Author: TNTP LAW

Case law no.39/2020/al regarding the determination of civil transactions due to invalid conditions

Written by TNTP LAW on 10 May, 2024. Posted in Legal newsletter.

In civil law, Conditional Contracts are understood as contracts in which, when entered into, the parties agree to determine an event that when that event occurs, the contract will arise, be performed, or be terminated. From a dispute that arises when the seller receives money but the conditions of the contract do not occur, the buyer requests the seller to refund the money and requests the court not to recognize the contract, Case Law No. 39/2020/AL has provided an opinion to resolve disputes arising related to this type of conditional transaction. In this article, TNTP’s lawyers will analyze the content of Case Law No. 39/2020/AL.

1. Summary of the case

a) In 1982, the family of Mr. Nguyen Viet L (died in 1985) and Ms. Tran Van C (died in 2011) and their 03 children, Mr. Le Minh S, Mr. Le Minh D, Mr. Le Minh T2, were granted permission by the State Bank of Vietnam to use the ground floor in front of the house No. 182, Street A, Ward B, District D, Ho Chi Minh City.

b) In May 1989, Ms. C rented a part of the house with an area of 50.85m2, located on the corner of 02 fronts of A – D streets, to the Branch of T Tourism Company to open a general service store. At that time, Ms. C1 took the position of store manager, and with her husband, Mr. Nguyen Cong H, directly conducted business and represented the Branch of T Tourism Company to pay the rent in June 1989 of 2.3 maces of 24K gold and the next rental payment from July 1989 to December 1992 was 75 maces of 24K gold, the first payment on July 10, 1989 was 35 maces of 24K gold, the second payment of 40 maces of gold on September 1, 1989. In total, Ms. C received 7.5 taels of 24K gold.

c) In December 1989, the Branch of T Tourism Company was not doing business effectively, so it was assigned to Ms. C1 to continue doing business and pay rent until the end of February 2002. Since March 2002 until now, Ms. C1 and Mr. H have still lived in this area and have not paid rent. A part of the house is currently used by Ms. T1, another part is used by Ms. K.

d) During the process of Ms. C1 and Mr. H using the house, there was construction and repair, so the disputed area’s value according to the valuation minutes dated January 22, 2014 is 1,427,421,900 VND. Regarding the Association Contract No. 05 signed on May 20, 1989 with the Branch of T Tourism Company, the plaintiff did not request settlement and withdrew the request to force T Tourism One Member Limited Liability Company to pay 1.48 taels of 24K gold for rent.

e) Because the two parties have no business buying or selling the house and no longer have a rental relationship, the plaintiff requests the Court to cancel the commitment made and signed by Ms. Tran Van C and Ms. Tran Thi C1 on July 10, 1989; force Ms. C1 and Mr. H to immediately pay for the part of the house that they are staying in; agree to pay Ms. C1 and Mr. H the cost of repairing the house of 64,105,000 VND.

f) The Defendants are Mr. Nguyen Cong H and Ms. Tran Thi C1 presented:

• In 1989, Mr. H and Ms. C1 transferred an area of about more than 40m2 located in the house 182 A Street, District D of Mr. Tran Van C for 7.5 taels of 24K gold. Both sides wrote a handwritten paper to sell the house. On July 10, 1989, Mr. H and Ms. C1 delivered this amount of gold to Mr. C, then added 05 maces, the total selling price was 08 taels of 24K gold. The transferred area is located at the corner of 2 frontages of streets A – D. At that time, Ms. C was renting the above house from the State Bank of Vietnam, so she had not yet been granted ownership of the house, so the two parties only wrote the handwritten paper and could not sign a sales contract.

• After that, Mr. H and Ms. C1 transferred to Ms. Tran Thi Kim T1 a part of the house with an area of about 16m2. The transfer with Ms. T1 was only agreed verbally.

• Around 2005, Mr. H and Ms. C1 had a business cooperation with Ms. Luong Thi K in the above area.

• According to the commitment between the two parties in the handwritten paper dated July 10, 1989, when the State allows Ms. C buy the house price, Mr. H and Ms. C1 must pay the price of the transferred area and Mr. C is responsible for completing the procedures to transfer ownership of the transferred area to Mr. H and Ms. C1. At the same time, based on the Land Law 2003, Mr. H and Ms. C1 have used the house and land for over 25 years, so their land and house use rights must be recognized, so they request recognition of the house transfer according to the commitment dated July 10, 1989 because this is a conditional civil transaction.

• Those who inherit the rights and obligations of Ms. C that request for a house to stay in is unfounded because according to the Certificate of House Ownership, Mr. C only has ownership of 167m2 and the above area Mr. C has no ownership rights, so he has no right to sue, Mr. H and Ms. C1 do not accept. Because the prescriptive period for initiating legal action for the dispute that arose in 1989 had expired, the case was requested to be suspended.

• The transfer of part of the area to Ms. T1 and the business cooperation with Ms. K do not require settlement. During the period of using Mr. H and Ms. C1, the house was repaired with the repair cost calculated according to the calculation minutes of 64,105,000 VND. In case the Court does not recognize the house transfer, this repaired amount must be returned.

g) The person with related interests and obligations is Ms. Tran Thi Kim T1 presented:

• Ms. T1 transferred from Ms. C1 a part of the house No. 182, Street A, Ward B, District D, Ho Chi Minh City with an area of about 16m2 in 1989, for 04 taels of gold, the transfer was without paperwork. Now, Ms. T1 requests Ms. C to be responsible for carrying out procedures to transfer ownership rights to Mr. H and Ms. C1. The transfer between Ms. T1 and Mr. H and Ms. C1 is not requested to be solved by the Court.

• At the same time, according to Ms. T1, the area the parties are disputing is the common use of the households in the house on 182 Street A, Ward B, District D, Ho Chi Minh City. Ms. C has no ownership rights, so Mr. C has no right to sue.

h) The person with related rights and obligations is N Housing Business Management Company represented by Ms. Pham Thuy H1 presented:

N Housing Business Management Company sold the house on No. 182, Street A, Ward B, District D, Ho Chi Minh City in 2001. Before selling, they made a minutes to check the area used by each household. According to the content of the minutes, the area of houses and land in dispute between the parties is located within the boundary of the owner’s right of use (Ms. C – died) until the State collects it to implement the road widening project. The fact that Ms. C allowed them to stay, rent, or transfer was against the regulations, so N Housing Management Company did not agree and requested a trial according to the provisions of the law.

i) In First Instance Civil Judgment No. 28/DS-ST dated July 27, 2006, the People’s Court of District 3, Ho Chi Minh City decided:

• Cancel the commitment dated July 10, 1989 between Ms. C and Mr. H and Ms. C1.
• Mr. H, Ms. C1, Ms. T1, Ms. K are obligated to deliver to Mr. C a part of the ground floor of house 182, Street A, Ward B, District D, Ho Chi Minh City with an area of 50.85m2.
• Ms. C paid Mr. H and Ms. C1: 08 taels of gold received + 27.49 taels of gold for damage + 64,105,000 VND for repairs. The total amount is 35.49 taels of gold and 64,105,000 VND.

j) The plaintiff and defendant both filed an appeal.

k) In Civil Appeal Judgment No. 188/2007/DS-PT dated February 7, 2007, the People’s Court of Ho Chi Minh City decided:

Partially amending the First Instance Judgment:

• Recognize the house purchase contract between Ms. Tran Van C and Mr. Nguyen Cong H and Ms. Tran Thi C1 according to the commitment dated July 10, 1989.
• Ms. C is responsible for transferring ownership of the house to Mr. H and Ms. C1.
• Mr. H and Ms. C1 paid Ms. C the house price of 169,432,000 VND.

l) In Decision No. 138/QD-KNGDT-V5 dated November 13, 2007, the Director of the Supreme People’s Procuracy protested the above civil appeal judgment.

m) In Decision No. 01/2008/DS-GDT dated January 25, 2008, the Civil Court of the Supreme People’s Court decided: Annul the First Instance Civil Judgment No. 28/DS-ST dated January 27 – July 2006 of the People’s Court of District 3 and annul the Civil Appeal Judgment No. 188/2007/DS-PT dated February 7, 2007 of the People’s Court of Ho Chi Minh City; deliver the case file to the People’s Court of District 3 for trial according to first instance procedures.

n) In First Instance Civil Judgment No. 12/2014/DS-ST dated April 16, 2014, the People’s Court of District 3, Ho Chi Minh City decided: Partially accept the request of the heirs’ rights and obligations of Ms. Tran Van C.

