On accepting and resolving administrative cases related to real estate managed and arranged for use by the State during the implementation of real estate management policies and socialist transformation policies before July 1, 1991.

Adopted by the Council of Judges of the Supreme People's Court on August 22, 2019 and promulgated under Decision No. 293/QD-CA dated September 9, 2019 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 03/2018/HC-GDT dated July 16, 2018 of the Council of Judges of the Supreme People's Court on the administrative case "Complaint against the decision to resolve complaints" in Tra Vinh province between the plaintiff, Ms. Hong Thi L, and the defendant, the Chairman of the People's Committee of Tra Vinh province.

Location of case law:

Paragraph 6 of the “Court's Opinion” section.

Overview of the case law:

- Case law:

The plaintiff filed a lawsuit against an administrative decision that does not accept the reclaim of real estate that the State has managed and arranged for use during the implementation of policies on real estate management and socialist renovation policies related to real estate before July 1, 1991, as prescribed in Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly, which decision was issued with the correct authority, content, and procedures.

- Legal solutions:

In this case, the Court must accept and resolve the case in the direction of dismissing the lawsuit.

Legal provisions relating to precedents:

• Article 94 of the Law on Organization of People's Councils and People's Committees 2003;
• Article 7 of the Law on Complaints 2011;
• Clause 1, Article 28, Point a, Clause 2, Article 163 of the 2010 Law on Administrative Procedures (corresponding to Clause 1, Article 30, Point a, Clause 2, Article 193 of the 2015 Law on Administrative Procedures);
• Article 1 of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly on land and houses managed and arranged for use by the State during the implementation of land and house management policies and socialist transformation policies before July 1, 1991;
• Article 5 of Resolution No. 755/2005/NQ-UBTVQH11 dated April 2, 2005 of the National Assembly Standing Committee stipulates the settlement of a number of specific cases regarding real estate in the process of implementing real estate management policies and socialist transformation policies before July 1, 1991.

Clause 1, Article 4 of Decree No. 127/ND-CP dated October 10, 2005 of the Government guiding the implementation of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly.

Keywords of the case:

“Administrative decisions”; “Decisions on handling complaints”; “Real estate managed and arranged for use by the State”; “Policies on real estate management and socialist reform policies before July 1, 1991”.

CASE CONTENT

The origin of house number 05 N, group 3, ward 2, city T, Tra Vinh province was owned by Ms. Hong Sa R and Ms. Tram Thi N (parents of Ms. Hong Thi L) bought from Ms. Nguyen Thi K in 1967 with an area of ​​505m ² . In 1969, the house was divided into 13 rooms used as bedrooms and named Thong Nhat Bedroom. In 1972, Mr. N and Ms. Hong Sa R built an additional 3-storey house, 5 apartments, 15 rooms in the back with a construction area of ​​77m ² . On April 13, 1976, Mr. N was granted Business License No. 548/TN/GP/DK by the Department of Commerce of Cuu Long province for renting out bedrooms. In August 1978, Tra Vinh Town Hotel and Restaurant Company managed and continued to operate the bedroom business with the homeowner working as a service staff and receiving a monthly salary.

On August 21, 1984, the People's Committee of Tra Vinh town issued Decision No. 35/QD-84 on the management of the entire Thong Nhat Bedroom on N Street, Ward 2, T Town, Tra Vinh Province of Mr. Hong Sa R with the following content: "Now manage the entire house and land of Thong Nhat Bedroom on N Street, Ward 2, T Town of Mr. Hong Sa R, including the front house and the back row, to leave 03 ground floor rooms in the back row for Mr. Hong Sa R to use".

Due to ineffective business operations, on July 28, 1985, the People's Committee of Tra Vinh town issued Decision No. 59/QD-85 on the distribution of houses with the content: "Now hand over the entire Thong Nhat Bedroom, N Street, Ward 2, T Town to the Industrial Board of Tra Vinh Town".

In 1990, Tra Vinh Town Import-Export Company was dissolved, Mr. Hong Sa R took over and used it.

In 1992, Mr. Hong Sa R applied to get back the above house. In 1993, Mr. Hong Sa R died, his children including Ms. Hong Thi L continued to manage and use the house until now. Ms. L applied to be considered for recognition of ownership of the entire house and land mentioned above.

On July 27, 2012, the Chairman of the People's Committee of Tra Vinh province issued Decision No. 1350/QD-UBND on resolving Ms. L's complaint as follows:

“ Reject Ms. L's complaint requesting the legalization of the entire house at No. 05, N Street, Hamlet 3, Ward 2, T City, Tra Vinh Province.

Ms. L was allowed to buy back the house and land at address 05, N Street according to the provisions of Decree No. 61/CP dated July 5, 1994 of the Government.

On August 13, 2012, Ms. L filed a lawsuit against Decision No. 1350/QD-UBND dated July 27, 2012 of the Chairman of the People's Committee of Tra Vinh province.

