Determining Whether the Plaintiff Has the Right to Sue

jurisdiction. Nam Tu Liem District Court will have jurisdiction in case parties A and B voluntarily agree in writing.

In fact, the above regulation has caused many difficulties in resolving disputes over inheritance of land use rights. Although it is an inheritance dispute, the inheritance has the specific nature of land use rights, so in order to resolve the case, the Court must conduct investigation procedures, verify the origin, the evolution of the land use process, conduct appraisal and valuation of land use rights. The Court where the real estate is located will certainly carry out the above procedures more conveniently, easily and less time-consuming and costly than the Court where the defendant resides. In my opinion, the law needs to stipulate that for disputes over inheritance of land use rights, the Court where the inheritance is land use rights will be the competent Court to resolve. This regulation will help the process of resolving the case to be more convenient and effective in practice.

2.1.2.2. Determine whether the plaintiff has the right to file a lawsuit

When considering the conditions for accepting a land use rights inheritance dispute case, the Court also needs to determine whether the plaintiff has the right to file a lawsuit or not? Like in other civil cases, the plaintiff of a land use rights inheritance dispute must have full civil procedural capacity, that is, the ability to exercise civil procedural rights and obligations on his own or authorize a representative to participate in civil proceedings. The person with the right to file a lawsuit in a land use rights inheritance dispute case is the person whose legal rights and interests are violated. They are often the beneficiaries of the inheritance right, which can be established on the basis of a will left by the deceased or established on the basis of law when they are the heirs of the deceased. The plaintiff in a land use rights inheritance dispute case is usually the wife, children, siblings, parents, etc. of the deceased. In reality, disputes often occur in cases where co-heirs file a lawsuit against the same person to request the Court to divide the inheritance.

is the right to use land left by the deceased. After the Court has accepted the case, the co-heirs have the right to participate in the proceedings themselves or authorize one of the co-heirs to participate in the proceedings to protect their legitimate rights.

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2.1.2.3. Conditions for the petition and supporting documents attached to the petition

To proceed with the case, the Court must check the legality of the petition. The petition in the case of inheritance dispute over land use rights as well as in other civil disputes must be correct in both content and form. Article 164 of the Civil Procedure Code, the petition must include the following main contents: Date, month, year of filing the petition; Name of the Court receiving the petition; Name and address of the petitioner... The Supreme People's Court has issued a petition form attached to Resolution 05/2012/NQ-HDTP dated December 31, 2012 of the Council of Judges of the Supreme People's Court. According to Article 165 of the Civil Procedure Code, the petitioner must attach documents and evidence to the petition to prove that his/her requests are well-founded and legal. Normally, in cases of land use rights inheritance disputes, when the litigants file a lawsuit, they must submit with the lawsuit documents proving the marital relationship, blood relationship, foster relationship, such as marriage certificate, birth certificate, adoption certificate, death certificate of the person leaving the inheritance, household registration book, will (if any)... In addition, because the inheritance is land use rights, the litigator also needs to provide the Court with documents on land use rights such as land use rights certificates, map extracts, inventory books, cadastral books...etc.

2.1.2.4. Conditions for advance payment of court fees

Paying the advance court fee is the final condition for the Court to accept the case for settlement. Clause 3, Article 171 of the Civil Procedure Code stipulates: "The Court accepts the case when the plaintiff submits to the Court a receipt for payment of the advance court fee" [6]. As

Therefore, even if the case is under the jurisdiction of the Court, the statute of limitations is still in effect, and the plaintiff has submitted a lawsuit petition with accompanying documents and evidence in accordance with legal regulations but has not submitted to the Court a receipt for payment of advance court fees, the Court will not accept the case and will return the lawsuit petition to the plaintiff, unless they are exempted or do not have to pay advance court fees.

According to the provisions of Clause 4, Article 25 of the Ordinance on Court Fees and Charges, for cases of land use rights inheritance disputes, the advance court fee is calculated based on the value of land use rights - the disputed inheritance that the parties request to resolve. However, the law does not have specific provisions on whether the advance court fee is calculated based on the value of land use rights according to the State's price framework or the value of land use rights on the market. This has caused difficulties in applying and resolving land use rights inheritance disputes.

