In judicial practice, there are still different views on the right to re-initiate a case when the Court has issued a decision to suspend the resolution of a civil case. Case law no. 50/2021/AL is an example of the Court determining whether the involved parties have the right to re-initiate the case. This is a case where a legally effective judgment or decision of the Court resolves the division of property, but this judgment or decision has not been enforced because the judgment creditor has not requested enforcement of judgment and has not received real property. When the statute of limitation for requesting enforcement of judgment expires, the person to whom the Court delivered the new property has a dispute to reclaim the delivered property according to the judgment or decision that has been issued. Hereinafter, TNTP will analyze the Court’s judgment more clearly in this case.
1. Contents of the case:
a) In the petition dated January 4, 2005, the plaintiff Mr. Nguyen Van N presented: He and Ms. Nguyen Thi T got married in 1963 and they have a house located on a plot of land in village B, Commune X (house no. 04 H street, area A, ward C, Hue city) with the area of 1,490m2. In 1968, Mr. N departed to the North. In 1975, Mr. N returned home, and Ms. T had another husband, so they divorced.
b) In Civil Court of Appeal No. 43/DSPT dated May 13, 1977, the People’s Court of Binh Tri Thien province granted Mr. N and Ms. T a divorce. Regarding the separation of property, Mr. N has the right to use a part of the land within the above land plot, which contains the grave of Mr. N’s father, with a boundary drawing drawn up by the Court attached to the judgment. After the appeal judgment took effect, Mr. N fulfilled his child support obligation, and the authorities divided the land according to the Court’s drawings.
c) In 2001, Mr. N returned to his hometown to build an ancestral house but Ms. T obstructed, so he sued to request that Ms. T return the property, which is land use rights according to the judgment, and restore the current state of the boundary as divided by the judgment.
d) The defendant, Ms. Nguyen Thi T, admitted to being married to Mr. N, then divorced according to Judgment No. 43 dated May 13, 1977. In 1968, Mr. N went to the North. In 1969, there was Mr. N’s death notice, so Ms. T married another husband. From the date of the judgment, the judgment creditor, Mr. N, did not file a request application for enforcement of the judgment, so Ms. T did not accept returning the land to Mr. N because she believed that the land was left to her by Ms. T’s father.
e) In First Instance Civil Judgment No. 08/2006/DSST dated June 21, 2006, the People’s Court of Hue City, Thua Thien Hue province decided:
Accept Mr. Nguyen Van N’s request to force Ms. Nguyen Thi T to return the land use rights of an area of 452.85m2 (with sides 37.5; 38.55; 36.14) which is the property established under Judgment No. 43/DSPT dated May 13, 1977, on which there is the grave of Mr. N’s father in plot number 42, cadastral map sheet number 28, with an area of 1,997.06m2 at house number 04, H street, area A, ward C, Hue city (location of Mr. N’s plot of land is attached in the drawing).
f) After the first instance trial, Ms. T appealed.
g) The Appellate Judgement No. 55/2006/DSPT dated December 11, 2006 of the People’s Court of Thua Thien Hue province decided:
Vacate the First Instance Civil Judgment No. 08/2006/DSST dated June 21, 2006 of the People’s Court of Hue City, Thua Thien Hue Province on the dispute over property rights and land use rights between the plaintiff, Mr. Nguyen Van N and the defendant, Ms. Nguyen Thi T. Suspended the resolution of the case. Return the petition to Mr. Nguyen Van N.
h) After the appeal trial, Mr. N complained.
i) In Appeal Decision No. 708/2009/KN-DS dated December 10, 2009, the Chief Justice of the Supreme People’s Court protested against Civil Appeal Judgment No. 55/2006/DSPT dated December 11/ 2006 of the People’s Court of Thua Thien Hue province, commented:
• Mr. N’s land use rights were determined in Appeal Judgment No. 43/DSPT dated May 13, 1977. Mr. N has the right to sue for the property in a new civil case. The Court of Appeal determined that Mr. N did not have the right to sue and returned the lawsuit to Mr. N, which was unreasonable.
• Requesting the Civil Court of the Supreme People’s Court to conduct a cassation trial to vacate the above-mentioned civil appeal judgment and vacate the First Instance Civil Judgment No. 08/2006/DSST dated June 21, 2006 of the People’s Court of Hue city, Thua Thien Hue province; delivering the case file to the People’s Court of Hue city, Thua Thien Hue province for re-trial under the provisions of law.
j) At the cassation trial, the representative of the Supreme People’s Procuracy agreed with the appeal of the Chief Justice of the Supreme People’s Court.
2. Comments of the Court:
• Based on the documents in the case file, there is a basis for concluding that Mr. Nguyen Van N and Ms. Nguyen Thi T got married in 1963. Mr. N and Ms. T have a house located on the plot of land in Village B, Commune X (now house number 04, Street H, Area A, Ward C, Hue City) area of 1,490m2. In 1968, Mr. N departed to the North. When Mr. N returned home in 1975, Ms. T had another husband, so they consented to a divorce.