In the First Instance Administrative Judgment No. 02/2015/HC-ST dated January 26, 2015, the People's Court of Tra Vinh province decided:

“Reject Ms. Hong Thi L's request to file a lawsuit requesting the Court to cancel Decision No. 1350/QD-UBND dated July 27, 2012 of the Chairman of the People's Committee of Tra Vinh province.”

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

On January 31, 2015, Ms. Hong Thi L filed an appeal against the entire First Instance Judgment. In the Administrative Appeal Judgment No. 175/2016/HC-PT dated November 25, 2016,

The High People's Court in Ho Chi Minh City decided:

“Accept the appeal of Ms. Hong Thi L.

Amending First Instance Judgment No. 02/2015/HCST dated January 26, 2015 of Tra Vinh Provincial People's Court.

Cancel Decision No. 1350/QD-UBND dated July 27, 2012 of the Chairman of the People's Committee of Tra Vinh province on resolving the request of Ms. Hong Thi L, born in 1964, residing at No. 05 N, Hamlet 3, Ward 2, City T, Tra Vinh province.

The Chairman of the People's Committee of Tra Vinh province is responsible for issuing other Decisions in accordance with the provisions of law".

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

On January 10, 2017, the People's Committee of Tra Vinh province issued Official Dispatch No. 121/UBND-NC requesting review under the cassation procedure for the Administrative Appeal Judgment No. 175/2016/HC-PT dated November 25, 2016 of the High People's Court in Ho Chi Minh City.

On February 23, 2018, the Chief Justice of the Supreme People's Court issued Decision No. 05/2018/KN-HC protesting the Administrative Appeal Judgment No. 175/2016/HC-PT dated November 25, 2016 of the High People's Court in Ho Chi Minh City; requesting the Council of Judges of the Supreme People's Court to review the case in the direction of annulling the Administrative Appeal Judgment No. 175/2016/HC-PT dated November 25, 2016 of the High People's Court in Ho Chi Minh City and upholding the Administrative Judgment at First Instance No. 02/2015/HCST dated January 26, 2015 of the People's Court of Tra Vinh province.

At the appeal hearing, the representative of the Supreme People's Procuracy agreed with the appeal of the Chief Justice of the Supreme People's Court, but requested the panel of judges to annul the first instance judgment and the appeal judgment and suspend the settlement of the case because, based on Article 1 of Resolution No. 23/2003/QH11 dated November 26, 2006 of the National Assembly, the Chairman of the People's Committee of Tra Vinh province does not have the right to issue a decision to resolve the request to legalize the house of Ms. Hong Thi L.

JUDGMENT OF THE COURT:

• Regarding the proceedings: Decision No. 1350/QD-UBND dated July 27, 2012 of the Chairman of the People's Committee of Tra Vinh province on the settlement of Ms. Hong Thi L's complaint was issued based on the provisions of Article 1 of Resolution 23/2003/QH11 dated November 26, 2003 of the National Assembly on land and houses managed and arranged for use by the State during the implementation of land and house management policies and socialist reform policies before July 1, 1991, according to which "The State does not review the guidelines, policies and implementation of land and house management policies and socialist reform policies related to land and houses issued before July 1, 1991. The State does not recognize the reclaiming of land and houses that the State has managed and arranged for use during the implementation of land and house management policies and socialist reform policies related to land and houses ". Decision No. 1350/QD-UBND dated July 27, 2012 of the Chairman of the People's Committee of Tra Vinh province has the content of creating, changing, restricting, and terminating the legitimate rights and interests of Ms. Hong Thi L. Therefore, according to the provisions of Article 3 and Article 28 of the Law on Administrative Procedures 2010, Decision No. 1350/QD-UBND dated July 27, 2012 is an administrative decision and is the subject of an administrative lawsuit, so the Court of First Instance's acceptance and settlement of the case is within its jurisdiction.
• About content:
• House No. 05 N, Ward 2, City T, Tra Vinh Province, which Ms. L is currently managing and using, originally belonged to Ms. L's family. However, on August 21, 1984, the People's Committee of Tra Vinh Town issued Decision No. 35/QD-84 with the following content: "Now managing the entire house and land of Thong Nhat Bedroom on N Street, Ward II, City T of Mr. Hong Sa R. Including the front house and the row of upper floors behind. To reserve 03 ground floor rooms in the row of upper floors behind for Ms. Hong Sa R to use..." and on July 28, 1985, the People's Committee of Tra Vinh Town issued Decision No. 59/QD-85 on handing over the entire Thong Nhat Bedroom to the Industrial Board of Tra Vinh Town for management. In 1988, while still alive, Mr. Hong Sa R submitted a request to receive the above house back. However, in Official Dispatch No. 01/PD-88 dated January 8, 1988 of the People's Committee of Tra Vinh town and Official Dispatch No. 02/TT-ND dated November 5, 1988 of the People's Committee of Cuu Long province, they responded that they did not accept the request to reclaim the house of Mr. Hong Sa R because the house was under renovation. Disagreeing with the settlement of the People's Committee of Cuu Long province, Mr. Hong Sa R filed many complaints. After Mr. Hong Sa R died, Ms. Hong Thi L continued to complain.
• In Official Dispatch No. 358/BXD-TTr dated February 26, 2007, the Ministry of Construction commented on Ms. L's complaint as follows: "Although the above-mentioned house was directly used by Mr. Hong Sa R, the State had previously decided to manage this house and had actually arranged its use from after liberation until Mr. Hong Sa R's family reoccupied it (in 1990). Therefore, the Ministry of Construction agrees with the plan of the People's Committee of Tra Vinh province to allow Mr. Hong Sa R's family to sign a lease contract for house No. 05, N Street with the State. After that, if Mr. R's family has a need, they can buy back this house according to Decree No. 61/CP dated July 5, 1994 of the Government".

