Precedent No. 38/2020/AL

Precedent No. 38/2020/AL on not accepting a request to claim assets that have been divided by a legally effective judgment was adopted by the Council of Judges of the Supreme People's Court on August 13, 2020 and promulgated under Decision No. 276/QD-CA dated October 2, 2020 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 28/2019/DS-GDT dated November 12, 2019 of the Council of Judges of the Supreme People's Court on the civil case "Property claim lawsuit" in Lam Dong province between the plaintiff Ms. To Thi M and the defendants Ms. Nguyen Thi D, Ms. Pham Thi H, people with related rights and obligations including 09 people.

Location of case law:

Paragraph 2 of the “Court's Opinion” section.

Overview of case law:

- Case law:

After the property being the house ownership and land use rights has been divided by a court judgment or decision that has come into legal effect, another person (not a party in that case) files a lawsuit to claim the house ownership and land use rights.

- Legal solutions:

In this case, the Court will not accept the new case. The person claiming the right to own the house and the right to use the land shall notify in writing the competent authority to review the judgment or decision that has come into legal effect of the Court according to the procedure of cassation or retrial as prescribed by law.

Legal provisions relating to precedents:

Point c, Clause 1, Article 192, Point g, Clause 1, Article 217, Clause 2, Article 327, Clause 1, Article 353 of the 2015 Civil Procedure Code.

CASE CONTENT

1. In the Petition dated July 18, 2011, the Supplementary Petition dated June 16, 2015 and the statements during the proceedings, the plaintiff, Ms. To Thi M (legally represented by Mr. Nguyen Anh D), stated:

The origin of the land at No. 12 G Street, Ward 5, City T (including 01 part of the disputed house and land, currently No. 12 ^A  G Street) is the property of Ms. M's parents, Mr. To Duy H1 and Ms. Tran Thi D1, and was granted a Certificate of House and Land Ownership No. 6015/ND-XD Q3,4 on December 18, 1989 by the Department of Construction of Lam Dong province. The house has a level 2, class 3 structure, 80% remaining, tiled floor, brick walls, cast walls, flat roof, total area is 437.9m2 ^, main usable area is 315.17m2 ^. In 1973, Mr. H1 rented part of the back house to Ms. Hoang Thi N to live in (No. 12 ^A  G Street).

In 1975, Mr. H1's family demanded the house, so Ms. N asked to stay for a while longer until she found a new place to live and then returned the house. After 1975, Mr. H1's family did not collect rent from Ms. N. In 1980, Ms. N secretly let Ms. Pham Thi H stay in the house rented by Mr. H1. Ms. M's family complained about this to the People's Committee of Ward 5, City T, but through mediation, Ms. M's family agreed to let Ms. H stay until she found a house.

In 2003, Ms. H declared and applied for a Certificate of house ownership and land use rights at 12A ^,  G Street, Ward 5, City T. Ms. M's family continued to request Ms. H to return the house. In 2011, Ms. H applied for a house construction permit, but Ms. M's family did not know. Currently, the house and land at 12A, ^G  Street, Ward 5, City T are owned by Ms. H and Ms. Nguyen Thi D on the certificate of house ownership and land use rights. Therefore, Ms. M filed a lawsuit requesting the Court to force Ms. H and Ms. D to return to Ms. M's family the house and land they had occupied at 12A, ^G  Street, Ward 5, City T.

2. The defendants, Ms. Nguyen Thi D and Ms. Pham Thi H, stated:

In 1994, Ms. H and Mr. Nguyen Ngoc C (Ms. H's husband) received a transfer from Ms. Hoang Thi N of the house at 12A ^,  G Street, Ward 5, T City and used it stably, without any dispute. In 2002, Ms. H and Mr. C divorced. In the Appeal Judgment on Marriage and Family No. 17/HNGD-PT dated September 24, 2002, Lam Dong Provincial People's Court ruled that Mr. D owned half of the house, and Ms. H owned half of the above house because Ms. H and her husband bought the house together with Mr. D (Ms. H's mother).

On January 12, 2004, Ms. H and Mr. D were granted a certificate of house ownership and land use rights for house number 12A, ^G  street, ward 5, city T. In March 2011, Ms. H asked the competent authority for permission to rebuild the house because the house was seriously degraded. When starting to rebuild the house, Ms. H discussed with Ms. M about demolishing the wall that Ms. M's family had built on Ms. H's land, but Ms. M did not allow it to be demolished and asked Ms. H to return the house. Ms. H and Mr. D determined that: House number 12A, ^G  street, ward 5, city T was legally purchased by Ms. H and Mr. D from Ms. N, and at the same time, they had been granted a certificate of house ownership and land use rights, so they did not agree with Ms. M's request to file a lawsuit.

