Precedent No. 34/2020/AL

Precedent No. 34/2020/AL on the right to make a will to determine the value of land compensation in cases where land is recovered by the State with compensation was approved by the Council of Judges of the Supreme People's Court on February 5, 2020 and promulgated under Decision No. 50/QD-CA dated February 25, 2020 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 58/2018/DS-GDT dated September 27, 2018 of the High People's Court in Hanoi on the civil case "Dispute over the request to declare a notarized document invalid" in Vinh Phuc province between the plaintiff Mr. Tran Van Y and the defendant Notary Office M; the person with related rights and obligations is Mr. Nguyen Van D1.

Location of case law:

Paragraph 5 of the “Court's Opinion” section.

Overview of case law:

- Case law:

Land use rights are legally established by an individual, and while that person is still alive, the State has decided to reclaim the land and the land reclamation is subject to compensation.

- Legal solutions:

In this case, it is necessary to determine the value of the recovered land use right guaranteed by the compensation value, so the person whose land is recovered has the right to make a will to determine that compensation value.

Legal provisions relating to precedents:

• Articles 163, 181, 634, 646, 648 of the 2005 Civil Code (corresponding to Clause 1, Article 105, Articles 115, 612, 624, 626 of the 2015 Civil Code);
• Article 42 of the 2003 Land Law (corresponding to Article 74 of the 2013 Land Law).

CASE CONTENT

According to the petition dated June 26, 2013 and the statements during the proceedings, the plaintiff, Mr. Tran Van Y, stated:

Plot No. 38, Map No. 13 in Area M, Ward N, City V, Vinh Phuc Province originated from the transfer he received from Ms. Nguyen Thi C (aka T, T1) in 1987. The transfer of land and crops related to this plot of land between him and Ms. C had a certificate from the Ward People's Committee agreeing to let him live with Ms. T1. In 1988, the Ward People's Committee agreed to let him have his name on this plot of land and change it to another plot of land because this plot of land was adjacent to a lagoon, which was inconvenient for taking care of young children. However, because he did not have the conditions to build a house, he did not change the land anymore.

In 1998, he and Mr. C made documents to transfer the above land plot for 140,000,000 VND. Although the payment was not recorded in a receipt, two people, Ms. Nguyen Thi B (deceased) and Ms. Tran Thi K (in hamlet D, ward D) witnessed him paying Mr. C. When transferring, he and Mr. C made a contract for the sale of the house and the transfer of land use rights dated February 8, 1998 and submitted it to the People's Committee of the ward.

In 2008, his family no longer lived on this plot of land because the land was cleared. In 2009, there was a dispute between him and Mr. Nguyen Van D's family over the above plot of land. In 2013, he learned that Notary Office M had notarized the Will of Mr. Nguyen Van D and notarized the Will Announcement Document of Mr. D and Ms. Nguyen Thi T1 on January 26, 2011.

According to the above documents, Mr. D has the right to own and use part of land plot No. 38, Map Sheet No. 13, Area M, Ward N, City V, Vinh Phuc Province; Mr. Nguyen Van D1 is the heir of Mr. D and Mr. C for land plot No. 38, Map Sheet No. 13, area 299.8 m2 ⁱⁿ  Area M. This notarization is not in accordance with the law and affects the legitimate rights and interests of his family, so he requests the Court to declare the above 2 notarized documents invalid.

The defendant is Notary Office M (represented by the representative) presenting:

On January 14, 2011, Mr. Nguyen Van D1 took Mr. Nguyen Van D to Notary Office M and requested to notarize Mr. D's will. According to Mr. D, he and Mr. T1 got married without registering their marriage (a de facto marriage), and Ms. T1 could not give birth, so Mr. D married someone else but did not divorce Ms. T1. The house and land at plot number 38, Map sheet number 13 in area M are joint assets formed during the marriage between Mr. D and Mr. C.

Regarding the documents proving assets attached to the request for notarization of the will, Mr. D and Mr. D1 presented:

- The will of Mr. T1 was certified by the People's Committee of Ward S, District K, Hung Yen Province, according to which Mr. T1 recognized the above property (plot 38, Map No. 13) as a joint property with Mr. D, so Mr. T1 only notarized his part of the will to Mr. D1. Notary Office M considered Mr. T1's will to be legal.

- The original purchase document of Mr. D bought from Mr. D (this field sale document is confirmed by the People's Committee of Commune T), then exchanged it with Cooperative N for the field M, now plot number 38, Map sheet number 13.

- Official dispatch No. 405/UBND-TD of Vinh Phuc Provincial People's Committee on handling citizens' complaints.

- Official dispatch No. 372/UBND-KNTC dated July 7, 2011 of the People's Committee of City V responding to the petition of Mr. Nguyen Van D.

 These two documents confirm that land plot No. 38, Map Sheet No. 13 is residential land, which is the basis for compensation and site clearance.

