On February 15, 2023, the Supreme People's Procuracy ("SPP") issued Documentary 443/VKSTC-V9 ("Documentary 443") clarifying problems in prosecuting the settlement of civil, marriage, and family cases. The guidelines of the Supreme People's Procuracy have set out several directions for applying regulations in practice.
ATA Legal Service would like to introduce notable guidelines on civil disputes, family and marriages cases related to land in Documentary 443 as follows:
1. The land use right is not considered to be granted to another person if the land is encroached by such person under the awareness of the legitimate land user without objection.
The problem: A’s plot of land and B’s plot of land is adjacent to each other, B’s plot of land has been granted a Land Use Right Certificate ("LURC"). When A built a fence that encroached on part of B's plot of land, B knew but had no objection. Both parties then used the fence without any dispute. In case B transfers the entire plot of land to C, whether C has the right to reclaim the land encroached upon by A?
The answer of the SPP: the part of land encroached by A belongs to B, described in B's LURC. The fact that B had no objection when A encroached on part of his land and built a fence does not mean that A is granted the right to use such part of the land. In case B sells the entire plot of land, including the encroached area, and the LURC records C as the legitimate land user, C is entitled to decide whether let A continue using that part of the land or reclaim the encroached area. If C chooses the latter, A must return to C such part of the land.
2. Whether the failure of one party to fulfill the obligations in the deposit contract leads to the termination of the entire contract?
The problem: A and B entered into a deposit contract. After A assigned the deposit amount to B, B committed to complete the dossier to transfer land use rights to A but then left it undone. In this case, whether the Court terminates the contract and imposes a penalty on B or keeps the validity of the contract and only imposes a penalty on B?
The answer of the SPP: B's violation is considered a "serious breach of contractual obligations" since it leads to the inability to enter into a contract for the transfer of land use rights (indeed, B cannot obtain LURC). Accordingly, the Court can terminate the deposit contract, and B must reimburse the deposit amount as well as pay a penalty pursuant to Articles 423 and 427 of the Civil Code.
3. Shall the land, which the parents left for the children to use, be considered a gift from parents if the parents have died at the time of declaration and issuance of the LURC?
The problem: The parents left their land for their children to use. When the children built a house on that land, the parents and other family members have no objections. Before the time the children declared and obtained the LURC, the father or the mother had died. According to Case Law No. 03/2016, whether the land has been given to the children by the parents?
The answer of the SPP: according to Case Law No. 03/2016, only when both father and mother are alive at the time the children are granted the LURC, the children can be considered to be given land use rights. Therefore, in case the parent has died at the time of declaration and issuance of the LURC, there is no basis to determine that the land use right was given to the children by their parents.
However, depending on the evidence of each case, it is possible to recognize the land use right for the children to the part of the land on which the children have built the house, or the part of the land that belongs to the mother or the father alive at the time of declaration and issuance of LURC, being aware of the land use without objection.
Comment: