Công văn 64/TANDTC-PC

Official Dispatch No. 64/TANDTC-PC dated April 03, 2019 the results of the session of Criminal, civil, Administrative proceedings

Nội dung toàn văn Official Dispatch 64/TANDTC-PC 2019 the results session of Criminal civil Administrative proceedings


THE PEOPLE’S SUPREME COURT
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 64/TANDTC-PC

Hanoi, April 03, 2019

 

To:

- People’s Court and Courts Martial;
- Units of the People’s Supreme Court .

On January 09, 2019, the Council of Judges of the People’s Supreme Court organized a nationwide online session to answer some questions regarding criminal, civil and administrative proceedings. Below are the results of the session:

I. Criminal proceedings

1. What does “partial fulfilment of civil liability” mean in Clause 1 Article 63 of Criminal Code?

According to Point c Clause 3 Article 40 of Criminal Code, the death sentence will not be carried out if the convicted has returned at least three fourths of the property embezzled or bribes taken and closely cooperates with the authorities in the process of investigation or trial or has made reparation in an effort to atone for the crime. However in the case of community sentence, determinate imprisonment or life imprisonment, these are more lenient than death sentence, thus “partial fulfillment of civil liability” mentioned in Clause 1 Article 63 of Criminal Code means fulfilment of at least half of the civil liability under the judgment or court decision. This also applies when the convicted has fulfilled less than half of the civil liability under the judgment or court decision but he/she has a decision to reduce part of the civil liability or an agreement with the plaintiff (confirmed by a competent authority) that half of the civil liability has been fulfilled.

2. In  the phrases “The offence involves ≥ 04 people engaged in prostitution” mentioned in Point d Clause 2 Article 327 and “The offence involves more than one person” mentioned in Point dd Clause 2 Article 328 of Criminal Code, do the “people” or “person” include both the prostitute and the customer?

According to the Vietnamese dictionary, “mại” means selling, “mãi” means buying, thus “chứa mại dâm” means “harboring prostitutes” Thus the people mentioned in phrases “The offence involves ≥ 04 people engaged in prostitution” in Point d Clause 2 Article 327 and “The offence involves more than one person” in Point dd Clause 2 Article 328 of Criminal Code are the prostitutes. This interpretation is appropriate for other aggravating circumstances in Article 327 and Article 328 of Criminal Code, and is also practical in the case there is 01 prostitute and 03 customers at the same time, in which case Clause 1 of Criminal Code shall apply if there are not aggravating circumstances.

3. A person commits appropriation of property multiple times but the value of the property illegally obtained each time is below the level liable to criminal prosecution and the offence is not liable to criminal prosecution in any other cases, and no administrative penalties have been imposed while the time limit for imposition of administrative penalties has not expired. If the total value of property illegally obtained is equal to or more than the level liable to criminal prosecution, would criminal prosecution be initiated?

Regulations of the 2015’s Criminal Code are similar to those of the 1999’s Criminal Code regarding the value of property illegally obtained as the basis for criminal prosecution, which have been elaborated in Joint Circular No. 02/2001/TTLT-TANDTC-VKSNDTC-BCA-BTP.

The Council of Judges has not issued any Resolution to elaborate these regulations of the 2015’s Criminal Code. However, according to the Joint Circular, if a person commits the same act of appropriation of property multiple times though the value of property illegally obtained each time is below the level liable to criminal prosecution, the offence is not liable to criminal prosecution in any other cases, no administrative penalties have been imposed while the time limit for imposition of administrative penalties has not expired and the total value of property illegally obtain is equal to or more than the level liable to criminal prosecution, the person who commits the act will be liable to criminal prosecution if the act is committed repeatedly and continually.

4. If a person commits the same act of appropriation of property multiple times and the value of property illegally obtained already constitutes an aggravating circumstance, would the aggravating circumstance “the offence has been committed more than once” also apply?

