Precedent No. 14/2017/AL was adopted by the Council of Judges of the Supreme People’s Court on December 14, 2017, and announced under Decision No. 299/QĐ-CA dated December 28, 2017, by the Chief Justice of the Supreme People’s Court.
1. What is a precedent?
Precedent consists of arguments and rulings in judgments and decisions that have taken legal effect by the Court in a specific case, selected by the Council of Judges of the Supreme People’s Court and announced by the Chief Justice of the Supreme People’s Court as a precedent for courts to research and apply in trials. (Article 1 of Resolution 04/2019/NQ-HĐTP)
Selected precedents must meet the following criteria:
– Have value in clarifying legal provisions that are subject to different interpretations, analyzing and explaining legal issues and events, and indicating the principles, guidelines, and legal norms to be applied in a specific case, or demonstrating fairness for issues not specifically regulated by law;
– Be exemplary;
– Have value in guiding the uniform application of law in trials.
2. Precedent No. 14/2017/AL on recognizing the condition of a land use right donation contract where the condition is not recorded in the contract
2.1. Source of precedent
Supervisory Review Decision No. 02/2011/DS-GĐT dated January 17, 2011, of the Civil Court of the Supreme People’s Court regarding the case “Request to annul a land use right transfer contract” in Dien Bien province between the plaintiff, Mr. Quang Van P1, and the defendants, Mr. Quang Van P2 and Ms. Phan Thi V.
Position of precedent content:
Paragraphs 10, 11, and 12 of the “Court’s Opinion” section.
2.2. Overview of the precedent content
– Precedent Situation:
A land use right donation contract does not specify conditions for the donation, but related documents and records show that the parties agreed upon and unified the conditions for the donation, and these conditions are legal.
– Legal Solution:
In this case, the Court must recognize the conditions of the land use right donation contract and determine that the land use right donation contract is a conditional property donation contract.
Legal provisions related to the precedent:
Articles 125, 126, and 470 of the Civil Code of Vietnam 2005 (corresponding to Articles 120, 121, and 462 of the Civil Code of Vietnam 2015).
Keywords of the precedent:
“Land use right donation contract”; “Conditional civil transaction”; “Conditional property donation”.
CASE CONTENT:
In the statements of claim dated December 27, 2006, January 10, 2007, and during the case resolution process, the plaintiffs, Mr. Quang Van P1 and Ms. Quang Thi N, stated:
In 2003, the Dien Bien Provincial People’s Committee granted Mr. P1 72m2 of land along National Highway 279 (according to Decision No. 1487 dated September 25, 2003). On December 24, 2003, he completed procedures to transfer the right to use the aforementioned land area to the couple Mr. Quang Van P2 (his son) and Ms. Phan Thi V (his daughter-in-law). On December 6, 2003, he again prepared a contract to transfer ownership of the house and land to Mr. Quang Van P2 and Ms. Phan Thi V for the aforementioned land area, with certification from the People’s Committee of Ward T, City P, Dien Bien Province.
In 2005, a dispute arose between him and Ms. Quang Thi N (his daughter) over this land area, so in Civil Appellate Judgment No. 08/DSPT dated August 24, 2005, the Dien Bien Provincial People’s Court compelled Ms. Quang Thi N to return the aforementioned land area to him.
On June 12, 2006, the People’s Committee of City P, Dien Bien Province, issued a land use right certificate to him.
On October 27, 2006, he entered into a donation contract with Mr. Quang Van P2 (his son) on the condition that Mr. Quang Van P2 must build a house for him to live in.
After he completed the transfer procedures according to the donation contract, Mr. Quang Van P2 did not fulfill his promise to build the house and even asked him to move to Town M, District G. Therefore, he requested the annulment of the land donation contract because Mr. Quang Van P2 and Ms. Phan Thi V did not fulfill the agreed conditions.
