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THE
JUDGES' COUNCIL OF THE SUPREME PEOPLE'S COURT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
01/2003/NQ-HDTP
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Hanoi,
April 16, 2003
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RESOLUTION
GUIDING THE APPLICATION OF LAW TO THE SETTLEMENT OF SOME
TYPES OF CIVIL AS WELL AS MARRIAGE AND FAMILY DISPUTES
THE JUDGES' COUNCIL OF THE SUPREME PEOPLE'S COURT
Pursuant to the Law on Organization of the
People's Courts;
In order to correctly and uniformly apply the law provisions to the settlement
of civil as well as marriage and family disputes,
RESOLVES:
I. FOR DISPUTES OVER CIVIL
CONTRACTS
1. Disputes over civil
contracts with deposits
Under the provisions in Article 130 of the Civil
Code, the agreement on deposit is a civil transaction; deposit, therefore,
shall be valid only if it satisfies all conditions specified in Article 131 of
the Civil Code and is made in writing (either in a separate document or
inscribed in the principal contract). Where deposit-related disputes arise and
the involved parties have no otherwise agreement on the handling of deposit,
the handling shall be as follows:
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b/ Where deposit is paid only to secure the
entry into the contract, and breaches arise only in the contract performance
process and make the contract performance impossible or the contract is
detected to be invalid, deposit fines shall not be imposed. The settlement of
disputes over contract breaches or the handling of invalid contracts shall
follow general procedures.
c/ Where it is agreed by the involved parties or
prescribed by law that if deposit is invalid, so is the contract, the contract
shall be automatically invalid when the deposit is invalid. The handling of
invalid deposits and invalid contracts shall comply with the provisions in
Article 146 of the Civil Code.
For example: A and B enter into a house
purchase/sale contract. When entering into the contract, they reach an agreement
that B (buyer) must hand over to A (seller) a sport car as deposit to secure
the entry into and the performance of the house purchase/sale contract on the
condition that when the house purchase/sale contract is entered into and
performed, such sport car will be included in the house purchase/sale amount
and if A fails to receive such car for the reason that the deposit is invalid
and, therefore, the contract is also invalid. When the performance of the
contract starts, it is discovered that such car belongs to Mr. C (B's father),
who refuses to let B include such car in the house purchase amount, which means
that the deposit is invalid and in this case, therefore, the house
purchase/sale contract is also invalid.
d/ For cases guided at Points a and c of this
Section 1, if both involved parties are at fault or if force majeure
events or objective obstacles emerge, deposit fines shall not be imposed.
2. Disputes over dwelling
house purchase/sale contracts
2.1. Conditions for recognition of dwelling
house purchase/sale contracts
Under the provisions in Articles 131 and 443 of
the Civil Code, the Courts shall recognize dwelling house purchase/sale
contracts only when such contracts satisfy all the following four conditions:
a/ The persons entering into the dwelling house
purchase/sale contracts must have civil act capacity;
b/ The purpose and contents of the dwelling
house purchase-sale contracts do not run counter to laws and social morality;
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d/ The dwelling house purchase/sale contracts
must be made in writing, with the certification of the public notary or the
authentication of competent People's Committees according to the law provisions
on notarization and authentication effective at the time the contracts are
entered into.
It should be noted that for disputes over
general civil transactions related to dwelling houses (including dwelling house
purchase/sale contracts), which were established prior to July 1, 1991, the
settlement thereof shall comply with the National Assembly Standing Committee's
Resolution No. 58/1998/NQ-UBTVQH10 of August 28, 1998 on "dwelling
house-related civil transactions established prior to July 1, 1991" and
the guidance in Joint Circular No. 01/1999/TTLT-TANDTC-VKSNDTC of January 25,
1999 of the Supreme People's Court and the Supreme People's Procuracy guiding
the application of a number of provisions of this Resolution.
2.2. Settlement of a number of specific cases
involving invalid dwelling house purchase/sale contracts
a/ Dwelling house purchase/sale contracts which
breach the conditions guided at Points a, b and c, Sub-item 2.1 of this Item 2.
When dwelling house purchase/sale contracts
breach one of the above-said conditions, on a case-by-case basis, the Courts
shall apply the provisions of the relevant Articles from 136 to 138, from 140
to 145, and Article 146 of the Civil Code to declare such contracts invalid and
handle the consequences thereof.
b/ Dwelling house purchase/sale contracts which
breach the condition guided at Point d, Sub-item 2.1 of this Item 2.