If a person commits the same act of appropriation of property multiple times (i.e. multiple thefts), the total value of property illegally obtained already constitutes an aggravating circumstance, none of the offences has been prosecuted and the time limit for criminal prosecution has not expired, the aggravating circumstance “the offence has been committed more than once” mentioned in Point g Clause 1 Article 52 of Criminal Code will also apply together with the sentence bracket for the value of property illegally obtained.

The aggravating circumstance is applied according to the total value of property appropriated. Whether “the offence has been committed more than once” depends on the offender’s records and compliance. This does not contradict Clause 2 Article 52 of Criminal Code (in which the acts that are the basis for determination of a crime or sentence bracket shall not be considered aggravating circumstances). Furthermore, this also ensure the rules for criminal proceedings mentioned in Article 3 of Criminal Code, classification of criminals, individualization of criminal liability, equality in granting probation or parole and other humane treatment of criminals

Example: A person commits theft 02 times, 2.000.000 VND each time. Because “the offence has been committed more than once” according to Point g Clause 1 Article 52 of Criminal Code, this person is not eligible for probation according to Article 65 of Criminal Code and instructions in Resolution No. 02/2018/NQ-HDTP. However, if the total value of property stolen after two times is 50.000.000 VND, he/she might be still eligible for probation for the fact that “the property obtained is from VND 50,000,000 to under VND 200,000,000” if the court fails to apply the aggravating factor “the offence has been committed more than once” considering his/her records or compliance with law. This will result in unequality.5. When applying the aggravating factor “The offence is committed using the Internet, a computer network, telecommunications network or electronic device” mentioned in Point c Clause 2 Article 321 and Point c Clause 2 Article 322 of Criminal Code, is it necessary to prove that the defendant receives and pays gambling money through an online account?

The application of these aggravating factors only requires evidence that the defendant uses an online gambling website that is not permitted in Vietnam to gamble. The evidence that the defendant receives and pays gambling money through an online account might help clarifying other factors of the case.

6. A person used a loan for personal purchases instead of business operation as initially declared, and then defaulted on the loan. Is this considered use of property “for illegal purposes which result in the offender's inability to repay the loan or return the property”, which is liable to criminal prosecution, as mentioned in Article 175 of the 2015’s Criminal Code?

Point a Clause 1 Article 175 of the 2015’s Criminal Code: “Taking a loan, borrowing, leasing property of another person or receiving property of another person under a contract, then uses deception to appropriate it or refuses to repay the loan or return the property when the repayment or return of property is due despite he/she is capable of doing so”. The factor “when the repayment or return of property is due despite he/she is capable of doing so” was not present in Point a Clause 1 Article 140 of the 1999’s Criminal Code. Thus, the loan is not used for illegal purposes (smuggling, money laundering, drug manufacturing or drug trafficking, etc.) though they are still different from the initially declared purposes. This is not considered use of property for illegal purposes and thus not liable to criminal prosecution. However when the repayment is due and the borrower is capable of repaying the loan but refuses to make the repayment (the borrower has a house, land or other property but still avoids repayment or oppose the foreclosure of the property), he/she will be liable to criminal prosecution in accordance with Article 175 of the 2015’s Criminal Code.7. A person had served the imprisonment sentence for a period long enough for conviction expungement as prescribed in Article 70 of Criminal Code. However, he/she has not served the additional punishment, paid the criminal court fees or served other decisions of the judgment due to the fact that he/she did not received any notification or decision from the civil judgment enforcement authority. Is he/she still eligible for automatic conviction expungement?

One condition among the conditions for automatic conviction expungement in Article 70 of Criminal Code: The convict has served the primary sentence or the probation period, additional punishments, other decisions of the judgment. This does not exclude the case in which the convict has not served additional punishments and other decisions of the judgment for any reason. Furthermore, civil judgment enforcement laws give a judgment debtor multiple options such as: voluntarily makes a payment, pay under an agreement or request a relative to make a payment on his/her behalf.

The convict (later the defendant in another case) who has not served the additional penalties or has not paid the criminal court fees due to the fact that he/she did not received any notification or decision from the civil judgment enforcement authority is not eligible for automatic conviction expungement under Article 70 of Criminal Code.

