Precedent No. 15/2017/AL on recognizing oral agreements of the parties in the conversion of agricultural land use rights in Vietnam

1. What is precedent?

Precedents are arguments and judgments in judgments and decisions that have come into legal effect of the Court on 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 precedents for the Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HDTP)

The selected precedent must meet the following criteria:

– Has the value of clarifying legal provisions that can be understood differently, analyzing and explaining legal issues and events, and pointing out principles, handling guidelines, and legal norms that need to be applied in a specific case or demonstrating fairness for issues that do not have specific legal provisions;

– Have standards;

– Has guiding value in uniform application of law in trials.

2. Precedent No. 15/2017/AL on recognizing oral agreements of the parties in the conversion of agricultural land use rights

2.1. Source of case law

Final judgment No. 394/2012/DS-GDT dated August 23, 2012 of the Civil Court of the Supreme People’s Court on the case of “Land exchange contract dispute” in Hanoi city between the plaintiff Ms. Trinh Thi C and the defendant Mr. Nguyen Minh T; people with related rights and obligations including Ms. Vu Thi P, Mr. Nguyen Minh Tr, Ms. Bui Thanh H, Ms. Truong Thi X, Mr. Truong Sy K, Ms. Truong Hong T, Ms. Truong Thi H1, Mr. Truong Anh T, Ms. Truong Thuy N, Mr. Truong Quang K, Ms. Truong Thi H2.

Location of case law:

Paragraph 1, 2 of the “Court’s Opinion” section.

2.2. Overview of the content of the precedent

– Case law :

The parties voluntarily orally agreed with each other on the conversion of agricultural land use rights before October 15, 1993 (the effective date of the 1993 Land Law); registered and declared the exchanged land area and recorded it in the land registry; directly cultivated and used it stably, continuously, and long-term.

– Legal solutions:

In this case, the Court must recognize the oral agreement of the parties on the conversion of the right to use that agricultural land to determine the parties’ right to use the exchanged land area.

Legal provisions related to precedent:

– Clause 2, Article 16 of the Law on Land of Vietnam 1987.

– Clause 2, Article 170 of the Civil Code of Vietnam 2005.

Keywords of the case:

“Conversion of agricultural land use rights”; “Conversion of actual land use rights”; “Recognition of land use rights”

CASE CONTENT:

According to the petition dated May 2, 2006 and other statements during the settlement of the case, the plaintiff, Ms. Trinh Thi C, stated:

In 1962, Ms. Trinh Thi C’s family was allocated 517m2 ^of  plot number 28 on map sheet number 4 in area K, which is 5% land for cultivation. This land is next to Mr. Nguyen Minh T’s house (defendant). According to the 1987 map, this land belongs to 2 plots 158 and 159. In early 1992, Mr. Nguyen Minh T’s family asked Ms. Trinh Thi C to temporarily exchange the 5% land for the land divided according to contract 10 with an area of ​​540m2 ⁱⁿ  field area B of Mr. Nguyen Minh T’s family for convenient cultivation. The two parties agreed verbally, without making any documents, and that they would exchange temporarily when necessary, and would notify 1 week in advance. In 1994, due to production needs, Ms. Trinh Thi C’s family requested to return the land, but Mr. Nguyen Minh T’s family did not agree. Ms. Trinh Thi C complained to the commune and district but was not resolved. Therefore, Ms. Trinh Thi C requested the Court to force Mr. Nguyen Minh T’s family to return the land to her family in accordance with the law.

The defendant, Mr. Nguyen Minh T, stated:

According to the 10-contract policy, Cooperative D implemented land allocation to households in early 1991. During the implementation of this policy, the Cooperative provided instructions for households to exchange land with each other. Around February 1992, Mr. Nguyen Minh T’s family and Mrs. Trinh Thi C’s family verbally agreed to exchange land as presented by the plaintiff. After exchanging land, Mr. Nguyen Minh T converted it into a pond and moved more than 10 graves to the village cemetery. In May 1994, there was a policy to declare the cultivated land of each household according to the 1993 Land Law to enter the land tax register of each family. At that time, Ms. Trinh Thi C declared the exchanged land in area B, Mr. Nguyen Minh T declared the exchanged land of Ms. Trinh Thi C’s family along with the area that Mr. Nguyen Minh T’s family was using. At the end of 1994, Cooperative D issued a document allocating land to households. The document stated that Mr. Nguyen Minh T and Ms. Trinh Thi C’s families exchanged land with each other. Mr. Nguyen Minh T’s family has been directly cultivating the land since 1992 until now. Therefore, Mr. Nguyen Minh T did not accept the plaintiff’s request to exchange the land.

The person with related rights and obligations, Ms. Truong Thi H2, stated: The origin of the land in area K was granted by her parents in 1962. After her father passed away, this land was registered in the name of her brother, Mr. A. In 1990 and 1991, 100m2 was divided for her ^. The fact that Ms. Trinh Thi C exchanged all the land for Mr. Nguyen Minh T was incorrect, and now she requests to reclaim it.

In First Instance Judgment No. 17/2008/DSST dated August 20, 2008, Hoang Mai District People’s Court decided:

“1. The declaration of the oral civil transaction of exchanging agricultural land between 5% land and 10% contracted land established between the household of Ms. Trinh Thi C and the household of Mr. Nguyen Minh T in February 1992 is invalid.

Force Mr. Nguyen Minh T’s household to return to Mrs. Trinh Thi C’s household 5% of the land with an area of ​​517m2 ^,  plot number 28, map sheet number 4, cadastral map in 1990 in area K, now group 33, ward L, district M, Hanoi.

Force Ms. Trinh Thi C’s household to return to Mr. Nguyen Minh T’s household the land plot 10, area 540m2 ^,  part of plot number 80, map sheet number 42-A2 (abbreviated as sheet number 2), cadastral map established in 1994 in area B, ward L, district M, Hanoi city.

2. Force Ms. Trinh Thi C to pay the land improvement fee including digging pond, raising the foundation, planting trees on the land, and moving graves, totaling 112,817,000 VND (one hundred and twelve million eight hundred and seventeen thousand VND) to Mr. Nguyen Minh T.

3. Force Mr. Nguyen Minh Tr and Ms. Bui Thanh H to demolish the entire area of ​​the 75.28m2 rough-built level 4 house ^built  on an area of ​​517m2 of land ^belonging  to plot number 28, map sheet number 4, cadastral map of 1990 to return the land to the household of Ms. Trinh Thi C. Mr. Nguyen Minh Tr and Ms. Bui Thanh H will not be compensated for the area of ​​the demolished house.”

Mr. Nguyen Minh T appealed the entire first instance judgment.

In the Appeal Judgment No. 111/2008/DSPT dated November 27, 2008, the Hanoi People’s Court decided to uphold the first instance judgment.

In addition, the Court of Appeal also decides on court costs.

After the appeal trial, Mr. Nguyen Minh T filed a complaint against the above civil appeal judgment.

In Decision No. 482/2011/KN-DS dated August 2, 2011, the Chief Justice of the Supreme People’s Court appealed against the above civil appellate judgment; requested the Civil Court of the Supreme People’s Court to review the case and annul the civil appellate judgment and the civil judgment at first instance; and transfer the case file to the People’s Court of Hoang Mai District for retrial in accordance with the provisions of law.

At today’s trial, the representative of the Supreme People’s Procuracy agreed with the content of the appeal of the Chief Justice of the Supreme People’s Court.

JUDGMENT OF THE COURT:

[1] After studying the case file and after discussion, the Civil Court Panel agreed with the content of the appeal stating: there is a basis to determine that the land exchange between the parties was on a voluntary basis, stemming from the parties’ need for cultivation. After the land exchange, the two parties registered, declared, and were recorded in the land registry for the exchanged land area and directly cultivated and used it stably and continuously from 1992 until now. During the land use process, Mr. Nguyen Minh T moved the graves on the land and converted part of it into a fish pond.

[2] In fact, the land exchange took place around February 1992, however, the evidence in the file shows that the parties carried out the registration procedures and declared the exchanged land areas at the local authorities since 1994, other procedures such as handing over land documents and declaring tax calculations also since 1994. In this case, the land exchange should have been recognized as a reality to recognize the parties’ right to use the newly exchanged land area correctly and in accordance with reality. The Court of First Instance and the Court of Appeal based on the testimony of Ms. Trinh Thi C to determine that the parties had temporarily exchanged land, thereby determining that the land exchange was illegal to cancel the land exchange transaction forcing the parties to dismantle their houses and return the land to each other, which was incorrect, causing unnecessary disruption to the parties’ land use.

For the above reasons;

Pursuant to Clause 2, Article 291, Clause 3, Article 297 and Article 299 of the Civil Procedure Code;

DECISION:

Annul the entire Civil Appeal Judgment No. 111/2008/DSPT dated November 27, 2008 of the People’s Court of Hanoi City and annul the Civil First Instance Judgment No. 17/2008/DSST dated August 20, 2008 of the People’s Court of Hoang Mai District, Hanoi City on the case of “Dispute over land exchange contract” between the plaintiff, Ms. Trinh Thi C, and the defendant, Mr. Nguyen Minh T.

Transfer the case file to the People’s Court of Hoang Mai District, Hanoi City for retrial in accordance with the provisions of law.

CONTENT OF PRECEDENT

“[ 1 ] . .. The land exchange between the parties was on a voluntary basis  , arising from the parties’ need for cultivation. After the land exchange , the two parties registered, declared, and were recorded in the Land Registry for the exchanged land area  and  directly cultivated and used  it stably and continuously from 1992 until now. During the land use process, Mr. Nguyen Minh T moved the graves on the land and converted a part of it into a fish pond.

[2] In fact, the land exchange took place around February 1992, however ,  the evidence in the records shows  that the parties carried out the registration procedures and declared the exchanged land areas at the local authorities from 1994, other procedures such as handing over land documents and declaring tax calculation were also from 1994. In this case, the land exchange should have been recognized as a reality to  recognize that the parties have the right to use the exchanged land area correctly and in accordance with reality. The Court of First Instance and the Court of Appeal based on the testimony of Ms. Trinh Thi C to  determine that the parties temporarily exchanged land, thereby determining that the land exchange was illegal to cancel the land exchange  transaction and forcing the parties to demolish their houses and return the land to each other was incorrect, causing unnecessary disruption to the parties’ land use.