Precedent No. 35/2020/AL

Precedent No. 35/2020/AL on Vietnamese people handing over agricultural land to people in the country for use before settling abroad 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. 65/2018/GDT-DS dated August 6, 2018 of the High People's Court in Da Nang on the civil case "Dispute over property subject to compulsory execution of judgment" in Dak Lak province between the plaintiff, Ms. Nguyen Thi K, and the defendant, Ms. Nguyen Thi T; persons with related rights and obligations, including 09 people.

Location of case law:

Paragraphs 4 and 5 of the “Court's Opinion” section.

Overview of case law:

- Case law:

Before settling abroad, Vietnamese people handed over agricultural land to people in the country for use; people in the country used that land stably and permanently and were granted land use right certificates.

- Legal solutions:

In this case, it must be determined that the person in the country has the legal right to use the land, the Court does not accept the request to reclaim the right to use the land.

Legal provisions relating to precedents:

- Section 3 Part III, Section 3 Part V of Decision No. 201-HDCP/QD dated July 1, 1980 of the Government Council on unifying land management and strengthening land management nationwide;

- Article 14 of the 1987 Land Law; Article 26 of the 1993 Land Law; Clause 11, Article 38, Article 50 of the 2003 Land Law (corresponding to Point h, Clause 1, Article 64; Article 100 of the 2013 Land Law).

Keywords of case law:

“Vietnamese people residing abroad”; “Handing over agricultural land to people living in the country for use”; “Issuing land use right certificates”; “Requesting to reclaim land use rights”.

CASE CONTENT

In the Petition dated May 9, 2012 and the litigation process, the plaintiff, Ms. Nguyen Thi K, stated:

In 1978, the couple Nguyen Thi K and Nguyen C wrote a paper to give Mr. Nguyen Van D (the second son) 5 sao of land, bordered by: East by Mr. L, West by Mrs. Nguyen Thi E, South by the Montagnards, North by National Highway 14; but in 1982 and 1983, Mr. D sold everything to Mr. Nguyen Dang N and Mr. Nguyen Van B.

After that, Mr. K gave Mr. D another 150 square meters ^of  adjacent land, without writing a paper, and in 2005 gave Mr. D a house on the land (the house and land given to Mr. D were determined to be bordered by Mr. B to the East, bordered by the family's remaining land to the West and South, and bordered by National Highway 14 to the North).

In 2005, Ms. K completed procedures to apply for a land use right certificate, so on March 9, 2006, the People's Committee of City P issued 2 land use right certificates, including: Land use right certificate No. AD 516166, for plot No. 9, map sheet 58, area 10,112.4m ² , purpose of annual crop planting, term of use until 2013 for Ms. Nguyen Thi K; Land use right certificate No. AD 516165, for plot No. 9A, map sheet 58, area 300m ² , purpose of residential and urban land use for Ms. Nguyen Thi K and Ms. Nguyen C.

In November 2006, Ms. K submitted a request to adjust and reissue the land use right certificate to match the current status of the house built on the land, so on November 24, 2006, the People's Committee of City P issued Decision No. 762/QD-UBND to revoke the land use right certificates No. AD 516165 and AD 516166 and reissue them into new land use right certificates No. AG 680769 and AG 680768 for Ms. Nguyen Thi K and Mr. Nguyen C. ,

On June 19, 2009, the Chairman of the People's Committee of City P issued Decision No. 1654/QD-UBND revoking the land use right certificates granted to Ms. Nguyen Thi K and Nguyen C on the grounds that the granted area overlapped and the plot number was the same as the land use right certificate granted to Mr. Nguyen Van D.

Mr. K filed an administrative lawsuit against the Chairman of the People's Committee of City P regarding the issuance of Decision No. 1654/QD-UBND revoking the land use right certificate granted to the two of them.

First instance administrative judgment No. 02/2010/HC-ST dated June 11, 2010 of Buon Ma Thuot City People's Court did not accept Mr. K's lawsuit request;

The administrative appeal judgment No. 07/2010/HC-PT dated September 17, 2010 of the People's Court of Dak Lak province amended the first instance judgment, accepting the lawsuit request of Mr. K.

The appellate administrative judgment was protested by the Chief Justice of the Supreme People's Procuracy. In the Decision of the Supreme People's Court of Cassation No. 10/2011/HC-GDT dated November 15, 2011, the Administrative Court of the Supreme People's Court annulled the first-instance administrative judgment No. 02/2010/HC-ST dated June 11, 2010 of the People's Court of Buon Ma Thuot City and annulled the appeal administrative judgment No. 07/2010/HC-PT dated September 17, 2010 of the People's Court of Dak Lak Province; and transferred the case file to the People's Court of Buon Ma Thuot City for re-trial.

