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Defendant's Authorized Representative - Ms. Truong Thi Th Presents:

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237,087,630 VND from the value of Ms. N's assets, which are the house and land located at 16/5 O,

Ward M, City X.

[2.4] Regarding first instance civil court fees:

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Ms. B filed a petition for exemption from the first instance court fees due to her economic difficulties, but the Court of First Instance did not consider it as having any shortcomings. Therefore, the Trial Panel considered Ms. B's petition, based on Point d, Clause 1, Article 12, Clause 6, Article 15, Clause 1, Article 48 of Resolution 326/2016/UBTVQH14, because Ms. B is an elderly person according to the provisions of Article 2 of the Law on the Elderly, exempting Ms. B from all first instance civil court fees.

[2.5] From the above analysis, the Trial Panel, based on Clause 2, Article 308 of the 2015 Civil Procedure Code, partially accepts the appeal of Ms. B and Mr. I; does not accept the appeal of Mr. A; partially amends the first-instance civil judgment No. 04/2018/DS-ST dated January 10, 2018 of the People's Court of City X as requested by the representative of the Procuracy.

Defendant's Authorized Representative - Ms. Truong Thi Th Presents:

In order to ensure the enforcement of the judgment, the Trial Panel decided to continue to maintain the decision to apply temporary emergency measures No. 07/2015/QD-BPKCTT dated June 15, 2015 of the People's Court of City X.

Regarding the verdict: The Court of First Instance declared the Agreement and the Minutes of Witnessing the Agreement of the Parties dated June 30, 2016 invalid, as there was an error in the year, which should be adjusted to June 30, 2000. The Court of First Instance is requested to learn from experience.

[3] Regarding appeal court fees: Due to the amendment of the first instance judgment, based on Clause 2, Article 148 of the 2015 Civil Procedure Code, Clause 2, Article 29 of Resolution 326/2016/UBTVQH14, Mr. A, Ms. B, and Mr. I do not have to pay civil appeal court fees.

For the above reasons;

DECISION:


Pursuant to Clause 2, Article 308, Clause 2, Article 148, Article 296 of the 2015 Civil Procedure Code; Article 2 of the 2009 Law on the Elderly; Point d, Clause 1, Article 12, Clause 6, Article 15, Clause 1, Article 48, Clause 2, Article 29 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly regulating the collection, exemption, reduction, collection, payment, management and use of court fees and charges,

Partially accept the appeal of Mrs. B and Mr. I; do not accept the appeal.

Mr. A's report

Partially amending the Civil Judgment at First Instance No. 04/2018/DS-ST dated January 10

2018 of the People's Court of City X

Verdict:

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Invalidate the Real Estate Sale Contract according to the Agreement and Minutes of witnessing the agreement of the parties, dated June 30, 2000 between Mr. A and Ms. B, Ms. C (L) and Mr. D.

Ms. B is obliged to pay Mr. A 237,087,630 VND (Two hundred thirty-seven million eighty-seven thousand six hundred thirty VND) from the value of Ms. N's property, which is the house and land located at 16/5 O, Ward M, City X according to Certificate No. 1992/CN.SXD, dated September 6, 1993 of the An Giang Department of Construction.

Recognizing the voluntary representation of Mr. L under the authorization of Mrs. B to pay

give Mr. A 10,000,000 VND (Ten million VND).

Continue to maintain Decision on applying temporary emergency measures No. 07/2015/QD-BPKCTT, dated June 15, 2015 of the People's Court of City X.

Annul the Decision on compulsory implementation of security measures No. 07/2015/QD-BPBĐ, dated June 12, 2015 of the People's Court of City X.

Mr. A received back 447,000,000 VND (Four hundred and forty seven million VND) deposited at the Vietnam Bank for Agriculture and Rural Development, An Giang Branch, according to Transaction Document No. 6701601202337 dated June 12, 2015.

- Regarding the cost of measurement, on-site assessment and valuation: Mr. A voluntarily pays.

1,800,000 VND (One million eight hundred thousand VND) for on-site measurement and appraisal costs, deducted from 1,800,000 VND (One million eight hundred thousand VND) for advance payment of costs already paid. Mr. A has already paid.

- Regarding first instance civil court fees:

Ms. B is exempted from all first instance civil court fees.

Mr. A received back 1,528,000 VND (One million five hundred twenty eight thousand VND) of the advance payment of court fees paid according to receipt No. 08527 dated October 24, 2014 of the Civil Judgment Enforcement Office of City X.

- Regarding civil appeal fees:

Mr. A, Mrs. B, Mr. I do not have to pay civil appeal fees.

Mr. A received back 300,000 VND (Three hundred thousand VND) of the advance payment of court fees according to receipt number 0004948 dated January 24, 2018 of the Civil Judgment Enforcement Office of City X.

