Precedent No. 50/2021/AL

On the right to initiate a lawsuit to reclaim property of the person to whom the property is assigned according to a legally effective judgment or decision

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. 481/2012/DS-GDT dated September 25, 2012 of the Civil Court of the Supreme People's Court on the case of " Dispute over property recovery " in Thua Thien Hue province between the plaintiff Mr. Nguyen Van N and the defendant Ms. Nguyen Thi T.

Location of case law:

Paragraph 4 of the “Court's Opinion” section.

Overview of case law:

- Case law:

The Court's legally effective judgment or decision resolves the division of property, but the judgment or decision has not been enforced because the person to whom the judgment is enforced has not requested enforcement and has not actually received the property. When the statute of limitations for requesting enforcement expires, the person to whom the Court has assigned the property may dispute to reclaim the property assigned according to the above judgment or decision.

- Legal solutions:

In this case, the Court must determine that the person who has been assigned the property according to the Court's legally effective judgment or decision has the right to file a lawsuit to reclaim the property.

Legal provisions relating to precedents:

- Clause 2,7, Article 25 of the 2004 Civil Procedure Code, amended and supplemented in 2011 (corresponding to Clause 2, 9, Article 26 of the 2015 Civil Procedure Code);

- Article 256 of the 2005 Civil Code (corresponding to Article 166 of the 2015 Civil Code);

- Clause 6, Article 105 of the 2003 Land Law (corresponding to Clause 7, Article 166 of the 2013 Land Law).

Keywords of case law:

“There is a legally effective judgment or decision on property division”; “The statute of limitations for requesting enforcement of judgment has expired”; “The right to file a lawsuit to reclaim property”.

CASE CONTENT:

In the petition dated January 4, 2005, the plaintiff Mr. Nguyen Van N stated: he and Ms. Nguyen Thi T got married in 1963, they had a house located on a plot of land in village B, commune X (now house number 04, street H, area A, ward C, Hue city) with an area of ​​1,490m2 ^. In 1968, Mr. N escaped to the North, and in 1975, when Mr. N returned to his hometown, Ms. T had another husband, so they filed for divorce.

In the Civil Appeal Judgment No. 43/DSPT dated May 13, 1977, the People's Court of Binh Tri Thien Province granted Mr. N and Ms. T a divorce. Regarding property, Mr. N was entitled to use a part of the land within the above plot of land, this part of land contained the grave of Mr. N's father, with a boundary drawing drawn by the Court attached to the judgment. After the appeal judgment took effect, Mr. N fulfilled his child support obligation, and the authorities proceeded to divide the land according to the Court's drawing. In 2001, Mr. N returned to his hometown to build an ancestral temple, but Ms. T obstructed him, so he filed a lawsuit requesting Ms. T to return the property, which was the right to use the land according to the judgment, and requesting Ms. T to restore the boundary status as divided in the judgment.

The defendant, Ms. Nguyen Thi T, admitted that she was married to Mr. N, then divorced according to Judgment No. 43 dated May 13, 1977. In 1968, Mr. N went to the North and in 1969, there was a death notice of Mr. N, so Ms. T remarried. Since the date of the judgment, the person who was to be executed, Mr. N, did not file a request for execution, so Ms. T did not accept to return the land to Mr. N because she believed that the land was left to her by Ms. T's father.

In the Civil Judgment at First Instance No. 08/2006/DSST dated June 21, 2006, the People's Court of Hue City, Thua Thien Hue Province decided:

Accept Mr. Nguyen Van N's request to force Ms. Nguyen Thi T to return the land use rights of an area of ​​452.85m2 ⁽ with sides of 37.5; 38.55; 36.14) which is the property established according to Judgment No. 43/DSPT dated May 13, 1977, on which is the grave of Mr. N's father in plot No. 42, cadastral map No. 28, area 1,997.06m2 ^at house No. 04, H Street, Area A, Ward C, Hue City (the location of Mr. N's land plot is attached in the drawing).

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

After the first instance trial, Ms. T appealed.

In the Civil Appeal Judgment No. 55/2006/DSPT dated December 11, 2006 of the People's Court of Thua Thien Hue province, it was decided:

Annul the entire First Instance Civil Judgment No. 08/2006/DSST dated June 21, 2006 of the People's Court of Hue City, Thua Thien Hue Province regarding the dispute over land use rights between the Plaintiff, Mr. Nguyen Van N, and the Defendant, Ms. Nguyen Thi T. Suspend the settlement of the case. Return the petition to Mr. Nguyen Van N. In addition, the Court of Appeal also ruled on court fees.

After the appeal trial, Mr. N appealed.

In Appeal Decision No. 708/2009/KN-DS dated December 10, 2009, the Chief Justice of the Supreme People's Court appealed against the Civil Appeal Judgment No. 55/2006/DSPT dated December 11, 2006 of the People's Court of Thua Thien Hue province, with the following comments:

Mr. N's land use rights were determined in the Appeal Judgment No. 43/DSPT dated May 13, 1977. Mr. N has the right to sue for property in a new civil case. The appellate court's determination that Mr. N does not have the right to sue and that returning the petition to Mr. N is unreasonable.