The defendants, Mr. Quang Van P2 and Ms. Phan Thi V, stated: Mr. Quang Van P1 (his father) donated the aforementioned land area to his wife and him when Mr. Quang Van P1 was still mentally sound and lucid. Now that Mr. Quang Van P1 is no longer lucid, Ms. Quang Thi N (his sister) is forcing Mr. Quang Van P1 to file a petition to annul the donation contract. The father’s gift of land to him had no conditions or commitments, so he does not accept the plaintiff’s request.
In Civil First Instance Judgment No. 03/2007/DSST dated June 30, 2007, the People’s Court of Dien Bien Phu City, Dien Bien Province, ruled:
To reject Mr. Quang Van P1’s request to annul the land use right transfer contract No. 82 dated October 6, 2006, between the transferor, Mr. Quang Van P1, and the transferees, Mr. Quang Van P2 and Ms. Phan Thi V.
Additionally, the first-instance court also ruled on court fees and the parties’ right to appeal.
In Civil Appellate Judgment No. 14/2007/DSPT dated August 28, 2007, the People’s Court of Dien Bien Province ruled: To amend First Instance Judgment No. 03/2007/DSST dated June 30, 2007, of the People’s Court of Dien Bien Phu City, Dien Bien Province.
To accept Mr. Quang Van P1’s appeal. To annul the land use right transfer contract No. 82 dated October 6, 2006, between the transferor, Mr. Quang Van P1, and the transferee, Mr. Quang Van P2, regarding the land plot according to land use right certificate No. AĐ 762/197, parcel 2A, map sheet 289 IV-D-d, residential group 8, Ward T, City P, Dien Bien Province.
To recommend that the Department of Natural Resources and Environment of City P, Dien Bien Province, rectify and restore the land use right certificate for the person named as land user, Mr. Quang Van P1, No. AĐ 762/197, parcel 2A, map sheet 289 IV-D-d, residential group 8, Ward T, City P, Dien Bien Province.
To recommend that the Department of Natural Resources and Environment of City P, Dien Bien Province, revoke the land use right certificate for the person named in the land use right certificate, Mr. Quang Van P2, registration book number H 06445/QSDĐ. Decision to issue number: 822/2006/QĐ-UBND dated October 27, 2006, for parcel 2A, map sheet No. 289-IV-D-d at residential group 8, Ward T, City P, Dien Bien Province.
Additionally, the appellate court also ruled on court fees.
After the appellate trial, Mr. Quang Van P2 filed a complaint requesting a supervisory review of the aforementioned civil appellate judgment.
In Decision No. 579/2010/KN-DS dated August 26, 2010, the Chief Justice of the Supreme People’s Court protested against Civil Appellate Judgment No. 14/2007/DSPT dated August 28, 2007, of the Dien Bien Provincial People’s Court, requesting the Civil Court of the Supreme People’s Court to conduct a supervisory review to annul the aforementioned civil appellate judgment and annul Civil First Instance Judgment No. 03/2007/DSST dated June 30, 2007, of the People’s Court of Dien Bien Phu City, Dien Bien Province, and transfer the case file to the People’s Court of Dien Bien Phu City, Dien Bien Province, for re-trial in accordance with the law, with the following assessment:
Based on the documents in the case file, the origin of the 72m2 of land in parcel 2A, map sheet 289 IV-D-d, residential group 8, Ward T, City P, Dien Bien Province, belonged to Mr. Quang Van P1, granted by the local authorities for residential construction according to land grant certificate No. 1487 dated September 25, 2003.
On December 6, 2003, Mr. Quang Van P1 prepared a document transferring ownership of the land plot to the couple Mr. Quang Van P2, with the signatures of Mr. Quang Van P1, the couple Mr. Quang Van P2, witnesses who were the Party Cell Secretary and Group Leader, and confirmation from the Ward People’s Committee.
On December 24, 2003, Mr. Quang Van P1 again had a “Petition for land use right transfer” with the content of transferring the land use right area to the couple Mr. Quang Van P2, with Mr. Quang Van P1’s signature and the confirmation of the neighborhood chief.
However, the aforementioned land area was disputed between Mr. Quang Van P1 and Ms. Quang Thi N. In Civil Appellate Judgment No. 08/DSPT dated August 24, 2005, the Dien Bien Provincial People’s Court compelled Ms. Quang Thi N to return the land area to Mr. Quang Van P1, and in the “Record of execution settlement” dated March 22, 2006, Ms. Quang Thi N actually returned the land to Mr. Quang Van P1.