• Declare the commitment on transferring the right to use part of the house No. 182, Street A, Ward B, District D, Ho Chi Minh City signed on July 10, 1989 between Ms. Tran Van C and Ms. Tran Thi C1 is null and void.
• Force the heirs of Ms. Tran Van C’s rights and obligations, Ms. Le Thi Minh C2, Mr. Le Minh S, Mr. Le Minh D, Mr. Le Minh T2, to repay Mr. Nguyen Cong H and Ms. Tran Thi C1 the amount of gold received is 08 taels of 24k gold = 276,320,000 VND.
• Force the heirs of Ms. Tran Van C’s rights and obligations, Ms. Le Thi Minh C2, Mr. Le Minh S, Mr. Le Minh D, Mr. Le Minh T2, to repay Mr. Nguyen Cong H and Ms. Tran Thi C1 house construction and repair costs are 64,105,000 VND.
• Force the heirs of Ms. Tran Van C’s rights and obligations, Ms. Le Thi Minh C2, Mr. Le Minh S, Mr. Le Minh D, Mr. Le Minh T2, to compensate for damages to Mr. Nguyen Cong H, Ms. Tran Thi C1 amount is 575,550,950 VND.
• Force Mr. Nguyen Cong H, Ms. Tran Thi C1, Ms. Tran Thi Kim T1, Ms. Luong Thi K to be responsible to return to the heirs of Ms. Tran Van C’s rights and obligations, Ms. Le Thi Minh C2, Mr. Le Minh S, Mr. Le Minh D, Mr. Le Minh T2, the area of house and land in the house No. 182, Street A, Ward B, District D, Ho Chi Minh City includes: Area of house and land in the main house with the first floor, suitable for planning is 8.11m2 + house and land area within the road is 42.74m2.

o) The first instance court also decided on court fees and the litigants’ right to appeal.

p) On April 24, 2014, Mr. Nguyen Cong H, Ms. Tran Thi C1, and Ms. Tran Thi Kim T1 filed an appeal.

q) On April 28, 2014, Ms. Le Thi Minh C2 filed an appeal.

r) In Civil Appeal Judgment No. 1515/2014/DS-PT dated December 1, 2014, the People’s Court of Ho Chi Minh City decided: Not accepting the appeal of Ms. Le Thi Minh C2, Ms. Tran Thi C1, Mr. Nguyen Cong H and Ms. Tran Thi Kim T1, withhold the first instance civil judgment.

s) After the appeal trial, the defendant Mr. Nguyen Cong H and Ms. Tran Thi C1 filed a request for review according to cassation procedures for the Civil Appeal Judgment No. 1515/2014/DS-PT dated December 1, 2014.

t) In Appeal Decision No. 38/KNGDT-VC3-V2 dated March 21, 2016, the Director of the High People’s Procuracy in Ho Chi Minh City appealed against Civil Appeal Judgment No. 1515/2014/ DS-PT dated December 1, 2014 of the People’s Court of Ho Chi Minh City; request the Committee of Judges of the High People’s Court in Ho Chi Minh City to conduct a cassation trial to annul the above-mentioned Civil Appeal Judgment and First Instance Civil Judgment No. 12/2014/DS-ST dated April 16, 2014. of the People’s Court District 3, Ho Chi Minh City; deliver the case file to the Court of First Instance for re-trial.

u) In Decision No. 234/2016/DS-GĐT dated September 9, 2016, the Committee of Judges of the High People’s Court in Ho Chi Minh City decided: Not accepting Protest No. 38/KNGDT-VC3-V2 dated March 21, 2016 of the Director of the High People’s Procuracy in Ho Chi Minh City; uphold the Civil Appeal Judgment No. 1515/2014/DS-PT dated December 1, 2014 of the People’s Court of Ho Chi Minh City.

v) On January 21, 2017, Mr. Nguyen Cong H, Ms. Tran Thi C1, Ms. Tran Thi Kim T1 submitted a request for review according to cassation procedures for cassation decision No. 234/2016/DS- GĐT dated September 9, 2016 mentioned above.

w) In Decision No. 56/2019/KN-DS dated August 5, 2019, the Chief Justice of the Supreme People’s Court appealed Decision No. 234/2016/DS-GDT dated September 9, 2016 of the Committee of Judges of the High People’s Court in Ho Chi Minh City; request the Council of Judges of the Supreme People’s Court to conduct a cassation trial to cancel the Decision No. 234/2016/DS-GDT dated September 9, 2016 of the Judges’ Committee of the High People’s Court in Ho Chi Minh City. Ho Chi Minh City, canceling Civil Court of Appeal No. 1515/2014/DS-PT dated December 1, 2014 of the People’s Court of Ho Chi Minh City and First Instance Civil Judgment No. 12/2014/DS- ST dated April 16, 2014 of the People’s Court of District 3, Ho Chi Minh City; deliver the case file to the People’s Court of District 3, Ho Chi Minh City for re-trial in accordance with the law.

x) At the cassation trial, the representative of the Supreme People’s Procuracy agreed with the appeal decision of the Chief Justice of the Supreme People’s Court.

2. Comments of the Court:

2.1. Case files and evidence show that on July 10, 1989, Ms. Tran Van C and Ms. Tran Thi C1 signed a Commitment and Receipt with the content: Ms. C received 75 gold taels from Ms. C1, giving Ms. C1 and her husband have full rights to use the area of 45m2 at house number 182, Street A, Ward B, District D, Ho Chi Minh City; Ms. C never asked for his house back, nor did Ms. C1 and her husband ask for their gold back; when the State allows Ms. C to buy the house, Ms. C1 must pay the price for the area being used and Ms. C is responsible for carrying out procedures to transfer ownership of the transferred area to Mr. H and Ms. C1.

[Content of case law] Thus, there is a basis to determine that Ms. C has agreed to sell part of the house No. 182, Street A, which is being rented from the State to Ms. C1 under the condition that when Ms. C is valued by the State, or in other words, the transaction between Ms. C and Ms. C1 is a conditional civil transaction. When Ms. C is sold by the State for the house price, the transaction becomes effective. Article 23 of the 1991 Ordinance on Civil Contracts stipulates: “Where the parties agree on a condition precedent for the performance or termination of a contract, the contract shall be performed or terminated upon such condition occurring”. Although the conditions agreed in the contract do not violate legal prohibitions or are not contrary to social ethics, the part of the house and land that Ms. C agreed to transfer to Ms. C1 has an area of 42.74 m2 located within the road, the State do not price and recognize Ms. C’s home ownership and land use rights, so most of those conditions do not occur. Therefore, the agreement between Ms. C and Ms. C1 is not taking legal effect, and the Court of First Instance and Appeal declared it null and void is appropriate.

2.2. According to the provisions of Article 21 of the Housing Law 2005, point h, Clause 1, Article 10 of the Housing Law 2014, and Article 256 of the Civil Code 2005, owners and subjects with other property rights have the right to reclaim property from the possessor, user of the property, or person benefiting from the property without legal basis. Because the disputed portion of land with an area of 42.74 square meters is located within the right of way, the State does not price it, and does not recognize home ownership or land use rights for Ms. C, Ms. C, and Ms. C’s heirs. have no right to sue for that area.

The first instance and appellate courts forced Mr. H, Ms. C1, Ms. T1, and Ms. K to be responsible for returning to the heirs of Ms. C’s legal rights and obligations to the house and land area within the right of way, The state does not recognize home ownership or land use rights as unfounded. The cassation decision of the Committee of Judges of the High People’s Court in Ho Chi Minh City did not recognize the errors of the Court of First Instance and the Court of Appeal, thereby not accepting the appeal of the Institute. Head of the High People’s Procuracy in Ho Chi Minh City, maintaining the appeal judgment is inconsistent with the provisions of Clause 2, Article 345 of the 2015 Civil Procedure Code.

