Thi Sa Venh), who transferred the land, both affirmed that Mrs. Thanh directly agreed to the transfer, directly paid 21.99 taels of gold to him, her, and Mrs. Thanh so that Mr. Tam could stand in their names on the land transfer paper made on August 10, 1993; the signatures on the land transfer paper presented by Mrs. Thanh were indeed his and hers.

In the Civil Judgment at First Instance No. 04/2006/DS-ST dated April 28, 2006, the People's Court of Soc Trang province decided:

Partially accept Ms. Nguyen Thi Thanh's request to reclaim land transfer money.

Force Mr. Nguyen Van Tam and Mrs. Nguyen Thi Yem to be responsible for paying back Mrs. Nguyen Thi Thanh 630,000,000 VND.

In addition, the Court of First Instance also decides on court fees, appraisal costs and declares the right to appeal for the parties according to the provisions of law.

On May 10, 2006, Mr. Nguyen Van Tam appealed, claiming that Ms. Thanh was not the person with the right to use the land that he had transferred to Minh Chau Limited Liability Company, but the Court of First Instance ordered him to pay Ms. Thanh 630,000,000 VND, which was incorrect.

On May 12, 2006, Mr. Nguyen Huu Phong (representing Ms. Thanh) appealed, requesting the Court of Appeal to force Mr. Tam to return the entire amount of money that Mr. Tam had transferred the land, which was VND 1,260,000,000, to Ms. Thanh.

In the Civil Appeal Judgment No. 334/2006/DS-PT dated August 25, 2006, the Court of Appeal of the Supreme People's Court in Ho Chi Minh City decided to reject the appeal requests of the plaintiff and defendant, and amend the First Instance Judgment as follows:

Partially accept Ms. Nguyen Thi Thanh's request to reclaim the money for transferring land use rights.

Force Mr. Nguyen Van Tam and Ms. Nguyen Thi Yem to be responsible for returning to Ms. Nguyen Thi Thanh the amount of 27,047,700 VND equivalent to 21.99 taels of 24k gold.

Force Mr. Nguyen Van Tam and Mrs. Nguyen Thi Yem to pay back the amount of 1,232,266,860 VND to the State budget.

In addition, the Court of Appeal also decides on court costs.

After the appeal trial, Mr. Nguyen Van Tam appealed the above Civil Appeal Judgment.

In Decision No. 449/2009/KN-DS dated August 21, 2009, the Chief Justice of the Supreme People's Court appealed the Civil Appeal Judgment No. 334/2006/DS-PT dated August 25, 2006 of the Court of Appeal of the Supreme People's Court in Ho Chi Minh City, requesting the Council of Judges of the Supreme People's Court to review the case, annul the above-mentioned Appeal Judgment and annul the Civil Judgment at First Instance No. 04/2006/DS-ST dated April 28, 2006 of the People's Court of Soc Trang province; handing over the case file to the People's Court of Soc Trang province for retrial in accordance with the provisions of law, with the following judgment:

“Ms. Nguyen Thi Thanh filed a lawsuit to reclaim her property from Mr. Nguyen Van Tam and claimed that because she is a Vietnamese citizen residing abroad, she asked Mr. Tam (her younger brother) to receive the land transfer from Mr. Heng Tinh and his wife on her behalf, but later Mr. Tam transferred her land to someone else.

The Court of First Instance and the Court of Appeal determined that Mr. Tam only stood in the name of Mr. Heng Tinh and his wife to receive the land transfer on behalf of Ms. Thanh, which was reasonable.

Because Ms. Thanh is a Vietnamese citizen residing abroad, she was not given land but only returned the investment value of the land transfer money.

Regarding the difference in land value, the time of the first instance trial and the appeal trial was the time of enforcement of the 2005 Civil Code, there was no provision requiring confiscation to the state budget, so Ms. Thanh and Mr. Tam were both entitled to this difference. The first instance court did not force Mr. Tam to pay the difference in land value for confiscation, which was reasonable, but it did not force Mr. Tam to pay Ms. Thanh the initial investment value, which was incorrect. The appeal court did not provide a legal basis but forced Mr. Tam to pay the entire difference (VND 1,232,226,860) to the state budget, which was incorrect in accordance with the law.

At the cassation trial, the representative of the Supreme People's Procuracy requested the Council of Judges of the Supreme People's Court to accept the appeal of the Chief Justice of the Supreme People's Court to annul the above-mentioned appellate judgment and annul the first-instance civil judgment No. 04/2006/DS-ST dated April 28, 2006 of the People's Court of Soc Trang province; and transfer the case file to the People's Court of Soc Trang province for retrial in accordance with the provisions of law.

Court opinion

Ms. Nguyen Thi Thanh filed a lawsuit asking Mr. Nguyen Van Tam to return her 1,260,000,000 VND because she claimed that she was the one who directly transacted and paid for the transfer of 7,595.7 square meters of land from Mr. Heng Tinh and his wife ^, but because she is a Vietnamese residing abroad, she asked Mr. Tam (her younger brother) to stand in her name, but without her consent, Mr. Tam transferred the entire land area to Minh Chau Company Limited to receive 1,260,000,000 VND.