Thus, there is a basis to determine that although Mr. Quang Van P1 prepared documents to give to the couple Mr. Quang Van P2 from 2003, at that time, Ms. Quang Thi N was still the manager and user of the land; it was not until August 24, 2005, that Mr. Quang Van P1 was confirmed as the legal user of the aforementioned land area (according to a legally effective court decision), and it was not until March 22, 2006, that Mr. Quang Van P1 actually received the land. Therefore, Mr. Quang Van P1’s previous gifting document to Mr. Quang Van P2 had no legal validity, and moreover, the couple Mr. Quang Van P2 had not yet completed the transfer procedures or taken possession of the land.
After receiving the land, on March 25, 2006, Mr. Quang Van P1 authorized Mr. Quang Van P2 to apply for a construction permit, clear the site, build a house for Mr. Quang Van P1 to live in, and care for Mr. K (Mr. Quang Van P1’s father). On June 12, 2006, Mr. Quang Van P1 was granted a land use right certificate.
On June 3, 2006, in Hanoi City, Mr. Quang Van P1 again authorized Mr. Nguyen Viet H to carry out procedures for Mr. Quang Van P1 to donate the aforementioned land area to the couple Mr. Quang Van P2.
In Land Use Right Transfer Contract No. 82/HĐ-UBND (undated) at the People’s Committee of Ward T, City P, Dien Bien Province, it states that Mr. Quang Van P1 gave the aforementioned land area to Mr. Quang Van P2. The contract bears the signature of Mr. Quang Van P1, Mr. Quang Van P2, and the authorized person Mr. Nguyen Viet H. However, the Ward People’s Committee confirmed it at 8:00 AM on October 6, 2006. Based on this contract, Mr. Quang Van P2 was granted a land use right certificate.
In reality, since February 17, 2003, Mr. Quang Van P1 had been ill and treated in Hanoi City (cerebrovascular accident, left hemiplegia, central nervous system paralysis…).
Thus, in 2006, Mr. Quang Van P1 signed many documents to dispose of 72m2 of land for which he was granted a certificate on June 12, 2006. However, Mr. Quang Van P1 was in Hanoi City, suffering from central nervous system paralysis, hemiplegia, and he had never used the land.
It was necessary to clarify and determine Mr. Quang Van P1’s will regarding the disposal of this 72m2 of land, to assess whether Mr. Quang Van P1 intended to give it to Mr. Quang Van P2 or merely entrusted Mr. Quang Van P2 with building a house for him to live in. At the same time, it was necessary to clarify when and where Mr. Quang Van P1 signed the contract, the legal validity of this contract, and the reason Mr. Quang Van P1 signed the contract and now requested its annulment. If Mr. Quang Van P1 only entrusted Mr. Quang Van P2 with building a house for him to live in and Mr. Quang Van P1 had a need to use the land, then the contract should be annulled, Mr. Quang Van P1’s right to use the land should be recognized, but Mr. Quang Van P1 must pay reasonable costs for the land transfer procedures if Mr. Quang Van P2 so requests.
If Mr. Quang Van P1 had no need to use the land and expressed his intention to give it to Mr. Quang Van P2, then Mr. Quang Van P1’s request should be rejected.
The first-instance court and the appellate court had not clarified the above issues. However, the first-instance court, based on documents signed by Mr. Quang Van P1 and Mr. Quang Van P2 being recognized as having the right to use the land, rejected Mr. Quang Van P1’s request. The appellate court, on the other hand, held that Mr. Quang Van P1 was ill and unaware of his actions when signing the documents and that the donation procedures did not comply with legal provisions, and thus annulled the transfer contract and recognized Mr. Quang Van P1’s right to use the land, both without sufficient grounds.
Furthermore, the People’s Committee is the agency competent to issue land use right certificates, but the appellate court’s recommendation to the Department of Natural Resources and Environment to revoke Mr. Quang Van P2’s land use right certificate was incorrect.