3. Comment on Case law

• In Clause 6, Article 402 of the Civil Code 2015, it is stipulated that “A conditional contract is a contract the performance of which depends on the occurrence, modification or termination of a specified event.”

For better understanding, this type of contract is characterized by a contract formed based on certain conditions (for example, arising conditions, performance conditions, contract cancellation conditions). If this condition occurs, the obligation to perform the contract of one party or parties will arise.

Compared with the case of this Case law, the agreement in the Commitment dated July 10, 1989 of Ms. C with Ms. C1 and Mr. H has content consistent with the nature of a conditional contract, that is, when the land plot is valued by the State, the parties will proceed with the purchase, sale and transfer procedures.

• In the judgment of the Court, it was noted that “there is a basis to determine that Ms. C has agreed to sell part of the house No. 182, Street A, which is being rented from the State to Ms. C1 under the condition that when Ms. C is valued by the State, or in other words, the transaction between Ms. C and Ms. C1 is a conditional civil transaction. When Ms. C is sold by the State for the house price, the transaction becomes effective” clearly stated the conditions in the house purchase contract. Although the contract has not yet taken effect, the parties have agreed on the conditions for implementation. The court determined that this was a conditional transaction.

Therefore, the Court’s judgment that “a civil transaction has conditions but is voided because the contract conditions cannot occur” is reasonable because the object of the transaction is a house that has not yet been priced. From the time the parties conduct the transaction, the seller is only renting the house, which is still owned by the State. As long as the house has not been priced, the seller has not been granted ownership of the house. The fact that the buyer is transferred ownership of the area agreed to be transferred after the seller is granted the right is only an uncertain future condition that may occur. The reality of the case shows that the State did not conduct an appraisal and did not recognize ownership of the house, thus the conditions for the validity of the transaction did not occur and therefore the agreement between the buyer and the seller is disabled.

Above is TNTP’s article on “Case law No. 39/2020/al regarding the determination of civil transactions due to invalid conditions”. We hope this article will be helpful to readers.

Sincerely,

The role of Lawyers in resolving business and commercial disputes

Written by TNTP LAW on 8 May, 2024. Posted in Dispute Settlement.

Business and commercial disputes include various types and levels of conflict in the civil-economic life. These disputes tend to increase in both number and type of dispute, especially in areas with rapid economic development. In this context, the role of lawyers becomes extremely important, not only to resolve disputes effectively but also to ensure the legitimate rights and interests of individuals and organizations. In this article, TNTP will help readers better understand the role of Lawyers in resolving business and commercial disputes.

1. Propose appropriate dispute resolution plans

• Lawyers play an important role not only in resolving disputes effectively but also in guiding clients to choose the appropriate dispute resolution method. When a dispute arises, there are many dispute resolution methods such as negotiation, mediation, arbitration, and litigation. Each method has its advantages and limitations, and each dispute requires a different resolution method depending on the nature of the dispute and the goals of the client.

• The Lawyer is a person who directly supports clients, understands information, and case files, as well as the goals of clients. With accumulated knowledge, skills as well as experience, lawyers can propose the most optimal solution to the case. With the assistance of a lawyer, choosing the right method is the key to resolving disputes.

• In addition, Lawyers can skillfully integrate various methods to aim for efficient dispute resolution and achieve optimal outcomes.

2. Applying the appropriate legal provisions

• In the field of business and commercial, disputes often arise from legal issues that lead to the change or termination of legal rights and obligations between the parties. Choosing appropriate legal provisions to settle disputes is extremely important.

• The law in business and commercial are constantly changing and updating, requiring a constant grasp and update on the part of lawyers and legal experts. The application of law to business and commercial dispute settlement is complicated and requires a highly specialized person. Moreover, the overlap and inconsistencies in legal provisions can take the complexity of the dispute to another level. Therefore, the use of the services of Lawyers is essential. With knowledge of laws and local practices, lawyers can provide accurate and appropriate legal provisions as grounds for dispute resolution.

3. Ensure the rights, limit the risk of the Client

• Collecting evidence and documents for settling business and commercial disputes is always difficult, requiring a methodical and strategic approach. Lawyers have a good understanding of the legal system and experience in carrying out legal procedures, so they will support the process of collecting evidence and giving logical and reasonable arguments to the case, hence providing grounds to protect the legitimate rights and interests of clients. The assistance of the Lawyer will make this process smoother and more accurate.

• Lawyers, act as independent persons in the proceedings will ensure that the interests of clients are fully exercised, and not infringed in the entire dispute resolution process during and outside the proceedings, as well as fighting when there are negatives, providing appropriate solutions when there are inappropriate decisions that affect the legitimate rights and interests of clients.

• Simultaneously, lawyers with their knowledge and good understanding of the information about the case can help clients minimize the risks and damages they may suffer in the dispute. With the help of the lawyer, the dispute will be settled disputes reasonably, and especially based on compliance, not contrary to the provisions of law.

Lawyers, by helping clients understand their legal rights and interests, as well as anticipating potential risks, will be a key factor in achieving effective dispute resolution.

4. Supporting swift and effective dispute resolution.

• Lawyers with knowledge of legal regulations and legal proceedings can advise and support clients to resolve disputes professionally, accurately, effectively, and fairly. For example, the early and complete submission of documents, and correctly defined legal issues, will help avoid wasting time dealing with small, unnecessary issues that may distract and possibly affect the outcome of the resolution process.

• The enforcement of judgments in business and commercial takes a lot of time and effort. If the purpose of the enforcement is not achieved, the entire proceedings and the judgment itself may partly be considered meaningless to the person to whom the judgment is enforced. Many cases go through time-consuming proceedings but cannot enforce judgments, decisions, or awards. Therefore, in the enforcement phase, the role of legal managers, namely lawyers of litigants, should be especially emphasized.

The development of a strategy for the enforcement process is very important and shapes the outcome of the stage. The role of the lawyer is addressed in developing an enforcement plan suitable to the actual situation of the case, planning the actions to be taken by the party who must enforce the judgment, and contemplating the actual situations that may arise and how to deal with each situation.

The process of developing a strategy for enforcement not only begins when the judgment takes effect but should be carried out from the pre-litigation stage, right from the moment the lawyer receives the case from the client. In many cases, at the end of the proceedings, the party who must enforce the judgment has transferred assets or withdrawn all important legally responsible personnel from the business registration certificate. In this situation, the enforcement process can face many challenges, even losing the meaning of the enforcement process.

Above is TNTP’s article on the topic ” The role of Lawyers in resolving business and commercial disputes”. Hopefully, the above article will bring value to readers in the dispute resolution process.

Best regards.

Law on housing 2023 and the new points that can create a “game-changing” housing market in Vietnam

Written by TNTP LAW on 6 May, 2024. Posted in Legal newsletter.

On November 27, 2023, during the 6th session of the 15th National Assembly, the amended Law of Housing was officially passed and will come into force as of January 1, 2025. Notably, there are many new provisions to deal with current societal issues in Vietnam and tighten the legal framework for state management of various types of housing. This article focuses on highlighting new points that have a significant impact on Vietnam’s housing market. Such content may change the citizen’s behaviors regarding buying, selling, investing, constructing, and other purposes.

1. Tightening regulations on the sale of dividing land lots

Under Clause 2, Article 41 of Decree 43/2014/NĐ-CP 4 detailing a number of articles of the land law, investors of projects on construction of houses for sale or for combined sale and lease may transfer land use rights in the form of sale of dividing land parcels for sale into the areas outside the inner districts of special urban centers; areas with strict requirements on landscape architecture, central areas, and around buildings that are prominent architectural points in urban centers; the frontages of regional- or higher-level roads and main landscape roads in urban centers.