After accepting the case at first instance, the People's Court of Buon Ma Thuot City duly summoned Mr. K twice, but Mr. K was absent, so the People's Court of Buon Ma Thuot City suspended the settlement of the case.

Now, Mr. K filed a civil lawsuit demanding that Mr. D and his wife return the land because he claimed that: In 2005, Mr. D used a photocopy of the 1978 land certificate, corrected the entire location of the land plot, then photocopy it to use as a document to declare the application for a land use right certificate, and at the same time, Mr. D made a request for confirmation of the loss of the original documents, which was confirmed by the People's Committee of Ward E; based on the documents submitted by Mr. D, the People's Committee of City P issued a land use right certificate to Mr. D for a land area of ​​4,925.5m2 (Land use right certificate No. AD 579302 for plot No. 9A, map sheet No. 58, area 300.5m2 ^and  , Land use right certificate No. AD 579313 for plot No. 09, map sheet No. 58, area 4,624m2 ⁾ .

Now, Mr. K filed a lawsuit requesting Mr. D and his wife to return 4,652.7m2 ^of  land (minus 272.8m2 ^of  land recovered by the People's Committee of City P in Decision No. 4233/QD-UBND dated December 24, 2010); Mr. K agreed to allow Mr. D and his wife to continue using 183.74m2 of ^land  (including 150m2  previously given and an additional 33.74m2 ^{because they}  built a house on this land area); requesting the Court to cancel the land use right certificates that the People's Committee of City P had granted to Mr. D and his wife, Ms. T.

- Previously, Mr. Nguyen Van D (now deceased) and Ms. Nguyen Thi T presented:

In 1978, Mr. C and Mrs. K wrote a paper to give Mr. and Mrs. 5 sao of land, with four borders: East bordering Mr. L, West bordering Mrs. Nguyen Thi E, South bordering the Montagnards, North bordering National Highway 14; but in 1982, Mr. K sold Mr. N 1 sao of land and in 1985, Mr. C sold Mr. B 4 sao of land, which was the entire area of ​​5 sao of land that the couple had given them in 1978, so their parents agreed to exchange and give them 5 sao of adjacent land; after that, their parents settled in the Federal Republic of Germany.

Before settling in Germany, Mr. K sent all the house and land documents to Ms. Nguyen Thi E. In 2004, Mr. K returned home. In 2005, Mr. D and Mrs. T came to see Ms. E to ask and get back the house and land documents. Ms. E only gave them photocopies, while Mr. K currently keeps the house and land documents with the government's stamp and confirmation.

Mr. D and his wife brought the photocopy that Mrs. E gave them, made more copies, and then attached two decisions on land allocation for coffee growing in 1980 and 1990 of the People's Committee of P town to the People's Committee of E ward to ask about the procedure for applying for a land use right certificate. They were instructed that they needed the signatures of Mr. K and his siblings regarding the fact that in 1978, their parents gave them a 150m2 house ^and  3.5 sao of land for growing fruit trees, exactly as stated in the original house and land papers.

After that, Mr. D came back to tell Mr. K (Mr. C had died at this time) that Mr. K had signed a confirmation that in 1978 he had given them the house and several acres of land to grow fruit trees; the confirmation also had the signatures of Mr. Nguyen Van D (now dead) and Ms. Nguyen Thi E. Based on this confirmation, on December 26, 2005, the People's Committee of City P issued to Mr. and Mrs. Land Use Right Certificate No. AD 579302 for plot No. 9A, map sheet 58, area of ​​300.5m2 of ^residential  land and Land Use Right Certificate No. AD 579313 for plot No. 09, map sheet 58, area of ​​4,624.9m2 ^of  agricultural land.

However, later on March 9, 2006, the People's Committee of City P also issued Land Use Right Certificate No. AD 516166, for plot No. 9, map sheet 58, area 10,112.4m2 ^, purpose of annual crop planting to Mr. K and Land Use Right Certificate No. AD 516165, for plot No. 9A, map sheet 58, area 300m2, ^purpose of urban residential land use to Mr. K and Mr. C, overlapping the land area that had been granted land use rights to the couple; however, after discovering this error, on November 24, 2006, the People's Committee of City P issued Decision No. 762/QD-UBND to revoke the land use right certificates granted to Mr. C and Mr. K.