• Thus, through the issuance of Decision No. 35/QD-84 dated August 21, 1984 and Decision No. 59/QD-85 dated July 28, 1985 of the People's Committee of Tra Vinh town, it was determined that: "The State has managed and arranged for use in the process of implementing policies on land management and socialist renovation policies related to land" according to the provisions of Article 1 of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly on land managed by the State and arranged for use in the process of implementing policies on land management and socialist renovation policies before July 1, 1991. Therefore, Ms. L's complaint to reclaim house No. 05, N Street is unfounded. The Chairman of Tra Vinh Provincial People's Committee issued Decision No. 1350/QD-UBND dated July 27, 2012 not accepting Ms. L's request in accordance with the law.
• In cases where the plaintiff sues an administrative decision of a competent authority, including the content of not accepting the request to reclaim land and houses that the State has decided to manage and arrange for use in the process of implementing policies on land and houses management and socialist renovation policies related to land and houses before July 1, 1991 as prescribed in Article 1 of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly, and the decision was issued with the correct authority, content, and procedures, the Court must accept the case for settlement, but in the direction of "Rejecting the request to initiate a lawsuit" according to Point a, Clause 2, Article 193 of the Law on Administrative Procedures. Therefore, in this administrative case, the Court of First Instance's rejection of Ms. Hong Thi L's request to cancel Decision No. 1350/QD-UBND dated July 27, 2012 of the Chairman of the People's Committee of Tra Vinh province is well-founded and in accordance with the law.
• Decision No. 1350/QD-UBND mentioned above also decided: "Ms. Hong Thi L is allowed to buy back the house and land at address No. 05, N Street, Hamlet 3, Ward 2, T City, Tra Vinh Province according to the provisions of Decree No. 61/CP dated July 5, 1994 of the Government". Thus, allowing Ms. L to buy back the above house and land according to the provisions of Decree No. 61/CP dated July 5, 1994 of the Government has ensured the rights of Ms. L's family.
• The Court of Appeal based on Clause 1, Article 4 of Decree No. 127/ND-CP dated October 10, 2005 of the Government guiding the implementation of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly and Article 5 of Resolution No. 755/2005/NQ-UBTVQH11 dated April 2, 2005 of the Standing Committee of the National Assembly to accept Ms. L's appeal request, annulling Decision No. 1350/QD-UBND dated July 27, 2012 of the Chairman of the People's Committee of Tra Vinh province as a mistake in the application of the law.
• The viewpoint of the representative of the Supreme People's Procuracy at the appeal trial is unfounded; because based on the provisions of Article 94 of the Law on Organization of People's Councils and People's Committees 2003, Article 7 of the Law on Complaints 2011, the Chairman of the People's Committee of Tra Vinh province issued a decision to resolve Ms. Hong Thi L's complaint in accordance with the provisions of law.

For the above reasons,

DECISION:

Pursuant to Clause 2, Article 266, Clause 2, Article 272 and Clause 2, Article 274 of the 2015 Law on Administrative Procedures;

1. Accept Appeal No. 05/2018/KN-HC dated February 23, 2018 of the Chief Justice of the Supreme People's Court.
2. Annul the Administrative Appeal Judgment No. 175/2016/HC-PT dated November 25, 2016 of the High People's Court in Ho Chi Minh City; uphold the Administrative First Instance Judgment No. 02/2015/HCST dated January 26, 2015 of the People's Court of Tra Vinh province.

CONTENT OF PRECEDENT

“[6] In cases where the plaintiff sues an administrative decision of a competent authority, which includes the content of not accepting the request to reclaim land and houses that the State has decided to manage and arrange for use in the process of implementing policies on land and houses management and socialist renovation policies related to land and houses before July 1, 1991 as prescribed in Article 1 of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly, and the decision was issued with the correct authority, content, and procedures, the Court must accept the case for settlement, but in the direction of "Rejecting the request to initiate a lawsuit" according to Point a, Clause 2, Article 193 of the Law on Administrative Procedures..."