2.1.2. Procedure for handling land use rights inheritance disputes

Accepting a land use rights inheritance dispute case is understood as the Court receiving the petition of the plaintiff and simultaneously recording it in the acceptance book to resolve the case. Thus, after receiving the petition and accompanying documents and evidence, the Court must record it in the acceptance book, consider the conditions for accepting the case, notify the plaintiff to pay the advance court fee and proceed to accept the case in accordance with the law. Within 5 working days from the date of receiving the petition, the Court must consider and make one of the following decisions:

- First: Carry out the procedure for accepting the case according to the provisions of Article 171 of the Civil Procedure Code. The Court must immediately notify the plaintiff to come to the Court to pay the advance court fee in case they have to pay the advance court fee. The deadline for the plaintiff to pay the advance court fee is 15 days from the date of receiving the notice from the Court. Within three working days from the date of accepting the case, the Chief Justice of the Court shall assign a Judge to resolve the case.

decide the case. The judge assigned to resolve the case must prepare the case file, mediate and prepare for trial according to the provisions of law.

- Second: Transfer the petition to resolve the dispute over inheritance of land use rights to the competent Court and notify the petitioner in writing if the case falls under the jurisdiction of another Court. After transferring the petition and accompanying documents and evidence, the Court must remove it from the register.

- Third: Return the petition to the petitioner. The Court shall return the petition according to the provisions of Article 168 of the Civil Procedure Code and the guidance in Article 8 of Resolution 05/2012/NQ-HDTP.

When the plaintiff submits to the Court a receipt for payment of advance court fees, the Court shall decide to accept the case and enter it into the case acceptance book. In case the plaintiff is exempted or does not have to pay advance court fees, the Court shall accept the case immediately after receiving the petition and accompanying documents and evidence.

2.2. Preparation for trial and mediation in resolving disputes over inheritance of land use rights

2.2.1. Preparing for trial to resolve land use rights inheritance disputes

The Court officially has the authority to resolve disputes over inheritance of land use rights after accepting the case. If conciliation fails, the Court will consolidate and complete the case file to bring the case to trial at the first instance trial. To prepare for trial, the Court will have to carry out the following main tasks: assign judges to resolve the case; notify acceptance of the case; prepare the case file and collect evidence. However, the procedure for preparing for trial of land use rights inheritance disputes has its own characteristics, different from the procedure for preparing for trial in other civil cases.

2.2.1.1. Regarding the notice of acceptance of the case in resolving disputes over inheritance of land use rights

After having conducted the work of accepting the case, the Court must notify

in writing to the defendant, individuals, agencies, and organizations with rights and obligations related to the settlement of the case. The court must also notify the People's Procuracy of the same level so that the People's Procuracy can exercise its right to supervise the settlement of the case. According to the provisions of Article 174 of the Civil Procedure Code, the time limit for notifying the acceptance of a case is 03 working days. The notice of acceptance of a case must include full information on the date, month, year of the notice, name, address of the court that accepted the case, name, address of the plaintiff; the plaintiff's requests... At the same time, the notice of acceptance must specify a deadline for the person being notified to give written opinions on the plaintiff's requests and the legal consequences of the person being notified not submitting to the court a written statement of his/her opinions. In practice, resolving disputes over inheritance of land use rights shows that the 3-day time limit prescribed by law to notify the acceptance of the case is an inadequacy and not really appropriate. Disputes over inheritance of land use rights are complex disputes, there are always many parties involved in the same case, the parties may reside in many different locations, so it is very difficult to serve the parties with a complete notice of acceptance of the case within 3 days. Therefore, the law should have a regulation adjusting the time limit for notification of acceptance of the case to a minimum of 5 working days. Currently, when the law has not yet been adjusted appropriately, the Court staff is still trying to notify acceptance with a very large amount of work, leading to procedural violations when implementing this regulation. In recent years, the establishment and operation of the Bailiff organization has partly helped the service of procedural documents in general and the service of notices of acceptance in particular to be effective and in accordance with legal regulations.

2.2.1.2 Collect evidence to prepare a case file for land use rights inheritance dispute

Like other civil dispute cases, the case file of land use rights inheritance dispute is often built on many sources of evidence.

different grounds. Evidence to resolve a case is usually provided to the Court by the plaintiff, defendant or the person protecting the legal rights and interests of the litigant. However, in cases where the Court considers that the evidence in the case file is not sufficient for resolution, the Judge shall request the litigant to submit additional evidence. In cases where the litigant cannot collect evidence by himself and has a request, the Judge may take one or several measures to collect evidence such as: Taking statements from the litigant or witness; Requesting an appraisal; Deciding on asset valuation; Examining and appraising on-site, etc.

