Precedent No. 26/2018/AL

On determining the starting time of calculating the statute of limitations and the statute of limitations for requesting division of inheritance

Adopted by the Council of Judges of the Supreme People's Court on October 17, 2018 and promulgated under Decision No. 269/QD-CA dated November 6, 2018 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 06/2017/DS-GDT dated March 27, 2017 of the Council of Judges of the Supreme People's Court on the case of "dispute over inheritance of property and division of common property" in Hanoi between the plaintiffs Mr. Can Xuan V, Ms. Can Thi N1, Ms. Can Thi T1, Ms. Can Thi H, Mr. Can Xuan T, Ms. Can Thi N2, Ms. Can Thi M1. The representative of the co-plaintiffs is Ms. Can Thi N2 and the defendants are Ms. Nguyen Thi L, Mr. Can Anh C. The authorized representative of the co-defendants is Mr. Le Hong L. The persons with related rights and obligations include 07 people.

Location of case law:

Paragraphs 5, 6, 7 of the “Court's Opinion” section.

Overview of case law:

- Case law:

The person who left the inheritance of real estate died before the promulgation of the Inheritance Ordinance on August 30, 1990. At the time of the first instance trial, the Civil Code No. 91/2015/QH13 was in legal effect.

- Legal solutions:

In this case, the starting point for calculating the statute of limitations for requesting division of inheritance must be determined as the date of promulgation of the Inheritance Ordinance dated August 30, 1990. The statute of limitations for requesting division of inheritance is determined according to the provisions of the Civil Code No. 91/2015/QH13.

Legal provisions relating to precedents:

- Clause 1, Article 623 of the 2015 Civil Code;

- Clause 4, Article 36 of the Inheritance Ordinance dated August 30, 1990.

Keywords of case law:

“Division of inheritance”; “Statute of limitations for requesting division of inheritance”; “Time when the statute of limitations begins to be calculated”.

CASE CONTENT:

In the lawsuit dated November 2, 2010 and during the proceedings, the representative of the plaintiffs, Ms. Can Thi N2, stated: Mr. Can Van K and Ms. Hoang Thi T had 8 children including Mr. and Mrs. Can Xuan V, Can Thi N1, Can Thi N2, Can Thi M1, Can Thi T1, Can Thi H, Can Xuan T, Can Van S (died in 2008), with a wife, Ms. Nguyen Thi M, and two children, Can Thuy L and Can Hoang K.

In 1972, Mr. T died. In 1973, Mr. K married Ms. Nguyen Thi L and had 4 children: Can Thi C, Can Thi M2, Can Anh C and Can Thi T2.

During Mr. K's lifetime, Mr. T established 612 square meters of land, on which there were two three-room houses, located in village T, commune P, district Th, Hanoi city, and was granted a land use right certificate in 2002 under the name of Mr. Can Van K's household. After Mr. T died, all of the above-mentioned real estate was managed by Mr. K and Mr. L. In 2002, when Mr. K died, this property was managed by Mr. L and Mr. Can Anh C.

Mr. K and Mr. T died without leaving a will. Now the co-plaintiffs, Mr. K's children and Mr. T, filed a lawsuit to request the division of Mr. T's common property and the division of Mr. K's inheritance according to the provisions of law, in which Ms. N1, Ms. N2, Ms. M1, Ms. T1, Ms. H, Mr. T, Ms. C and Ms. Nguyen Thi M (Mr. S's wife) requested that the portion that Mr. and Mrs. S were entitled to be given to Mr. V as a place to worship their parents and ancestors.

The defendants, Mrs. Nguyen Thi L and Mr. Can Anh C, stated: Regarding the blood relationship and inheritance as stated by the plaintiff, are correct. Mrs. L admitted that before getting married, Mrs. K had assets of 3 thatched-roof houses and 3 kitchens on an area of ​​612 square meters. During the management and use process, the couple renovated and rebuilt some outbuildings and surrounding walls as they are today. In 2002, the State issued a land use right certificate in the name of Mr. Can Van K's household. At this time, Mr. K's household had 6 people including: Mrs. K, Mr. L, Mr. T, Mrs. M2, Mrs. T2 and Mr. C. Now the plaintiffs have filed a lawsuit, and Mrs. L and Mr. C request to resolve it according to the provisions of law.