8. If a crime previously committed by a person was not prosecuted because he/she was under the age of criminal responsibility, will the person who “stores or buys a piece of property in the knowledge that it is obtained through another person's commission of a crime” be prosecuted?

Pursuant to Article 323 of Criminal Code: “1. Any person who, without prior promise, stores or buys a piece of property in the knowledge that it is obtained through another person's commission of a crime shall be liable to a fine of from VND 10.000.000 to VND 100.000.000 or face a penalty of up to 03 years' community sentence or 06 - 36 months' imprisonment”. Pursuant to Joint Circular No. 09/2011/TTLT-BCA-BQP-BTP-NHNNVN-VKSNDTC-TANDTC, which elaborate the 1999’s Criminal Code: “1. “property obtained through another person's commission of a crime” means property obtained by a person through direct commission of a crime (e.g. illegal appropriation, embezzlement, receiving bribes, etc.) or through exchange with property obtained through direct commission of a crime (e.g. a motorbike purchased with embezzled money); 2. “in the knowledge that it is obtained through another person’s commission of a crime” means there is evidence that the offender knows the property was obtained by another person through direct commission of a crime or through exchange with property obtained through direct commission of a crime”.

Pursuant to Article 323 of Criminal Code and the aforementioned instructions, the constitution of this offence only requires the offender to know that the property being stored or bought was obtained through direct commission of a crime; it does not require the offender to know who obtained the property or he/she has been criminally prosecuted. If a crime previously committed by a person was not prosecuted because he/she was under the age of criminal responsibility but there is evidence that another person stores or buys that property in the knowledge that it is obtained through another person's commission of a crime, the latter will be prosecuted accordingly.

9. If the exact time of birth (day, hour, minute) of a charged person can be determined, will the age of criminal responsibility of that person be determined according to the date of birth or the exact time of birth?

According to Article 417 of the Criminal Procedure Code, an offender person’s age shall be determined according to his/her date of birth instead of the exact time of birth. On the other hand, for the advantage of the offender, the age of criminal responsibility of that person will be determined according to the date of birth even if the exact time of birth can be determined.

II. Civil proceedings

1. A property transfer is invalid but the transferee is already granted the certificate of ownership of house or land use right (LUR) and has mortgaged the property to bank. Will this mortgage be invalidated too?

Pursuant to Clause 2 Article 133 of the Civil Code:

“2. In cases where a civil transaction is invalid but the transacted property is registered at a competent authority and such property has already been transferred to a bona fide third party through another transaction which is established according to that registration, such transaction shall remain valid.

In cases where the transacted property which is required to be registered has not registered at a competent authority, the transaction with the third party shall be invalid, except for cases the bona fide third party received such property through an auction or a transaction with an another party being the owner of such property pursuant to a judgment or decision of a competent authority but thereafter such person is not the owner of the property as a result of the judgment or decision being amended or annulled. …”

According to the description of the bill of the 2015’s Civil Code, Clause 2 of Article 133 is meant to “Ensure fairness and rationality for bona fide parties; protect stability of civil relationships (civil codes of other countries also protect the bona fide third party in civil transactions, etc. " The phrase “transferred… through another transaction“ in Clause 2 Article 133 should be interpreted  in a broader sense: It includes not only transfer of ownership such as sale, donation contract, capital contribution contract, capital transfer, conversion or contribution in the form of LUR, etc., but also transfer of ownership-related rights or land use-related right.

Moreover, mortgage is a form of guarantee, in which a person (the mortgagor) put up his/her property as a guarantee for fulfillment of certain liability to the mortgagee without transferring the property to the mortgagee. However in Clause 6 Article 320 of the Civil Code, the mortgagor has the responsibility to “Deliver the mortgaged property to the mortgagee for realization” in one of the cases prescribed in Article 299 of the Civil Code; Clause 7 Article 323 of the Civil Code: “Follow procedures for realization of mortgaged property as prescribed in Article 299 of this Code.” Thus, the mortgagor uses the mortgaged property to guarantee fulfillment of his/her liability to the mortgagee. In case the liability is not fulfilled or properly fulfilled, the mortgaged property shall be delivered to the mortgagee to protect the mortgagee’s interests. For this reason, mortgaging should be considered a conditional transfer of property. The phrase “transferred through another transaction” in Clause 2 Article 133 of Criminal Code should also apply to mortgage of property to protect bona fide mortgagees

If the transferee of an invalid property transfer is already granted the certificate of ownership of house or land use right (LUR) and has mortgaged the property to a bank in accordance with regulations of law, the mortgage will not be invalid.

