Status of Dispute Resolution of Land Use Rights Transfer Contract at People's Court of Binh Tan District, Ho Chi Minh City

- Apply temporary emergency measures

Temporary emergency measures are measures decided by the Court during the process of resolving a civil case or applied independently of that case to meet the urgent needs of the parties, preserve the status of property, protect evidence or ensure the enforcement of civil judgments.

The judge must apply temporary emergency measures (if requested and justified) or without the request of the parties but according to the provisions of law, the judge must apply temporary emergency measures.

The authority to decide, change, or cancel temporary emergency measures before the opening of a trial is considered and decided by a Judge; at the trial, it is considered and decided by the Trial Panel.

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Decisions in the pretrial stage:

During the trial preparation stage, depending on each case, the Judge needs to make one of the following decisions:

- Recognition of the parties' agreement (successful reconciliation).

- Temporarily suspend the settlement of the case.

- Suspend the case.

- Decision to bring the case to trial

First instance trial

According to Article 196 of the 2015 Civil Procedure Code, the trial must be conducted at the correct time and place as stated in the decision to bring the case to trial or in the notice to reopen the trial in case the trial must be postponed. The participants in the trial are specified in Articles 199 to 207 of the 2015 Civil Procedure Code, including: plaintiff, defendant, persons with related rights and obligations; representative of the parties; person protecting the rights and legitimate interests of the parties; witness; expert and interpreter.

In addition, according to the provisions of Article 21 of the 2015 Civil Procedure Code, the Procuracy must send a prosecutor to participate in the trial for cases in which the Court collects evidence or the subject of the dispute is public property... According to the Civil Procedure Code, the trial may be postponed, but the postponement period shall not exceed 01 month, and for trials conducted under the simplified procedure, it shall not exceed 15 days from the date of the decision to postpone the trial.

Chapter 1 Conclusion

In Chapter 1 of the thesis, the author has studied and clarified the concept of land use rights transfer contract, analyzed theoretical issues on land use rights transfer contract and legal characteristics of land use rights transfer contract. The author also focused on clarifying and analyzing the concept of land use rights transfer contract dispute resolution and methods of land use rights transfer contract dispute resolution, especially the method of land use rights transfer contract dispute resolution according to civil procedure in court.

Chapter 2

CURRENT STATUS OF APPLICATION OF LAW ON RESOLUTION OF DISPUTES ABOUT CONTRACTS FOR TRANSFER OF USE RIGHTS

LAND AT PEOPLE'S COURT OF BINH TAN DISTRICT, HO CHI MINH CITY

2.1. Situation of dispute resolution of land use rights transfer contract at People's Court of Binh Tan District, Ho Chi Minh City

Binh Tan District is a newly established urban area consisting of 10 wards according to Decree 130/ND-CP dated November 5, 2003 of the Government, from An Lac Town, Binh Hung Hoa Commune, Binh Tri Dong Commune and Tan Tao Commune of Binh Chanh District in the past, with most of the land being agricultural land. In recent years, the urbanization rate in the district has been quite fast, with some wards having almost no agricultural land left. Currently, many socio-economic aspects of the district are developing rapidly in an urban direction. The population of Binh Tan District has increased rapidly in recent times, with the average annual population growth rate in the period 1999-2003 being 16.17%. The average population density in 2003 was 5,115 people/km2 [56].

With the characteristics of an urbanized district, land-related disputes are increasingly numerous and complicated. Land disputes in general and land use rights contract disputes in particular in recent times have arisen from many causes such as: previous land management still had many shortcomings and loopholes; land allocation and issuance of land use right certificates were slow, land encroachment was widespread and serious but not prevented in time; land from having no value became valuable and in many places the value of land use rights increased dramatically, ...