However, according to Clause 5 Article 5 of the Law of Housing 2023, the areas where division of land parcels for sale are not permitted have been expanded to include ” developers of housing investment and construction projects shall develop houses for sale in respect of wards, districts, cities in special, class I, class II, and class III urban areas. In respect of other areas, provincial People’s Committees shall, depending on local conditions, determine areas where developers of housing investment and construction projects develop houses for sale, lease purchase, or lease or transfer land use rights in the form of land subdivision to allow buyers to build their own houses.”

Thus, compared to current regulations, the Law on Housing 2023 has expanded the areas where land parcel division for sale is not allowed. In particular, developers of housing investment and construction projects are not allowed to transfer Land use rights in the form of land parcel division for sale in respect of wards, districts, and cities in special, class I, class II, and class III urban areas. For other areas, provincial People’s Committees have the authority to determine areas for land parcel division for sale. First, this regulation is designed to align with the Law on Real Estate Business 2023’s provisions. Additionally, tightening regulations on land parcel division for sale may mitigate and stabilize the situation of rampant land splitting for conversion into residential land, breaking urban planning, land wastage, and the speculation of real estate in recent years.

2. New regulations on mini apartments

2.1. Definition of mini apartments

“Mini apartments” is a familiar term for the model of multi-storey apartments with multiple apartment units for sale, combined sale, and lease, or lease. Mini apartments have moderate sizes and affordable prices, making them suitable for individuals with medium to low incomes. Article 57 of the Law on Housing 2023 describes this type of housing as a “Private multi-storey, multi-unit houses for sale, lease purchase, and lease,” with the following structure:

– Houses of at least 2 storeys where each storey accommodates dwelling units designed, built for sale, lease purchase, or a combination of sale, lease purchase, lease; or

– Houses of at least 2 storeys and at least 20 dwelling units for lease.

2.2. Eligibility for individuals who have a demand to invest in mini-apartments

According to the provisions of Clause 1 of Article 57 of the Law on Housing 2023, individuals who want to construct mini apartments must satisfy the eligibility of developers of housing investment and construction projects. According to Article 35 of the Law on Housing 2023, developers of housing investment and construction projects include cooperative enterprises, joint cooperatives, and foreign-invested business organizations established and operating under Vietnamese laws, and satisfy requirements such as:

– Have equity under real estate trading laws for implementation of each housing investment and construction law; and

– Obtain land use rights for each type of housing investment and construction law under the Law on Housing 2023 or be assigned with land or leased land by Land Law; and

– Have sufficient capacity and experience in executing housing investment and construction projects as per legal regulations.

2.3. Eligibility for constructing mini apartments

Individuals have the right to use the land for constructing residential houses of at least 2 storeys and less than 20 dwelling units where each storey accommodates dwelling units designed and built for lease, shall comply with the following regulations:

– Satisfy construction requirements of private multi-storey multi-unit houses according to regulations of the Minister of the Ministry of Construction;

– Satisfy fire safety requirements under regulations on fire safety applicable to private multi-storey multi-units houses; and

– Satisfy conditions regarding roads for firefighting facilities prescribed by provincial People’s Committees in respect of private multi-storey and multi-unit houses.

Individuals who have the right to use residential land building houses of at least 2 storeys and at least 20 dwelling units where each storey accommodates dwelling units designed, built for sale, or lease purchase must satisfy eligibility similar to those of individuals who want to construct mini apartments.

2.4. Mini apartments are granted ownership rights

Based on Clause 2 of Article 57 of the Law on Housing 2023, apartments that satisfy the above conditions shall be issued with a certificate according to land laws. However, this matter has not yet been specifically guided.

In general, the Law on Housing 2023 supplements regulations on the conditions, and standards for building mini apartments. This will form the basis for tighter and more effective management of this type of housing, contributing to ensuring fire fighting and prevention, satisfying construction standards, facilitating operation and use of mini apartment types, as well as ensuring stability in safety and health for residents.

However, the eligibility that individuals must satisfy to participate in investing in this type of housing is conflicting with the Law on Housing 2023. In particular, to invest in the construction of mini apartments, individuals must meet conditions to become project developers of housing investment and construction projects according to this Law. Meanwhile, to become investors, those entities must be Cooperative enterprises, joint cooperatives engaged in real estate trading.

3. Unlimited ownership duration of apartment buildings

The Law on Housing 2023 does not set a limit on the duration of ownership but only the lifespan of apartment buildings. Specifically, Article 58 of this Law stipulates that the lifespan of apartment buildings shall be determined by design dossiers and the actual useful life of apartment buildings according to the conclusion of competent authority. Suppose the lifespan of apartment buildings according to design dossiers expires or the apartment buildings in question are damaged, prone to collapse, or do not guarantee safety for owners and users of apartment buildings before the expiry of lifespan. In that case, provincial People’s Committees shall coordinate the inspection and quality assessment of apartment buildings according to the regulations.

This regulation is reasonable because the ownership rights of each entity to their property need to be protected by law and can only be terminated at the will of the owner. Moreover, setting a time limit for apartment ownership may affect the mentality of buyers, leading to behavioral changes, and not choosing to buy the apartment.

4. New preferential policies for social housing

(a) Adding entities allowed to buy social housing: Pursuant to Article 76 of the Law of Housing 2023, two new entities are allowed to buy social housing including (i) Students, learners in universities, academies, higher education institutions, colleges, vocational education and training facilities, specialized education institutions as per the law; students of public ethnic boarding schools; and (ii) Enterprises, cooperatives, and joint cooperatives in industrial parks.

Moreover, according to the Law on Housing 2023, within 5 years, the buyer, lease-purchaser can only resell the social housing to developers of social housing investment and construction projects or entities eligible for purchase of social housing at a maximum price equal to the sale price of the social housing under sale contracts signed with developers of social housing investment and construction projects.

(b) Adding incentives for developers of housing investment and construction projects

– Exempted from land rent, the land levy for the land area of the projects; are not required to determine land value, calculate land rent, land levy from which they have been exempt; are not required to apply for exemption from land rent and land levy, except for other cases as specified by law (Point a Clause 2, Article 85);

– Eligible for maximum profit of 10% of total investment regarding the area on which social housing is built (Point c, Clause 2, Article 85);

– Allowed to reserve up to 20% of total residential land area for construction of commercial services, commercial housing property structures, separately record expenditure and revenues, must not include costs for investment and construction of service and mercantile structures in social housing price, and may benefit from all revenues generated by the service and mercantile structures, must pay the entire land use fee for the commercial construction area (Point d, Clause 2, Article 85).

Expanding the entities eligible for assistance policies regarding social policies and adding incentives for investors participating in social housing construction projects promote the development of this type of housing at present. This is the orientation of the State in developing society which is suitable for the current economic and social situation of Vietnam, supporting medium and low-income groups to attract skilled labour among localities, stabilizing production, and improving people’s lives.

The above are some of the highlight new points of the Law of Housing 2023 that TNTP wants to convey to readers.

Best regards,

Benefits of mediation or dialogue at Court

Written by TNTP LAW on 3 May, 2024. Posted in Dispute Settlement.

In the laws of society, disputes are always inevitable. Dispute settlement is of significance to social justice and stability but remains a complex matter. When a dispute takes place, there are many different methods of settlement. Each method has its advantages and disadvantages, and choosing the suitable method can significantly affect the resolution process and the outcome of the case. However, the method of reconciliation and dialogue has not been paid much attention compared to its potential. Therefore, TNTP is sending you an article “Benefits of mediation or dialogue at Court”.

1. Understanding mediation or dialogue in Court

• Mediation at court refers to mediation activity conducted by a Mediator before the court accepts a civil case in order to assist parties in mediation to settle the civil case.

• Dialogue at court means a dialogue conducted by a mediator before the court accepts an administrative case, in order to assist the parties in dialogue to settle the administrative lawsuit.

Thus, mediation or dialogue at Court is an activity carried out by mediators, selected and appointed by the competent Court from reputable experts and experts in the community, meeting the standards specified in Clause 1, Article 10 of the Law on Mediation or Dialogue at Court 2020. This process is intended to resolve cases in which the petitioner has filed an application to the Court, but which the Court has not yet accepted and disposed of according to the proceedings.

