Is there a legal basis for determining the value of assets when settling a void land purchase and sale contract by taking the average price of the involved parties?
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Case content:
In 1992, the family of Mr. A and Mrs. B were granted 1,600 m2 of land by the People’s Committee of the NE District, of which 200m2 is residential land, the rest is garden land.
In January 1995, Mr. A arbitrarily cut 6m of frontage and 20m of depth (120m2 of garden land) and sold it to Mr. Tran Van H for 40 million VND. The sale is only handwritten and not notarized.
In June 1995, Mr. H sold the purchased land of Mr. A to Mr. Q and Mrs. D for 50 million VND, the purchase and sale were also handwritten, without notarization.
In 2014, Mr. Q poured stones at the purchased land to build a fence, but Mrs. B prevented the construction. After finding out Ms. B, she learned that Mr. A (her husband) had voluntarily sold the land without the consent of Mr. B. her mind. On February 20, 2016, Ms. B filed a lawsuit asking the NE District Court to declare the transaction of land use right transfer between Mr. A and Mr. H and between Mr. H and Mr. Q and Mrs. D’s wife, null and void.
After accepting the case, the NE District Court collected evidence and determined that the purchase and sale between the parties was handwritten, not notarized, and at the time of the dispute, Mr. Q had not built a house or planted a tree. The purchase and sale of land is the common property of Mr. A and Mrs. B, but Mrs. B is not known. Mr. Q has fulfilled the obligation to pay taxes to the State since buying land until now. In 2010, the State built a road and recovered part of the land. Mr. Q was on the list of people who received compensation for land clearance. plain.
During the settlement process, the parties did not require an asset valuation and could not reach an agreement on the settlement of the case, the plaintiff offered the land price at 70,000,000 VND, the defendant offered a price of 1,200,000,000 VND. On April 20, 2016, the Court sent an official dispatch to the Tax Sub-Department requesting information on tax payment and the Tax Sub-Department replied in writing that it has collected Mr. Q’s tax since 2007, but if the Court If the judgment determines that the tax collection is not correct, the tax will be refunded.
On June 15, 2016, the NE District Court heard the case and decided to declare the contract of land use right transfer between the parties to be invalid, forcing the parties to return to each other what they had received; apply Joint Circular No. 02/2014/TTLT-TANDTC-VKSNDTC-BTP-BTC dated March 28, 2014 of the Supreme People’s Court, Supreme People’s Procuracy, Ministry of Justice and Ministry of Finance, guiding the implementation of Article 92 of the Ministry The Civil Procedure Law has been amended and supplemented according to the Law amending and supplementing a number of articles of the Civil Code on asset valuation, asset valuation (hereinafter referred to as Circular No. 02/2014) to determine value. plot of land at the market price offered by the parties and then averaged out (VND 70,000,000 + VND 1,200,000,000 = VND 1,270,000,000 /2 = VND 635,000,000), the current land price is VND 635,000,000 , determining the error that makes the contract void is 50%, therefore, forcing the plaintiff to return to the defendant the amount of VND 317,000,000.
After 10 days, Ms. B appealed that forcing her to jointly return to Mr. Q the amount of 317,000,000 VND was too high compared to the value of the land, the Court gave the wrong land price. recommended reconsideration. The defendant also appealed that the market value of the land plot was higher than VND 635,000,000, so the Court forced the plaintiff to pay him VND 317,000,000, which was a disadvantage for him, so he asked the appellate court to reconsider the land price. .
On September 10, 2016, the People’s Court of HB province heard the appellate trial and decided to cancel the first-instance judgment for the following reasons: At the first instance level, the receipt of compensation money from Mr. evidence of the case; failing to bring tax agency representatives to participate in the proceedings as a person with related interests and obligations is to omit the participants in the proceedings; The first-instance court’s determination of property value by taking the average price offered by the involved parties is not based on law, violates Clause 2, Article 2 of Circular No. 02/2014 and seriously violates the law. procedures under Point b, Clause 3, Article 104 of the Civil Procedure Code 2015.
In my opinion, in order to resolve the case, it is necessary to properly assess the evidence and orient the applicable legal provisions and identify the issues that the disputing parties require the Court to settle. According to the content of the above case, the involved parties all recognized that Mr. Q had received the compensation amount for ground clearance and in the list of compensation recipients named Mr. Q, the involved parties had no dispute about the received compensation for ground clearance, so the Court of Appeal considered that not collecting more compensation receipts is meaningless and not suitable for the settlement of the case; During the settlement of the case at the first instance level, the Court sent an official dispatch to the Tax Sub-department requesting to provide information related to the case and received a very specific reply from the Sub-department of Taxation that the land tax had been collected from the Tax Department. Mr. Q since 2007, if the Court makes a different conclusion, the paid tax will be refunded. Thus, the issue of who is the taxpayer, when to pay, if the taxpayer is not correct, how to solve it has been answered very clearly and clearly by the Tax Department, so there are enough grounds to solve the problem. decide the case.
Moreover, the involved parties have no claim to the Tax Department, so the Tax Department is not the person with related rights and obligations in the case; The first-instance court did not violate Clause 2, Article 2 of Circular No. 02/2014 and seriously violated the procedural procedures under Point b, Clause 3, Article 104 of the 2015 Civil Procedure Code, because, under the guidance at Clause 1, Article 17 of Circular No. 02/2014, the Court determines the asset price. In case the involved parties cannot reach agreement on the determination of the asset price but do not request the Court to determine the asset price, the Court shall request the Court to determine the asset price. If the parties offer different prices, the Court shall take the average price of the prices offered by the involved parties. In this case, the involved parties did not ask for a valuation, so the Court took the average price offered by the parties as correct according to the guidance of Circular No. 02/2014.
Source: According to kiemsat.vn
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