Precedent No. 10/2016/AL on Administrative Decisions as the Subject of Administrative Lawsuits in Vietnam

Precedent No. 10/2016/AL, adopted by the Judicial Council of the Supreme People’s Court on October 17, 2016, and promulgated pursuant to Decision No. 698/QD-CA dated October 17, 2016, issued by the Chief Justice of the Supreme People’s Court.

1. Definition of a Precedent

A precedent refers to the legal reasoning and rulings contained in a legally effective judgment or decision of a court regarding a specific case, selected by the Judicial Council of the Supreme People’s Court and promulgated by the Chief Justice of the Supreme People’s Court as a precedent for courts to study and apply in adjudication. (Article 1, Resolution No. 04/2019/NQ-HDTP)

A precedent must meet the following criteria:

• It clarifies legal provisions subject to differing interpretations, provides analysis and explanation of legal issues and events, and indicates principles, guidelines for adjudication, or applicable legal norms in a specific case, or reflects fairness in matters not specifically regulated by law;
• It is normative;
• It provides guidance for the uniform application of law in adjudication.

2. Precedent No. 10/2016/AL on Administrative Decisions as the Subject of Administrative Lawsuits in Vietnam

2.1. Source of the Precedent

Cassation Decision No. 08/2014/HC-GDT dated August 19, 2014, issued by the Judicial Council of the Supreme People’s Court regarding the administrative case “Lawsuit against the Decision on Compensation, Support, and Resettlement for State Land Acquisition” in Vinh Long Province, between the plaintiff, Ms. Vo Thi Luu, and the defendant, Vinh Long Province People’s Committee.

Location of the Precedent Content

Paragraph 1 of the “Findings” section of the aforementioned cassation decision.

2.2. Summary of Precedent No. 10/2016/AL

Precedent Situation:

A decision by the provincial People’s Committee approving a support and resettlement plan references another document, and that referenced document contains content directly affecting the rights and interests of the plaintiff.

Legal Solution:

In such cases, the content of the referenced document constitutes part of the administrative decision, and that administrative decision is the subject of an administrative lawsuit.

Relevant Legal Provisions:

• Clause 1, Article 3 and Clause 1, Article 28 of the Administrative Procedure Law of Vietnam 2010 (corresponding to Clause 1, Article 3 and Clause 1, Article 30 of the Administrative Procedure Law of Vietnam 2015);
• Articles 41 and 42 of the Land Law of Vietnam 2003;
• Decree No. 197/ND-CP dated December 3, 2004, of the Government on compensation, support, and resettlement for State land acquisition;
• Decree No. 69/2009/ND-CP dated August 13, 2009, of the Government providing additional regulations on land use planning, land prices, land acquisition, compensation, support, and resettlement.

Keywords of the Precedent:

“Administrative decision”; “Subject of administrative lawsuit”; “Land acquisition”; “Compensation and resettlement for persons whose land is acquired.”

CASE DETAILS

On April 7, 2008, the Vinh Long Province People’s Committee issued Decision No. 567/QD-UBND approving the overall plan for compensation, support, and resettlement for the Vinh Long Province Agricultural Livestock Breeding Farm Project in Tan An Luong Commune, Vung Liem District, with the following content:

“Approval of the overall plan for compensation, support, and resettlement for the Vinh Long Province Agricultural Livestock Breeding Farm Project:

Total estimated land acquisition area: 122,909 m²

Total estimated compensation value: 7,342,730,000 VND.”

On September 17, 2008, the Vinh Long Province People’s Committee issued Decision No. 1768/QD-UBND, stating: Acquisition of 117,863.1 m² of land in Tan An Luong Commune, Vung Liem District, managed by households, individuals, and organizations, for the agricultural livestock breeding farm project, and assignment to the Vung Liem District People’s Committee to issue land acquisition decisions.

On October 2, 2008, the Vung Liem District People’s Committee issued Decision No. 2592/QD-UBND, stating: Acquisition of 2,353.1 m² of rice-cultivated land owned by Ms. Vo Thi Luu, plot No. 222, map sheet No. 03, located in Rach Coc Hamlet, Tan An Luong Commune, Vung Liem District, for the Vinh Long Province agricultural livestock breeding farm project.

On December 1, 2008, the Vung Liem District Compensation, Support, and Resettlement Board conducted an inventory of houses, land, crops, and structures of households affected by the clearance for the agricultural livestock breeding farm project.

On May 15, 2009, the Vinh Long Province Department of Finance submitted Proposal No. 177/TTr.STC to the Vinh Long Province People’s Committee for approval of the compensation and clearance plan for the agricultural livestock breeding farm project, stating that Ms. Luu’s household would receive land compensation and support of 155,155,000 VND (land compensation price of 50,000 VND/m²); compensation and support for assets on the land, life stabilization, and vocational training of 19,286,200 VND; totaling 174,441,200 VND.

On June 4, 2009, the Chairman of the Vinh Long Province People’s Committee issued Decision No. 1216/QD-UBND approving the compensation, support, and resettlement plan for the agricultural livestock breeding farm project in Tan An Luong Commune, Vung Liem District, with the following content:

“Article 1. Approval of the compensation, support, and resettlement plan for the project: Vinh Long Province Agricultural Livestock Breeding Farm, in Tan An Luong Commune, Vung Liem District;

1. Total compensation, support, and resettlement value: 9,467,085,000 VND, including:

• Land compensation and support value: 8,071,914,000 VND
• House and structure value: 161,560,000 VND
• Crop value: 273,152,000 VND
• Other support items: 654,600,000 VND
• Other fees (2% council fees, survey costs): 305,859,000 VND

2. Funding: Included in the project’s total budget, paid by the project owner;

Article 2. Based on Article 1 of this Decision, the Director of the Department of Finance, the Chairman of the Vung Liem District People’s Committee, and the Vung Liem District Compensation, Support, and Resettlement Board are responsible for:

• The Chairman of the Vung Liem District People’s Committee shall direct the Compensation, Support, and Resettlement Board to disburse compensation in accordance with current State regulations and clear the site for the construction unit,
• The Director of the Department of Finance is responsible to the Provincial People’s Committee for the accuracy of data, volumes, and unit prices in Proposal No. 177/TTr.STC dated May 15, 2009.”