Through the collection and statistics of data on land use rights contract disputes handled by the People's Court of Binh Tan District in the past 5 years (from 2012 to 2016) as follows:

- In 2012: The Court accepted 830 civil cases, of which 96 were land use rights contract disputes, accounting for 11.5%;

- In 2013: The Court accepted 984 civil cases, of which 106 were land use rights contract disputes, accounting for 10.7%;

- In 2014: The Court accepted 702 civil cases, of which 113 were land use rights contract disputes, accounting for 16%;

- In 2015: The Court accepted 610 civil cases, of which 100 were land use rights contract disputes, accounting for 16.3%;

- In 2016: The Court accepted 703 civil cases, of which 87 were land use rights contract disputes, accounting for 12.3%;

According to the above statistics, the number of disputes over land use rights contracts has increased in recent years and accounts for a large number of the total number of civil cases in general. However, with great efforts, the Court has resolved these cases at a fairly high rate, without leaving many pending cases.

Regarding the number of land use rights contract disputes that were cancelled or amended, as follows:

- 2012: Of the total 52 civil cases that were annulled or amended, 26 were related to land disputes, including 7 land use rights contract disputes.

- 2013: Of the total 19 civil cases that were annulled or amended, 12 were related to land disputes, including 3 land use rights contract disputes.

- 2014: Of the total 28 civil cases that were annulled or amended, 13 were related to land disputes, including 5 land use rights contract disputes.

- 2015: Of the total 30 civil cases that were annulled or amended, 14 were related to land disputes, including 4 land use rights contract disputes.

- 2016: Of the total 37 civil cases that were annulled or amended, 20 were related to land disputes, including 7 land use rights contract disputes.

The above figures reflect the high rate of cases annulled and amended related to land disputes and land use right contract disputes compared to other civil cases. At the same time, they show the nature and difficulty in resolving land use right contract disputes.

2.2. Current status of law application on dispute resolution of land use rights transfer contracts at the People's Court of Binh Tan District, Ho Chi Minh City

Through research and review of the results of resolving land use rights contract disputes of Binh Tan District People's Court in the past time, we can identify the main achievements in the following aspects:

Firstly , in the process of handling and resolving land use rights contract disputes, Binh Tan District People's Court pays great attention to mediation, helping the parties save time, effort, money, maintain stability and solidarity, and create trust among the people in the Court. The number of land use rights contract dispute cases that the Court mediates is increasing, as shown in the following figures:

- In 2012: 20/70 cases were successfully mediated, accounting for 28.5%;

- 2013: 25/98 cases were successfully mediated, accounting for 25.5%;

- 2014: 23/93 cases were successfully mediated, accounting for 24.7%;

- 2015: 25/90 cases were successfully mediated, accounting for 27.7%;

- 2016: 27/80 cases were successfully mediated, accounting for 33.75%.

Second, in the process of resolving disputes over land use rights contracts, the Court correctly and consistently applied the provisions of the Civil Code, the Civil Procedure Code, the Land Law and other legal documents, and the instructions of the Supreme People's Court in the adjudication of cases on land use rights contracts.

The number of judgments and decisions of the Court that have been annulled or amended by higher-level Courts has tended to decrease, showing that the Court has complied with and applied the trial methods of these cases relatively well, and the quality of the trials has been increasingly improved, contributing significantly to maintaining political stability, order, social security, economic development, etc. Most of the judgments and decisions issued by the Court have legal basis, are consistent with historical circumstances, are feasible and ensure enforcement, etc.

However, besides the achievements, the settlement of land use rights contract disputes at the People's Court of Binh Tan District also has certain limitations, reflected in the following aspects:

2.2.1 Identify the lack of participants in the proceedings, specifically not including people living in the disputed property or household members in the proceedings

When resolving land dispute cases, the Court needs to clarify who is managing and using the disputed land. In cases where the plaintiff only sues the homeowner or only sues some of the people who are managing and using the land, the Court needs to include other people who are managing the land in the proceedings as people with related rights and obligations. Only by doing so can the Court clarify the reasons why they are allowed to manage and use the land, what contributions they have made to the disputed land... At the same time, when the judgment is pronounced, if it is related to their rights and obligations, it can be enforced.