At the time of making the will, although Mr. D was over 90 years old, he was still conscious, lucid, and clearly aware of his actions. In the first line of heirs, Mr. D's wife, children, father, and mother, only Mr. D1 remained. No one was a minor, weak, or mentally disabled and could not support himself according to the provisions of civil law. Therefore, Mr. D's will to give all of his assets to Mr. D1 was completely in accordance with the provisions of civil law on wills.

After considering the above issues, Notary Office M found that Mr. D's will was completely legitimate, the content of the will was in accordance with the law, so the Notary Office made a will for Mr. D. On January 15, 2011, Mr. D came to the Notary Office to affix his fingerprint to the will. Before affixing his fingerprint, the notary read the entire content of the will to Mr. D, and Mr. D completely agreed.

After Mr. D passed away, his will became legally effective. Mr. D1 went to the Notary Office to request the announcement of the will and the Notary Office proceeded with the announcement in accordance with the law. During the process of notarizing and announcing Mr. D's will, the Notary Office did not know that the above land plot was in dispute. The Notary Office's viewpoint is to request the Court to consider and resolve the matter in accordance with the law.

The person with related rights and obligations, Mr. Nguyen Van D1, presented:

His father, Mr. D, and his mother, Mrs. C, got married in 1957. In 1959, his parents bought a piece of land from Mr. D in hamlet S, ward D, town V. Because his parents did not have any children, around 1969-1970, Mr. C agreed to let Mr. D marry Mrs. H (his biological mother) and live in area M, ward N. In 1976, Mr. D bought house number 24 N to work as a barber. Mr. T lived in house number 60 N, Mr. D and Mr. H lived in area M. After giving birth to him, Mr. H died. In 1968, Mr. C sold house number 60 N and bought a house on street C. In 1986, Mr. C sold the house on street C and moved to Hung Yen to live. In 1988, Mr. C returned to V to live and built a house on a plot of land in lane 3, group T. But because this land had many graves, he moved to live in area M with Mr. D and his children. Since 2006, Mr. C returned to Hung Yen, he and Mr. D came to manage the land plot in area M but Mr. Y did not agree. Mr. Y did not agree to the Court's request to declare the two notarized documents above invalid.

In the Civil Judgment at First Instance No. 10/2014/DS-ST dated April 28, 2014, the People's Court of Vinh Yen City, Vinh Phuc Province decided:

– Declaration of the Notarized Will Document of Notary Office M, Vinh Phuc province dated January 15, 2011 regarding the Will of Mr. Nguyen Van D, born in 1919 and the Notarized Will Document of Notary Office M, Vinh Phuc province dated January 26, 2011 announcing the Will dated December 16, 2009 of Ms. Nguyen Thi T1 (T), born in 1924 and the Will dated January 15, 2011 of Mr. Nguyen Van D, born in 1919, invalid.

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

On May 12, 2014, Mr. Nguyen Van D1 appealed, disagreeing with the decision of the first instance judgment.

In the Civil Appeal Judgment No. 23/2015/DS-PT dated April 27, 2015, the People's Court of Vinh Phuc province decided to: Uphold the Civil Judgment at First Instance No. 10/2014/DS-ST dated April 28, 2014 of the People's Court of Vinh Yen city.

On April 11, 2016, Mr. Nguyen Van D1 submitted a request for review under the cassation procedure for the above civil appellate judgment.

In Decision No. 08/2018/KN-DS dated April 26, 2018, the Chief Justice of the High People's Court in Hanoi appealed against the Civil Appeal Judgment No. 23/2015/DS-PT dated April 27, 2015 of the People's Court of Vinh Phuc province; requested the Judicial Committee of the High People's Court in Hanoi to annul the entire above-mentioned civil appeal judgment and the Civil Judgment at First Instance No. 10/2014/DS-ST dated April 28, 2014 of the People's Court of Vinh Yen city, Vinh Phuc province; and transfer the case file to the People's Court of Vinh Yen city, Vinh Phuc province for retrial at first instance in accordance with the provisions of law.

At the appeal hearing, the representative of the High People's Procuracy in Hanoi requested the Judicial Committee of the High People's Court in Hanoi to accept the appeal of the Chief Justice of the High People's Court in Hanoi.

JUDGMENT OF THE COURT

[1] Mr. Nguyen Van D and Ms. Nguyen Thi C (also known as T, T1) lived together since 1957 but did not register their marriage. In 1959, Mr. D bought a plot of land in Xo M from Mr. Nguyen Van D, then exchanged it with Cooperative N for a rice field in Dong M, now plot number 38, map sheet number 13. Around 1969-1970, Mr. D lived with Ms. H and gave birth to Mr. Nguyen Van D1.