In the Decision to suspend the settlement of the first instance civil case and return the petition No. 03/2016/QDST-DS dated August 1, 2016, Lam Dong Provincial People's Court decided:

Suspend the settlement and return the petition regarding the first instance civil case accepted No. 03/2012/TLDS-ST dated April 17, 2012 regarding the case "Property Claim Lawsuit" between the plaintiff Ms. To Thi M and the defendants Ms. Nguyen Thi D and Ms. Pham Thi H.

The court of first instance also ruled on court fees and the right to appeal in accordance with the law.

After the first instance trial, on August 18, 2016, Mr. Nguyen Anh D, the authorized representative of the plaintiff, appealed, disagreeing with the above first instance decision.

In the Decision to resolve the appeal against the Decision to suspend the settlement of case No. 91/2017/QDDS-PT dated May 30, 2017, the High People's Court in Ho Chi Minh City decided:

Accept the appeal of the plaintiff and those with related rights and obligations, including Mr. and Mrs. To Thi S1, To Duy T, To Duy S, To Thi Kim N1, To Thi T1, To Thi S2, To Duy E, To Duy P1, To Thi H2, To Thi H3, To Thi Ngoc L, To Duy P2, To Duy Lam S3, To Thi Ngoc H4, To Duy H5, To Thi Ngoc V, To Duy H6 (represented by Mr. Nguyen Anh D).

Cancel the Decision to suspend the settlement of civil case No. 03/2016/QDST-DS dated August 1, 2016 of Lam Dong Provincial People's Court; Transfer the case file to Lam Dong Provincial People's Court to continue settling the case.

The Court of Appeal also ruled on court costs.

On September 1, 2017, Judge Bui Huu Nhan - Chairman of the first instance trial submitted a request to the Supreme People's Court to review the above appeal decision according to the cassation procedure.

In Decision No. 49/2019/KN-DS dated July 31, 2019, the Chief Justice of the Supreme People's Court appealed the Decision to resolve the appeal against the Decision to suspend the settlement of case No. 91/2017/QDDS-PT dated May 30, 2017 of the High People's Court in Ho Chi Minh City; requested the Council of Judges of the Supreme People's Court to review the case, annul the above-mentioned appellate Decision and uphold the Decision to suspend the settlement of the first-instance civil case No. 03/2016/QDST-DS dated August 1, 2016 of the People's Court of Lam Dong province and return the petition.

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

JUDGMENT OF THE COURT

[1] The case file shows that Ms. To Thi M filed a lawsuit claiming that house number 12A, ^G  street, ward 5, city T belongs to Ms. To Duy H1 and Ms. Tran Thi D1, requesting the Court to order Ms. Pham Thi H and Ms. Nguyen Thi D to return it to her.

[2] At Point c, Clause 1, Article 192 of the 2015 Civil Procedure Code, one of the cases where the Court returns the petition is:  “The matter has been resolved by a judgment or decision that has come into legal effect of the Court or a decision that has come into legal effect of a competent state agency, except for cases where the Court rejects a petition for divorce, a request to change child custody, a change in the level of alimony, a request to change the property manager, a change in the estate manager, a change in the guardian, or a case of claiming property, claiming leased or lent property, claiming a house, claiming the right to use leased, lent or lent land, for which the Court has not accepted the request and according to the provisions of law, the right to re-file a lawsuit; ”.

The documents in the case file show: The appeal marriage and family judgment No. 17/HNGD-PT dated September 24, 2002, Lam Dong Provincial People's Court declared that Ms. Pham Thi H has the right to own half of the house with an area of ​​40.73m2 ^, Ms. Nguyen Thi D has the right to own half of the house with an area of ​​40.73m2 ^at  No. 12A ^,  G Street, Ward 5, City T. Thus, the content of Ms. M's lawsuit is that the house at No. 12A, ^G  Street, Ward 5, City T belongs to Mr. H1 and Mr. D1 has a valid judgment determining that the ownership of that house belongs to Mr. D with Ms. H.