Persons with related rights and obligations:

Ms. Can Thi C, Ms. Can Thi T2, Ms. Can Thi M2, Ms. Nguyen Thi M, Ms. Le Thi H acknowledge the blood relationship as the plaintiff and defendant declare and request to resolve according to the law. If the plaintiff's request is accepted, the shares of Ms. Nguyen Thi M and Ms. C will be returned to Mr. V; the shares of Ms. M2 will be left to Mr. C; Ms. T2 requests to receive her share.

In the Civil Judgment at First Instance No. 30/2012/DS-ST dated July 20, 2012, the People's Court of Hanoi City decided:

Accept the lawsuit request of Mr. Can Xuan V, Ms. Can Thi N1, Ms. Can Thi T1, Ms. Can Thi H, Mr. Can Xuan T, Ms. Can Thi N2, Ms. Can Thi M1:

Specifically: Confirming the common property including a level 4 house, church, kitchen, brick yard, surrounding wall, cement-roofed shed, bathroom, stainless steel tank, surrounding wall on an area of ​​612m3 in village T, commune P, district Th, Hanoi city with a value of 1,565,504,366 VND, of which the property of Mr. K + Mr. T is worth 1,536,331,972 VND, the property of Mr. K + Mr. L developed is worth 21,338,977 VND, the property developed by Mr. C and Mrs. H is worth 7,833,417 VND.

Mr. T died in 1972, dividing his common property among his children: Mr. V, Mrs. N2, Mrs. T1, Mrs. H, Mr. T, Mrs. N1, Mrs. M1 and Mr. S, each person received 96,020,748 VND. Mr. S died so his share was enjoyed by his wife, Mrs. Nguyen Thi M, and his two children, L and K.

Mr. K died in 2002. The first heirs of Mr. K are Mr. V, Mrs. N2, Mrs. T, Mrs. H, Mr. T, Mrs. N1, Mrs. M1 and Mr. S. He died, so Mr. S's part was enjoyed by his wife, Mrs. Nguyen Thi M, and two children, grandchildren L and K. Mr. L, Mr. C, Mrs. C, Mrs. M2, Mrs. T2 each received 30,365,575 VND.

Accept the voluntary consent of Ms. N2, Ms. N1, Ms. T1, Ms. H, Mr. T, Ms. C, Ms. M1 and Ms. Nguyen Thi M, Mr. S's wife, to give Mr. V the property.

Accept Mrs. M2's voluntary giving of property to Mr. C.

Divide specific artifacts:

Assign Mr. Can Xuan V to own 03 outer houses of 31.4m2 = 4,435,233 VND, brick yard = 1,456,475 VND, surrounding wall of 27.63m2 = 810,488 VND, bathroom wall no longer in use, brick wall 242,804 VND, flower wall in front of church no longer in use, drilled well no longer in use, level 4 house (church) and front porch = 5,678,736 VND, kitchen = 3,696,503 VND, bathroom 4,114,332 VND; Stainless steel water tank x 2m3 = 2,000,000 VND, 02 water tanks no longer usable, corrugated iron roof on brick yard = 1,719,085 VND, livestock house no longer usable, gate no longer usable, trees: 01 custard apple tree, 01 mango tree, 01 grapefruit tree = 470,000 VND associated with the right to use 367.1m2 of land = 917,750,000 VND. Total = 942,656,000 VND, the property received is 1,041,456,159 VND, Mr. V also received the difference in property from Mr. L which is 99,032,460 VND. The property that Mr. V received is 1,041,456,000 VND (with attached diagram).