2. According to a LUR transfer/conversion/donation contract, a competent authority granted the LUR certificate to the LUR transferee. A dispute arose afterwards and the court found that the aforementioned contract is invalid or agrees to invalidate the contract. Do the court have to apply Article 34 of the Civil Procedure Code, which requires the authority that granted the LUR certificate to participate in the proceeding as a person with relevant interests and duties to consider invalidating the granted LUR certificate?

The Civil Procedure Code is meant to resolve civil cases quickly, fairly and conformably with law; protect the interests of the State, the lawful rights and interests of organizations and individuals, etc. Pursuant to Article 34 of the Civil Procedure Code, if a civil case involves an individual decision issued against the law by a organization or person in a manner that violates the lawful rights and interests of the litigants, the court shall invalidate such decision and to protect the lawful rights and interests of the litigants.

 “This regulation enables the court to invalidate illegal individual decisions that affect the lawful rights and interests of litigants to resolve civil cases and matters accurately and comprehensively (Section 3 of the 2015’s Civil Procedure Code).

In Section 1 Part 1 of Official Dispatch No. 02/GD-TANDTC dated September 19, 2016 of the People’s Supreme Court: “The LUR certificate is an individual administrative decision…” Pursuant to Article 34 of the Civil Procedure Code, during settlement of a dispute over LUR, if the LUR certificate issued by a regulatory authority is illegitimate and affects the litigant’s interest, the court shall request the issuing authority to participate in the proceedings as a person with relevant interests and duties and consider invalidating such LUR certificate.

However, Point d Clause 2 Article 106 of the Land Law prescribes that the issuer of the LUR certificate must not revoke the LUR certificate if “the LUR certificate holder has transferred the LUR and the right to ownership of property on land in accordance with land laws…” Pursuant to Article 195 of the Land Law, procedures for certifying or confirming changes due to transfer of LUR shall  be decided by the Government. Article 79 of Decree No. 43/2014/ND-CP prescribes that in case of reissuance of the LUR certificate due to LUR transfer under a contract, the land registration office shall inspect the documents and confirm the changes on the granted LUR, or send documents to the LUR issuer.

Pursuant to the Land Law and Decree No. 43/2014/ND-CP, the reissuance of the LUR certificate or confirmation of changes (except the cases in Clause 3 Article 105 of the Land Law) are administrative procedures in civil transactions and not individual administrative decisions;  the registration of changes or reissuance of the LUR certificate shall be carried out by a competent authority according to the successful transaction. If a LUR transfer contract is invalid but the transferee has been granted the LUR certificate or the changes have been confirmed, the LUR certificate issuer is not required to participate in the proceedings and invalidation of the LUR certificate is not necessary. When the court declares that the LUR transfer contract is invalid, the land registration office and the natural resources and environment authority, on the basis of the court’s judgment or decision, shall register the changes or reissue the LUR certificate accordingly.

3. During the first-instance court session, if the plaintiff withdraws the application for lawsuit initiation, does he/she have to pay the court fees? Does the judge or the trial panel have the power to issue the decision to suspend the case?

a) Regarding court fees

Clause 3 Article 218 of the Civil Procedure Code: “In cases where the Court issue decisions to terminate the resolution of civil lawsuits because the litigators withdraw all application for lawsuit initiation as provided for in point c and other cases specified in points d, dd, e and g clause 1 Article 217 of this Code, the Court fee advance money paid by the involved parties shall be refunded to the payers”

Clause 3 Article 18 of Resolution No. 326/2016/LHBTVQH14 of Standing Committee of the National Assembly: In case the court issues a decision to suspend the civil case because the plaintiff drops the application for lawsuit initiation according to Point c Clause 1 Article 217 of the Civil Procedure Code, the advanced court fees shall be refunded to the payer.