At the supervisory review hearing, the representative of the Supreme People’s Procuracy stated that the Chief Justice of the Supreme People’s Court’s protest decision was necessary because in 2003, Mr. Quang Van P1 prepared a land use right transfer contract for the couple Mr. Quang Van P2, and in 2006, he prepared an authorization document to donate land to the couple Mr. Quang Van P2. Although the documents stated “transfer of use right,” they all expressed the content that Mr. Quang Van P1 donated to the couple Mr. Quang Van P2. Therefore, it is necessary to clarify whether Mr. Quang Van P1’s donation was conditional or not to resolve the case according to legal provisions.
COURT’S OPINION:
[1] When initiating the lawsuit and during the case resolution, Mr. Quang Van P1 claimed that on September 25, 2003, the Dien Bien Provincial People’s Committee granted him 72m2 of land in parcel 2A, map sheet 289 IV-D-d, residential group 8, Ward T, City P, Dien Bien Province, according to Decision No. 1487.
[2] On December 6, 2003, Mr. Quang Van P1 prepared a document transferring ownership of the land plot to the couple Mr. Quang Van P2 and Ms. Phan Thi V, witnessed by the Party Cell Secretary and Group Leader, and confirmed by the Ward T People’s Committee.
[3] On December 24, 2003, Mr. Quang Van P1 again had a “Petition for land use right transfer” transferring the land use right to the couple Mr. Quang Van P2 and Ms. Phan Thi V, confirmed by the neighborhood chief.
[4] However, the aforementioned land area was being managed and used by Ms. Quang Thi N (Mr. Quang Van P1’s daughter). In 2005, Mr. Quang Van P1 initiated a lawsuit requesting Ms. Quang Thi N to return the aforementioned land area to him. In Civil Appellate Judgment No. 08/DSPT dated August 24, 2005, the Dien Bien Provincial People’s Court compelled Ms. Quang Thi N to return the land to Mr. Quang Van P1.
[5] On June 12, 2006, the People’s Committee of City P, Dien Bien Province, issued a certificate to Mr. Quang Van P1 recognizing his right to use the aforementioned 72m2 of land.
[6] On September 15, 2006, Mr. Quang Van P1 submitted a request to confirm his authorization for Mr. Quang Van P2 and Ms. Phan Thi V to have full “Ownership and use of the land.”
[7] On October 3, 2006, Mr. Quang Van P1 prepared an authorization contract for Mr. Nguyen Viet H to carry out procedures to donate the aforementioned land area to Mr. Quang Van P2, with notarization from State Notary Office No. 3, Hanoi City.
[8] On October 6, 2006, Mr. Quang Van P1 again prepared a land use right transfer contract for Mr. Quang Van P2 and Ms. Phan Thi V, with the transfer value section stating “Father gives to child”; the People’s Committee of Dien Bien Phu City confirmed it as No. 82/HĐ-UBND on the same day, thereby legalizing Mr. Quang Van P1’s donation of the land use right to Mr. Quang Van P2 and Ms. Phan Thi V.
[9] On October 27, 2006, the People’s Committee of City P issued a land use right certificate to Mr. Quang Van P2 and Ms. Phan Thi V.
[10] Thus, if there is a basis to determine that the competent state agency in the locality granted land to Mr. Quang Van P1 from 2003 (because the courts of all levels had not yet collected the land grant decision from 2003), then Mr. Quang Van P1 had the legal right to use the aforementioned land area from 2003, and therefore Mr. Quang Van P1 had the right to dispose of his property.
[11] However, Mr. Quang Van P1 claimed that his donation to the couple Mr. Quang Van P2 was conditional, specifically that the couple Mr. Quang Van P2 had to build a house for him to live in, and care for him and his parents, but the couple Mr. Quang Van P2 did not fulfill this commitment. Although Mr. Quang Van P2 did not acknowledge that Mr. Quang Van P1’s donation was conditional, the authorization document dated March 25, 2006, shows that Mr. Quang Van P1 authorized Mr. Quang Van P2 to apply for a construction permit… with the responsibility to build a house on plot 379B for Mr. Quang Van P1 to live in, and to care for the couple Mr. K (Mr. Quang Van P1’s parents). In the Commitment letter dated October 12, 2006, Mr. Quang Van P2 stated “…My father gave me this land…I make this commitment to the local authorities that I will proceed to build a house for my father and not transfer it to anyone.”