Now, the couple does not accept Mr. K's request to sue; at the same time, they presented that they had mortgaged the two plots of land to Bank A for a sum of 3,000,000,000 VND; because they could not repay the debt, the Bank filed a lawsuit, the Court resolved it, the Enforcement Agency completed the auction to enforce the judgment, so they requested the Court to base the settlement on the provisions of law.

The person with related rights and obligations is the representative of the People's Committee of City P, presenting:

The order and procedures for granting land use right certificates to Mr. D and Mrs. T are in accordance with the law.

The person with related rights and obligations is the representative of Bank A, presenting:

The mortgage loan contract signed between the Bank and Mr. D and Ms. T is bona fide and is registered as a secured transaction in accordance with the provisions of law.

- In the Civil Judgment at First Instance No. 124/2013/DS-ST dated September 6, 2013, the People's Court of Buon Ma Thuot City, Dak Lak Province rejected all of the plaintiff's lawsuit requests.

- In the Civil Appeal Judgment No. 07/2014/DSPT dated January 14, 2014, the People's Court of Dak Lak province amended the first instance judgment to accept all of the plaintiff's lawsuit requests; forcing Mr. D and Mrs. T to return the land to Mr. K (excluding 183.74m2 ^of  land that Mr. K voluntarily gave and Mr. D built a house on), and canceling the 2 land use right certificates that the People's Committee of P city had issued to Mr. D and Mrs. T.

Mr. D and his wife; Bank A and Mr. H (the winner of the land auction according to the Decision recognizing the agreement of the parties No. 47/2011/QDST-KDTM dated June 17, 2011 of the People's Court of Dak Lak province resolving the dispute over the credit contract and the land use rights mortgage contract between the Bank and Mr. D and his wife) have filed a request for a final judgment.

- In Decision No. 343/2014/KN-DS dated September 16, 2014, the Chief Justice of the Supreme People's Court appealed under the cassation procedure against the Civil Appeal Judgment No. 07/2014//DSPT dated January 14, 2014 of the People's Court of Dak Lak province; requested the cassation trial to annul the appellate judgment and the judgment at first instance; and transfer the case file to the Court at first instance to re-examine the case. In the cassation decision No. 461/2014/DS-GDT dated November 24, 2014, the Civil Court of the Supreme People's Court annulled the judgment at first instance and the appeal; and transferred the case file to the People's Court of Buon Ma Thuot city to re-examine the case at first instance with the following conclusion (summary):

+ During their lifetime, Mr. C and Mr. K used 29,418.27m2 ^of  land; in 1983, the couple settled in Germany and transferred the land to their children. Mr. D and his wife were assigned to use a part of the land, and at the end of 2005, Mr. D and his wife were granted a certificate of land use rights for 4,924m2 of ^land  (including 300.5m2 ^of  residential land and 4,624.9m2 ^of  agricultural land). In 2004, Mr. K returned home; in 2006, Mr. K was granted a certificate of land use rights for the entire land area that Mr. D and his wife were using, and had been granted a certificate of land use rights; but later, the Committee discovered this and issued a decision to cancel the land use rights certificate granted to Mr. K and determined that the granting of the land use rights certificate to Mr. D and his wife was legal. Thus, although the disputed land area originated from Mr. K and Mr. C; But the two elders went abroad and handed it over to Mr. D and his wife to use since 1983 and Mr. D and his wife were granted a land use right certificate in 2005; the 4,624.9m2 of agricultural land alone, ^if  not handed over, would be recovered by the State; as for the 300.5m2 ^of  residential land, Mr. K agreed to give Mr. D 150m2 ^, the rest was Mr. C's inheritance, so Mr. K had no right to claim it back.

+ On the other hand, in 2009, Mr. D and his wife mortgaged their land to borrow money from the Bank; because they did not repay the debt, the Bank filed a lawsuit, the Court resolved it, the Enforcement Agency auctioned off the land to enforce the judgment, so the Court of Appeal forced Mr. D and his wife to return all the land (except for 180m2 where ^Mr.  D built a house), which was incorrect and did not ensure the legitimate rights and interests of the Bank and Mr. H (the person who won the land auction).

- In the Civil Judgment at First Instance No. 98/2014/DS-ST dated January 14, 2014, the People's Court of Buon Ma Thuot City decided to reject all of the plaintiff's lawsuit requests.