Point b Clause 1 Article 299 of the Civil Procedure Code: “Approving the withdrawal of lawsuit petitions by the plaintiffs if the defendants agree. The Appellate Trial Panels shall issue decisions to abrogate first-instance judgments and terminate the resolution of the cases. In this case, the involved parties are still required to pay the first-instance court fees as decided by the first-instance courts and half of the appellate court fees as provided for by law.”

Since the time of application is not specified in Clause 3 Article 218 of the Civil Procedure Code and Clause 3 Article 18 of Resolution No. 326/2016/UBTVQH14, this should also be applied during the court session. Regulations applied to the appellate court cannot be applied to the first-instance court to avoid introduction of new regulations that demand heavier legal liability of litigants. If the first-instance court is suspended because the plaintiff withdraws the application for lawsuit initiation, whether before or during the court session is held, the advanced court fees will be refunded.

b) Regarding the power to issue the decision to suspend the case:

Article 219 of the Civil Procedure Code:

“1. Before the opening of the trial, the Judges who are assigned to resolve the civil lawsuits has the power to make decisions …

2. In the court session, the trial panels has the power to make decisions … “

Is “on the date of court session” equal to “during the court session? sec 2 of chap XIV of the Civil Procedure Code prescribes that a court session begins with the opening procedures (Article 239). On the date of court session, if the court session has not been opened, it will not be considered “during the court session”. If the plaintiff withdraws the application for lawsuit initiation before the opening of the court session, the judge still has the power to issue the decision to suspend the case.

4. A child of the testator violates the provisions of Clause 1 Article 621 of the Civil Code and thus loses the right to inheritance. If this child dies before or at the same time as the testator, will his/her children have the rights of succeeding heirs of their grandparent?

In Article 652 of the Civil Code: “Where a child of a testator died prior to or at the same time as the testator, the grandchildren of the testator shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother still been alive.”

Pursuant to Article 652, the testator’s child dies before the testator does not mean the testator's grand children will have the right of inheritance. The succeeding heir is the person who inherits the “part of the estate which their father or mother would have been entitled to inherit had such father or mother still been alive”. Once a person loses his/her right to inheritance according to Clause 1 Article 621 of the Civil Code, such as being convicted of intentionally causing harm to the health of the parent, he/she will not inherit the parent’s estate. For this reason, even this person would not have the right to inheritance even if he/she was still alive when the parent died, thus the estate to which he/she is entitled to inherit had the parent still been alive does not exist.

5. In the case where a civil judgment enforcement authority put up a judgment debtor’s property up for auction and the judgment debtor does not agree with the auction result, is he/she entitled to file a lawsuit against the auction result?

Pursuant to Clause 13 Article 26 of the Civil Procedure Code, the court is entitled to settle disputes over auction results, pay the cost of registration of purchased of property sold at auction in accordance with civil judgment enforcement laws.

Pursuant to Clause 2 Article 102 of the Civil Procedure Code, only the buyer and the enforcement officer are entitled to file a lawsuit over property auction result if they have evidence of violations committed during the auction process.

The Law on Civil judgment enforcement does not prescribe the right of the judgment debtor to file a lawsuit over property auction results. Therefore, the judgment debtor does not have the right to file a lawsuit over the property auction result even if he/she does not agree with it.

