Precedent No. 10/2016/AL

Precedent No. 10/2016/AL on determining administrative decisions as the subject of administrative lawsuits was adopted by the Council of Judges of the Supreme People's Court on October 17, 2016 and promulgated under Decision No. 698/QD-CA dated October 17, 2016 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 08/2014/HC-GDT dated August 19, 2014 of the Council of Judges of the Supreme People's Court on the administrative case "Complaint about the Decision on compensation, support and resettlement when the State acquires land" in Vinh Long province between the plaintiff, Ms. Vo Thi Luu, and the defendant, the People's Committee of Vinh Long province.

Location of case law:

Paragraph 1 of the “Considering” section of the above cassation decision.

Overview of the case law:

- Case law:

The decision on approval of the support and resettlement plan of the Provincial People's Committee contains references to other documents that directly affect the rights and interests of the plaintiff.

- Legal solutions:

In this case, the content of the referenced document belongs to the administrative decision and that administrative decision is the subject of the administrative lawsuit.

Legal provisions relating to precedents:

- Clause 1, Article 3 and Clause 1, Article 28 of the 2010 Law on Administrative Procedure (corresponding to Clause 1, Article 3 and Clause 1, Article 30 of the 2015 Law on Administrative Procedure);

- Articles 41 and 42 of the 2003 Land Law;

- Decree No. 197/ND-CP dated December 3, 2004 of the Government on compensation, support and resettlement when the State acquires land;

- Decree No. 69/2009/ND-CP dated August 13, 2009 of the Government providing additional regulations on land use planning, land prices, land recovery, compensation, support and resettlement.

CASE CONTENT

On April 7, 2008, the People's Committee of Vinh Long province issued Decision No. 567/QD-UBND approving the overall plan for compensation, support and resettlement for the project to build an agricultural livestock breeding farm in Vinh Long province in Tan An Luong commune, Vung Liem district, with the following contents:

“Approval of the overall plan for compensation, support and resettlement of the project to build an agricultural livestock breeding farm in Vinh Long province:

Total land area expected to be recovered: 122,909m²

Total estimated compensation value: 7,342,730,000 VND".

On September 17, 2008, the People's Committee of Vinh Long province issued Decision No. 1768/QD-UBND, with the following content: Recovering 117,863.1m² of land in Tan An Luong commune, Vung Liem district managed and used by households, individuals and organizations to implement the project of building an agricultural livestock breeding farm in the province and assigning the People's Committee of Vung Liem district to decide on land recovery.

On October 2, 2008, the People's Committee of Vung Liem district issued Decision No. 2592/QD-UBND, with the following content: Recovering 2,353.1m² of land from Ms. Vo Thi Luu, plot number 222, rice-growing land on map sheet number 03, located in Rach Coc hamlet, Tan An Luong commune, Vung Liem district to build an agricultural livestock breeding farm in Vinh Long province.

On December 1, 2008, the Compensation, Support and Resettlement Board of Vung Liem district conducted a declaration and inventory of houses, land, crops and structures of households affected by the clearance of the project to build the Provincial Agricultural Animal Breeding Farm.

On May 15, 2009, the Department of Finance of Vinh Long province sent Document No. 177/TTr.STC to the People's Committee of Vinh Long province requesting approval of the compensation plan for site clearance for the Vinh Long Province Agricultural Animal Breeding Farm, according to which Ms. Luu's household will be compensated for land in the amount of 155,155,000 VND (according to the decision, the land price for Ms. Luu is 50,000 VND/m2); compensation for assets on land, life stabilization and vocational training in the amount of 19,286,200 VND; the total amount is 174,441,200 VND.

On June 4, 2009, the Chairman of the People's Committee of Vinh Long province issued Decision No. 1216/QD-UBND on approving the compensation, support and resettlement plan for the provincial agricultural livestock breeding farm in Tan An Luong commune, Vung Liem district, with the following contents:

“Article 1. Approval of compensation, support and resettlement plan for the project: Provincial agricultural livestock breeding farm, in Tan An Luong commune, Vung Liem district;

1. Total compensation, support and resettlement value: 9,467,085,000 VND, including:

• Compensation and support value for land: 8,071,914,000 VND
• House and structure value: 161,560,000 VND
• Crop value: 273,152,000 VND
• Support: 654,600,000 VND
• Other fees (2% council fees, surveying fees): 305,859,000 VND

2. Cost: In the total project estimate paid by the investor;

Article 2. Pursuant to Article 1 of this Decision, the Director of the Department of Finance, Chairman of the People's Committee of Vung Liem district, and the Compensation, Support and Resettlement Council of Vung Liem district are responsible for:

- The Chairman of the People's Committee of Vung Liem district directed the Compensation, Support and Resettlement Council of Vung Liem district to organize compensation payments in accordance with current regulations of the State and clear the site for the construction unit;

- The Director of the Department of Finance is responsible to the Provincial People's Committee for the results of data, volume and unit prices, in the report No. 177/TTr.STC dated May 15, 2009".

Disagreeing with the above decision, Ms. Luu filed a complaint requesting an increase in compensation.