- In the Civil Appeal Judgment No. 06/2016/DS-PT dated January 11, 2016, the People's Court of Dak Lak province decided to uphold the above first instance judgment.

After the appeal trial, Ms. Nguyen Thi K filed a petition for appeal under the supervisory review procedure against the Civil Appeal Judgment No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province.

- In the Final Appeal No. 11/2017/KN-DS-VC2 dated February 7, 2017, the Chief Prosecutor of the High People's Procuracy in Da Nang requested the Judicial Committee of the High People's Court in Da Nang to review the final appeal to annul the Civil Judgment at First Instance No. 98/2014/DS-ST dated January 14, 2014 of the People's Court of Buon Ma Thuot City and annul the Civil Judgment at Appeal No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak Province for re-trial because:

+ During the process of declaring and applying for a land use right certificate, Mr. Nguyen Van D used a photocopy and forged the house and land certificate dated January 2, 1978 (corrected), supplemented the confirmation of Mr. Nguyen Van S, Chairman of the Farmers' Union and Chairman of the People's Committee of E commune on November 25, 1983 (more than 5 years after the land was granted) which was illegal. The People's Committee of P city issued Land Use Right Certificate No. AD 579302 at plot 9A, map sheet 58, area 300.5m2 ^and  Land Use Right Certificate No. AD 579313 at plot 09, map sheet 58, area 4,624.9m2 ^on  the same day, December 26, 2005, to Mr. Nguyen Van D's household, which was incorrect. On the other hand, Mr. Nguyen Van S, Chairman of the Farmers' Union and Chairman of the People's Committee of E commune confirmed on November 25, 1983 on the house and land certificate dated January 2, 1978 mentioned above, but the Court of First Instance and the Court of Appeal did not verify or take statements from these people, which did not fully clarify the case.

+ The defendant claimed that in 1982, Ms. Nguyen Thi K sold to Mr. Nguyen Dang N 01 sao of the land area that Mr. C and Ms. K had given to her and her husband, and in 1985, Mr. C sold the remaining 04 sao to Mr. Nguyen Van B. After Mr. C and Ms. K sold the land, Mr. C and Ms. K gave Ms. T and her husband 05 adjacent sao. Regarding the land area that Mr. C and Ms. K gave to her and her husband in 1978, it was not known who it was adjacent to, so Mr. C and Ms. K left it empty. After the sale, Mr. C and Ms. K gave back 05 adjacent sao, so the couple registered that it was adjacent to Mr. B, adjacent to their house land, and requested confirmation from the State-owned cinema enterprise under the Dak Lak Provincial Department of Culture, and the Collective Farmers' Association of Commune E.

However, according to the land sale documents, Mr. D directly sold the land to Mr. N and Mr. B. The land giving according to the evidence provided by Ms. K in the original and the photocopy provided by the defendant both shows that the land had boundaries, but the photocopy has the boundaries corrected and is not blank. As for Ms. T's statement that after selling 5 sao of land, Mr. C and Ms. K gave back 5 adjacent sao, it is baseless because there is no evidence to show this.

The defendant also claimed that Ms. K had made a petition on October 15, 2005, confirming that in 1978, she had given Mr. and Mrs. T a house and several acres of land to grow fruit trees. Ms. K and her siblings, including Nguyen Van D (who died in 2008), Nguyen Thi E, all signed the confirmation to legalize the house and land papers with the above photocopied copy. However, upon reviewing this petition, it only showed that Ms. K had confirmed that the house was built with an area of ​​100m2 ⁽  5m x 20m) on a plot of land with an area of ​​150m2 ⁽  5m x 30m), but there was no content confirming that Ms. T and her husband had an area of ​​several acres of land to grow fruit trees.

Regarding the proceedings: In 2005, Mr. D and Mrs. T completed the procedures to apply for a land use right certificate on a different land area, not on the land area given by Ms. K and Mr. C on January 2, 1978. Considering that Mr. Nguyen C died in 1998, at this time the inheritance rights of Ms. K and 14 children of Mr. C and Ms. K arose. The court of first instance and the appellate court did not include these people in the proceedings as people with related rights and obligations, which is a violation of Article 61 of the 2004 Civil Procedure Code (Article 73 of the 2015 Civil Procedure Code).