2. The benefits of mediation, dialogue in Court

a. Minimize time and effort

• Mediation or dialogue at Court shall be implemented based on the provisions of the Law on Mediation or Dialogue at Court 2020. The name “mediation, dialogue at Court” could be misunderstood as a process in court proceedings, however, in fact, this is a non-litigate mediation procedure.

Therefore, the time of mediation or dialogue will be applied in accordance with the provisions of the Law on Mediation or Dialogue at Court 2020. The average time to resolve a case is about 1.5 months. If the case is agreed by the parties, it will last no more than 02 months. Furthermore, in the process of mediation or dialogue, if the parties cannot find a common voice, they have the right to request the termination of the mediation or dialogue at any time.

• The parties can actively choose the time and place of the mediation session. Unlike court proceedings conducted during office hours, the parties choosing mediation, dialogue can choose the appropriate time, place and method of mediation. This means that mediation can take place inside or outside the Court’s premises, outside office hours, and also by meeting in person or through other means proposed and agreed upon by the parties.

b. Cost-efficient

• The fee for mediation or dialogue shall be guaranteed by the State budget, except in cases such as: major business or commercial disputes; selection of mediation venues outside the court building; review the status of out-of-province property; foreign language translator… Such provisions are intended to encourage the parties to carry out reconciliation and dialogue.

• When the parties choose to settle the dispute in court proceedings, the minimum fee to be incurred is VND 300,000 or more, depending on the type of dispute and the value of the dispute. the higher the value, the higher the court fee will be. Besides, the parties still have to bear other related costs incurred as the law prescribed.

c. High consensus in dispute resolution

• In mediation, the parties involved completely voluntarily reach an agreement on how to resolve the dispute. When mediation is successful, the dispute resolution memorandum reflects the will of all parties, and they are satisfied with the outcome. In other words, in the mediation process, there are no winners or losers, but every party gets what it wants. Therefore, the tension will be reduced and relationships and cooperation between the parties will be preserved.

• Because of the content of the agreement when mediation or dialogue is highly agreed by the parties. Therefore, after mediation, the parties implement the content of mediation voluntarily and quickly.

d. Confidentiality of information of parties

The privacy and self-determination of the parties are central to the process of mediation and dialogue. Information in mediation is strictly confidential, ensuring trust and respect between the parties. All discussions and decisions take place in private, and cannot be recorded or videotaped without the consent of the parties. Minutes are only made to record the final result of the process, and the contents of the record must also be kept confidential. These principles help facilitate the parties to feel comfortable and free to participate, thereby making it easier for the Mediator to effectively guide the parties to the final agreement.

In conclusion, the application of mediation or dialogue in court brings many benefits to the parties and the judicial system. We hope that through this article, readers will have a comprehensive and accurate perspective. From there, you can choose the suitable methods for your case.

Above is the article “Benefits of mediation or dialogue methods at Court” that TNTP sent to readers. In case there is content to discuss, please contact TNTP for support.
Best regards.

Steps to draft a contract

Written by TNTP LAW on 1 May, 2024. Posted in Contract Law.

The drafter must not only fully represent the desires of the parties but also anticipate the practical execution of the contract. Then, the drafter will have grounds to review any potential risks to minimize these risks and maximize benefits for the client. In the previous article, we discussed the four steps drafters can apply: i) Find out the details to be drafted; ii) Identify the type of drafted contract; iii) Identify the object of the contract; iv) Analyze the legal regulations governing the contract. In this article, we will continue to outline the remaining steps to draft a contract that parties may refer to.

1. Identify primary interests

Each party entering a transaction or contract relationship aims for certain benefits. Depending on the parties’ positions within the contract relationship, their targeted benefits differ. From the initial step, in the information exchange process with the client, the drafter must compile the benefits the client aims for, and identify primary and secondary interests, and ways in which interests are met. The contract should protect the primary interests and, in some cases, may forgo one or some secondary interests to ensure a balance of interests in the negotiation and signing of the contract.

For example, in a sales contract, the buyer’s primary interest is that the goods must meet the quantity, type, and quality required by the buyer. To ensure this interest, the drafter should include the following in the contract: i) payment to be made after receiving the goods; ii) the exchange or return of goods if they do not meet the specified type or quality; iii) the delivery of additional goods if the quantity is not met; iv) warranty of the goods; v) penalties for the seller such as compensation for damages or fines if the goods do not meet the quantity, type, or quality.

2. Identify risks

During the drafting process, the drafter needs to identify potential risks that could arise during and after the execution of the contract and list possible risks to anticipate risk mitigation methods. Some risks include the contracting party not having sufficient authority; changes in the contract’s execution context, legal basis, and business environment; changes concerning the direct rights/obligations, related rights/obligations; one or more parties violating the contract, unilaterally terminating the contract; etc.

For each type of contract, risks often stem from different factors. For example, in a goods sales contract, risks might arise from goods being transported across regions/territories, changes in prices, goods preservation, maintenance, warranty, etc. In a joint venture or investment partnership contract, risks often arise from defining the scope of cooperation, the contributions of the parties, project stages, investment plans, cash flows, and structuring related transactions, the type of assets contributed, project outcomes, and sharing of profits and risks in the business, etc.

When anticipating risks, the drafter should specify content to reduce and prevent risks. For example, for risks related to the contracting entity, the drafter needs to thoroughly check the authority of the contracting parties. For risks associated with force majeure or fundamental change of circumstances, the drafter may draft these contents into the contract.

3. Draft the contract

After understanding the client’s requirements and determining the contract structure, the drafter begins to draft the detailed clauses of the contract. The drafter should group the clauses into i) main clauses – reflecting the main and specific content, ii) common clauses – content needed in most contracts, iii) other clauses – clauses typically included in some contracts to exclude certain misunderstandings that could lead to disputes.

4. Review the language and finalize the contract

After completing the contract drafting, the drafter should read through the contract at least twice. For the first read-through, the drafter needs to ensure the contract matches the client’s desires and legal regulations. For the second read-through, the drafter can check for formatting errors such as spelling, spacing, paragraph breaks, expression, etc. After finalizing the contract, the drafter sends it to the client and waits for their feedback. If the client requests adjustments, the drafter continues to revise and supplement the contract in accordance with the client’s requests and legal regulations.

This article, “Steps to draft a contract” aims to be useful to you.

Sincerely,

A practical guide to drafting a contract

Written by TNTP LAW on 30 April, 2024. Posted in Contract Law.

A contract is an agreement between parties to establish, modify, or terminate civil rights and obligations. Contracts include various forms, such as purchase and sale agreements, loan agreements, cooperation agreements, service contracts, and franchise agreements. The content of a contract can vary depending on the parties’ desires, the actual information, and the type of concluded contract. However, when drafting any contract type, the drafter should follow a certain process to anticipate potential risks and ensure that necessary content is not omitted. This article will outline the basic content of the contract drafting process for parties to consider applying.

1. Find out the details to be drafted

A good contract can be implemented in practice. Therefore, before drafting a contract, the drafter must discuss and gather information from the proposer, the person requesting the drafting, or the person directly negotiating, signing, and executing the contract, who understands the drafted content (collectively referred to as “the client”). The information exchanged includes i) information about the client and the other party in the contract; ii) the client’s role in the contract (seller or buyer; service provider or service user, etc.); iii) the client’s overall desires and purposes for the contract and specific requirements in each clause; iv) information about the object of the contract; v) the process of implementing the contract in practice. This information exchange will start when the drafter begins working and ends only when the client agrees with all the content in the contract.

2. Identify the type of drafted contract

After exchanging information and understanding the client’s needs, the drafter will determine the type of contract to be drafted and its characteristics. It is crucial to accurately identify the contract type as each has unique features and specific clauses. Once the type of contract is identified, the drafter can determine the basic contract framework, mandatory clauses, recommended clauses, key clauses, and the overall impact of these clauses on the contract and potential risks.