Article 256 of the 2005 Civil Code stipulates:  “The owner or legal possessor has the right to request the possessor, user, or beneficiary of the property without legal basis for the property under his/her ownership or legal possession to return that property,…” . Thus, with the content of the decision of the above-mentioned Appeal Judgment on Marriage and Family No. 17/HNGD-PT, Ms. M does not have the right to request Mr. D and Ms. H to return the house at No. 12A, ^G  Street, Ward 5, T City. Therefore, the content of Ms. M's request to initiate a lawsuit must be considered as falling under the case of  “The matter has been resolved by a judgment or decision that has come into legal effect of the Court” ; If Ms. M does not agree with the Appeal Judgment on Marriage and Family No. 17/HNGD-PT, she shall request the competent People's Court to review that judgment according to the procedure of cassation (when the statute of limitations is still valid) or retrial (when there is a basis).

Therefore, on August 1, 2016, Lam Dong Provincial People's Court issued Decision No. 03/2016/QDST-DS suspending the settlement of the case and returning Ms. M's petition in accordance with the provisions of Point c, Clause 1, Article 192 and Point g, Clause 1, Article 217 of the 2015 Civil Procedure Code. Decision No. 91/2017/QDDS-PT dated May 30, 2017 of the High People's Court in Ho Chi Minh City annulled the entire Decision No. 03/2016/QDST-DS dated August 1, 2016 above because it considered that the dispute in this case was "Property Claim", with a plaintiff and defendant different from the plaintiff and defendant in the marriage and family case that was tried by Lam Dong Provincial People's Court at the appeal hearing in the Marriage and Family Appeal Judgment No. 17/HNGD-PT dated 24-9-2002 is incorrect.

For the above reasons,

DECISION

Pursuant to Clause 2, Article 337, Clause 2, Article 343, Article 344 of the 2015 Civil Procedure Code;

1. Accept the Decision of appeal for review No. 49/2019/KN-DS dated July 31, 2019 of the Chief Justice of the Supreme People's Court.
2. Annul the Decision to resolve the appeal against the Decision to suspend the settlement of case No. 91/2017/QDDS-PT dated May 30, 2017 of the High People's Court in Ho Chi Minh City on the case  "Property Claim Lawsuit" between the plaintiff Ms. To Thi M and the defendants Ms. Nguyen Thi D, Ms. Pham Thi H and other people with related rights and obligations.
3. Uphold the Decision to suspend the settlement of the first instance civil case and return the petition No. 03/2016/QDST-DS dated August 1, 2016 of Lam Dong Provincial People's Court.

CONTENT OF PRECEDENT

“[2]… The appeal marriage and family judgment No. 17/HNGD-PT dated September 24, 2002, Lam Dong Provincial People's Court declared that Ms. Pham Thi H has the right to own half of the house with an area of ​​40.73m2 ^, Ms. Nguyen Thi D has the right to own half of the house with an area of ​​40.73m2 ^at  No. 12A ^,  G Street, Ward 5, City T. Thus, the content of Ms. M's lawsuit is that the house at No. 12A, ^G  Street, Ward 5, City T belongs to Mr. H1 and Mr. D1 has a valid judgment determining that the ownership of that house belongs to Mr. D with Ms. H.

Article 256 of the 2005 Civil Code stipulates: “The owner or lawful possessor has the right to request the possessor, user, or beneficiary of the property without legal basis to return the property under his/her ownership or lawful possession,…”.

Thus, with the content of the decision of the above-mentioned Appeal Judgment on Marriage and Family No. 17/HNGD-PT, Ms. M has no right to demand that Mr. D and Ms. H return the house at No. 12A, ^G  Street, Ward 5, T City. Therefore, the content of Ms. M's lawsuit request must be considered as falling under the case of "The matter has been resolved by a judgment or decision that has come into legal effect of the Court"; if Ms. M does not agree with the Appeal Judgment on Marriage and Family No. 17/HNGD-PT, she shall request the competent People's Court to review that judgment according to the procedure of cassation (when the statute of limitations is still valid) or retrial (when there is a basis).

Therefore, on August 1, 2016, Lam Dong Provincial People's Court issued Decision No. 03/2016/QDST-DS suspending the settlement of the case and returning Ms. M's petition in accordance with the provisions of Point c, Clause 1, Article 192 and Point g, Clause 1, Article 217 of the 2015 Civil Procedure Code. Decision No. 91/2017/QDDS-PT dated May 30, 2017 of the High People's Court in Ho Chi Minh City annulled the entire Decision No. 03/2016/QDST-DS dated August 1, 2016 above because it considered that the dispute in this case was "Property Claim", with a plaintiff and defendant different from the plaintiff and defendant in the marriage and family case that was tried by Lam Dong Provincial People's Court at the appeal hearing in the Marriage and Family Appeal Judgment No. 17/HNGD-PT dated 24-9-2002 is not correct”.

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