TAND Tối cao giải đáp 07 vướng mắc xét xử liên quan đến hành chính

The Supreme People’s Court answers 07 administrative-related trial problems (Image from the internet)

On October 3, 2023, the Supreme People’s Court issued Official Dispatch 196/TANDTC-PC announcing the results of online answers to problems in trial work.

The Supreme People’s Court answers 07 administrative-related trial problems

Problems (1)

According to the instructions in Point 1, Section I, Official Dispatch No. 02/GD-TANDTC dated September 19, 2016 of the Supreme People’s Court answering a number of issues regarding administrative and civil proceedings, the Certificate of Use Rights Land use is an administrative decision.

According to the provisions of Point b, Clause 2, Article 193 of the 2015 Law on Administrative Procedures, the First Instance Trial Council has the authority to “Accept part or all of the request to initiate a lawsuit, annul part or all of the administrative decision.” illegal policy and decision to resolve related complaints (if any); …”

Thus, according to the above regulations, during trial, the Trial Panel has the right to partially annul the administrative decision. However, in the process of resolving a case where there is a request to cancel the Certificate of Land Use Rights, the Court will consider and decide depending on each specific case, specifically as follows:

– In case the Certificate of Land Use Rights is only issued for one plot of land but contains errors, the Court will accept the request to sue and cancel the entire Certificate of Land Use Rights.

– In case the Certificate of land use rights is issued for many separate plots of land; If the order, procedures, and authority to grant Land Use Rights Certificates do not comply with the provisions of law, the Court will accept the lawsuit request and cancel the entire Land Use Rights Certificate.

– In case the Certificate of land use rights is issued for many separate plots of land; The order, procedures, and authority to issue Land Use Rights Certificates are in accordance with the law, but there are errors for one or several plots of land in terms of area, neighbors, or land type, and this part is independent. , without affecting the rest, the Court partially accepts the lawsuit request and partially cancels the land use right certificate (for the land plot or land plots with errors); Force the People’s Committee at the competent level to perform tasks and public duties in accordance with the provisions of land law. In the judgment part of the judgment, the Trial Council must analyze, evaluate, and clearly determine which parts are correct and which parts are incorrect in the Land Use Rights Certificate.

Problems (2)

According to the provisions of Point b, Clause 1, Article 100 of the 2013 Land Law, households and individuals that are using land stably and have a temporary land use right certificate issued by a competent state agency can issue certificates of land use rights, ownership of houses and other assets attached to land and do not have to pay land use fees.

According to the provisions of Clause 1, Article 203 of the 2013 Land Law, land disputes in which the litigant has a certificate or one of the documents specified in Article 100 of this Law and disputes over assets attached to Land is resolved by the People’s Court.

According to the provisions of Clause 2, Article 203 of the 2013 Land Law, for land disputes in which the litigant does not have a Certificate or does not have one of the documents specified in Article 100 of this Law, the litigant has the option to resolve the dispute. resolve disputes at the competent People’s Committee or at the People’s Court.

Clause 1, Article 75, Clause 1, Article 79, Clause 1, Article 80 of the 2013 Land Law all stipulate cases of land compensation when the state recovers land eligible for issuance of Land Use Rights Certificates.

Thus, a temporary land use right certificate is an administrative decision issued by a competent state agency, creating, changing, restricting, and terminating the legal rights and interests of a household. , individuals using land, so according to the provisions of Clause 3, Article 3 of the 2015 Law on Administrative Procedures, the temporary land use right certificate is an administrative decision, subject to initiating an administrative lawsuit (if There is still a statute of limitations for filing an administrative lawsuit).

Problems (3)

Clause 10, Article 3 of the 2015 Law on Administrative Procedures stipulates: “Persons with related rights and obligations” are agencies, organizations and individuals that do not initiate lawsuits or are sued, but the resolution of administrative cases related to their rights and obligations, they themselves or other litigants make a request and are accepted by the Court or are brought into the proceedings by the Court as a person with related rights and obligations. mandarin.

In case an administrative case requires the cancellation of a Certificate of Land Use Rights that is mortgaged at a Bank, the Bank must participate in the proceedings as a person with related rights and obligations. In administrative cases, the Court does not have the right to cancel or recognize the mortgage contract, but has the right to review and evaluate the mortgage contract to cancel or not cancel the Certificate of land use rights.