3. Identify the object of the contract

The object of the contract is what the parties aim to achieve through the contract. For example, in a sales contract, the object is the goods that the seller wishes to sell and the buyer wishes to purchase; in a service contract, the object is the services provided by the supplier to the user. If the object of the contract is not accurately and fully identified, the drafter cannot determine the rights and obligations of the parties involved. The drafter must specify the object of the contract to ensure the contract is executed in accordance with the agreement. The concerns of the parties in a sales contract, for instance, vary depending on the type of goods involved, leading to differences in the contract content. For example, in the case of food products, the buyer often cares about the origin and provenance of the goods; the hygiene and safety of the goods; the methods of preserving the goods; etc. For software products, the buyer typically concerns themselves with intellectual property elements, usage methods, information security, etc.

4. Analyze the legal regulations governing the contract

After determining the type of contract and its object, the drafter must review relevant legal regulations. Through analyzing these regulations, the drafter will recognize issues like the contract’s validity, the rights and obligations of the parties in the relationship, etc. Then, the drafter needs to compare the client’s requirements with legal regulations to determine if these requirements are legally compliant, thereby adjusting them to be in accordance with legal regulations. It is important to note that complying with legal regulations does not mean simply copying all the legal terms into the contract. The drafter must adjust the legal provisions to be in accordance with the actual signing situation of the parties.

We hope this article, “A practical guide to drafting a contract” will be useful to you.

Sincerely,

Case law no.33/2020/AL:Regarding a person allocated land by the state and got the land managed and used stably and permanently by another

Written by TNTP LAW on 26 April, 2024. Posted in Legal newsletter.

Land is one of the common objects of dispute today. Among them are disputes regarding a person allocated land by the State and got the land managed and used stably and permanently by another, which is still taking place in many localities. During the process of using land, the person who is “asked” to manage or “borrow” the land has improved the land, built stable housing, and registered to declare land use rights without the person to whom the land was allocated by the State knowing nothing or having no opinion. Usually, these disputes originate from the time when the State was still in the stage of completing the law and implementing the policy of allocating land to people for settlement and stable living in the 1970s. Therefore, Case law No. 33/2020/AL was issued as an explanation and to apply to similar disputes that occur. In this article, TNTP’s lawyers will comment and clarify the content of this Case law No. 33/2020/AL.

1. Summary of the case

(a) Mr. Le Ngoc U and Ms. Bui Thi T were from Hamlet D, Ward D1, District P, Hung Yen Province. Mr. Le Ngoc H who was Ms. Bui Thi P’s husband was the only son of Mr. U and Ms. T. In 1973, Mr. U went back to his hometown to apply to the People’s Committee of Ward D1, District P, Hung Yen Province for a land with an area of 1,079 m2.

(b) In 1976, Mr. H went back to his hometown to build a house with 3 compartments, 01 attic, and the subconstruction included a kitchen, well, bathroom, and toilet on that land plot so that Mr. U and Ms. T who had been retired would stay. Mr. U and Ms. T stayed there for a while, then they moved into the village.

(c) In 1977, Mr. Le Ngoc C1, a younger brother of Mr. U, borrowed that house and land plot so that his son, Mr. Le Ngoc T2 could stay.

(d) On January 22, 1994, Ms. T died and so did Mr. U on December 20, 1995. They both died without a will. According to Ms. P, before Ms. T died, she had handled documents showing the commune’s allocation of land to Mr. U in Village D in 1973. However, in 2008, due to a historic flood in Lang Son, Ms. P’s house flooded, and all her personal documents were damaged.

(e) In 2008, Mr. Le Ngoc T2 met Mr. H and requested him to write a power of attorney so that Mr. T2 could receive compensation for the State’s land acquisition to construct Road 38B. In June 2009, Mr. H died without a testament but told Ms. P to return to her hometown to reclaim the house and land that had been borrowed by Mr. T2.

(f) Ms. P and her children are Mr. Le Ngoc T1 and Ms. Le Thi Thanh X requested Mr. T2’s family to return the whole house and land plot and the compensation of VND 398.638.000 for the State’s land acquisition in 2008.

(h) In the Civil First-instance Judgment No. 01/2015/DS-ST dated March 31st, 2015, the People’s Court of Phu Cu District decided:

• Mr. Le Ngoc T2 and Ms. V were assigned to manage and use according to actual measurement data on August 8, 2014, which is 990m2. The residential land was 816m2; the pond land was 174m2 (with attached diagram). Mr. Le Ngoc T2 and Ms. Doan Thi V were obliged to register the assigned land use right at the competent authority, under the land laws
• The houses, constructions, trees and crops on land plots were in possession of Mr. T2 and Ms. V.
• Forcing Mr. Le Ngoc T2 and Ms. Doan Thi V to pay Ms. Le Thi Thanh X and Mr. Le Ngoc T1 the value of the inheritance that Ms. X and Mr. T1 inherited from Mr. Le Ngoc U and Ms. Bui Thi T, which was VND 191,864,200 (One hundred ninety-one million and eight hundred sixty for thousand and two hundred dongs)

(i) On April 15th, 2015, the defendant Le Ngoc T2 appealed a part of the Judgment.

(j) At the Civil Appellate Judgment No. 25/2017/DS-PT dated September 28th, 2017 of the People’s Court of Hung Yen, it was decided that: Amending the First-instance Judgment No. 01/2015/DS-ST dated March 31, 2015 of the People’s Court of Phu Cu District, Hung Yen province as follows:

• Assigning to Mr. Le Ngoc T2 and Ms. Doan Thi V a land area of 621.2 plot No. 117, map sheet No. 15 of map 299 established in 1981 at Village D, Commune Đ1, District P under the name of Mr. Le Ngoc U.
• Assigning to Ms. Le Thi Thanh X, Mr. Le Ngoc T1, and Ms. Bui Thi P (another name: Bui Thi Huong P) an area of 369m2 (including 174.2m2 of pond land) at land plot No. 117, map sheet No. 15, map 299 esstablished in 1981 at Village D, Commune Đ1, District P under the name of Mr. Le Ngoc U and the property on the ground was a building with four-level house with corrugated iron roof, a breeding shed, and surrounding walls to the West of the allocated land. Ms. Bui Thi P managed the assets of Ms. Le Thi Thanh X and Mr. Le Ngoc T1 (the allocation of the land, assets, and dimensions has a specific diagram attached).
• Ms. Bui Thi P (other name: Bui Thi Huong P) must repay Mr. Le Ngoc T2 and Ms. Doan Thi V the value of the construction on the land plot, which was VND 47,068,000 (Forty-seven million and sixty-eight thousand dongs).
• Forcing Mr. Le Ngoc T2 and Ms. Doan Thi V to repay Ms. Bui Thi P, Ms. Le Thi Thanh X, and Mr. Le Ngoc T1 the value of the inheritance that Ms. P, Ms. X, and Mr. T1 inherited from Mr. Le Ngoc U and Ms. Bui Thi T, which was VND 199,319,000 (One hundred ninety-nine million, three hundred and nineteen thousand dongs).

(k) On October 25th, 2017, Mr. Le Ngoc T2 submitted the written request to review the civil appellate judgment under the cassation procedure.

2. Assessment of the Court

• Based on the testimony of the parties, the parties recognized that the land area of plot number 31, map number 269 in Village D, Commune D1, District P, Hung Yen Province was originally gifted to Mr. Le Ngoc U by the People’s Committee of commune D1 in 1973. This land plot is currently managed and used by Mr. Le Ngoc T2 and Mr. T2 has not obtained the certificate of land-use rights.

• Mr. U and his wife lived for a short time, then moved to Lang Son to live with Ms.P and her husband. That house was lent by Mr. C1’s family so that Mr. T2 could live in it. Meanwhile, Mr. T2 and Ms. S (Mr. C1’s wife) did not admit to borrowing Mr. U’s house and land. They affirmed that because Mr. C1’s family was not eligible for land allocation for residing, Mr. U, on behalf of Mr. C1’s family, applied for the land allocation. Mr. C1 was the person who directly received the land and let Mr. T2 and his wife live on that land and presented Mr. T2’s confirmation of having received the land and building construction on the land to prove it. Based on the witnesses’ confirmation, it was shown in the appraisal record of Mr. T2’s house bricks and bricks brought by Ms. P from Lang Son that there was a basis to determine that houses and properties on land were founded by Mr. T2’s family.

