Cassation decision No. 05/2010/DS-GDT dated march 3, 2010 on civil case regarding inheritance dispute between petitioner Nguyen Quang Phuc trực tiếp bóng đá việt nam hôm nay respondent Nguyen Dinh Hue

THE SUPREME PEOPLE’S COURT

CASSATION DECISION NO. 05/2010/DS-GDT DATED MARCH 3, 2010 ON CIVIL CASE REGARDING INHERITANCE DISPUTE BETWEEN PETITIONER NGUYEN QUANG PHUC trực tiếp bóng đá việt nam hôm nay RESPONDENT NGUYEN DINH HUE

On March 3, 2010, the cassation trial was conducted at the office of the Supreme People’s Court to hear the civil case of inheritance dispute between:

Petitioner:Mr. Nguyen Quang Phuc, born in 1962; residing in: Cau Lau Tay village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

Respondent:Mr. Nguyen Dinh Hue, born in  1950; residing in:  Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

Persons with relevant rights trực tiếp bóng đá việt nam hôm nay obligations:

1. Mr. Nguyen Nghe, born in 1945; residing in:  group 2/1, Nam Dan commune, Krong No district, Daklak province.

2. Mrs. Nguyen Thi Hoe, born in  1935; residing in:  group 10A, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

3. Mrs. Nguyen Thi Muon, born in  1937; residing in:  group 2, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

4. Mrs. Nguyen Thi Lieu, born in 1948; residing at:  2121 Tatanka CT- Gienland Newjersey 08381 USA.

5. Mrs. Nguyen Thi A; residing at: 76 Bach Dang, Son Phong ward, Hoi An town, Quang Nam province.

6. Mrs. Nguyen Thi Be; residing at: 76 Bach Dang, Son Phong ward, Hoi An town, Quang Nam province.

7. Mrs. Nguyen Thi Cuc; residing in: Hoa Binh village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

8. Mrs. Nguyen Thi Xe, Mr. Nguyen Quang Phuc, Mr. Nguyen Quang Phuoc, Mrs. Nguyen Thi Bich Lien, Mr. Nguyen Quang Phu (Mr. Hue’s grandson); co-residing in: Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

9. Mr. Nguyen Quang Thang; residing in: group 16b, Ruong Hoi hamlet, Bao Vinh commune, Long Khanh town, Dong Nai Province.

10. Mrs. Nguyen Thi Hien, Mrs. Nguyen Thi Sau; co-residing at: 152 Nguyen Cong Tru, Da Nang city.

11. Mrs. Le Thi Hong trực tiếp bóng đá việt nam hôm nay Nguyen Quang Yen, born in 1995, Nguyen Quang Tinh, born in 2002; co-residing in: Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.  Mrs. Le Thi Hong is the legal guardian of Yen trực tiếp bóng đá việt nam hôm nay Tinh.

12. Mr. Nguyen Quang Vinh; residing in: Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

13. Mr. Nguyen Muoi, born in 1952; residing in:  group 1, village 3, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

14. Mrs. Tran Thi Minh Van, born in 1947; residing in: Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

FINDING THAT

According to the lawsuit petition dated July 18, 2007 trực tiếp bóng đá việt nam hôm nay available evidence presented by the petitioner in the case file:

Mr. Nguyen Trang trực tiếp bóng đá việt nam hôm nay Mrs. Huynh Thi Duong had 6 common children:

1. Mr. Nguyen Tham (died in 1975), unknown wife, had 9 children below: Nguyen Thi A, Nguyen Thi Be, Nguyen Thi Xe, Nguyen Quang Phuc, Nguyen Thi Cuc, Nguyen Quang Phuc, Nguyen Quang Phuoc, Nguyen Thi Bich Lien, Nguyen Quang Phu.

2. Mr. Nguyen Nhu (died in 1972), unknown wife, had 5 children below: Nguyen Quang Thang, Nguyen Quang Vinh, Nguyen Thi Hien, Nguyen Thi Sau, Nguyen Quang Tam

3. Mrs. Nguyen Thi Hoe;

4. Mrs. Nguyen Thi Muon;

5. Mr. Nguyen Nghe;

6. Mrs. Nguyen Thi Lieu.

In 1949, Mrs. Duong died leaving no will.  In 1950 Mr. Trang got married to Mrs. Nguyen Thi Men trực tiếp bóng đá việt nam hôm nay they had two common children: Mr. Nguyen Dinh Hue trực tiếp bóng đá việt nam hôm nay Mr. Nguyen Muoi.