• In Appellate Judgement No. 43 dated May 13, 1977, the People’s Court of Binh Tri Thien province granted Mr. N and Ms. T a divorce and decided on the responsibilities of raising children and dividing property. According to the decision in the judgment, Mr. N was entitled to a part of the land within the above land plot (with a boundary division diagram drawn up by the Court attached to the judgment). Due to working conditions far from home, Mr. N left the land in its original state. In 2001, Mr. N returned to his hometown to build an ancestral house, but Ms. T obstructed, neither side did not agree on the land boundary and Ms. T did not agree to return the land to Mr. N. Therefore, Mr. N sued to request Ms. T to return the land according to the legally effective Court of Appeal.
• Up to now, Ms. T is still the manager and user of the land that the People’s Court of Binh Tri Thien province assigned to Mr. N. According to Ms. T, Mr. N had not filed a request for execution of the judgment and the Appellate Judgment mentioned above had not been enforced. The statute of limitation for the enforcement of the judgment had expired according to the provisions of the law.
• Key point of Case law: According to the law, Mr. N’s land use rights to the disputed land were determined in Appellate Judgment No. 43 dated May 13, 1977 of the People’s Court of Binh Tri Thien Province. The Court must not resolve the relationship between who is the legal landowner, but suing to reclaim property is a different legal relationship. If the statute of limitation for the enforcement of the judgment is still available, Mr. N has the right to request the judgment enforcement agency to force the land delivery according to Judgment No. 43 dated May 13, 1977 of the People’s Court of Binh Tri Thien province. However, now that the statute of limitation for requesting the enforcement of the judgment has expired, Mr. N has the right to sue to reclaim his property through a new civil case. In this case, if there is no basis to determine that Mr. N has given up his property rights, Mr. N’s request for a lawsuit must be accepted.
• The Court of Appeal determined that Mr. N did not have the right to sue and returned the lawsuit to Mr. N is unfounded. On the other hand, the Courts at all levels have not yet verified and reviewed land management and use, tax declaration and payment; Opinion of the competent State agency on whether or not to recognize the legal use rights for this land.
• The Court of First Instance accepted Mr. N’s request to force Ms. Mr. N’s father, but not taking the effort to preserve and repair the land for Ms. T as well as the amount of land tax Ms. T paid into account is not appropriate. The Court of Appeal vacated the first instance judgment of the People’s Court of Hue City to suspend the resolution of the case; returned the petition to Mr. N is not consistent with the law.
• Therefore, the appeal of the Chief Justice of the Supreme People’s Court has the ground for acceptance.
3. Comments on Case law:
• Regarding the prescriptive periods for requesting execution of the civil judgment:
– In Clause 1, Article 30 of the Law on Enforcement of Civil Judgments 2008 (“Law on ECJ”) stipulates: “Within 5 years after a judgment or ruling takes legal effect, the judgment creditor and judgment debtor may request a competent civil judgment enforcement agency to issue a judgment enforcement decision.”
– Thus, the statute of limitation for the enforcement of the judgment is 05 years. After this time, if the judgment creditor does not request the competent civil judgment enforcement agencies to issue a decision to execute the judgment, the judgment will be considered invalid, unless the judgment creditor can prove that he or she has a reason for not being able to request to execute the judgment on time (Clause 3, Article 30 of the Law on ECJ 2008).
In this case, Civil Court of Appeal No. 43/DSPT was issued on May 13, 1977, but until 2001, Mr. N returned to his hometown to build the ancestral house. According to the regulation, the final time that Mr. N has the right to request execution of a civil judgment is in 1982, which means the statute of limitation for the enforcement of the Civil Appellate Judgment No. 43/DSPT has expired.
• Regarding the right to sue to reclaim property through a new civil case:
– According to the Civil Appellate Judgement No. 43/DSPT dated May 13, 1977, the Court decided that Mr. N had the right to use a part of the land within the plot of land containing Mr. N’s father’s grave, which means this Judgement only records the separate of the land plot for Mr. N upon divorce. This is completely different from Mr. N suing to claim Ms. T when Mr. N was prevented by Ms. T from building an ancestral house, which means that suing to reclaim property – is a completely new lawsuit and is not related to the request to initiate a lawsuit to resolve a civil dispute (divorce).
– Article 256 of the Civil Code 2005 reads: “Lawful owners and/or possessors shall have the right to request the persons possessing, using or receiving benefits from the property under their lawful ownership or possession rights without a legal basis to return such property…”
– The request to sue for the return of property is a request that Mr. N has not submitted to the Court in previous cases. Therefore, it is unreasonable for the Appellate Court to vacate the first instance judgment and suspend the case resolution. At the same time, we also found that Mr. N returned to his hometown to build an ancestral house, which is a basis to consider and determine that Mr. N did not waive his property rights. Therefore, there is a well-founded basis to accept Mr. N’s request to sue for the return of property.
Above is TNTP’s article on “Case law No. 50/2021/AL regarding the right to initiate a lawsuit to reclaim the property of the person to whom the property is delivered according to a legally effective judgment or decision“. We hope this article will be helpful to our readers.
Sincerely,
