Practical Application of Law on Capital Contribution Using Land Use Rights as Common Property of Husband and Wife

- Principles of dispute resolution: These are considered basic and important principles as the basis for establishing dispute resolution agencies and for promulgating specific legal regulations regulating dispute resolution in general and disputes over land use rights transfer in particular.

- System of legal regulations on dispute resolution procedures: These are legal regulations on how to resolve disputes, on the process and procedures for resolving disputes.

- General legal regulations ensuring the enforcement of dispute resolution decisions: These are legal regulations on measures and methods to ensure the enforcement of judgments and decisions on dispute resolution on land use rights transfer issued by the Court.

Resolving disputes over housing and land use rights as common property of husband and wife

The issue of resolving disputes over housing and land use rights as common property of spouses upon divorce is not only complicated in proving whether it is common property or separate property, but also shows its complexity in the case when the child and his/her spouses divorce, the parents or relatives request that they have lent money to the child and his/her spouse to buy a house or land (this request is often acknowledged by the biological child) and now request the spouses to pay that debt in money or declare that the biological child owes that debt to calculate the effort into the land value. For this case, the Court needs to apply the principle that the burden of proof belongs to the parents who make the request. However, in resolving some of these disputes, although the parties do not have or do not have enough evidence to prove, some Courts still accept the parties' requests. For example, the People's Court of Ba Dinh District - Hanoi (March 2001) resolved a property dispute during the divorce between Mr. Pham Qui T and Ms. An Thi P regarding the house at 18 Son Tay Street - Hanoi, and determined that the house belonged to Mr. T for the following reasons: Purchase documents

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This house was registered under Mr. T's name on October 22, 1991 and according to Mr. T: the origin of the house was that Mrs. M (his mother) sold house number 34 Nguyen Truong To street and gave him money to buy it. However, in reality, Mrs. M (Mr. T's mother) herself confirmed that she did not authorize Mr. T to buy house number 18 Son Tay street and there was no document to prove that she gave Mr. T money to buy this house. With the above circumstances, there is not enough evidence to confirm that Mr. T has the right to own house number 18 Son Tay street. Therefore, the Appeal Judgment No. 54/LHPT dated May 24, 2001 of the Hanoi City People's Court amended the first instance judgment in the direction of: Determining that house number 18 Son Tay is the common property of Mr. T and Ms. P to be divided according to the law.

On the other hand, disputes over housing and land use rights between husband and wife during divorce are already complicated, and are even more complicated when the disputed property cannot be divided in kind for the parties, but only one party receives the house or land and the other party receives the difference in value paid in cash (calculated according to the actual transaction price on the market). The complexity is shown in that both parties want to be divided in kind and do not want to receive the property at its value for fear of loss, or when it is determined which party receives the house or land, they want to value the property lower than the actual value, while the other party wants to calculate the correct or higher value than the actual transaction price of the property. Meanwhile, if the Court resolves the case, the decision of this agency depends largely on the conclusion of the Valuation Council (in many cases, the conclusion of the Valuation Council becomes the " trigger " for more intense and complicated disputes). For example: The case of property dispute

property upon divorce between Ms. Phan Thu Ha and Mr. Tran Khac Lien on the property value of a one-story, flat-roofed house with an area of 40m2 built on a 60m2 plot of land located in the center of Viet Tri city. Because the parties could not agree on the property value, the People's Court of Viet Tri city decided to establish a Valuation Council and valued the above property at 48 million VND. Ms. Ha appealed on the grounds that the actual value of the property was higher. When handling

The People's Court of Phu Tho province has upheld the first instance judgment. In fact, with the area, location and transaction price of real estate in Viet Tri city at the beginning of 2001, the disputed land price was 4.5 million/m2 . Thus, the actual transaction price of that house was much higher than the price determined by the Valuation Council. To overcome the difficulties in property valuation, the Courts at all levels need to strictly follow the guidance of the Supreme People's Court in Resolution No. 02/2000/NQ-HDTP that the actual transaction value on the market at the time of the trial is the mandatory basis. To determine the correct price

In the actual transaction of the disputed property, the Court may base on the agreement of the parties. When the parties do not have an agreement or have an agreement but it shows signs of violating the law, the Court needs to establish a Valuation Council with the participation of experts working at functional agencies such as land administration, tax, customs, banks, etc. However, in the practice of adjudication by the Courts at all levels, this is the most inappropriate issue. Because there is no unified property valuation organization, when it is necessary to establish a Property Valuation Council, the Courts at all levels fall into a "passive" state regarding people and valuation results, leading to decisions based on inaccurate valuation conclusions.