For dwelling house purchase/sale contracts which
are invalid due to dissatisfaction of the conditions on contract form, when
disputes arise and one party or both parties request the Courts to apply
Article 139 of the Civil Code to issue a decision to order one party or both
parties to come to a competent State agency for carrying out procedures to
complete the contract form within one month after the Courts issue such a decision.
If either party is absent, this time limit shall be counted from the date the
absent party receives such decision of the Court. If a force majeure
event or objective obstacle occurs, the period when the force majeure
event or objective obstacle exists shall not be included in that one-month time
limit. Past one month, if the parties fail to come to a competent State agency
to perform the procedures to complete the contract form, the Courts shall
declare their contract invalid. The party that makes the contract invalid due
to his/her/its breach of the form condition and failure to abide by the Court's
decision must pay compensation for damage under the provisions in Article 146
of the Civil Code.
2.3. Time limit for requesting the Courts to
declare dwelling house purchase/sale contracts invalid
The time limit for requesting the Courts to
declare dwelling house purchase/sale contracts invalid is specified in Article
145 of the Civil Code. However, it should be noted that for the cases of
invalid dwelling house purchase/sale contracts specified in Articles from 140
to 143 of the Civil Code, the one-year time limit is counted from the date when
the dwelling house purchase/sale contracts are certified, notarized or
authenticated.
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a/ Determination of fault
After declaring dwelling house purchase/sale
contracts invalid, when settling consequences entailed by the invalid contracts,
the Courts shall, in general principle, order the buyers to return the dwelling
houses to the sellers; the sellers to receive back the dwelling houses and
return what they have received from the buyers to the buyers. However, under
the provisions in Clause 2, Article 146 of the Civil Code, if the party whose
fault makes the dwelling house purchase/sale contract invalid causes damage,
he/she/it must pay compensation to the other party; therefore, the fault of one
party or both parties is determined as follows:
a.1. One party shall be regarded as being at
fault if such party misleads the other party to believe that all conditions for
dwelling house purchase are satisfied or the dwelling house sale is lawful.
Example of cases where the seller is regarded as
being at fault: The seller shall be regarded as being at fault if he/she/it
makes the buyer to believe that the seller has the dwelling house ownership
right and the residential land use right or commits a deceitful act so that a
competent State body grants the dwelling house ownership and residential land
use right certificates, then uses these papers as proof to convince the buyer
to enter into the dwelling house purchase/sale contract.
Example of cases where the buyer is regarded as
being at fault: The buyer shall be regarded as being at fault if he/she/it
deceives the seller into believing that the deposited property or the property
used to fulfill the buyer's obligation is under the buyer's ownership and,
therefore, enter into the contract or handing over the dwelling house to the
buyer.
a.2. For dwelling house purchase/sale contracts
which are invalid under the provisions in Articles 140, 141, 142 and 143 of the
Civil Code, the provisions of the relevant articles shall be applied to
determine the fault of the seller or the buyer.
a.3. Where a dwelling house purchase/sale
contract is invalid due to both parties' faults, except for the case specified
in Article 137 of the Civil Code, the Court shall determine the extent of each
party's fault so as to determine each party's damage compensation liability
commensurable to the extent of his/her/its fault.
b/ Determination of damage compensation
liability
b.1. If both parties have equivalent faults
causing their dwelling house purchase/sale contract invalid, each party shall
be liable for half of the damage value; if their faults are not equivalent, the
damage compensation liability shall be determined according to the extent of
each party's fault.
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b.3. If it is the seller's fault that makes the
dwelling house purchase/sale contract invalid, the seller must return to the
buyer the received money amount while the buyer must hand over the house to the
seller (if already received). If there emerges any house price difference that
causes loss to the buyer, the seller must compensate for the house price
difference which shall be determined under the guidance at Point c, Sub-item
2.4 of this Item 2. Such difference amount shall be calculated in proportion to
the amount already paid by the house seller
b.4. If in the period of management, the buyer
has renovated and/or repaired the house, which increases the house's value
associated with the land use right value, the seller, when receiving back the
house, must pay to the buyer such increased value, except for cases where the
buyer deliberately renovates and/or repairs the house despite the fact that
such was protested by the seller or not permitted by a competent body.
c/ Determination of damage
c.1. When declaring a dwelling house
purchase/sale contract invalid, the Court should determine damage which
comprises:
The amount the seller has spent on repairing or
restoring to its original state the house which has been dismantled or damaged
by the buyer; the amount the buyer has spent on renovating and/or repairing the
house, thereby increasing the house's value associated with the land use right.