Problems (4)

According to the provisions of Article 203 of the 2013 Land Law on the authority to resolve land disputes, land disputes in which the litigant has a Certificate or one of the documents specified in Article 100 of the 2013 Land Law and disputes over assets attached to land are resolved by the People’s Court; For land disputes where the litigant does not have a Certificate or does not have one of the documents specified in Article 100 of the 2013 Land Law, the litigant has the option to resolve the dispute at the competent People’s Committee. or at the People’s Court.

In the above case, the land use rights dispute between Mr. A and Ms. B was resolved by a legally effective decision of a competent state agency (Chairman of the People’s Committee of District C), within Within the legal limit, Ms. B does not complain or initiate an administrative case against decision lawsuit for Ms. B. In case after accepting the civil case, the Court learns that the matter has been resolved by decision 217 Civil Procedure Code 2015 to issue a decision to suspend the resolution of the case.

Problems (5)

Clause 1 and Clause 2, Article 3 of the 2015 Law on Administrative Procedures stipulate:

“1. Administrative decision is a document issued by a state administrative agency, an agency or organization assigned to perform state administrative management, or a competent person in that agency or organization issues a decision on an issue. Specific topics in administrative management activities are applied once to one or several specific subjects.

2. The administrative decision being sued is the decision specified in Clause 1 of this Article that creates, changes, limits or terminates the legitimate rights and interests of an agency, organization, individual or contains content that gives rise to obligations and affects the legitimate rights and interests of agencies, organizations and individuals.

Thus, the decision to approve land prices needs to be divided into two cases:

– In case the decision to approve the overall land price for the entire project does not include a list of households and individuals whose land will be recovered, this is an administrative decision but does not result in any changes or changes. , limit or terminate the legitimate rights and interests of organizations and individuals, so based on Clause 2, Article 3 of the 2015 Law on Administrative Procedures, this decision is not the subject of an administrative lawsuit.

– In case the decision approving the overall land price for the entire project is accompanied by a list of households and individuals whose land is recovered, this decision creates, changes, restricts or terminates the rights , the legitimate interests of organizations and individuals should, according to the provisions of Clause 2, Article 3 of the 2015 Law on Administrative Procedures, this decision be the subject of an administrative lawsuit.

Problems (6)

According to the provisions of Point c, Clause 2, Article 83 of the 2013 Land Law on support when the state recovers land, the state supports resettlement in cases of recovery of residential land of households, individuals, and Vietnamese people. Men settled abroad but had to move.

Thus, when the state recovers residential land, resettlement support will be considered depending on each specific case.

According to the provisions of Clause 1 and Clause 2, Article 3 of the 2015 Law on Administrative Procedures, the decision approving compensation and resettlement support for Mr. A’s family is an administrative decision and this decision affects the rights, Mr. A’s legitimate interests, so Mr. A has the right to sue part or all of this administrative decision.

Problems (7)

On November 25, 2015, the 13th National Assembly of the Socialist Republic of Vietnam, 10th session, passed the 2015 Law on Administrative Procedures. This law takes effect from July 1, 2016.

On April 13, 2018, the Minister of Finance issued Decision No. 520/QD-BTC approving the plan to deploy, arrange and merge Tax Departments of districts, towns and cities into Tax Departments. areas under the Tax Department of provinces and centrally run cities.

Thus, the establishment of the Regional Tax Department occurred after the 2015 Administrative Procedure Law took effect, so there are no regulations related to the authority to resolve tax payment notices of the Regional Tax Department. .

However, this is a type of matter that falls under the jurisdiction of the District People’s Court and to facilitate individuals and organizations in exercising their right to sue, the Court can apply the provisions in Clause 1, Article 31 of the Law. Administrative proceedings in 2015 to determine whether the District People’s Court has jurisdiction to resolve the case. Specifically:

In case the plaintiff files a lawsuit at the People’s Court of District A, the People’s Court of District A will accept and resolve the matter; In case the plaintiff files a lawsuit at the People’s Court of District B, the People’s Court of District B also has jurisdiction to resolve it because the People’s Court of District A and the People’s Court of District B are both located in the district’s area. regional tax department. The Court accepted the request for the plaintiff to commit not to sue in another Court.

In case the Provincial People’s Court has accepted and resolved the above lawsuit request, the Provincial People’s Court will continue to resolve the case.