Ms. B received back 300,000 VND (Three hundred thousand VND) of the advance payment of court fees according to receipt number 0004957 dated January 25, 2018 of the Civil Judgment Enforcement Office of City X.

Mr. I received back 300,000 VND (Three hundred thousand VND) of the advance payment of court fees according to receipt number 0004956 dated January 25, 2018 of the Civil Judgment Enforcement Office of City X.

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From the date the judgment comes into legal effect (for cases where the enforcement agency has the right to proactively issue a decision to enforce the judgment) or from the date of the judgment enforcement request from the judgment creditor (for the amount of money to be paid to the judgment creditor) until all amounts of money are fully enforced, the judgment debtor must also pay monthly interest on the amount of money still subject to enforcement at the interest rate prescribed in Clause 2, Article 468 of the 2015 Civil Code.

In case the judgment or decision is enforced according to the provisions of Article 2 of the Law on Civil Judgment Enforcement, the person entitled to civil judgment enforcement and the person subject to civil judgment enforcement have the right to agree on judgment enforcement, the right to request judgment enforcement, voluntarily enforce the judgment or be forced to enforce the judgment according to the provisions of Articles 6, 7, 7a, 7b and 9 of the Law on Civil Judgment Enforcement; the statute of limitations for judgment enforcement is implemented according to the provisions of Article 30 of the Law on Civil Judgment Enforcement.

The appellate judgment takes legal effect from the date of judgment./.


Recipient:

- High People's Court in Ho Chi Minh City;

- An Giang Provincial People's Procuracy;

- People's Court of City X;

- People's Procuracy of City X;

- THADS Department of City X;

- The parties;

- Provincial People's Court Office;

- Department of Economic and Administrative Procedures of the Provincial People's Court;

- Save: Civil Court, case file.

TM. APPEAL TRIAL COUNCIL JUDGE - PRESIDING JUDGE


Quach To Giang

PEOPLE'S COURT

HANOI CITY

SOCIALIST REPUBLIC OF VIETNAM

Independence - Freedom - Happiness



Judgment No: 219/2018/DS-PT Date: September 12, 2018

Dispute over capital contribution contract


IN THE NAME OF

SOCIALIST REPUBLIC OF VIETNAM

PEOPLE'S COURT OF HANOI CITY

The members of the appellate panel include: Judge - Chairman of the trial: Mr. Do Minh Hoang Judges: Mr. Dinh Nhu Lam;

Mrs. Nguyen Thu Hong.

Court Secretary: Ms. Pham Thi Thuy Trang - Secretary of the People's Court of Thanh Hoa City

Hanoi street

- Representative of Hanoi People's Procuracy participating in the trial : Ms. PH Thi Mai Hoa - Prosecutor.

On September 12, 2018, at the headquarters of the Hanoi City People's Court, the appeal trial of case No. 131/2018//TLPT-DS dated May 24, 2018 regarding "Dispute over capital contribution contract" was held publicly.

According to the first instance civil judgment No. 19/2017/DS-ST dated December 27, 2017 of the People's Court

HBT District, Hanoi City was appealed.

According to Decision to bring the case to appeal trial No. 228/2018/QD-PT dated 23

July 2018, between the parties:

1. Plaintiff : Mr. Phan Manh C, born in 1965. Residing at: Apartment No. 2410, 24th floor, building R1, Goldmark City project, 136 Ho Tung Mau, PD ward, BTL district, Hanoi City. Present.

The person protecting the legal rights and interests of Mr. C : Lawyer Tran Viet H and Lawyer Nguyen H. N - Tr.V Law Office, Hanoi Bar Association. Present.

2. Defendant : CPXLKT Company ( Formerly CTXLVTKT - Ministry of Agriculture and Rural Development ). Head office: No. 534 Minh Khai, VT ward, HBT district, Hanoi City. Legal representative: Mr. Phan Tr.Th - General Director. The authorized representative of Mr. Tr. Th is Ms. Truong Thi TH. According to Authorization No. 73/GUQ dated February 16, 2016. Present.

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3. Appellant : Mr. Phan Manh C - Plaintiff. Present.

CASE CONTENT:

According to the first instance judgment, the case has the following contents:

1. Plaintiff Mr. Phan Manh C stated :

On November 10, 2003, he and CTXLVTKT - Ministry of Agriculture and Rural Development (Now known as CPXLVTKT; hereinafter abbreviated as Construction Joint Stock Company ) signed capital mobilization contract No. 03/HD-XL with the following content:

He contributed to Construction Joint Stock Company an amount of money according to the value of the land lot to receive the transfer of the residential land lot in Song Tac I residential area, Phuoc Trung hamlet, Phuoc Long ward, Nha Trang city, Khanh Hoa province (now renamed An Binh Tan urban area, Nha Trang city, Khanh Hoa province).