Taking statements from litigants in land use rights inheritance disputes.

After accepting the case, the Court sends a notice of acceptance of the case and requests the defendant to present his/her opinions and views on the plaintiff's lawsuit. During the settlement process, the Court may request the parties to make a self-declaration multiple times to clarify the details of the case. The parties' statements in disputes over inheritance of land use rights must clearly state the blood relationship, marriage relationship, and foster relationship with the deceased who left the inheritance. In case of contradictions in the parties' statements, the Court will conduct a confrontation to clarify the conflicting contents and the contents that the parties have agreed upon. During the process of taking the parties' statements, the Court must also clarify the origin and development of the process of using the land use rights - the inheritance in the inheritance case. Inherited assets are land use rights that often do not exist independently but can be included in the common property with others. Therefore, in this case, the Court needs to discuss and guide the parties to declare to clarify how many meters of land use rights the deceased has in the total common property with co-owners? Is there any property attached to the land? Whose property is this?...

Along with taking the statements of the parties, the Court requires them to provide

Documents and evidence to prove their statements and prove that their requests are legitimate. As analyzed above, the documents that the parties must provide to the Court to resolve disputes over inheritance of land use rights are usually wills (if any), death certificates, birth certificates, household registration books, land use rights certificates, land plot map extracts, etc. When the above documents are not available, the parties can present other documents and materials with similar evidentiary value. As in other inheritance cases, in land use rights inheritance disputes, the time of inheritance opening is determined to be the time when the person leaving the inheritance dies, this time is determined based on that person's death certificate. The determination of the inheritance status and order will be based on documents proving the marital relationship, blood relationship, and foster relationship between the deceased and the heir. Based on the documents and evidence provided by the parties, in order to effectively resolve the land use rights inheritance dispute case, the Court needs to determine the status of the parties participating in the proceedings, establish a bloodline chart, a diagram of inheritance relationships such as inheritance status, inheritance order, etc.

In addition, when preparing to try a land use rights inheritance dispute, the Court also needs to collect evidence of property obligations and inheritance-related expenses paid from the estate. The Court needs to determine whether the testator left behind property obligations and inheritance-related expenses paid from the estate? What are those obligations? What expenses? Who is involved?

On requesting expert opinion in the case of inheritance dispute over land use rights

land use

In cases of land use rights inheritance disputes, the issue of family consultation often occurs in cases of signature and handwriting examination in wills, DNA examination to determine blood relationships. In many cases, the person leaving the inheritance leaves a will but one or more of the parties

If there is any doubt about the authenticity of the will, the Court has the right to request an appraisal to determine whether the will is real or fake. Another special feature of appraisal in inheritance disputes is DNA appraisal. According to the provisions of inheritance law, blood relationship is an important basis for determining the beneficiary of the inheritance. In case the deceased leaves an inheritance with an illegitimate child, the request for DNA appraisal will be an important basis for determining the blood relationship of that person with the person leaving the inheritance.

Regarding valuation, the valuation of inherited assets is land use rights.

The basis for the Court to declare a legal judgment, accurately dividing the inheritance shares for the co-heirs is to determine the value of the inheritance. The inheritance in this case is the land use right, so the correct valuation of the property is not simple. Valuation and appraisal of the inheritance of land use right can be carried out through the State Valuation Council or private valuation organizations and establishments licensed by the State. When implementing the valuation of land use right, the Valuation Council needs to measure, survey and apply methods of property valuation according to the provisions of law. Normally, the parties are people living in the area, so they are the ones who know the value of the land use right at the time of valuation. However, because the parties always want to protect their rights, their statements about the value of the land use right are for reference only.

On the mandate of collecting evidence

Entrusting the collection of evidence is a case where the litigant or witness lives too far away or is sick; the disputed property is in another district or province, then the Court handling the case can entrust the District Court where the litigant or witness lives or where the disputed property is located to take statements from the litigant or witness or examine the property. For disputes over inheritance of land use rights, the provisions on entrusting the collection of evidence are truly practical.

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