Precedent No. 49/2021/AL

On determining administrative decisions issued without proper authority

Adopted by the Council of Judges of the Supreme People's Court on November 25, 2021 and promulgated under Decision No. 594/QD-CA dated December 31, 2021 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 06/2019/HC-GDT dated April 2, 2019 of the Council of Judges of the Supreme People's Court on the case " Complaint about administrative decisions in the field of land management " between the plaintiff, Mr. Thai Van N, and the defendant, Chairman of the People's Committee of D province; the person with related rights and obligations is Church V.

Location of case law:

Section 3 of “Court's Opinion”.

Overview of case law:

- Case law:

The Chairman of the People's Committee issues an administrative decision to resolve land disputes related to land use rights contracts.

- Legal solutions:

In this case, the Court must determine that the dispute over land use rights contract is within the Court's jurisdiction; the Chairman of the People's Committee issued an administrative decision to resolve the land dispute without proper authority.

Legal provisions relating to precedents:

- Clause 3, Article 25 of the 2004 Civil Procedure Code (corresponding to Clause 3, Article 26 of the 2015 Civil Procedure Code);

- Article 136 of the 2003 Land Law (corresponding to Article 203 of the 2013 Land Law).

Keywords of case law:

“Administrative decision”; “Land dispute”; “Land use rights contract”.

CASE CONTENT:

In the Petition dated September 24, 2012 and during the settlement process, Mr. Thai Van N stated: The origin of the disputed land between Church V (referred to as the Church) and Mr. Thai Van N's household belongs to the Church, by Mr. Nguyen Van Q and Ms. Nguyen Thi S, the father and mother of Mr. Nguyen Phuoc T, and a part was donated to the Church by Mr. Nguyen Van E in 1960. In 1961, the Church was built with a width of 11m. In 1976, the Church allowed Mr. N to build a house on the Church land and take care of the Church (because Mr. N was a parishioner of the parish), with a width of 16m, from National Highway 80 to P River (about 30m). Mr. N built a house on a 5m wide land, and on the remaining land, Mr. N planted bananas and mangoes. During the land use process, in 1986, Mr. N's family built 2 more rooms and 1 kitchen adjacent to the main house. In 1999, the Church's land was eroded, so the Church was moved to the opposite land (across Highway 80). Part of the old land of the Church was given to Mr. Nguyen Phuoc T, the son of Mr. Q (the old landowner) and a part was given to Mrs. M and Mr. K in exchange for materials to build the Church. Mr. N's family still continues to use the land area used for housing (including the house built in 1976 and 02 bedrooms, 01 kitchen built in 1986).

On January 18, 2003, Father Nguyen Quang D and representatives of the Parish Council of V Church made a " Land Allocation Form " to give Mr. N the use of a piece of land 10m wide, 30m long from National Highway 80 to P River, with a total area of ^​​300m2 .

In 2009, Mr. N repaired the main house and built a mobile phone shop. The Church did not agree, so a dispute arose. Mr. N claimed that he had been given land by the parish priest Nguyen Quang D and the representative of the Board of Directors of the V Church according to the " Land allocation form " dated January 18, 2003. According to the cadastral map extract issued by the Land Use Registration Office of P district on September 1, 2011, Mr. N's main house has an area of ​​134.7m2 ⁽ 5.8m wide), the mobile phone shop has an area of ​​102.2m2 ⁽ 4.4m wide).

The church has submitted a petition to the People's Committee of Province D requesting a resolution.

On May 14, 2012, the Chairman of the People's Committee of D province issued Decision No. 197/QD-UBND-ND to resolve land disputes, with the following contents:

“Article 1: Recognize the land use rights for Mr. Thai Van N in the area with the following location:

+ East side borders Mr. Nguyen Phuoc T, side 23.8m.

+ West side borders Church land, side 24.3m.

+ South side borders National Highway 80, side 5.8m.

+ North side borders P river, side 5.4m.

- Recognize land use rights for Church V with the following area location:

+ East side borders Mr. Thai Van N, side 24.3m.

+ West side borders Mrs. Huynh Thi M, side 23.7m.

+ South side borders National Highway 80, side 4.4m.

+ North side borders P river, side 4.2m.

(Attached is the measurement map of the Land Use Registration Office of District P established on September 1, 2011).

Force Mr. N to move the structures and crops (if any) to return the above land to the church for use.

On September 24, 2012, Mr. N filed a lawsuit requesting the Court to cancel Decision No. 197/QD-UBND-ND dated May 14, 2012 of the Chairman of the People's Committee of D province.