Mr. Tam said that he was the one who agreed to transfer the land and paid Mr. Heng Tinh, so the land transfer documents were under his name. After receiving the transfer, he directly managed and used it, registered and declared, was granted a land use right certificate, and when he transferred it to Minh Chau Company Limited, he was permitted by the government, so he did not accept Ms. Thanh's request.

However, during the process of resolving the case, Mr. Tam and his wife had many conflicting statements about the amount of money and gold paid to Mr. Heng Tinh, and he could not prove the origin of the money and gold that he said he paid to Mr. Tinh.

Meanwhile, Mr. Tinh and Mrs. Quenh affirmed that they only agreed to transfer land and receive gold from Mrs. Thanh, and that the land transfer document under Mr. Tam's name was written at Mrs. Thanh's request, because Mrs. Thanh is living abroad.

According to the testimony of Mrs. Thai Thi Ba, Mr. Nguyen Phuoc Hoang, Mrs. Nguyen Thi Chinh Em (mother and siblings of Mrs. Thanh and Mr. Tam), Mrs. Thanh transacted and paid for the land transfer to Mr. Tinh and his wife, and Mr. Tam was only the person who stood in their name.

The synthesis of the above evidence has the basis to affirm that the Court of First Instance and the Court of Appeal determined that Ms. Thanh was the one who spent the entire amount of 21.99 taels of gold to receive the transfer of the above area, and Mr. Tam was only the person who stood in her name. Because Mr. Tam transferred the above land to Minh Chau Company Limited and Ms. Thanh only requested Mr. Tam to return the transferred amount of 1,260,000,000 VND, the Court of First Instance and the Court of Appeal accepted the case in accordance with the provisions of law.

Although Ms. Thanh was the one who spent 21.99 taels of gold to transfer the land (equivalent to about 27,047,700 VND). But the transfer documents were under Mr. Tam's name and after receiving the transfer, Mr. Tam managed the land, then transferred it to someone else. Thus, it should have been determined that Mr. Tam had contributed to the preservation, maintenance, and enhancement of the land value, so it should have been determined that the above amount (after deducting the principal equivalent to 21.99 taels of gold of Ms. Thanh) was the common profit of Ms. Thanh and Mr. Tam. At the same time, determining Mr. Tam's contribution to divide Mr. Tam a portion corresponding to his contribution is correct and ensures the rights of the parties (In case Mr. Tam's contribution cannot be accurately determined, it must be determined that Ms. Thanh and Mr. Tam have contributed equally to divide).

The court of first instance recognized that Ms. Thanh and Mr. Tam each had the right to own half of the above amount, but did not pay Ms. Thanh the amount corresponding to 21.99 taels of gold, which was incorrect.

The Court of Appeal only recognized that Ms. Thanh had the right to own the amount of money equivalent to 21.99 taels of gold, and that the remaining profit was confiscated to the state budget, which was not in accordance with the provisions of the 2005 Civil Code and did not ensure the rights of the parties.

In addition, Ms. Thanh filed a lawsuit demanding that Mr. Tam pay her 1,260,000,000 VND, the amount of money Mr. Tam transferred for the right to use 7,595.7 square meters of ^land , without any dispute over the right to use the land, while Mr. Tam claimed that the above amount of money was his. Thus, the parties disputed the ownership of the property, which was the amount of money mentioned above. However, the Court of First Instance and the Court of Appeal determined that the legal relationship was “Dispute over the recovery of property” which was incorrect.

For the above reasons, pursuant to Clause 3, Article 297 and Article 299 of the Civil Procedure Code;

Decision

1- Annul the Civil Appeal Judgment No. 334/2006/DSPT dated August 25, 2006 of the Court of Appeal of the Supreme People's Court in Ho Chi Minh City and the Civil First Instance Judgment No. 04/2006/DS-ST dated April 28, 2006 of the People's Court of Soc Trang province regarding the property claim dispute between the plaintiff, Ms. Nguyen Thi Thanh, and the defendant, Mr. Nguyen Van Tam; the person with related rights and obligations is Ms. Nguyen Thi Yem.

2- Transfer the case file to the People's Court of Soc Trang province for retrial in accordance with the provisions of law.

Case law content

“Although Ms. Thanh was the one who spent 21.99 taels of gold to transfer the land (equivalent to about 27,047,700 VND). But the transfer documents were under Mr. Tam's name and after receiving the transfer , Mr. Tam managed the land, then transferred it to someone else. Thus, it should have been determined that Mr. Tam had contributed to the preservation, maintenance, and enhancement of the land value, so it should have been determined that the above amount (after deducting the principal equivalent to 21.99 taels of gold of Ms. Thanh) was the common profit of Ms. Thanh and Mr. Tam. At the same time, determining Mr. Tam's contribution to divide Mr. Tam a portion corresponding to his contribution is correct and ensures the rights of the parties (In case Mr. Tam's contribution cannot be accurately determined, it must be determined that Ms. Thanh and Mr. Tam have equal contributions to divide).”

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