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

JUDGMENT OF THE COURT

[1] Regarding whether Mr. K and his wife have the right to reclaim the area of ​​4,924m2 ^of  land for which Mr. D and Mrs. T were granted a land use right certificate by the People's Committee of P city on December 26, 2005, the Committee of Judges of the High People's Court in Da Nang found that:

[2] The couple Nguyen C and Nguyen Thi K have 14 children together, Mr. Nguyen Van D is one of the 14 children of the couple C and K; the area of ​​4,924m2 of ^land  (including 300.5m2 ^of  residential land and 4,624.9m2 ^of  agricultural land) currently in dispute between Mr. K and Mr. D's couple is part of the total area of ​​29,418.27m2 ^of  land that the couple C and K established during their lifetime (before 1975, this land area belonged to the boundary of commune C, after 1975 it belonged to the boundary of commune H, in 1983 it belonged to the boundary of commune E, now ward E, city P, Dak Lak province).

On October 2, 1978, Mr. C and his wife made a house and land deed, giving their son, Mr. Nguyen Van D, a house measuring 4m x 12m, located on a land area of ​​5 sao, bordered by Mr. L's land to the East, Mrs. Nguyen Thi E's land to the West, the land of the Montagnards to the South, and National Highway 14 to the North; however, in 1982 and 1983, Mr. Nguyen Dang N and Mr. Nguyen Van B received the transfer of all 5 sao of land.

Considering Mr. K's statement that Mr. D was the one who transferred these 5 sao of land to Mr. N and Mr. B; while Mr. D did not admit it but claimed that Mr. C and Mr. K were the transferors, the court of final appeal found that Mr. D's statement was consistent with Mr. N and Mr. B's statement that the two of them bought 5 sao of land from Mr. C and Mr. K and gave money to Mr. C and Mr. K (records 231, 230, 229) and consistent with the fact that in 1978 Mr. C and Mr. K signed a handwritten paper giving Mr. D the land, so legally Mr. C and Mr. K were still the land users.

[3] After selling 5 sao of land with a written contract to Mr. D in 1978, around 1983, Mr. C and Mr. K left the country to settle in the Federal Republic of Germany; the house and remaining land area were managed and used by Mr. D and Mrs. T. The Supreme Court found that the statement of Mr. D and Mrs. T that before settling in Germany, their parents gave Mr. D and his wife 5 sao of adjacent land to compensate for the 5 sao of land that their parents had sold to Mr. N and Mr. B was well-founded because it was consistent with the statement of Mr. N and Mr. B that they bought the land and paid for Mr. K and his wife; consistent with the petition signed by Mr. K on October 15, 2005 (the petition has the signatures of his children including Mr. Nguyen Van D, Mrs. Nguyen Thi E, the witness neighbor Mr. Nguyen Van H1 and the certification of the local government) confirming that in 1978, he and his wife gave Mr. D the house and land, but the documents for the house and land were lost, so now Mr. K signed this petition for Mr. D and his wife to complete the procedures for registering the right to use the land and house according to the provisions of law.

[4] On the other hand, in the total area of ​​4,924m2 ^of  land that Mr. P and Mrs. T were granted a land use right certificate by the People's Committee of P city on December 26, 2005, only 300.5m2 ^is  residential land (Land use right certificate No. AD 579302, plot No. 9A, map sheet 58), the remaining 4,624.9m2 of ^land  , at plot 09, map sheet 58 is agricultural land (Land use right certificate No. AD 579313).

According to the provisions of Clause 5, Article 14 of the 1987 Land Law and Clause 3, Article 26 of the 1993 Land Law, the State will reclaim land if the land user does not use the land for more than 6 months or 12 months without the State's permission. According to the provisions of Clause 11, Article 38 of the 2003 Land Law and Point h, Clause 1, Article 64 of the 2013 Land Law, some cases of land use that violate the land law will be subject to land reclamation by the State, such as: "Land for growing annual crops that is not used for 12 consecutive months, land for growing perennial crops that is not used for 18 consecutive months; Land for growing forests that is not used for 24 consecutive months;...", the final judgment level considered that although Mr. C and Mr. K had previously used 4,624.9m2 of ^agricultural  land; But the two elders have settled abroad and have not used the land for many years, so this agricultural land is subject to recovery by the State; Mr. D and his wife directly use it, declare and pay taxes to the State every year, and have been recognized by the State and granted a land use right certificate in 2005, so they have the right to legally use this land area.