- Opinion of the People's Committee of D province: The land origin is from Mr. Nguyen Van Q and Mr. Nguyen Van E donated to the Church in 1960, the area is 28m wide, long from National Highway 30 to P River. The Church was built in 1969, the area is 8m wide. In 1976, the Church gave Mr. N a piece of land about 4m wide and long from National Highway 80 to P River to build a house and take care of the Church, the remaining land Mr. N planted some fruit trees. In 1999, the Church was degraded so it was moved to another location. The land was partly given to the old owner, partly exchanged with Mr. K for materials to build a new Church.

On January 18, 2003, Father Nguyen Quang D and representatives of the Board of Officials of the V Church established a "Land Allocation Form" to assign Mr. N to use a piece of land 10m wide, from National Highway 80 to P River, with an area of ^​​300m2 .

In 2009, Mr. N repaired and built a new house, expanded and removed all the land with a width of 10m, then a dispute arose with the Church. When the Church complained, the Chairman of the People's Committee of D province resolved it by Decision No. 197/QD-UBND-ND dated May 14, 2012, granting Mr. N the right to use the area with a width of 5.8m and 5.4m, and a length of 23.8m and 24.3m, forcing Mr. N to move the remaining structures and plants to return the land area to the Church for use. The above decision considered the land use process of Mr. N's family, although in 2003, the priest of V Church made a " Land Allocation Form " for Mr. N, but it was not certified by the local government, so it had no legal value. The decision of the People's Committee of D province is well-founded, it is recommended not to accept Mr. N's request.

- Opinion of Church V: The origin of the land of the Church was donated by parishioners Mr. Q, an area of ​​21m wide and long from National Highway 80 to P River, and Mr. E, an area of ​​7m wide and long from National Highway 80 to P River in 1960. The total width is 28m and long from National Highway 80 to P River. In 1961, the Church was built with a width of 11m. In 1976, the Church allowed Mr. N's family (Mr. N's family is a parishioner) to use the land of 4m wide and long from National Highway 80 to the river bank to build a house and take care of the Church. The remaining land area was used by Mr. N's family to grow fruit trees (mango, banana). In 1986, Mr. N's family built two more rooms and a kitchen next to the main house.

In 1999, the Church's land was eroded, the Church was permitted by the Provincial People's Committee to move to the opposite land to rebuild. The Church handed over a part of the old land of the Church to Mr. T, because Mr. T was the son of Mr. Q (the old landowner) and gave a part of the land to Mrs. M and Mr. K in exchange for materials to build the Church.

On January 18, 2003, the parish priest of the Church, Mr. Nguyen Quang D, and the parish council of the V Church, made a land allocation paper for Mr. N's family, 10m wide and from Highway 80 down to the riverbank. The two parties had an oral agreement, the purpose was to exchange materials for the construction of the Church, but Mr. N's family did not comply, so the Church did not go to the Commune People's Committee to confirm the land allocation paper for Mr. N.

In 2009, Mr. N built a solid house and added a house to sell phones. The Church did not agree, so a dispute arose. The Church only agreed to let Mr. N use the land with a width of 4m. The land with a width of 1.2m had to be negotiated with the Church. The remaining area with a width of 4.4m and a length from Highway 80 to the P River had to be returned to the Church.

The church agreed with Decision No. 197/QD-UBND-ND dated May 14, 2012 of the Chairman of the Provincial People's Committee and requested the Court to reject Mr. N's request.

In the First Instance Administrative Judgment No. 02/2014/HC-ST dated June 27, 2014, the People's Court of Dong Thap province decided:

Reject Mr. Thai Van N's request to cancel Decision No. 197/QD-UBND-ND dated May 14, 2012 of the Chairman of the People's Committee of D province.

The court of first instance also decides on court costs.

On July 10, 2014, Mr. N filed an appeal against the entire first instance administrative judgment.

In Appeal Decision No. 89/QDKNPT-P5 dated July 11, 2014, the Chief Prosecutor of Dong Thap Provincial People's Procuracy appealed the First Instance Administrative Judgment No. 02/2014/HC-ST dated June 27, 2014 of Dong Thap Provincial People's Court and requested the Court of Appeal to amend the first instance judgment and partially annul Decision No. 197/QD-UBND-ND dated May 14, 2012 of the Chairman of Dong Thap Provincial People's Committee.

At the appeal hearing, the representative of the High People's Procuracy in Ho Chi Minh City withdrew the entire appeal decision of the Chief Prosecutor of the People's Procuracy of Dong Thap province.