The location of the land lot that you will receive from Construction Joint Stock Company is: House No. 1A, Lot No. V15, area 290m2 .

The two parties agreed to divide the capital contribution into 2 phases: Phase 1: Contribute 300,000 VND/m2

Phase 2: Contribute the remaining portion of the land plot calculated at 110% of the land price with technical infrastructure as regulated by Khanh Hoa Provincial People's Committee minus the amount contributed in phase 1 before signing the minutes of handover of land use rights.

The two sides agreed that after the Khanh Hoa Provincial People's Committee issued the detailed unit price for the Tac River I project, the two sides would base on that to calculate the value of the land lot. First, the two sides agreed on the initial capital mobilization level (phase 1), the initial amount that the two sides tentatively estimated was 300,000 VND/m2, equivalent to about 30% of the land lot value.

Immediately after signing the contract, he paid the Construction Joint Stock Company 191,090,000 VND. On March 1, 2004, Khanh Hoa Provincial People's Committee approved the unit price of the residential area to the south.

West of Tac River I residential area (according to report No. 294/TC-VG of Khanh Hoa Provincial Department of Finance)

Hoa) is 1,080,000 VND/ m2 .

Thus, the amount you have to pay to the Construction Joint Stock Company for the 290m2 plot of land that you will be assigned is 290m2 x 1,080,000 VND/m2 x 110% = 344,520,000 VND. Subtracting the amount you have paid (first installment), the remaining amount to pay (second installment) is 344,520,000 VND - 191,090,000 VND = 153,430,000 VND.

The project (Land for Infrastructure) Regulating the downstream of Tac River, Quan Truong River, Nha Trang City, Khanh Hoa Province was approved by Khanh Hoa Provincial People's Committee to be assigned to the Construction Company under Decision No. 3892 and 3893/QD-UB dated December 15, 2003. During the contract implementation process, he contacted the Construction Joint Stock Company many times to

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asked about the project implementation results, the implementation of the capital contribution contract and went to the Company to negotiate a solution but the Construction Joint Stock Company did not implement it. Around 2007-2008, he heard that the land-for-infrastructure project could not be implemented, he asked the Company to refund the money he had contributed according to the signed contract, but the Company replied that it did not have the money. In 2013, when the Construction Joint Stock Company was assigned land to build a new urban area called An Binh Tan urban area, Nha Trang city, Khanh Hoa province, he went to meet the Company's leaders to request to continue implementing the contract but could not reach an agreement because the Construction Joint Stock Company proposed to apply a new price and change the location of the land lot. There was also a time when he accepted another land lot but the Company replied that it had been sold to someone else. After that, he agreed to take the land lot next door but the Company increased the price so he did not accept. Up to now, the Construction Joint Stock Company has not delivered the land to him. According to him, this fault lies entirely with the Construction Joint Stock Company.

The Construction Joint Stock Company has implemented the project, the land plot that he agreed upon in the contract has been basically completed. However, the Construction Joint Stock Company has not delivered the land to him according to the capital contribution contract signed between the two parties. He has contacted the Construction Joint Stock Company many times to resolve the issue, but the Construction Joint Stock Company is not willing, has issued many documents to him but they are not satisfactory, do not match the content of the agreement in the contract and are against the law. He filed a lawsuit, requesting:

The Construction Joint Stock Company is obliged to continue to perform the capital contribution contract No. 03/HD-XL dated November 10, 2003, with the content of handing over land lot No. V15, house No. 1A, area 290m2 to him according to the agreement in the contract, he paid the remaining amount of 153,430,000 VND. Or the Construction Joint Stock Company will return the amount he has paid and compensate him according to the law.

2. The defendant's authorized representative - Ms. Truong Thi TH presented :

Confirming the signing of the Capital Contribution Contract between Construction Joint Stock Company and Mr. C on November 10, 2003 as stated by the plaintiff. The basis for signing the contract at that time was: The project to regulate Song Tac, Song Quan Truong and the residential area project west of Song Tac 1 residential area had been approved by the People's Committee of Khanh Hoa province in principle: Assigning Construction Joint Stock Company to provide capital to implement the project, if the project is implemented, the project will be paid for with land fund. In Decision No. 818/QD-UB dated April 5, 2005, the People's Committee of Khanh Hoa province assigned land for the Song Tac residential area project to Construction Joint Stock Company. However: On April 12, 2010, the People's Committee of Khanh Hoa province issued Decision No. 951-UBND on canceling the land allocation decision No. 818/QD-UB mentioned above. During the period from 10/11/2003 to 2005, the project was not implemented due to the project

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The Tac River project was stuck in changes (Notice No. 508/TB-UB dated October 11, 2004, Decision No. 1171/QD-UBND dated June 7, 2005 approving the adjustment of the feasibility study project of the Tac River project). Therefore, the capital contribution contract with Mr. C could not be implemented due to objective reasons from the Khanh Hoa Provincial People's Committee, not because the Construction Joint Stock Company did not implement it.