[5] Thus, from the above arguments, the court of cassation found sufficient basis to determine: Before settling in the Federal Republic of Germany, Mr. C and Mrs. K gave Mr. D and Mrs. T 5 sao of land, of which Mr. D and Mrs. T have now been granted a land use right certificate to compensate for the 5 sao of land that they gave Mr. D in 1978, but they sold it to Mr. N and Mr. B in 1982 and 1983; on the other hand, Mr. C and Mrs. K did not use the land for many years, so the land was subject to recovery by the State, while Mr. D and Mrs. K used it, declared and paid taxes to the State, and were granted a land use right certificate, so Mr. D and Mrs. T have the right to legally use this land area. Therefore, the Civil Judgment at First Instance No. 98/2014/DS-ST dated January 14, 2014 of the People's Court of Buon Ma Thuot City and the Civil Judgment at Appeal No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak Province not accepting the lawsuit request of Mr. K demanding that Mr. D and Mrs. T's family return the above land area is well-founded and in accordance with the law.

[6] After being granted a land use right certificate by the People's Committee of City P on December 26, 2005 (Land use right certificate No. AD 579302, for plot No. 9A, map sheet 58, area of ​​300.5m2 of ^residential  land and Land use right certificate No. AD 579313 for plot No. 09, map sheet 58, area of ​​4,624.9m2 ^of  agricultural land), in 2009, Mr. D and Mrs. T mortgaged the land at Bank A to borrow money. Because Mr. D and Mrs. T did not repay the debt on time, the Bank filed a lawsuit; The People's Court of Dak Lak province resolved the case in Decision No. 47/2011/QDST-KDTM dated June 17, 2011, recognizing the agreement of the parties with the decision to force Mr. D and Mrs. T to pay the debt to the Bank. If they do not pay, the Bank has the right to auction the right to use the 2 plots of land that Mr. D and Mrs. T had mortgaged as above. After that, the right to use the 2 plots of land mentioned above was auctioned to the Bank; the auction winner was Mr. H, so according to the provisions of Article 138 and Article 258 of the 2005 Civil Code, Mr. H is a third party in good faith who has the right to legally use the 2 plots of land mentioned above and is not related to the dispute between Mr. K and Mr. D and Mrs. T.

[7] From the above analysis, the Judicial Committee of the High People's Court in Da Nang considers that the Final Appeal Protest No. 11/2017/KN-DS-VC2 dated February 7, 2017 of the Chief Prosecutor of the High People's Procuracy in Da Nang against the Civil Appeal Judgment No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province is groundless, so it is not accepted but maintains the decision in the Civil Appeal Judgment No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province.

For the above reasons,

DECISION

Pursuant to Point b, Clause 1, Article 337, Clause 1, Article 343 of the 2015 Civil Procedure Code;

1. Not accepting the Chief Justice's Appeal No. 11/2017/KN-DS-VC2 dated February 7, 2017 of the Chief Justice of the High People's Procuracy in Da Nang; upholding the Civil Appeal Judgment No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province;
2. Civil Appeal Judgment No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province continues to have legal effect.

The final decision comes into force.

CONTENT OF PRECEDENT

“[4] On the other hand, in the total area of ​​4,924m2 ^of  land that Mr. D and Mrs. T were granted a land use right certificate by the People's Committee of City P on December 26, 2005, only 300.5m2 ^is  residential land (Land use right certificate No. AD 579302, plot No. 9A, map sheet 58), the remaining 4,624.9m2 of ^land  , at plot 09, map sheet 58 is agricultural land (Land use right certificate No. AD 579313). According to the provisions of Clause 5, Article 14 of the 1987 Land Law, Clause 3, Article 26 of the 1993 Land Law, the State will reclaim the land if the land user does not use the land for more than 6 months or 12 months without the State's permission. According to the provisions of Clause 11, Article 38 of the 2003 Land Law and Point h, Clause i, Article 64 of the 2013 Land Law, some cases of land use that violate land laws will be subject to land recovery by the State, such as: "Land for annual crops not used for 12 consecutive months, land for perennial crops not used for 18 consecutive months; Land in forests not used for 24 consecutive months;...". The final judgment level considered that although Mr. C and Mr. K had previously used 4,624.9m2 of ^agricultural  land; but the two had settled abroad and not used the land for many years, this agricultural land was subject to recovery by the State; Mr. D and his wife directly used it; annually declared and paid taxes to the State and were recognized by the State for granting a land use right certificate in 2005, so they had the right to legally use this land area.

[5] … The first instance civil judgment No. 98/2014/DS-ST dated January 14, 2014 of the People's Court of Buon Ma Thuot city and the second instance civil judgment No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province did not accept the lawsuit request of Mr. K demanding that Mr. D and Mrs. T's family return the above land area, which is well-founded and in accordance with the law.

Major