Explanation:

Pursuant to Clause 2 Article 5 of the Law of Property Auction, property auction means the sale of a piece of property that involves more than one buyer under the rules and procedures specified thereof, except the cases in Article 49 therein.  Pursuant to Clause 6, the successful buyer or auction winner will sign a sale contract or has the auction result approved by a competent authority. Pursuant to Clause 8, the auction winner will be the person who offers the highest bid (which can be equal to the starting price if no higher bids are offered); this can also be the person who accepts the starting price or a reduced price in case of reverse auction. This is a civil transaction by nature in which the participants are people who owners of property or have the right to put up the property for auction, and the bidders. Only these people have the rights and obligations over which a dispute can arise, thus they are the only people who have the right to complain or file a lawsuit over the auction result if they believe there are violations that affect their rights and interests. In this case, the property is put up for auction by a civil judgment enforcement authority, particularly the enforcement officer, instead of the judgment debtor, whose property is distraint and put up for auction. Therefore, only the enforcement officer and the auction winner who have signed the sale contract have the rights and obligations to the auction and dispute over the auction result. The judgment debtor is not a participant since he/she is not the one who puts up the property for auction, and thus has no rights and obligations to the transaction and also no right to file a lawsuit over property auction result. The judgment debtor may file such a lawsuit if only he/she is the auction winner.

If the judgment debtor believes that his/her property is distraint, assessed and put up for auction against the law, he/she may file a complaint in accordance with Clause 1 Article 140 of the Law on Civil judgment enforcement. Such a complaint shall be settled in accordance with Section 1 Chapter VI of the Law on Civil judgment enforcement.

6. Clause 4 Article 217 of the Civil Procedure Code prescribes that when terminating the resolution of a case, “the court shall also resolve the consequences of the enforcement of judgments and other relevant matters (if any)”. If the plaintiff is still absent after being duly summoned for the second time, will the court proceed with the judgment enforcement in the termination decision?

Clause 4 Article 217 of the Civil Procedure Code: “Regarding cases that are re-settled according to first-instance procedures, immediately when decisions to conduct cassation or reopening trials have been issued, if the Courts decide to terminate the resolution of the cases, the Courts shall also resolve the consequences of the enforcement of judgments and other relevant matters (if any); if the plaintiffs withdraw the petitions or are absent though have been duly summoned twice, the termination of the resolution of the cases must be agreed by the defendants and persons with relevant interests and duties.”

Therefore, if the plaintiff withdraws the petition or is absent after being duly summoned twice without demanding a trial in absentia or the absence is not caused by a force majeure event, the court has to ask the defendant and persons with relevant interests and duties whether they agree with the termination of the case or request resolution of consequences of the enforcement of judgments and other relevant matters, then follow these instructions:

- If the defendant does not agree with termination of the case and request resolution of the consequences of the judgment enforcement and other relevant matters, the court shall issue a decision to reject the plaintiff’s request, change the status of the defendant into plaintiff and vice versa.

- If the defendant agrees with termination of the case but a person with relevant interests and duties does not and requests resolution of the consequences of the judgment enforcement and other relevant matters or has an independent request, the court shall issue a decision to reject the plaintiff’s request, reject the defendant’s request; the person with relevant interests and duties will become the plaintiff, and the people affected by such request of the person with relevant interests and duties (now the plaintiff) will become defendants. The court shall then resolve the case under common procedures.

- If the defendant and persons with relevant interests and duties agree to terminate the case and do not request resolution of the consequences of the judgment enforcement and other relevant matters, the court shall terminate the case, settle issues over court fees, and do not resolve consequences of the judgment enforcement.

- If the defendant or a person with relevant interests and duties whose absence after being duly summoned twice by the court is not caused by a force majored event, it will be considered that they agree to terminate the case.

III. Administrative proceedings

1. In an administrative lawsuit, a household member files a lawsuit against an administrative decision to withdraw the household's land issued by a competent authority. Does the court have to request other members of the household to participate in the proceedings as persons with relevant interests and duties?

Pursuant to Clause 10 Article 3 of the Law on administrative procedures: “Person with related interests and obligations means an agency, organization or individual that, though being neither the plaintiff nor the defendant, has his/her/its interests and obligations related to the settlement of an administrative case and, therefore, participates at his/her/its own initiative or at the request of another involved party approved by a People’s Court (hereinafter referred to as court) or on summoned by the court to participate in procedures in the capacity as a person with related interests and obligations”;

Pursuant to Clause 29 Article 3 of the Land Law: “Land-using household means those who share a marital, family or foster relationship as prescribed by the marriage and family law, are living together and have joint land use rights (LUR) at the time of being allocated land or leased land, or having land use rights recognized by the State; or acquiring LUR.”