Assigning to Mrs. Nguyen Thi L, Mr. Can Anh C and his wife, Mrs. Can Thi M2, Mrs. Can Thi T2 to own 01 room of 13.3m2 = 1,896,739 VND, surrounding wall = 1,934,843 VND, brick wall = 666,841 VND, brick yard = 400,000 VND, cement-roofed shed = 1,462,287 VND, trees = 4,470,000 VND associated with the use of 244.9m2 of land = 612,250,000 VND, total value = 623,080,710 VND, the property received is 524,048,198 VND. Mr. L and Mr. C must pay Ms. T2 30,365,575 VND and must pay the difference in assets to Mr. V 99,032,503 VND. Mr. L must open the door of his house and open the path on his own land.

Because the beam of the room between Mr. V and Mrs. L's mother and son is a common beam, whoever dismantles the house first must leave it for the other side.

In addition, the Court of First Instance also decides on court fees.

On August 13, 2012, Mr. L and Mr. C appealed.

In the Civil Appeal Judgment No. 106/2013/DS-PT dated June 17, 2013, the Supreme People's Court of Appeal in Hanoi decided:

Accept the defendants' appeal, amend the first instance judgment,

Partially accept the lawsuit request of Mr. Can Xuan V, Ms. Can Thi N1, Ms. Can Thi T1, Ms. Can Thi H, Mr. Can Xuan T, Ms. Can Thi N2, Ms. Can Thi M1.

Specifically: Confirming the common property including a level 4 house, church, kitchen, brick yard, surrounding wall, cement-roofed shed, bathroom, stainless steel tank, surrounding wall on an area of ​​612m2 in village T, commune P, district Th, Hanoi with a value of 1,565,504,366 VND, of which the property of Mr. K and Mr. T is worth 1,536,331,972 VND, the property developed by Mr. K and Mr. L is worth 21,338,977 VND, the property developed by Mr. C and Mrs. H is worth 7,833,417 VND.

Mr. T died in 1972, the statute of limitations for filing a lawsuit regarding inheritance rights had expired. There were co-heirs who did not agree to determine that the inheritance left by Mr. T was undivided common property, so the plaintiffs' request to divide the inheritance left by Mr. T as common property among Mr. T's 8 children was not accepted. Because the statute of limitations for filing a lawsuit regarding inheritance rights had expired, the co-heirs who were managing the inheritance, Ms. Nguyen Thi L and Mr. Can Anh C, were allowed to continue to manage, use and own it.

Mr. K died in 2002, Mr. K's first line of heirs has 13 people including: Mr. L, Mr. V, Mrs. N2, Mrs. T1, Mrs. H, Mr. T, Mrs. N1, Mrs. M1, Mr. S died so Mr. S's part is enjoyed by his wife, Mrs. Nguyen Thi M and two children, grandchildren L and K, Mr. C, Mrs. C, Mrs. M2 each receive an equal part converted into money of 30,365,575 VND.

Accept the voluntary donation of Ms. N2, Ms. N1, Ms. T1, Ms. H, Mr. T, Ms. C, Ms. M1 and Ms. Nguyen Thi M (Mr. S's wife) to Mr. V for property.

Accept Mrs. M2's voluntary giving of property to Mr. C.

Divide specific artifacts:

Assign to Mr. Can Xuan V the land area with the church divided by a straight line across the land plot, coinciding with the outer edge of the main house gable (with attached diagram). The area divided by Mr. V (the side with the church) has a total area of ​​218.2m2 (including 100m2 of residential land and 118.2m2 of garden land, with a term of use of 50 years), the total amount is 545,500,000 VND and the assets on the land include: the church and the area of ​​the porch in front of the church worth: 5,300,888 VND + 377,848 VND = 5,678,736 VND; the kitchen worth: 3,696,503 VND; the bathroom worth 4,114,332 VND; the stainless steel tank with a capacity of 2m3 worth 2,000,000 VND; 02 water tanks that have expired. The total value of the assets on the land is 15,489,571 VND. The total value of the assets on the land and the land that Mr. V is divided is: 560,989,571 VND.

Mr. Can Xuan V does not have to pay the difference in assets worth VND 287,699,396 to Mr. L and Mr. C.