For example: The case of land use rights contract dispute between the plaintiff - Mr. Nguyen Van Bien and Ms. Dam Thi Then and the defendant - Mr. Le Van Manh [40].

Case content: Mr. Bien and Ms. Then filed a lawsuit requesting the Court to force Mr. Le Van Manh and Ms. Nguyen Thi Lan to deliver the land according to the signed notarized contract. However, due to the lack of land, Mr. Bien and Ms. Then requested the Court to cancel the notarized contract between the two parties and

force Mr. Manh and Ms. Lan to compensate double the amount received 5,000,000,000 VND, request the Court to continue the Decision to apply temporary emergency measures.

The first instance judgment decided: Accept the plaintiff's request to cancel the notarized land use right transfer contract on the transfer of a land area of 1,782.95 m2 in the name of Mr. Le Van Manh; Cancel the land use right transfer contract between Mr. Manh and Mr. Bien and Ms. Then; Force Mr. Bien and Ms. Then to pay the amount received of VND 2,500,000,000 and the agreed penalty of VND 2,500,000,000; Continue to maintain the decision to apply temporary emergency measures.

The appellate judgment decided: To annul the judgment at first instance with the finding: not to include Mr. Le Quoc Cuong, a member of Mr. Manh's household who was granted the right to use the land area according to the land use right certificate, in the proceedings of the case. In addition, when issuing the Decision to apply temporary emergency measures prohibiting the transfer of property rights to real estate, Ms. Hoa, who signed the deposit contract for the sale of real estate, was not included in the proceedings.

Comment: At the time of granting the Land Use Rights Certificate to Mr. Manh's household, Mr. Cuong was a member of the household granted the right to use 4,769 m2, but during the process of resolving the case, the Court of First Instance did not summon Mr. Cuong to participate in the proceedings in the case, affecting Mr. Cuong's rights.

2.2.2 Do not include co-heirs in the proceedings, do not include people with related rights and obligations in the conciliation session.

Mediation is a mandatory procedure when resolving civil cases, except for cases that are not mediated under the provisions of the Civil Procedure Code. According to these provisions, the Court must summon those involved in the case to attend the mediation session.

For example: Land use rights contract dispute case between the plaintiff - Vo Thi Thanh Hien and the defendant - Tran Thi Thu Loan [38].

Case content: In 1999, Ms. Hien bought a piece of land measuring 5mx20m from Ms. Loan for 4 taels of SJC gold with handwritten documents. The origin of the land was given by Ms. Loan's mother. In 2003, Ms. Hien built a temporary house and let someone else look after it. She did not live in the house but let Ms. Loan complete the legal procedures, but it was not done because the land was still in Ms. Loan's mother's name. She requested to continue implementing the land use rights contract. Ms. Loan was responsible for legalizing the land for her. If not, she had to pay 1.5 billion VND in compensation and 2,000,000 VND for house construction materials.

The first instance judgment decided: Cancel the land use rights contract between Ms. Hien and Ms. Loan due to invalidity. Do not accept Ms. Hien's request to continue implementing the land use rights contract with Ms. Loan; Force Ms. Loan to pay Ms. Hien 4 taels of SJC gold and the amount of 359,200,000 VND immediately after the judgment comes into legal effect. Do not accept Ms. Loan's request, only agree to pay Ms. Hien 8 taels of SJC gold.

The appellate judgment decided: To annul the entire first instance judgment because the first instance court seriously violated the procedural rules that the appellate court could not remedy, specifically not including the heirs of Ms. Sach (Ms. Loan's mother) in the proceedings, only conducting mediation between the plaintiff and the defendant without including those with related rights and obligations in the mediation sessions.

Comment: This case shows that due to the omission of a litigant during the process of resolving the case, the Court did not conduct a conciliation procedure between the parties, leading to a violation of procedural law.