[12] Although the land use right donation contract does not specify conditions, the aforementioned documents show that Mr. Quang Van P2 had to build a house for Mr. Quang Van P1 to live in, and care for Mr. Quang Van P1 and his parents.
[13] Therefore, it is necessary to collect and verify whether Mr. Quang Van P2 fully fulfilled these conditions. During the period Mr. Quang Van P1 was undergoing hospital treatment, who cared for Mr. Quang Van P1? Currently, the couple Mr. Quang Van P2 resides in Hanoi, so how were the conditions for caring for the couple Mr. K (Mr. Quang Van P1’s parents) met? Based on the determination of the fulfillment of these conditions by the couple Mr. Quang Van P2, it is to be determined whether the donation contract between Mr. Quang Van P1 and the couple Mr. Quang Van P2 has been completed or not, in order to resolve the case according to legal provisions.
[14] Furthermore, according to Article 44 of the Land Law, the Department of Natural Resources and Environment does not have the authority to revoke land, so the appellate court’s recommendation to the Department of Natural Resources and Environment to revoke Mr. Quang Van P2’s land use right certificate was incorrect.
[15] The Supervisory Review Panel of the Civil Court of the Supreme People’s Court finds it necessary to annul the civil appellate judgment and annul the civil first-instance judgment for a re-trial at first instance in accordance with the law.
[16] The protest decision of the Chief Justice of the Supreme People’s Court is well-founded.
[17] Based on Clause 2, Article 291, Article 296, Clause 3, Article 297, and Article 299 of the Civil Procedure Code.
DECISION:
1. To annul Civil Appellate Judgment No. 14/2007/DSPT dated August 28, 2007, of the Dien Bien Provincial People’s Court and annul Civil First Instance Judgment No. 03/2007/DSST dated June 30, 2007, of the People’s Court of Dien Bien Phu City, Dien Bien Province, regarding the case “Request to annul a land use right transfer contract” between the plaintiff, Mr. Quang Van P1, and the defendants, Mr. Quang Van P2 and Ms. Phan Thi V.
2. To transfer the case file to the People’s Court of Dien Bien Phu City, Dien Bien Province, for re-trial at first instance in accordance with the law.
CONTENT OF PRECEDENT
“[10] Thus, if there is a basis to determine that the competent state agency in the locality granted land to Mr. Quang Van P1 from 2003 (because the courts of all levels had not yet collected the land grant decision from 2003), then Mr. Quang Van P1 had the legal right to use the aforementioned land area from 2003, and therefore Mr. Quang Van P1 had the right to dispose of his property.
[11] However, Mr. Quang Van P1 claimed that his donation to the couple Mr. Quang Van P2 was conditional, specifically that the couple Mr. Quang Van P2 had to build a house for him to live in, and care for him and his parents, but the couple Mr. Quang Van P2 did not fulfill this commitment. Although Mr. Quang Van P2 did not acknowledge that Mr. Quang Van P1’s donation was conditional, the authorization document dated March 25, 2006, shows that Mr. Quang Van P1 authorized Mr. Quang Van P2 to apply for a construction permit… with the responsibility to build a house on plot 379B for Mr. Quang Van P1 to live in, and to care for the couple Mr. K (Mr. Quang Van P1’s parents). In the Commitment letter dated October 12, 2006, Mr. Quang Van P2 stated “…My father gave me this land…I make this commitment to the local authorities that I will proceed to build a house for my father and not transfer it to anyone.”
[12] Although the land use right donation contract does not specify conditions, the aforementioned documents show that Mr. Quang Van P2 had to build a house for Mr. Quang Van P1 to live in, and care for Mr. Quang Van P1 and his parents”.5