• Regarding the disputed land, it was found that Ms. P and Mr. T2 could not provide papers proving their lawful land use right. However, based on the testimony of the involved parties and the verification minutes at the People’s Committee of Commune Đ1, Mr. Ta Quang H (as a cadastral official of Cooperative D1 in 1960-1978) had the basis to determine that in 1973, Mr. Le Ngoc U was granted land by the People’s Committee of Commune Đ1. It was shown in the verification minute with the cadastral official of Commune Đ1 that Mr. U was the owner of the disputed land plot on the plot map in 1981 and the declaration record in 1982; Mr. Le Ngoc T2 was the owner of the disputed land plot on the commune cadastral map in 1998 and the declaration record in 1998. The fact was that Mr. U and Mr. H’s family did not live on this land plot and has been managed and used by Mr. T2’s family since 1975 and Mr. T2’s family has paid housing and land tax. Mr. Ta Quang H, who delivered the land to Mr. U, also confirmed that the plot of land was not used by Mr. U but by Mr. T2. Then, Mr. U asked for another land because the old plot of land was used by Mr. T2 and the cooperative granted him a second plot of land.

• Content of case law: Although Mr. U was granted the land, Mr. U did not use it but allowed Mr. T2 to use it from 1975 until now. In the process of using the land, Mr. C1 and Mr. T2’s family had to hire people to fill the ground and build and repair houses many times. Mr. U and Mr. H both know this but there was no dispute. The People’s Committee of Commune Đ1 and the witnesses living in this locality determined that Mr. U and Mr. H did not live on the land and did not build a house. After Mr. U and his wife died, Mr. H established a written commitment to confirm that Mr. U had not lived on that land, the land-use rights would be assigned to Mr. T2 and the family had no opinion. Thus, Mr. U was the person granted the land but he did not use it and allowed Mr. T2 to use it since 1974 until now.

In the process of using the land, Mr. T2 built a house and declared and paid the house and land-use tax. Thus, according to the law provisions on land, Mr. T2 was considered to be granted a certificate of land-use rights. The fact that Mr. U did not use the land but his name was on the map No. 299 and the declaration record in 1982 was incorrect and was not a basis to determine that Mr. U was the legal owner of this land. The fact that the First-instance Court and the Appellate Court, based on the allocation of land to Mr. U, determined that the disputed land was owned by Mr. U and his wife accepted the petition of the plaintiffs and deducted for Mr. T2’s effort was unreasonable.

3. Comment on Case law

• The Court decides the merit based on the following details:

(i) After being allowed to “borrow” the land, the Defendant, Mr. T2, directly used the land and many times he hired people to level the land, and build and repair houses on the land. Mr. H’s family knows this entire process but has no opinion about the Defendant’s actions;
(ii) Mr. T2 proactively registered, declared and fulfilled the obligation to pay land tax to the State;
(iii) Mr. H wrote a commitment paper stating that he would deliver the land use rights to Mr. T2, Mr. H’s family had no opinion about that land plot.

Thus, the Court has based on the actual will of each party without relying on or depending on the origin of the land assigned to any object by the State or the plot map or inventory showing the land owner at that time. Case law has shown that these documents are only a form to help provide and authenticate information when necessary and are a tool to help the State manage land. Therefore, these documents are not an accurate basis for settlement as they contradict and deviate from the actual land use.

• At the same time, the Court based on Article 236 of the Civil Code 2015 on the Establishment of ownership rights resulting from prescriptive periods with respect to possession or deriving benefits from property unlawfully, accordingly, the Defendant meets all 04 conditions:

(i) Bona fide;
(ii) Continuous;
(iii) Publicity; and
(iv) Within 30 years for real estate.

Therefore, although Mr. T2 had no legal basis for being allocated land or having land use rights, Mr. T2 “bona fide” possessed and used the land plot. Mr. T2 built a house and lived stably (“continuously”) from the time he “borrowed” the land in 1974 until a dispute arose (“30-year period”), with the local government and many people working admit that Mr. T2’s family lives on the plot of land (“public”). The judgment of the Precedent has enough legal grounds to confirm Mr. T2’s status as a bona fide possessor and that Mr. T2 is in this case being considered for issuance of a Land Use Rights Certificate.

Thus, it can be seen that Case law No. 33/2020/AL has helped improve land law and protect the legitimate rights of bona fide land users when there is no legal basis for land-use rights. Thereby, we can see that Case law has protected and prioritized the actual will of the parties to resolve disputes originating from the time the State allocated land in the 1970s.

Above is the article “Case law No. 33/2020/AL regarding a person allocated land by the state and got the land managed and used stably and permanently by another” by TNTP. We hope the article will be helpful to readers.

Sincerely,

The legal basis for determining the Court’s jurisdiction to resolve business and commercial disputes

Written by TNTP LAW on 24 April, 2024. Posted in Dispute Settlement.

In commercial activities, the occurrence of conflicts and disputes is inevitable. One of the methods to resolve disputes is through litigation. Therefore, it is crucial to determine the Court’s jurisdiction to resolve disputes. Here are some important grounds for determining the Court’s jurisdiction to resolve commercial business disputes.

1. Determination of the Court’s Dispute Resolution Jurisdiction

• Jurisdiction is associated with the rights and duties prescribed by law for state agencies, leaders and managerial positions in those agencies to perform their functions and tasks. The jurisdiction of the Court is the power to consider the settlement of cases and the power to make decisions when considering the settlement of such cases according to the proceedings of the Court.

• Pursuant to Clause 1, Article 30 of the Civil Procedure Code 2015, business and commercial disputes fall under the jurisdiction of the Court.

• If the parties agree to settle the dispute at the Court if the contract, as well as the parties do not agree on the dispute settlement body, the dispute shall be settled at the competent Court. At that time, the jurisdiction of the Court to settle disputes is determined as follows:

– Determination of the Court’s jurisdiction according to the case: The jurisdiction of the Court is determined based on the specific case. Business and commercial disputes that fall under the jurisdiction of the Court are listed in Article 30 of the Civil Procedure Code 2015.

– Determination of the Court’s jurisdiction by trial level: The jurisdiction of the Court is also determined by trial level. Depending on the type of dispute and the place of registration of residence or headquarters of the parties concerned, the district or provincial People’s Court has jurisdiction to settle commercial disputes.

– Determination of the jurisdiction of the Court according to territory: The jurisdiction of the Court may be determined based on where the defendant resides, works, or the defendant’s headquarters. In the event that the respondent entity has more than one place of operation, then the court where the respondent resides, works or the final headquarters address shall have jurisdiction.

– Determination of the Court’s jurisdiction at the choice of the Plaintiff: The Plaintiff has the right to choose the Court to resolve a dispute based on certain specific conditions.

2. Determination of the jurisdiction of the Court in the event of an Arbitration agreement

When requesting the Court to settle a dispute over commercial business, the Court will determine whether the parties have an arbitration agreement or not. The court must examine and review the documents attached to the petition to determine that the dispute does not fall under the category of an arbitration agreement.

Normally, when the parties have an Arbitration agreement, the Arbitrator will be the settlement body in case a dispute arises. However, a dispute with an arbitration agreement but falling into one of the following cases shall fall under the jurisdiction of the Court, unless otherwise agreed by the parties or otherwise provided for by law:

• There is a decision of the Court to annul the arbitral award, annul the decision of the arbitral tribunal on recognizing the agreement of the parties.

• There is a decision on suspension of dispute settlement by the arbitral tribunal or arbitration center specified in Clause 1, Article 43, Points a, b, d and đ, Clause 1, Article 59 of the Law on Commercial Arbitration.

• The parties concerned have an agreement to resolve their disputes at a specific arbitration center which has now shut down without any arbitration center that inherits its cases, and the parties fail to reach an agreement on another arbitration center to resolve their disputes.

• Both parties have an agreement on the appointment of a specific arbitrator to resolve disputes, but when the dispute arises, due to force majeure events or objective difficulties, such arbitrator cannot resolve the case, or the arbitration center or court cannot find a substitute arbitrator as agreed by the parties concerned, and the parties concerned also fail to reach an agreement to select a substitute arbitrator.

• Both parties have an agreement on the appointment of a specific arbitrator to resolve disputes, but when the dispute arises, such arbitrator refuses the appointment or the arbitration center refuses the appointment of the arbitrator, and the parties also fail to reach an agreement to select a substitute arbitrator

• The parties have an agreement to resolve their disputes at a specific arbitration center but choose the arbitration rules of another arbitration center, which is different from the agreed arbitration center, and the charter of the arbitration selected by both parties does not allow the application of arbitration rules of other arbitration centers, and the parties fail to reach an agreement on substitute set of arbitration rules.

• The goods seller/service provider and consumers have a general term on the provision of goods/services that contain arbitration terms drafted by the seller as prescribed in Article 17 of Law on Commercial Arbitration, but the consumers refuse to have the dispute that arises resolved by an arbitral tribunal.

However, determining whether the arbitration agreement is null and void or the arbitration agreement is unenforceable is the jurisdiction of the arbitrator. In particular, before deciding the case on merit, the arbitral tribunal must consider the validity of the arbitration agreement; whether the arbitration agreement is enforceable and consider its jurisdiction. If the case falls within its jurisdiction to settle, the arbitral tribunal shall settle the dispute in accordance with the provisions of the law. In case it does not fall within its jurisdiction, the arbitration agreement is invalid, or the arbitration agreement cannot be enforced, the arbitral tribunal shall decide to suspend the settlement and notify the parties.

Above are the contents and legal sharing of TNTP on the legal basis for determining the Court’s jurisdiction to resolve business and commercial disputes. We hope this article will be useful for our readers.

Sincerely.

Important considerations when conducting arbitral proceeding

Written by TNTP LAW on 22 April, 2024. Posted in Dispute Settlement.

The utilization of arbitration for dispute resolution is progressively becoming the preferred choice for numerous businesses, owing to its manifold benefits, particularly when administered through arbitration centers. The arbitral proceedings process at these centers entails notable disparities compared to litigation within conventional court systems. Within this article, we shall examine the pivotal factors businesses should consider when engaging in arbitration proceedings at arbitration centers.

1. Request for arbitration

In the event of an agreed arbitration agreement specifying the arbitration center to resolve the dispute, the claimant shall submit the request for arbitration and related documents to that arbitration center. If the parties do not specifically agree on the arbitration center with jurisdiction to resolve the dispute, they need to agree on which arbitration center the dispute is resolved. If an agreement cannot be reached, the selection of the arbitral institution to settle the dispute shall be made at the claimant’s request.

The request for arbitration includes contents as follows:

• Date of request for arbitration.

• Information about the parties involved in the dispute (plaintiff, defendant, rights holders, relevant obligations). For businesses, the necessary information includes the address, legal representative, or authorized representative (in which case information about the Power of Attorney or Authorization Contract must be provided), tax identification number, phone number, email, etc.

• Summary of the disputed content.

• Grounds for the claims (Clearly indicate the content of arbitration agreements).

• The plaintiff’s request and monetary value of the dispute.

• Other issues such as the name, and contact address of the arbitrator chosen by the plaintiff or the request for the arbitration center to appoint an arbitrator; contact information of the plaintiff;…

In addition to the request for arbitration, the plaintiff needs to prepare the following documents: Arbitration agreement; the original or certified copies of documents related to the dispute such as contracts, agreements,… These are important documents for the Arbitration Center to consider the plaintiff’s lawsuit request.

2. Statute of limitations for initiating a lawsuit for dispute settlement by arbitration

Similar to the litigation process in court, parties need to be aware of the statute of limitations for filing a lawsuit. According to Article 33 of the 2010 Commercial Arbitration Law, unless otherwise provided by specialized laws, the statute of limitations for filing a lawsuit under arbitration procedures is 02 years, starting from the time when the legitimate rights and interests were infringed.

Businesses should pay attention to the statute of limitations to ensure their rights, as in the event a business submits the request for arbitration outside the legally specified deadline, the Arbitration Center may refuse to process the lawsuit petition.

3. Costs of arbitration

An equally important consideration when proceeding with arbitration litigation is the arbitration fee. After receiving the plaintiff’s request for arbitration files, the Arbitration Center will issue a Notice on the payment of arbitration fees and send it to the plaintiff. The amount of the arbitration fee and the deadline for its payment will be determined by the Arbitration Center. If the plaintiff does not pay the full arbitration fee within the deadline set by the Center, it will be considered as a withdrawal of the request for arbitration.

Moreover, arbitration fees are usually significantly higher than court fees. Therefore, businesses must consider the arbitration fees before deciding to file a lawsuit. They may request the Arbitration Center chosen by the parties to provide an estimated arbitration fee for consideration and review.

4. Constitution of an Arbitral Tribunal

Unlike the litigation process in court, where the appointment of a judge to resolve a case is the responsibility of the president of the court, in arbitration proceedings, both the plaintiff and the defendant have the right to choose an arbitrator to resolve the dispute according to their wishes or request the arbitration center to appoint an arbitrator. If the defendant does not choose an arbitrator or does not request the arbitration center to appoint one, then within the specified deadline, the arbitration center will appoint an arbitrator for the defendant.

Additionally, the parties can agree on the number of arbitrators (ensuring an odd number). In cases where the parties do not agree on the number of arbitrators, the Arbitral Tribunal will consist of three arbitrators.

5. Validity of an arbitral award and enforcement of arbitral awards

According to Clause 10, Article 3 of the 2010 Commercial Arbitration Law, an arbitration award is a decision made by the Arbitral Tribunal that resolves the entire content of the dispute and concludes the arbitration proceedings. Furthermore, the arbitration award is final and takes effect from the date of issuance, meaning that disputes resolved by the arbitration center cannot be reconsidered by the courts, except in cases where the arbitration award is annulled according to legal provisions.

No later than thirty (30) days from the date of the final session, the arbitration center will issue the arbitration award and send it to the parties immediately after the date of issuance. The arbitration award is final and effective from the date of issuance. If the deadline for enforcing the arbitration award passes and the party obligated to enforce the award does not voluntarily comply and also does not request the annulment of the arbitration award, the party entitled to enforcement of the arbitration award has the right to submit a request to the competent civil enforcement authority to enforce the arbitration award.

The above is an article by TNTP on the topic “Important considerations when conducting arbitral proceeding”. We hope that the article brings value to readers in the process of dispute resolution.

Best regards,

Author: TNTP LAW

The role of Lawyers in resolving business and commercial disputes

1. Propose appropriate dispute resolution plans

2. Applying the appropriate legal provisions

3. Ensure the rights, limit the risk of the Client

4. Supporting swift and effective dispute resolution.

Benefits of mediation or dialogue at Court

1. Understanding mediation or dialogue in Court

2. The benefits of mediation, dialogue in Court

a. Minimize time and effort

b. Cost-efficient

c. High consensus in dispute resolution

d. Confidentiality of information of parties

Steps to draft a contract

1. Identify primary interests

2. Identify risks

3. Draft the contract

4. Review the language and finalize the contract

A practical guide to drafting a contract

1. Find out the details to be drafted

2. Identify the type of drafted contract

3. Identify the object of the contract

4. Analyze the legal regulations governing the contract

The legal basis for determining the Court’s jurisdiction to resolve business and commercial disputes

1. Determination of the Court’s Dispute Resolution Jurisdiction

2. Determination of the jurisdiction of the Court in the event of an Arbitration agreement

Important considerations when conducting arbitral proceeding

1. Request for arbitration

2. Statute of limitations for initiating a lawsuit for dispute settlement by arbitration

3. Costs of arbitration

4. Constitution of an Arbitral Tribunal

5. Validity of an arbitral award and enforcement of arbitral awards

TNTP & ASSOCIATES INTERNATIONAL LAW FIRM

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