On October 28, 2009, the Chairman of the People's Committee of Vung Liem district issued Decision No. 2023/QD-UBND not accepting Ms. Luu's complaint.

On August 8, 2011, Ms. Luu filed a lawsuit at the People's Court of Vinh Long province requesting the cancellation of Decision No. 1216/QD-UBND dated June 4, 2009 of the People's Committee of Vinh Long province regarding the price and compensation; requesting a re-settlement to raise the land compensation price to the market transfer price in the area where the land is recovered.

In the first instance administrative judgment No. 12/2012/HC-ST dated December 18, 2012, the People's Court of Vinh Long province rejected the lawsuit of Ms. Vo Thi Luu.

On December 29, 2012, Ms. Luu filed an appeal.

In the Administrative Appeal Judgment No. 96/2013/HCPT dated April 25, 2013, the Supreme People's Court of Appeal in Ho Chi Minh City annulled the Administrative Judgment at First Instance No. 12/2012/HCST dated December 18, 2012 of the People's Court of Vinh Long province and suspended the settlement of the case.

On June 28, 2013, the People's Committee of Vinh Long province issued Official Dispatch No. 1816/UBND-NC and on August 2, 2013, the Judges' Committee of Vinh Long People's Court issued Official Dispatch No. 547/TAT-HC requesting a final review of the above-mentioned administrative appellate judgment.

In Decision No. 05/2014/KN-HC dated March 5, 2014, the Chief Justice of the Supreme People's Court appealed the Administrative Appeal Judgment No. 96/2013/HC-PT dated April 25, 2013 of the Supreme People's Court of Appeal in Ho Chi Minh City; requested the Supreme People's Court's Judicial Council to review the case and annul the above Administrative Appeal Judgment and transfer the case file to the Supreme People's Court of Appeal in Ho Chi Minh City for re-trial.

At the appeal hearing, the representative of the Supreme People's Procuracy agreed with the Protest of the Chief Justice of the Supreme People's Court.

The Council of Judges of the Supreme People's Court determined:

According to Article 2 of Decision No. 1216/QD-UBND dated June 4, 2009 of the People's Committee of Vinh Long province on approving the compensation, support and resettlement plan for the provincial agricultural livestock breeding farm, it is stipulated that "The Director of the Department of Finance is responsible to the Provincial People's Committee for the results of the data, volume and unit price, in the submission No. 177/TTr.STC dated May 15, 2009". According to Submission No. 177/TTr dated May 15, 2009 of the Department of Finance, there is a specific compensation provision for Ms. Luu's household, so that approval directly and specifically affects the rights and interests of Ms. Luu's household, which is the subject of the administrative lawsuit.

Therefore, the People's Court of Vinh Long province accepted and resolved Ms. Luu's lawsuit request for compensation and support for her family in Decision No. 1216/QD-UBND dated June 4, 2009, in accordance with the provisions of Clause 1, Article 3 and Clause 1, Article 28 of the Law on Administrative Procedures. However, the Court of First Instance has not yet considered and clarified the purpose of land recovery for the construction of an agricultural livestock breeding farm in Vinh Long province, whether it is a State or private economic facility, as a basis for resolving compensation and support when recovering land from Ms. Luu's family in accordance with the provisions of law.

Ms. Luu appealed to be compensated for land at market price. In this case, the Court of Appeal must consider whether Ms. Luu's appeal on the issue of compensation and support when recovering land for Ms. Luu's family is in accordance with the law, but it considers that Decision No. 1216/QD-UBND dated June 4, 2009 of the People's Committee of Vinh Long province is a general decision, not the subject of the administrative lawsuit, so it annulled the first instance administrative judgment No. 12/2012/HC-ST dated December 18, 2012 of the People's Court of Vinh Long province and suspended the settlement of the case, which is a serious mistake in the application of administrative procedural law.

For the above reasons and based on Clause 3, Article 219, Clause 3, Article 225, Clauses 1 and 2, Article 227 of the Law on Administrative Procedures,

DECISION

1. Accept Appeal No. 05/2014/KN-HC dated March 5, 2014 of the Chief Justice of the Supreme People's Court.
2. Annul the Administrative Appeal Judgment No. 96/2013/HC-PT dated April 25, 2013 of the Supreme People's Court of Appeal in Ho Chi Minh City and the Administrative Judgment at First Instance No. 12/2012/HC-ST dated December 18, 2012 of the People's Court of Vinh Long Province; transfer the case file to the People's Court of Vinh Long Province for retrial at first instance according to the provisions of law.

CONTENT OF PRECEDENT

“According to Article 2 of Decision No. 1216/QD-UBND dated June 4, 2009 of the People's Committee of Vinh Long province on approving the compensation, support and resettlement plan for the provincial agricultural livestock breeding farm, it is stipulated that “The Director of the Department of Finance is responsible to the Provincial People's Committee for the results of the data, volume and unit prices, in the submission No. 177/TTr.STC dated May 15, 2009”. According to Submission No. 177/TTr dated May 15, 2009 of the Department of Finance, there is a specific compensation provision for Ms. Luu's household, so that approval directly and specifically affects the rights and interests of Ms. Luu's household, which is the subject of the administrative lawsuit”.

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