Where a dwelling house purchase/sale contract involves no deposit and the
parties thereto have no otherwise agreement on the application of measures to
fine contract breaches and on the damage compensation as prescribed in Article
379 of the Civil Code so as to secure the contract performance, the damage
shall also comprise the money difference between the house' value associated
with the land use right value as agreed upon by the parties and that at the
time of first-instance trial, or other damages, if any.
c.2. To correctly determine the above damage,
the Court must conduct the valuation of the house associated with the land use
right value and determine the dwelling house damage as follows:
If the involved parties fail to reach agreement
on the house's price, the land use right value and the damage value, the Court
shall request specialized agencies to make such valuation or issue a decision
to set up a valuation council. The house's price and the land use right value
shall be determined according to the prices on the transfer market in the
locality where exists the house and land in dispute according to each type of
house and land at the time of first-instance trial. However, if the
provincial-level People's Committees set specific land prices suitable to the
land use right transfer prices on the local market or the lawfully operating
real-estate transaction centers have posted up the land transfer prices in the
localities, the Courts may base themselves on the prices set by the People's
Committees or the prices posted up by the transaction centers to determine the
house prices associated with the land use right value without having to set up
valuation councils.
c.3. Responsibility to bear valuation expenses:
- The involved parties shall have to bear valuation
expenses in proportion to their respective liabilities.
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3. Settlement of disputes over
the transfer of State-owned dwelling house-leasing contracts
3.1. Transfer of a State-owned dwelling
house-leasing contract means an act whereby a person who has a contract on
leasing a State-owned dwelling house no longer needs to use the house or for
whatever reason and transfers such contract to another person. The sub-lessee
of the dwelling house must pay to the transferor an amount and shall be allowed
to carry out the registration procedures and sign a contract on renting such
dwelling house area with the housing and land management agency.
3.2. In applying Article 131, Clause 1 of
Article 200 and Clause 3 of Article 494 of the Civil Code to settling disputes
of this type, the Courts should bear in mind that:
a/ The transfer of State-owned dwelling
house-leasing contracts must be made in writing.
b/ If the transfer of dwelling house-leasing
contracts has been permitted in writing by the house and land management agency
(at the time of entry into the contracts, before or during the Court sessions),
the Courts shall recognize such contracts and order the involved parties to
perform their obligations as agreed upon.
c/ If the transfer of dwelling house-leasing
contracts is not permitted in writing by the house and land management agency
(at the time of entry into the contracts, before or during the Court sessions),
the Courts shall declare the contracts invalid and settle consequences of the
invalid contracts according to general procedures.
d/ When settling disputes of this type, on a
case-by-case basis the Courts shall request the house and land management
agency to participate in court proceedings in the capacity of a party with
related interests and/or obligations.
II. REGARDING MARRIAGE AND
FAMILY DISPUTES
1. Inheritance in case of
having no marriage registration
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b/ Where a man and a woman lived together as
husband and wife sometime between January 3, 1987 and January 1, 2001 and meet
all condition for marriage under the provisions of the 2000 Marriage and Family
Law, they shall be obliged to register their marriage within a time limit of
two years from January 1, 2001 to January 1, 2003; therefore, if one spouse
died prior to January 1, 2003, the other spouse shall be allowed to enjoy the
deceased spouse's heritage under the law provisions on inheritance. If after
January 1, 2003 they had not yet registered their marriage and one spouse died,
any inheritance dispute, pending new regulations of competent State bodies,
shall be handled by the Court as follows:
- If the case has not yet been accepted for
handling, it shall not be accepted;
- If the case has been accepted and its handling
is underway, the Court shall issue a decision to temporarily suspend the
handling.
2. Divorce involving foreign
elements
2.1. For cases where Vietnamese citizens
residing in the country apply for divorce from Vietnamese citizens staying
abroad
In settling cases of this type, the following
should be distinguished:
a/ For cases where judicial entrustment brings
no result because the respondent lives in exile, is not managed by any agency,
has no clear address and, therefore, is uncontactable, the Court shall request
the respondent's next of kin to send to the respondent the claimant's testimony
and advise his/him to send to the Court his/her testimony or documents
necessary for the settlement of the case. Then, the Court may base itself on
such testimonies and documents to conduct trial according to general
procedures.
b/ If the respondent lives abroad without any
address and information or conceals his/her address from the claimant living in
Vietnam, this case shall be handled as follows:
- If the respondent lives abroad without any
address and information (even his/her next of kin have no idea about his/her
address or information), the Court shall issue a decision to temporarily stop
the settlement of the case under the provision at Point c, Clause 1, Article 45
of the Ordinance on Settlement of Civil Cases and explain to the claimant that
he/she is entitled to request the district Court of the place where he/she
permanently resides to declare the respondent missing or dead under the law
provisions on declaration of missing persons or declaration of dead persons.