On April 19, 2010, Khanh Hoa Provincial People's Committee issued Decision No. 1882/UBND allowing the implementation of the above project using government bond capital and the project was implemented by bidding method instead of implementing according to Decision No. 3007/QD-UB which is to pay for the project by land fund. According to Article 4.1 of the signed Contract No. 03, because the Tac River adjustment project was not assigned to be implemented according to the "Land for Infrastructure" plan, which is an objective reason, Construction Joint Stock Company is responsible for refunding the amount that Mr. C has paid along with the non-term interest rate at the time of payment. Therefore, Construction Joint Stock Company is unable to accept Mr. C's request but only agrees to refund to Mr. C the amount that Mr. C has contributed along with the non-term interest rate at the time of payment (voluntarily supporting this interest rate of 30,000,000 VND).

First Instance Judgment No. 19/2017/DS-ST dated December 27, 2017 of the People's Court of Hai Ba Trung District decided:

1/ Partially accept Mr. Phan Manh C's lawsuit against Technical Materials Construction Joint Stock Company regarding the capital contribution.

2/ Capital mobilization contract No. 03/HD-XL dated November 10, 2003 between Mr. Phan Manh

C with Technical Materials Construction Company is invalid.

3/ Force Technical Materials Construction Joint Stock Company to pay Mr. Phan Manh C.

amount 191,090,000 VND.

Acknowledge the voluntary support of Technical Materials Construction Joint Stock Company for

Mr. Phan Manh C amount of 30,000,000 VND.

In addition, the first instance judgment also ruled on the obligations due to late execution of the judgment, court fees and

the right of appeal of the parties.

On January 4, 2018, the plaintiff - Mr. C filed an appeal requesting the Court of Appeal to amend the first instance judgment, forcing the Construction Joint Stock Company to continue to perform Contract No. 03/2003 signed by the two parties.

At the appeal hearing :

The Plaintiff maintains the lawsuit and appeal request. Request to force the Construction Joint Stock Company to deliver the land according to the Contract or to return the principal to him.

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and the interest accrued is 700,000,000 VND.

The lawyer protecting the plaintiff's legal rights and interests presented the same viewpoint as the plaintiff's opinion and requested the Court to determine: Capital mobilization contract No. 03/HD-XL dated November 10, 2003 is valid. Request to determine the time limit for Mr. C to file a lawsuit according to Notice No. 31A/TB- TEMATCO dated July 2, 2015.

Defendant: Maintain the above stated opinion and voluntarily pay the accrued interest of VND 96,045,000.

The two parties could not reach an agreement on how to resolve the case. The representative of the Hanoi People's Procuracy expressed his opinion:

- Regarding proceedings: The participants in the proceedings and the litigants have complied with the provisions of the Civil Procedure Code at the Court of Appeal.

- Regarding the content: Request the Trial Panel to determine that the Capital Mobilization Contract No. 03/HD-XL dated November 10, 2003 did not fully comply with the provisions of Articles 394, 395, 400, 401 of the 1995 Civil Code, so it is invalid and the main fault lies with the Construction Joint Stock Company. The first instance court has not determined the fault of the parties. Request to apply Clause 3, Article 308 of the Civil Procedure Code: Annul the first instance judgment No. 19/2017/DS-ST dated December 27, 2017 of the People's Court of Hai Ba Trung District. Assign the People's Court of Hai Ba Trung District to re-examine the case at first instance according to the provisions of law.

JUDGMENT OF THE COURT:

After studying the documents in the case file examined at the trial and based on the results of the debate at the trial, the Trial Panel determined:

[1]. Regarding litigation:

The court of first instance complied with the provisions of the Civil Procedure Code in resolving the case at the first instance trial stage.

Appeal application and Receipt of advance payment of civil appeal fees, Mr.

Phan Manh C filed the appeal within the statutory time limit, so it was determined to be a valid appeal.

The parties have complied with the provisions of the Civil Procedure Code. [2]. Regarding the content:

2.1. Considering Mr. C's appeal, the Trial Panel found that:

2.1.1. Regarding Capital Mobilization Contract No. 03/HD-XL dated November 10, 2003.

The contract was concluded at the time the 1995 Civil Code was in legal effect, and complied with the provisions of Articles 394, 395, 400, 401 of the 1995 Civil Code. It is determined to be a legally valid contract.

Article 1 of the Contract the parties agree: " Party B agrees to contribute to Party A a number of

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