In the Administrative Appeal Judgment No. 65/2015/HC-PT dated September 9, 2015, the High People's Court in Ho Chi Minh City decided:

Suspending the appeal trial of Appeal Decision No. 89/QDKNPT-P5 dated July 11, 2014 of the Chief Prosecutor of Dong Thap Provincial People's Procuracy.

Not accepting the appeal request of Mr. Thai B (authorized representative of the plaintiff). Upholding the first instance judgment No. 02/2014/HC-ST dated June 27, 2014 of the People's Court of Dong Thap province.

Pursuant to Article 31 of the 1993 Land Law and Decree No. 17/1999/ND-CP dated March 29, 1999 of the Government regulating procedures for conversion, transfer, lease, sublease, inheritance of land use rights and capital contribution with the value of land use rights, it is hereby declared that:

Not accepting the lawsuit request of Mr. Thai Van N regarding the request to cancel Decision No. 197/QD-UBND-ND dated May 14, 2012 of the Chairman of the People's Committee of D province.

The Court of Appeal decides on court costs.

On November 17, 2015, Mr. N submitted a request for review under the cassation procedure for the Administrative Appeal Judgment No. 65/2015/HC-PT dated September 9, 2015 of the High People's Court in Ho Chi Minh City.

On February 1, 2018, May 9, 2018 and July 9, 2018, the People's Committee of D province issued Documents No. 32/UBND-NC, 232/UBND-NC and 349/UBND-NC requesting review under the cassation procedure for the Administrative Appeal Judgment No. 65/2015/HC-PT dated September 9, 2015 of the High People's Court in Ho Chi Minh City.

In the Appeal Decision No. 25/2018/KN-HC dated November 9, 2018, the Chief Justice of the Supreme People's Court appealed the Appeal Administrative Judgment No. 65/2015/HC-PT dated September 9, 2015 of the High People's Court in Ho Chi Minh City according to the cassation procedure and requested the Council of Judges of the Supreme People's Court to conduct a cassation trial in the direction of annulling the Appeal Administrative Judgment No. 65/2015/HC-PT dated September 9, 2015 of the High People's Court in Ho Chi Minh City and the First Instance Administrative Judgment No. 02/2014/HC-ST dated June 27, 2014 of the People's Court of Dong Thap province; handing over the case file to the People's Court of Dong Thap province for re-trial at first instance in accordance with the provisions of law.

At the appeal hearing, the representative of the Supreme People's Procuracy requested the Supreme People's Court's Judicial Council to accept the appeal of the Chief Justice of the Supreme People's Court.

JUDGMENT OF THE COURT:

[1] Regarding the authority to resolve disputes:

[2] The land that Mr. Thai Van N's family is using is determined to be 202.2m2 

⁽ on the land where Mr. N's family's phone shop is located) belonging to a part of land plot No. 42 on cadastral map No. 8a, V commune, P district, Dong Thap province, which was donated to the Church by some parishioners. In 1976, the Church allowed Mr. N's family to use a part of land with a width of 4m, the length from National Highway 80 to the river bank to build a house and take care of the Church. On January 18, 2003, Priest Nguyen Quang D and the Church's Parish Council made a " Land Allocation Form " for Mr. N to use a part of land with a width of 10m, the length from National Highway 80 to P river is 30m, the area is ^300m2 .

[3] In 2009, Mr. N repaired the main house and built a mobile phone store. The Church did not agree, so a dispute arose. Mr. N claimed that he was given land by the parish priest Nguyen Quang D and the representative of the parish council of V Church according to the " Land allocation form " dated January 18, 2003. The representative of Church V admitted that there was a Land Transfer Paper as Mr. N presented, but said that Mr. N did not exchange materials to build a new Church, so the Church did not go to the People's Committee of the commune to confirm the land transfer paper to Mr. N. Therefore, the dispute between the two parties is related to the land use right donation contract between Church V and Mr. N, so the case is under the jurisdiction of the Court according to the provisions of Clause 3, Article 25 of the 2004 Civil Procedure Code, Clause 3, Article 26 of the 2015 Civil Procedure Code, the Chairman of the People's Committee of Province D issued Decision No. 197/QD-UBND-ND dated May 14, 2012 to resolve the land use right dispute between Church V and Mr. Thai Van N, which is not within its jurisdiction.

[4] About the content:

[5] Origin and land use process of Mr. N: The land of the V Church was originally donated by some parishioners. In 1976, the V Church gave Mr. N a part of the land in addition to the part used to build the Church. Mr. N built a house on a part of the land assigned by the Church (currently 134.7m2), the remaining ^land (currently 102.2m2 ⁾ Mr. N planted mangoes and bananas, this was also confirmed by the People's Committee of D province and the Church.

[6] Thus, Mr. N's family continuously used the land assigned by the Church from 1976 to 2009 (during the land use process, taxes were paid to the state). However, the tax receipts did not specify the area, and during the land use process, Mr. N did not declare and register the right to use the land.

[7] In 1999, because Church V moved to another place, the land used to build the Church headquarters was returned to the former owner, Mr. Nguyen Phuoc T, and a part of the land was given to the couple Huynh Thi Mai H and Mr. Dang Van K to exchange materials for building the Church. There was no dispute between these families regarding land use rights.

[8] On January 18, 2003, the parish priest and the representative of the Parish Council of V Church made a "Land Transfer Form" for Mr. N, with the following content: " This paper is now made as evidence to transfer the old land of V Church located in Hamlet B, Commune V. Calculated from Road 80 to the river bank (P Canal). With length: 30 meters, width: 10 meters. Total area: 300 square meters. Reason: This land belongs to the Church. The family of Mr. Thai Van N and Mrs. Huynh Thi Mai H has been allowed by the Church to live and develop it until now. Now the Church has relocated this unused land and hereby gives Mr. and Mrs. N full rights to declare and use it."

[9] The content of the above land allocation document is not a land use rights transfer contract. In fact, Church V confirmed the allocation of land to Mr. N with the right to use it (like a land donation contract) so that Mr. N has a basis to register the land use rights like Mr. T and Mr. K's households. In fact, when the Church allocated the land to Mr. N, Mr. N was still using this land, the Church had not used it since 1999. Since the land allocation document was issued, the Church had no comments on this land allocation; at the same time, at the first instance trial, the Church representative also confirmed: " When priest B returned to hand over the property, there was confirmation but no receipt of the land property for how much ".

[10] Thus, the disputed land area has been continuously used by Mr. N since 1976 until now. The Church has not directly used it and Mr. N's family has a need to use it.

[11] The Chairman of the People's Committee of Province D issued Decision No. 197/QD-UBND-ND dated May 14, 2012 forcing Mr. N's family to relocate architectural objects and crops (if any) to return 102.2 square meters of ^land for the Church to use, which is incorrect.

[12] The Court of First Instance and the Court of Appeal only based on the land area on which Mr. N built his house and the testimony of the Church representative to conclude that Mr. N had the right to use 134.7 square meters, ^which is not consistent with the objective reality of the case; at the same time, they concluded that the land allocation document of the Church was not confirmed by a competent authority, so it had no legal value to reject Mr. N's lawsuit request as groundless.

[13] Because the Chairman of the People's Committee of Province D issued Decision No. 197/QD-UBND-ND dated May 4, 2012 to resolve land disputes without proper authority, the way to resolve the case was also not in accordance with the law.

For the above reasons;

DECISION:

Pursuant to Clause 1, Article 271, Clause 3, Article 272, Clause 2, Article 274 of the Law on Administrative Procedure;

1. Accept the Decision on appeal for review No. 25/2018/KN-HC dated November 9, 2018 of the Chief Justice of the Supreme People's Court against the Administrative Appeal Judgment No. 65/2015/HC-PT dated September 9, 2015 of the High People's Court in Ho Chi Minh City;
2. Annul the Administrative Appeal Judgment No. 65/2015/HC-PT dated September 9, 2015 of the High People's Court in Ho Chi Minh City;
3. Transfer the case file to the High People's Court in Ho Chi Minh City for retrial in accordance with the provisions of law.

CONTENT OF PRECEDENT

“[3] ... Mr. N claimed that he was given land by the parish priest Nguyen Quang D and the representative of the Parish Council of V Church according to the “Land allocation form dated January 18, 2003. The representative of Church V admitted that there was a "Land Transfer Paper" as Mr. N presented, but said that Mr. N did not exchange materials to build the new Church, so the Church did not go to the People's Committee of the commune to confirm the land transfer paper to Mr. N. Therefore, the dispute between the two parties is related to the land use right donation contract between Church V and Mr. N, so the case is under the jurisdiction of the Court according to the provisions of Clause 3, Article 25 of the 2004 Civil Procedure Code, Clause 3, Article 26 of the 2015 Civil Procedure Code, the Chairman of the People's Committee of Province D issued Decision No. 197/QD-UBND-ND dated May 14, 2012 to resolve the land use right dispute between Church V and Mr. Thai Van N, which is not within its jurisdiction."

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