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2.2. For cases where both parties are Vietnamese
citizens who married abroad under the foreign laws now return to Vietnam and
apply for divorce
In settling cases of this type, the following
should be distinguished:
a/ For cases where the parties have the marriage
certificates granted by competent authorities in the countries which have
signed with Vietnam legal assistance agreements or consularly legalized under
the provisions of Vietnamese laws.
Under the provisions of the Government's Decree
No. 83/1998/ND-CP of October 1998 on civil status registration (hereinafter
referred to as Decree No. 83 for short), the marriage of the involved parties
should be recorded in the registry book; therefore, if the marriage of the
involved parties has not yet recorded in the registry book, the Court shall
request them to carry out procedures for recording in the registry book as
prescribed in Decree No. 83 before accepting to settle the divorce. If the
involved parties fail to comply with such request of the Court but still
request the Court to settle their case, the Court shall not recognize them as
husband and wife; if they additionally request the Court to settle matters
related to children and/or property, the Court shall settle them according to
general procedures.
b/ For cases where the parties have the marriage
certificates granted by competent authorities in the countries which have not
yet signed with Vietnam legal assistance agreements, but not yet consularly
legalized under the provisions of Vietnamese laws.
In this case, according to the provisions of
Decree No. 83, the marriage registration certificate must be consularly
legalized and the marriage should be recorded in the registry book; therefore,
if the parties' marriage registration certificate has not yet been consularly
legalized nor has their marriage been recorded in the registry book, the Court
shall request the involved parties to complete the procedures for consularly
legalization and for recording their marriage in the registry book before
accepting to settle the case. If the involved parties fail to carry out such
procedures but still request the Court to settle their case, if they
additionally request the Court to settle matters related to children and/or
property, the Court shall settle them according to general procedures.
2.3. For cases where Vietnamese persons residing
abroad married foreigners and their marriages have been recognized in Vietnam,
now such Vietnamese persons return home and their foreign spouses apply for
divorce
a/ Where the foreign spouses currently living
abroad apply for divorce from the Vietnamese persons who still bear Vietnamese
nationality and are residing in Vietnam, the Courts shall accept to settle
these cases but in applying laws thereto, they should distinguish the
following:
- If foreigners are citizens of the countries
with which Vietnam has signed legal assistance agreements containing provisions
different from those of the 2000 Marriage and Family Law, the Courts shall
apply the provisions of such legal assistance agreements to settling their
cases; if such agreements contain no different provisions, the Courts shall apply
the 2000 Marriage and Family Law.
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- In divorce cases, the settlement of properties
being immovables situated abroad shall comply with the laws of the countries
where exist such immovables.
b/ For cases where Vietnamese citizens residing
in the country apply for divorce from foreigners residing abroad
If Vietnamese citizens apply for divorce from
foreigners who have returned to their countries after their marriages and kept
no contact with the Vietnamese citizens, the Courts shall accept to settle
their cases.
Under Article 18 of the 2000 Marriage and Family
Law, husband and wife are obliged to take care of and help each other, together
build up a happy family; therefore, if the foreign spouse returns to his/her
country without fulfilling the husband-wife obligations as prescribed, the
period when he/she has no contact with his/her spouse being a Vietnamese
citizen is one year or longer, and his/her spouse, their next of kin and
competent bodies (the Vietnamese diplomatic mission in the foreign spouse's
country, competent authorities of the country where the foreign spouse is a
citizen) also have no information nor address of the foreign spouse after
investigating and verifying the address he/she declared when carrying out
entry/exit procedures and the address he/she declared in the marriage
certificate when making marriage registration, this case shall be regarded as
the case where the respondent deliberately conceals his/her address and,
therefore, divorce shall be accepted.
III. IMPLEMENTATION EFFECT OF
THE RESOLUTION
1. This Resolution was adopted by the Judges'
Council of the Supreme People's Court on April 16, 2003 and takes effect
fifteen days after its publication in the Official Gazette.
The Supreme People's Court's guidelines issued
before the effective date of this Resolution on matters guided in this
Resolution are hereby all annulled.
2. For civil as well as marriage and family
cases which the Courts have received but not yet brought for first-instance
trial, appellant trial, supervisory trial or review trial, this Resolution
shall be applied to the settlement thereof.
3. For the Courts' civil as well as marriage and
family judgments and decisions which took legal effect before the effective
date of this Resolution, this Resolution shall not be applied to protests
according to supervisory or review procedures, except where such protests are
filed on otherwise grounds.
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ON BEHALF OF THE JUDGES' COUNCIL
OF THE SUPREME PEOPLE’S COURT
CHIEF JUDGE
Nguyen Van Hien