The entire area of ​​393.8m2 of land (including 200m2 of residential land with a long-term use period and 193.8m2 of garden land with a 50-year use period) and all remaining assets on the land are handed over to Ms. Nguyen Thi L and Mr. Can Anh C for ownership and use. Ms. L and Mr. C are responsible for paying Ms. Can Thi T2 the value of the inheritance received, which is 30,365,575 VND. Ms. Nguyen Thi L and Mr. Can Anh C must open a new path to the common alley of the hamlet.

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

After the appeal trial, on April 5, 2014, Ms. Can Thi N2, representing the plaintiffs, requested a review under the cassation procedure for the above-mentioned Civil Appeal Judgment.

In Decision No. 73/2016/KN-DS dated June 15, 2016, the Chief Justice of the Supreme People's Court appealed the Civil Appeal Judgment No. 106/2013/DS-PT dated June 17, 2013 of the Court of Appeal of the Supreme People's Court in Hanoi; requested the Council of Judges of the Supreme People's Court to review the case and annul the entire above-mentioned Civil Appeal Judgment and annul the Civil Judgment at First Instance No. 30/2012/DS-ST dated July 20, 2012 of the People's Court of Hanoi; and transfer the case file to the People's Court of Hanoi for retrial in accordance with the provisions of law.

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.

JUDGMENT OF THE COURT:

[1] Mr. Can Van K and Ms. Hoang Thi T have 8 children including Mr. and Mrs. Can Xuan V, Can Thi N1, Can Thi T1, Can Thi H, Can Xuan T, Can Thi N2, Can Thi M1, Can Van S (died in 2008, Mr. S has a wife, Ms. Nguyen Thi M and two children, Can Thuy L, Can Hoang K).

[2] Mr. K and Mr. T created a property including a level 4 house, kitchen, bathroom and other constructions, trees on a land area of ​​612m2, plot number 120, map sheet number 11, in village T, commune P, district Th, Hanoi city. In 1972, Mr. T died. In 1973, Ms. K married Ms. Nguyen Thi L and had 4 children including Mr. and Mrs. Can Thi C, Can Thi M2, Can Thi T2 and Can Anh C. In 2002, the above land was granted a land use right certificate in the name of Mr. Can Van K. At the end of 2002, Mr. K died, the property was managed and used by Mr. L and Mr. Can Anh C. The co-plaintiffs, the children of Mr. K and Mr. T, requested to divide the common property of their mother, Ms. T, and to divide the inheritance left by Mr. K according to the provisions of law. Thus, the first line of inheritance of Mr. T has 09 people including 08 children and her husband, Mr. K. In 2002, Mr. K died, the inheritance that Mr. K received from Mr. T's inheritance was transferred to Mr. L and the common children of Mr. K and Mr. L received it.

[3] At the time the co-plaintiffs filed the lawsuit (November 2010), Mr. K and Mr. Can Van S had died, and the heirs of Mr. K and Mr. S were entitled to inherit the inheritance that Mr. K and Mr. S were entitled to. The Court of First Instance determined that at the time the parties filed the lawsuit (November 2010), the statute of limitations for dividing Mr. T's inheritance had expired, but the Court of First Instance determined that the inheritance left by Mr. T was undivided common property and declared it to be divided among Mr. T's 8 children, which was not in accordance with the provisions of Point a, Sub-Section 2.4, Section 2, Part I of Resolution No. 02/2004/NQ-HDTP dated August 10, 2004 of the Council of Judges of the Supreme People's Court because Mr. L and Mr. C (Mr. K's children) did not acknowledge that the disputed property was Mr. T's undivided inheritance.

[4] The Court of Appeal determined that the statute of limitations for filing a lawsuit regarding Mr. T's inheritance had expired and did not accept the plaintiffs' request to divide the common property regarding Mr. T's inheritance, which was correct (according to the instructions at Point a, Sub-section 2.4, Section 2, Part I, Resolution No. 02/2004/NQ-HDTP dated August 10, 2004 of the Council of Judges of the Supreme People's Court), but the Court of Appeal declared that the co-heirs who are managing Mr. T's inheritance, Mr. L and Mr. C, are allowed to continue to manage, use and own it, which was incorrect.

