Up to now, the legal situation has changed and it is clear that keeping the precedent of this dispute will create many complicated legal consequences.
Case precedent No. 02/2016 on the case of a dispute over property recovery in Soc Trang province between Ms. Nguyen Thi Thanh and Mr. Nguyen Van Tam was approved by the Supreme People’s Court in April 2016 (Casation Decision No. 27/ 2010 of the Council of Judges of the Supreme People’s Court), no longer consistent with fairness and newly enacted laws.
Guide the old way
Case precedent No. 02/2016 taken from the cassation decision No. 27/2010 is only consistent with the resolution of the Supreme People’s Court, guiding the application of provisions of the 2003 Land Law, the 2005 Housing Law and the 2005 Civil Code. For a long time (nearly 10 years) due to the inadequate laws of that time restricting the rights of overseas Vietnamese in real estate transactions. The time when the courts at all levels of each place hear the type of…
Therefore, at that time, the Civil Court of the Supreme People’s Court had a report to discuss and then form a way to adjudicate disputes over Vietnamese residents living abroad who do not have the right to own a house, having to ask their relatives to name them. help.
The above precedent was one of the decisions to apply the guidelines of the Supreme People’s Court at that time. It should be added that, although it is only the opinion of the Supreme People’s Court in the form of papers, reports and guiding documents, then most People’s Courts at all levels have tried this view.
To date, the legal situation has changed. Specifically, when the 2013 Constitution was born, a series of new laws were promulgated in the direction of ensuring human rights, so it was not possible to apply the cassation decision to apply the line from 2010 to become the applicable precedent. used in the new situation.
It will lead to many bad consequences
Applying this case law will cause many bad legal consequences.
Firstly, it will advocate for subjects who violate the 2015 Housing Law, the 2013 Land Law and the 2015 Civil Code, who are not eligible for transactions but still establish underground transactions, which cannot be managed by the state.
Second, this precedent helps the party in the name of the “flip” to benefit from the difference. Promoting acts of abusing trust to appropriate other people’s property. In fact, there has been a case where the person in his name voluntarily sold the property of Viet Kieu thanks to his name and was criminally prosecuted for the act of appropriating property; There is a civil trial case and the overturner benefits from the difference in value like the division in the case law. Through the publicity of this case law, the party overturning the contract requests to apply for benefits that are contrary to fairness and have no basis in current law.
Third, the application of this precedent may result in legal consequences that damage the legitimate interests of the litigants in judgment enforcement (THA). For example, when a court distraint houses and real estate in the name of the debtor, but then the court has to postpone the execution due to a lawsuit claiming the distrained property on the grounds that the house and land were distrained even though it was in the name of the debtor, but they just the person in the name.
There are cases where the judgment debtor also presents a handwritten note in the name of a Viet Kieu to request a postponement of the judgment. In court, the two sides agreed to hand over assets to Viet Kieu. If this precedent is recognized, of course, the judgment judge has no assets for judgment enforcement. Invisibly, the enforcement of the effective judgment and the distraint decision becomes meaningless. At that time, the legal rights of the judgment creditors under the effective judgment become empty-handed.
Due to the change of situation, the change of the Constitution and laws. the law shows that this precedent is no longer relevant. I think the panel of judges should consider annulling or replacing this precedent according to regulations. The adjudication of this type of case requires the application of specific new laws.
Source: According to plo.vn
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