Therefore, when considering the validity of a LUR-related administrative decision, the court shall request other household members to participate in the proceedings as persons with relevant interests and duties in order to protect their lawful rights and interests.

2. The President of the People’s Committee of a province, based upon the opinions of the People’s Committees of a district or the Presidents thereof (under some certain official dispatches, reports, etc.), and issued an administrative decision. In case a lawsuit against this administrative decision is filed, would the court request the aforementioned People’s Committee or the President thereof to participate in the proceedings as a person with relevant interests and duties?

Pursuant to Clause 10 Article 3 of the Law on administrative procedures: “Person with related interests and obligations means an agency, organization or individual that, though being neither the plaintiff nor the defendant, has his/her/its interests and obligations related to the settlement of an administrative case and, therefore, participates at his/her/its own initiative or at the request of another involved party approved by a People’s Court (hereinafter referred to as court) or on summoned by the court to participate in procedures in the capacity as a person with related interests and obligations”;

Pursuant to Clause 2 Article 21 of the Law on Complaining, Presidents of the People’s Committees of provinces are entitled to settle complaints against administrative decisions or administrative acts of Presidents of the People’s Committees of districts for the second time; pursuant to Point a Clause 3 Article 203 of the Land Law, Presidents of the People’s Committees of provinces are entitled to settle complaints against decisions on resolution of land disputes issued by Presidents of the People’s Committees of districts.

Clause 1 and Clause 2 Article 193 of the Law on administrative procedures:

“1. Trial panels shall examine the legality of administrative decisions, ... decisions on settlement of relevant complaints.

2. Trial panels may decide to:

...b) Accept part or whole of lawsuit petitions, pronounce cancellation of part or whole of unlawful administrative decisions and decide to settle relevant complaints (if any)…”

Pursuant to these regulations, when considering a lawsuit that requires the court to consider the legality of an administrative decision issued by the People’s Committee of a district or the President thereof, the People’s Committee of a district or the President thereof must participate as a person with relevant interests and duties. In this case, administrative documents (official dispatches, reports, etc.) issued by the People’s Committee of the district or the President thereof are not relevant administrative decisions. For this reason, the court will not request the People’s Committee of the district or the President thereof to participate in the proceedings as a person with relevant interests and duties.

3. During a first-instance court session, if the defendant revises or cancels the administrative decision against which the lawsuit is filed but the plaintiff does not withdraw the lawsuit petition, is the court entitled to reject the petition due to the fact that the subject of the lawsuit no longer exists?

During the process of administrative lawsuit settlement, the defendant is entitled to revise or cancel the administrative decision in accordance with Clause 4 Article 57 of the Law on administrative procedures.

If the defendant, during the first-instance court session, promises to revise, replace or cancel the  administrative decision against which the lawsuit is filed and the plaintiff promises to withdraw the lawsuit petition, the court shall suspend the court hearing according to Article 187 of the Law on administrative procedures. At the end of the suspension period, if the defendant issues a new administrative decisions and the plaintiff agrees to withdraw the lawsuit petition, the trial panel shall issue a decision to terminate the lawsuit.

If the defendant, during the first-instance court session, presents a new administrative decision which revises, replaces or cancels the administrative decisions against which the lawsuit is filed and the plaintiff agrees to withdraw the lawsuit petition, the court shall issue a decision to terminate the lawsuit. If the plaintiff does not withdraw the lawsuit petition, the court shall continue to consider the legality of the administrative decision against which the lawsuit is filed and issued a new administrative decision. In this case, the court, pursuant to Clause 2 Article 193 of the Law on administrative procedures and on a case-by-case basis, shall reject the lawsuit petition if it is not legally based, or accept part of or the whole petition if the administrative decision against which the lawsuit is filed or the new administrative decision is issued against the law. If the new administrative decision involves rights and obligations of other organizations and individuals, the court must be suspended to invite such organizations and individuals to participate in the proceedings as persons with relevant interests and duties and then the case shall be settled under common procedures.