[5] However, according to the provisions of Clause 1, Article 623 of the 2015 Civil Code (effective from January 1, 2017), the statute of limitations for an heir to request division of inheritance is 30 years for real estate, from the time of inheritance opening.

[6] According to the provisions of Point d, Clause 1, Article 688 of the 2015 Civil Code, for civil transactions established before the effective date of this Civil Code, the statute of limitations shall be applied according to the provisions of this Code.

[7] Thus, from the effective date of the 2015 Civil Code, the Court applies the provisions of Article 623 of the 2015 Civil Code to determine the statute of limitations for cases of inheritance opening before January 1, 2017. Pursuant to the provisions of Clause 4, Article 36 of the Inheritance Ordinance dated August 30, 1990 and the 2015 Civil Code, in this case, the statute of limitations for filing a lawsuit to divide Mr. T's inheritance among co-heirs is still valid according to the provisions of law.

[8] On the other hand, the wishes of the plaintiffs expressed in the minutes of testimony taken on December 22, 2010 of Ms. Can Thi N2 (BL63), Ms. Can Thi N1 (BL69), Ms. Can Thi T1 (BL75), Ms. Can Thi H (BL78), Ms. Can Thi M1 (BL61) requested the Court to divide the inheritance left by their parents according to the provisions of the law. They themselves are married daughters, so the inheritance they are to divide, they will hand over to Mr. V so that Mr. V can use it as a place to worship their ancestors; Mr. Can Xuan T expressed in the minutes of testimony taken on October 22, 2010 (BL73) that the Court should divide the inheritance of their parents according to the provisions of the law so that his siblings can use it as a place to worship their parents and ancestors; Ms. Nguyen Thi M (BL65) requested that her husband's inheritance be divided, she and her mother would like to hand it over to Mr. V so that Mr. V can use it as a place to worship their ancestors. However, during the settlement process, the Court of First Instance and the Court of Appeal declared that the plaintiffs' voluntary giving of property to Mr. V was not in accordance with the parties' will.

For the above reasons,

DECISION:

Pursuant to Clause 2, Article 337, Clause 3, Article 343, Article 345 of the 2015 Civil Procedure Code;

Accept the Protest No. 73/2016/KN-DS dated June 15, 2016 of the Chief Justice of the Supreme People's Court against the Civil Appeal Judgment No. 106/2013/DS-PT dated June 17, 2013 of the Court of Appeal of the Supreme People's Court in Hanoi.

Annul the entire appellate civil judgment mentioned above and annul the entire first instance civil judgment No. 30/2012/DS-ST dated July 20, 2012 of the Hanoi People's Court on the case of inheritance dispute and division of common property between the plaintiffs Mr. Can Xuan V, Ms. Can Thi N1, Ms. Can Thi T1, Ms. Can Thi H, Mr. Can Xuan T, Ms. Can Thi N2, Ms. Can Thi M1 and the defendants Ms. Nguyen Thi L, Mr. Can Anh C and people with related rights and obligations (07 people).

Transfer the case file to the Hanoi People's Court for re-trial in accordance with the provisions of law.

CONTENT OF PRECEDENT

“[5] However, according to the provisions of Clause 1, Article 623 of the 2015 Civil Code (effective from January 1, 2017), the statute of limitations for an heir to request division of inheritance is 30 years for real estate, from the time of inheritance opening.

[6] According to the provisions of Point d, Clause 1, Article 688 of the 2015 Civil Code, for civil transactions established before the effective date of this Civil Code, the statute of limitations shall be applied according to the provisions of this Code. 

[7] Thus, from the effective date of the 2015 Civil Code, the Court applies the provisions of Article 623 of the 2015 Civil Code to determine the statute of limitations for cases of inheritance opening before January 1, 2017. Pursuant to the provisions of Clause 4, Article 36 of the Inheritance Ordinance dated August 30, 1990 and the 2015 Civil Code, in this case, the statute of limitations for filing a lawsuit to divide Mr. T's inheritance among the co-heirs is still valid according to the provisions of law."