[2] On December 16, 2009, Mr. C made a will with the content of leaving a part of his property, which is real estate, on plot No. 38, map No. 13, above to my son (Mr. Nguyen Van D1). On January 15, 2011, Mr. D made a will at Notary Office M, Vinh Phuc province, with the content of leaving his property on the above plot of land to Mr. D1. When the State reclaims, compensates by resettlement (or receives money) and compensates for the property on the land, Mr. D1 will be the owner and receive the money. On September 7, 2010, Mr. C died. On January 21, 2011, Mr. D died. After Mr. D and Mr. C died, on January 26, 2011, Notary Office M of Vinh Phuc province (hereinafter referred to as Notary Office M) issued a document announcing the Will dated December 16, 2009 of Mr. T1 and the Will dated January 15, 2011 of Mr. D regarding the inheritance of the two elders, which is plot number 38, Map sheet number 13, area M, ward N, city V, Vinh Phuc province.

[3] Mr. Tran Van Y said that he bought land plot No. 38, Map Sheet No. 13, Area M above from Mr. C in 1987. In 1998, the two parties made a House Sale and Land Use Rights Transfer Paper and a Land Use Rights Transfer Contract. The fact that Notary Office M notarized Mr. D's will and the Will Announcement Document of the two elders affected the legitimate rights and interests of his family, so he filed a lawsuit requesting the Court to declare the above notarized documents invalid.

[4] According to Article 45 of the Law on Notarization, the persons who have the right to request the Court to declare a notarized document invalid include: “Notary, person requesting notarization, witness, person with related rights and interests, competent state agency”. To prove that he has rights and interests related to the notarized document, the right to file a lawsuit, Mr. Y presented: a payment authorization dated May 20, 2005, the amount of VND 100,000,000, the authorization contract dated July 23, 2009 from Mr. C to him, the house sale and transfer of residential land use rights paper dated February 8, 1998, the land use rights transfer contract dated February 8, 1998 between Mr. C and him... with the lawsuit petition.

However, the land plot in M ​​is the common property of Mr. C and Mr. D, but the documents presented by Mr. Y show that only Mr. C transferred it to Mr. Y without Mr. D's consent. In the case where only Mr. C arbitrarily decided to dispose of the common property of the two without Mr. D's consent, it is necessary to consider the legality of the transfer contract between Mr. C and Mr. Y.

During the process of resolving the case, the Court of First Instance and the Court of Appeal did not consider and evaluate the documents and evidence provided by Mr. Y and the transfer contract between Mr. Y and Mr. C to determine whether Mr. Y has rights and interests in the inheritance, which is land plot No. 38, Map Sheet No. 18, and has the right to file a lawsuit to request the declaration of notarized documents invalid or not. Instead, only considering the content, form, and procedures of the notarized documents and declaring these documents invalid is not sufficient basis, affecting the legitimate rights and interests of Mr. Nguyen Van D1.

[5] In addition, the legacy left by Mr. D and Mr. C is the land use right of plot No. 38, Map Sheet No. 13, which was revoked according to Decision No. 1208/QD-UBND dated July 21, 2010 of the People's Committee of City V, but the value of the land use right of the person whose land was revoked is still guaranteed by law according to the provisions of the Land Law, so the two elders have the right to make a will to dispose of the above property to Mr. D1.

The Court of First Instance and the Court of Appeal based on Judgment No. 45/2009/DS-PT dated May 22, 2009 of the People's Court of Vinh Phuc province (while in this appellate judgment, the Trial Panel only annulled the judgment at first instance and suspended the settlement of the case) to determine that at the time Mr. D made the will, the inheritance was a part of the property (real estate at plot No. 38, Map Sheet No. 13) that no longer existed, which is incorrect.

Therefore, when re-solving the case, it is necessary to simultaneously consider the legal value of the house and land sale contract between Mr. Tran Van Y and Ms. Nguyen Thi C and the legality of the will made by Ms. D and Ms. C as well as the Will Announcement Document to thoroughly resolve the case and ensure the rights and interests of the parties.

For the above reasons,

DECISION

Pursuant to Point a, Clause 1, Article 337; Clause 3, Article 343 and Article 345 of the 2015 Civil Procedure Code;

1. Annul the Civil Appeal Judgment No. 23/2015/DS-PT dated April 27, 2015 of the People's Court of Vinh Phuc province and the Civil First Instance Judgment No. 10/2014/DS-ST dated April 28, 2014 of the People's Court of Vinh Yen city, Vinh Phuc province on the case "Dispute over the request to declare a notarized document invalid" between the plaintiff Mr. Tran Van Y and the defendant Notary Office M of Vinh Phuc province; the person with related rights and obligations is Mr. Nguyen Van D1.
2. Transfer the case file to the People's Court of Vinh Yen city, Vinh Phuc province for retrial in accordance with the provisions of law.

CONTENT OF PRECEDENT

“[5]… the legacy left by Mr. D and Mr. C is the land use right at plot No. 38, Map Sheet No. 13 which was revoked according to Decision No. 1208/QD-UBND dated July 21, 2010 of the People's Committee of City V, but the value of the land use right of the person whose land was revoked is still guaranteed by law according to the provisions of the Land Law, so the two elders have the right to make a will to dispose of the above property to Mr. D1…”

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