In practice, there are also cases of unfair division of property in kind, such as in the divorce case between Ms. Le Thi Ngo and Mr. Nguyen Van Thin in Ho Chi Minh City. Ms. Ngo and Mr. Thin have many real estate assets, including 03 houses (including: 02 street-front houses, 01 house in the alley) and a piece of land for growing coffee in Lam Dong. When dividing the property, the People's Court of Ho Chi Minh City divided the property for Mr. Thin to own 02 houses and Ms. Thin to use 01 house and the area of land for growing coffee in Lam Dong. Ms. Thin appealed the above first instance judgment on the grounds that she was old and weak and could not go to Lam Dong province to farm or manage that piece of land. The Court of Appeal of the Supreme People's Court in Ho Chi Minh City retried the case and issued a judgment to divide it for Ms.

Ms. Thin is allowed to use 01 street-front house, 01 house in the alley, while Mr. Thin is allowed to use 01 street-front house and a piece of land in Lam Dong and Mr. Thin is responsible for paying the difference in the house price to Ms. Ngo of 5,495 taels of SJC gold.

Considering that the above division was unreasonable and disagreeing with the price of the Valuation Council, Mr. Thin filed a complaint. In addition, finding the above trial unreasonable, the Chief Justice of the Supreme People's Court also appealed the above appellate judgment and was agreed by the Chief Justice of the Supreme People's Procuracy. In Decision No. 29/HDTP-DS dated November 3, 2003, the Council of Judges of the Supreme People's Court annulled the decision on division of the house and land and the decision on court fees for the division of the house and land of the above civil appellate judgment and transferred the case file to the Supreme People's Court of Appeal in Ho Chi Minh City for retrial according to the appellate procedure.

This second appeal judgment decided to divide the land for Mr. Thin to use and own 01 house with frontage and a plot of land in Lam Dong, and for Ms. Ngo to use and own 01 house with frontage and 01 house in the alley. However, Mr. Thin appealed the judgment because he thought that the division of the land in Lam Dong to him was incorrect because Ms. Ngo had mortgaged the land to borrow 300,000,000 VND.

The above case continued to be resolved through the Supreme Court procedure, through which the Supreme Court decision No. 07/HDTP-DS dated January 28, 2005 stated: The division of each party to a house with a street frontage is reasonable because it is convenient for the parties' living and business. Regarding the house in the alley and the coffee growing land in Lam Dong, both of which are very large in area, there are conditions for dividing each party a part of the property to ensure the legitimate rights of the parties. The appellate court assigned Ms. Ngo to own the house in the alley, assigned Mr. Thin to own the coffee growing land in Lam Dong while Ms. Ngo mortgaged this land area to borrow 300,000,000 VND, which is unreasonable.

does not ensure the legitimate rights of the parties. This issue was determined by the Council of Judges in the Final Appeal Decision No. 29/HDTP-DS dated November 3, 2003, but the above appellate judgment decided differently while the case had no new details, which is incorrect.

For the above reasons, the Supreme People's Court's Decision No. 07/HDTP-DS decided to annul the civil appeal judgment No. 01/DSPT dated January 13, 2004 and assigned the Supreme People's Court of Appeal in Ho Chi Minh City to re-try the appeal. The decision also clearly stated that the reason for the annulment of the judgment was due to shortcomings in considering and evaluating the circumstances of the case.

According to the author's opinion, the case was prolonged and had to be tried over and over again due to the Court's unreasonable valuation of assets and division of exhibits.

When Ms. Ngo filed a complaint requesting the re-division of the property on the grounds that she was old and weak and could not manage the land in Lam Dong, the Court of Appeal considered and re-divided the property. However, when considering, the Court of Appeal did not consider the fact that Ms. Ngo had mortgaged the above land to borrow VND 300,000,000. This is a civil transaction between Ms. Ngo and the Bank and Ms. Ngo is the person responsible for this loan before the Bank. Therefore, the division of the land in Lam Dong to Mr. Thin will affect the rights and interests of Mr. Thin and the person with related rights and obligations, which is the Bank.