Disagreeing with this decision, Ms. Luu filed a complaint requesting an increase in the compensation price.

On October 28, 2009, the Chairman of the Vung Liem District People’s Committee issued Decision No. 2023/QD-UBND rejecting Ms. Luu’s complaint.

On August 8, 2011, Ms. Luu filed a lawsuit at the Vinh Long Province People’s Court requesting the annulment of Decision No. 1216/QD-UBND dated June 4, 2009, regarding the pricing and compensation portion, and a recalculation of land compensation at the market transfer price in the acquisition area.

At First-Instance Administrative Judgment No. 12/2012/HC-ST dated December 18, 2012, the Vinh Long Province People’s Court rejected Ms. Vo Thi Luu’s lawsuit.

On December 29, 2012, Ms. Luu appealed.

At Appellate Administrative Judgment No. 96/2013/HC-PT dated April 25, 2013, the Appellate Court of the Supreme People’s Court in Ho Chi Minh City annulled First-Instance Administrative Judgment No. 12/2012/HC-ST dated December 18, 2012, and terminated the case.

On June 28, 2013, the Vinh Long Province People’s Committee issued Letter No. 1816/UBND-NC, and on August 2, 2013, the Vinh Long Province People’s Court Judicial Committee issued Letter No. 547/TAT-HC, requesting cassation review of the appellate judgment.

In Decision No. 05/2014/KN-HC dated March 5, 2014, the Chief Justice of the Supreme People’s Court protested Appellate Administrative Judgment No. 96/2013/HC-PT dated April 25, 2013, proposing that the Judicial Council conduct a cassation review to annul the appellate judgment and remand the case to the Appellate Court in Ho Chi Minh City for re-adjudication at the appellate level.

At the cassation hearing, the Supreme People’s Procuracy representative agreed with the Chief Justice’s protest.

The Judicial Council of the Supreme People’s Court determined:

Under Article 2 of Decision No. 1216/QD-UBND dated June 4, 2009, of the Vinh Long Province People’s Committee approving the compensation, support, and resettlement plan for the agricultural livestock breeding farm project, it is stipulated that “The Director of the Department of Finance is responsible to the Provincial People’s Committee for the accuracy of data, volumes, and unit prices in Proposal No. 177/TTr.STC dated May 15, 2009.” Proposal No. 177/TTr dated May 15, 2009, of the Department of Finance specifies compensation for Ms. Luu’s household, making that approval directly and specifically affect the rights and interests of Ms. Luu’s household, thus constituting a subject of an administrative lawsuit.

Therefore, the Vinh Long Province People’s Court correctly accepted Ms. Luu’s lawsuit regarding the compensation and support for her household in Decision No. 1216/QD-UBND dated June 4, 2009, per Clause 1, Article 3 and Clause 1, Article 28 of the Administrative Procedure Law of Vietnam 2010. However, the first-instance court failed to clarify whether the land acquisition for the Vinh Long Province agricultural livestock breeding farm was for a State or private economic entity, which is necessary to determine compensation and support for Ms. Luu’s household per legal regulations.

Ms. Luu appealed, requesting land compensation at market prices. The appellate court should have reviewed her appeal regarding the legality of the compensation and support for her household’s land acquisition. However, it erroneously deemed Decision No. 1216/QD-UBND dated June 4, 2009, as an overall decision not subject to an administrative lawsuit, annulled First-Instance Administrative Judgment No. 12/2012/HC-ST dated December 18, 2012, and terminated the case, constituting a serious error in applying administrative procedural law.

For the foregoing reasons and pursuant to Clause 3, Article 219, Clause 3, Article 225, and Clauses 1 and 2, Article 227 of the Administrative Procedure Law of Vietnam 2010,

DECISION:

1. To accept Protest No. 05/2014/KN-HC dated March 5, 2014, of the Chief Justice of the Supreme People’s Court.

2. To annul Appellate Administrative Judgment No. 96/2013/HC-PT dated April 25, 2013, of the Appellate Court of the Supreme People’s Court in Ho Chi Minh City, and First-Instance Administrative Judgment No. 12/2012/HC-ST dated December 18, 2012, of the Vinh Long Province People’s Court; to remand the case to the Vinh Long Province People’s Court for re-adjudication at the first-instance level per legal regulations.

CONTENT OF THE PRECEDENT

“Under Article 2 of Decision No. 1216/QD-UBND dated June 4, 2009, of the Vinh Long Province People’s Committee approving the compensation, support, and resettlement plan for the agricultural livestock breeding farm project, it is stipulated that ‘The Director of the Department of Finance is responsible to the Provincial People’s Committee for the accuracy of data, volumes, and unit prices in Proposal No. 177/TTr.STC dated May 15, 2009.’ Proposal No. 177/TTr dated May 15, 2009, of the Department of Finance specifies compensation for Ms. Luu’s household, making that approval directly and specifically affect the rights and interests of Ms. Luu’s household, thus constituting a subject of an administrative lawsuit.”