4. In an administrative lawsuit, Presidents of the People’s Committee of the district has issued a decision on complaint settlement, but the plaintiff only files a lawsuit against the administrative decision issued by the President of the People’s Committee of a commune. Will this lawsuit be handled under first-instance process by the People’s Court of the district or the province?

Pursuant to Article 193 of the Law on administrative procedures, the trial panel, during administrative lawsuit settlement, is entitled to consider the legality of relevant administrative decisions and complaint settlement decisions.

Pursuant to Clause 4 Article 32 of the Law on administrative procedures, the provincial court shall handle complaints against administrative decisions and administrative acts of the People’s Committee of the district or the Presidents thereof in the same administrative division as the court under first-instance procedures.

In this case, the court shall consider the legality of administrative decisions of the People’s Committees of communes and complaint settlement decisions of Presidents of the People’s Committees of districts. To avoid overburdening provincial courts, administrative lawsuits can also be handled by district courts. If there is evidence that a complaint settlement decision of Presidents of the People’s Committee of a district is issued against the law and thus has to be canceled to protect the lawful rights and interests of the litigants, the district court handling the case shall suspend the hearing and transfer the case to the competent provincial court for further handling. If there is evidence that a complaint settlement decision of Presidents of the People’s Committee of a district is issued in accordance with the law, does not violate the lawful rights and interests of the litigants and thus will not be canceled, the district court handling the case shall continue handling the case.

5. Can an adjustment to the commune cadastral map be filed a lawsuit against? In such cases, who will be the defendant?

Pursuant to Clause 3 Article 22 and Clause 3 Article 31 of the Land Law, the survey and dev of cadastral maps are under state management of the Minister of Natural Resources and Environment.

Pursuant to Clause 6 Article 22 of Circular No. 25/2014/TT-BTNMT and Point e Clause 5 Article 2 of Joint Circular No. 50/2014/TTLT-BTNMT-BNV, Departments of Natural Resources and Environment have the responsibility to prepare, revise and sign cadastral map acceptance records.

Pursuant to the aforementioned regulations, cadastral maps of communes are administrative decisions and administrative lawsuits can be filed against adjustments to cadastral maps of communes in the cases specified in Clause 2 Article 3 of the Law on administrative procedures .

In such lawsuits, the defendant is the organization that prepares, adjusts or approves the cadastral map if the plaintiff finds that such adjustments infringe upon his/her the lawful rights and interests according to Clause 9 Article 3 of the Law on administrative procedures.

The above are contents of the online session held by the Council of Judges. The People’s Supreme Court recommends that the Courts to use this document as reference during settlement of cases under their jurisdiction.

 

 

PP EXECUTIVE JUDGE
DEPUTY EXECUTIVE JUDGE




Nguyen Tri Tue

 


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(07/05/2019)

Download Công văn 64/TANDTC-PC

Lược đồ Official Dispatch 64/TANDTC-PC 2019 the results session of Criminal civil Administrative proceedings


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              Official Dispatch 64/TANDTC-PC 2019 the results session of Criminal civil Administrative proceedings
              Loại văn bảnCông văn
              Số hiệu64/TANDTC-PC
              Cơ quan ban hànhTòa án nhân dân tối cao
              Người kýNguyễn Trí Tuệ
              Ngày ban hành03/04/2019
              Ngày hiệu lực03/04/2019
              Ngày công báo...
              Số công báo
              Lĩnh vựcThủ tục Tố tụng
              Tình trạng hiệu lựcKhông xác định
              Cập nhật2 tuần trước
              (07/05/2019)

              Văn bản thay thế

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                    Văn bản gốc Official Dispatch 64/TANDTC-PC 2019 the results session of Criminal civil Administrative proceedings

                    Lịch sử hiệu lực Official Dispatch 64/TANDTC-PC 2019 the results session of Criminal civil Administrative proceedings

                    • 03/04/2019

                      Văn bản được ban hành

                      Trạng thái: Chưa có hiệu lực

                    • 03/04/2019

                      Văn bản có hiệu lực

                      Trạng thái: Có hiệu lực