Request the Civil Court of the Supreme People's Court to review the case and annul the above-mentioned civil appellate judgment and annul the Civil Judgment at First Instance No. 08/2006/DSST dated June 21, 2006 of the People's Court of Hue City, Thua Thien Hue Province; transfer the case file to the People's Court of Hue City, Thua Thien Hue Province for a retrial in accordance with the provisions of law.

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.

JUDGMENT OF THE COURT:

[1] Based on the documents in the case file, there is a basis to conclude: Mr. Nguyen Van N and Ms. Nguyen Thi T got married in 1963. Mr. N and Ms. T had a house located on a plot of land in village B, commune X (now house number 04, street H, area A, ward C, Hue city) with an area of ​​1,490m2 ^. In 1968, Mr. N escaped to the North. In 1975, when Mr. N returned to his hometown, Ms. T had another husband, so they filed for divorce.

[2] In the Appeal Judgment No. 43 dated May 13, 1977, the People's Court of Binh Tri Thien Province granted Mr. N and Ms. T a divorce, decided on the responsibility for raising children and dividing property. According to the decision in the judgment, Mr. N was entitled to a part of the land within the above-mentioned plot of land (with a boundary division diagram drawn up by the Court attached to the judgment). Due to working conditions far from home, Mr. N still kept the land in its current state. In 2001, Mr. N returned to his hometown to build an ancestral temple, but Ms. T prevented it. The two parties did not agree on the land boundary and Ms. T did not agree to return the land to Mr. N. Therefore, Mr. N filed a lawsuit requesting Ms. T to return the land according to the Appeal Judgment that had come into legal effect.

[3] In fact, up to now, Ms. T is still the manager and user of the land that the People's Court of Binh Tri Thien province has assigned to Mr. N. According to Ms. T, Mr. N has not yet submitted a request for enforcement of the judgment and the above-mentioned appellate judgment has not been enforced, and the statute of limitations for enforcement has now expired according to the provisions of law.

[4] According to the provisions of law, Mr. N's land use rights to the disputed land have been determined in the Appeal Judgment No. 43 dated May 13, 1977 of the People's Court of Binh Tri Thien province. The court is not allowed to resolve the relationship of who is the legal land user, but the lawsuit to reclaim the property is a different legal relationship. If the statute of limitations for enforcement of the judgment is still valid, Mr. N has the right to request the enforcement agency to enforce the land transfer according to Judgment No. 43 dated May 13, 1977 of the People's Court of Binh Tri Thien province. However, now that the statute of limitations for requesting enforcement of the judgment has expired, Mr. N has the right to initiate a lawsuit to reclaim the property through a new civil case. In this case, if there is no basis to determine that Mr. N has given up his property rights, Mr. N's lawsuit request must be accepted.

[5] The Court of Appeal determined that Mr. N had no right to file a lawsuit and returned the lawsuit to Mr. N as unfounded. On the other hand, the Courts at all levels have not yet verified and considered the management and use of land, the declaration and payment of taxes; the opinions of competent State agencies of the State on whether or not to recognize the legal right to use this land.

[6] The Court of First Instance accepted Mr. N's request to force Ms. T to return the right to use the area of ​​452.85m2, ^which is the property established under Judgment No. 43/DSPT dated May 13, 1977, including the grave of Mr. N's father, but did not calculate the efforts to preserve, renovate and maintain the land for Ms. T as well as the amount of land tax Ms. T paid, which was incorrect. The Court of Appeal annulled the entire first-instance judgment of the Hue City People's Court and suspended the settlement of the case; returning the lawsuit to Mr. N was not in accordance with the provisions of law.

[7] Therefore, the appeal of the Chief Justice of the Supreme People's Court is well-founded and acceptable.

[8] For the above reasons, based on Clause 2, Article 291, Clause 3, Article 297, Article 299 of the 2004 Civil Procedure Code (amended and

 supplemented in 2011).

DECISION:

- Annul the entire Civil Appeal Judgment No. 55/2006/DSPT dated December 11, 2006 of the People's Court of Thua Thien Hue province and annul the entire Civil First Instance Judgment No. 08/2006/DSST dated June 21, 2006 of the People's Court of Hue city, Thua Thien Hue province regarding the case of " Dispute over property recovery " between the plaintiff Mr. Nguyen Van N and the defendant Ms. Nguyen Thi T.

- Transfer the case file to the People's Court of Hue City, Thua Thien Hue Province for retrial in accordance with the provisions of law.

CONTENT OF PRECEDENT

“[4] According to the provisions of law, Mr. N's land use rights to the disputed land have been determined in the Appeal Judgment No. 43 dated May 13, 1977 of the People's Court of Binh Tri Thien Province. The Court is not allowed to resolve the relationship of who is the legal land user, but the lawsuit to reclaim the property is a different legal relationship. If the statute of limitations for enforcement of the judgment is still in effect, Mr. N has the right to request the enforcement agency to enforce the land transfer according to Judgment No. 43 dated May 13, 1977 of the People's Court of Binh Tri Thien Province. However, now that the statute of limitations for requesting enforcement of the judgment has expired, Mr. N has the right to initiate a lawsuit to reclaim the property through a new civil case. In this case, if there is no basis to determine that Mr. N has given up his property rights, Mr. N's lawsuit request must be accepted.”

Major