In addition, based on the price given by the Valuation Council, the Court's determination that Mr. Thin must pay the difference in the house price to Ms. Ngo of 5,495 taels of SJC gold is unreasonable. Because the area of the house in the alley and the area of land for growing coffee in Lam Dong are both large. On the other hand, the price of land in the alley in the city will be higher than the price of agricultural land for growing coffee in Lam Dong. Therefore, the Court's request that Mr. Thin pay the difference in the house price to Ms. Ngo is unreasonable. Final judgment No. 29/HDTP-DS dated

November 3, 2003 had the above comments, but the appeal judgment No. 01/DSPT dated January 13, 2004 decided otherwise, which is incorrect.

The above case shows that the unreasonable valuation of assets and division of physical objects is also due to the lack of specific legal regulations on this issue. Currently, the regulation on land price framework has been more clearly regulated, but the issue of division in physical objects in divorce is still not clearly regulated, and the law only stops at the framework principles when dividing divorce assets.

2.6. Practical application of the law on capital contribution using land use rights as common property of husband and wife

During the marriage, in theory, the division of common property during the marriage does not affect the implementation of the rights and obligations of the spouses. However, in practice, when the remaining common property is insignificant, or even non-existent, the income from labor, production and business activities and other legal income of each party after the division is the separate property of the husband and wife... then ensuring the life of the family and the children depends entirely on the agreement of the husband and wife, on the conscience and responsibility of the parents to their children. On the other hand, the Law on Personal Income Tax and the regulations on Registration Fees do not specifically stipulate the procedures as well as the conditions for priority, exemption and reduction.

In the case of couples re-registering assets after dividing common assets, it has unintentionally caused the situation of couples "avoiding" making written agreements to divide common assets and carrying out fake transactions in other forms such as gifts, authorizations, etc. to occur more and more in reality.

Regarding the regulation on restoring the common property regime of spouses, in the case where the spouses previously divided the common property according to the Court's decision and now want to restore it, can the spouses reach an agreement themselves or must there be a judgment or decision of the Court on restoring the common property regime?

of the spouses; the restoration of the common property regime will take effect at the time

What point? The law still leaves open the answers to the above questions that reality raises.

When it comes to divorce, current practice shows that divorce cases have to last for many years, through many trials because the parties do not agree with the Court's decisions on property, which is still common. This situation stems from the complexity of common property disputes, from the lack of legal knowledge of many couples, the limited qualifications of some judges... and especially from the regulations that have not really entered into the life of the law on the division of common property of spouses upon divorce.

Determine common property in case the spouses agree on common property or incorporate separate property into common property

The law stipulates that "the incorporation of property such as housing, land use rights and other assets of great value under the private ownership of one spouse into the common property must be made in writing, signed by both spouses" (Clause 1, Article 13, Decree No. 70). However, in practice, many problems have arisen, such as how much property value is considered a valuable asset so that the incorporation of the private property of the husband or wife into the common property must be made in writing? And when issuing a land use right certificate, must the competent authority require the husband and wife to present a document merging private property into the common property? The above regulation only applies to cases where the husband and wife incorporate private property into the common property of the husband and wife or does it also apply to cases where the husband and wife agree on common property? Currently, these issues are still left open and the husband and wife are always at risk of falling into a property dispute when divorcing.

Determining common property in case of husband and wife living with family

In cases where the assets of the spouses in the family's common assets cannot be determined, the spouses, the family and the Court will have to base on the contributions of the spouses to the creation, maintenance and development of the common assets and the common life of the family to determine. However, evaluating and converting an abstract issue such as contributions into a specific amount of assets is extremely difficult and requires the goodwill of the family to cooperate. In reality, there are many spouses, especially the wife or husband who has to leave, who have not been able to prove their contributions.

Practical application of regulations on principles of division of common property of spouses when a husband or wife dies

In case of death of a husband or wife, the division of the common property of the couple, each party receiving half, is considered the inheritance principle of the 1986 Law on Marriage and Family and the 1990 Ordinance on Inheritance. This principle is also recognized by many experts in the field of Marriage and Family Law. However, in reality, there are still judgments on the division of common property when the husband or wife dies that apply the above principle and are amended or annulled. For example, in the property dispute case, the Supreme People's Court annulled the judgment for retrial at first instance, between Ms. P (the third wife's child) and Ms. G (the first wife) regarding the inheritance of Mr. V. The Council of Judges of the Supreme People's Court, for the reason that the division of common property did not consider Ms. G's contribution, decided that the common property of the couple in the case of the husband or wife dying first is divided. Whether or not to consider the contributions of each party needs to be answered by a specific provision in legal documents so that the Courts have a basis for consistent application.

Practical application of regulations on legal consequences of division of common property of spouses when a husband or wife dies

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