Mr. Trang died in 1982 trực tiếp bóng đá việt nam hôm nay Mrs. Men died in 1983 leaving no will. After Mrs. Men died, she left a 3-compartment house on the land area of 1,200m2 in Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province. This house trực tiếp bóng đá việt nam hôm nay piece of land has been under management trực tiếp bóng đá việt nam hôm nay use of Mr. Nguyen Dinh Hue’s family.

In 1992, Mr. Nguyen Quang Phuc, Mrs. Nguyen Thi Hoe, Mrs. Nguyen Thi Muon, Mr. Nguyen Nghe trực tiếp bóng đá việt nam hôm nay Mrs. Nguyen Thi Lieu (children trực tiếp bóng đá việt nam hôm nay grandchildren of Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong) filed a lawsuit claiming distribution of inheritance of Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong. The respondent, Mr. Nguyen Dinh Hue, agrees the distribution of inheritance, but requests consideration of their family’s contribution in the land improvement trực tiếp bóng đá việt nam hôm nay house repair.

In the First Instance Civil Judgment No. 04/DSST dated February 21, 1992, the People’s Court of Duy Xuyen district, Quang Nam-Da Nang province determined that the house trực tiếp bóng đá việt nam hôm nay land in dispute was the common property of Mr. Trang, Mrs. Duong trực tiếp bóng đá việt nam hôm nay Mrs. Men trực tiếp bóng đá việt nam hôm nay decided the distribution of inheritance based on that determination.

After the first instance trial: Mr. Hue appealed trực tiếp bóng đá việt nam hôm nay the Chief Procurator of the People’s Procuracy of Duy Xuyen district appealed the foregoing First Instance Civil Judgment. During the appellate trial preparation period, on August 10, 1992, the co-petitioners withdrew the lawsuit request.

In the Decision No. 25 dated August 13, 1992, the People’s Court of Quang Nam-Da Nang province (old) applied Article 46 trực tiếp bóng đá việt nam hôm nay 65 of the Ordinance on resolution of civil cases to suspend the lawsuit settlement.

On May 25, 2006, Mrs. Nguyen Thi Lieu trực tiếp bóng đá việt nam hôm nay Mr. Nguyen Quang Phuc filed a lawsuit as follows:  Pursuant to Resolution No. 02/2004/NQ-HDTP dated August 10, 2004 of the Council of Judges of the Supreme People’s Court, the estate of Mr. Trang, Mrs. Duong trực tiếp bóng đá việt nam hôm nay Mrs. Men becomes the common property of co-heirs, so request the court to distribute it as the common property.

In the First Instance Civil Judgment No. 09/DSST dated August 28, 2006, the People’s Court of Quang Nam province judged: Pursuant toResolution No. 02/2004/NQ-HDTPdated August 10, 2004 of the Council of Judges of the Supreme People’s Court, the estate of Mr. Trang, Mrs. Duong trực tiếp bóng đá việt nam hôm nay Mrs. Men is entitled to become the common property of co-heirs trực tiếp bóng đá việt nam hôm nay be distributed as the common property.

After the first instance trial, Mr. Nguyen Dinh Hue trực tiếp bóng đá việt nam hôm nay his wife, Mrs. Tran Thi Minh Van; Mr. Nguyen Quang Phuc trực tiếp bóng đá việt nam hôm nay Mrs. Nguyen Thi Lieu filed an appeal.

In the Appellate Civil Judgment No. 57/2007/DSPT dated May 22, 2007, the Appellate Court of the Supreme People’s Court in Da Nang judged: “After expiry of a period of 10 years trực tiếp bóng đá việt nam hôm nay in today’s court hearing, the litigants keep provoking the dispute over line of succession. Mr. Phuc claims that as the piece of land is the estate of Mrs. Duong, Mr. Trang, Mr. Hue trực tiếp bóng đá việt nam hôm nay Mr. Muoi do not stand in first line of succession of Mrs. Duong, but natural children of Mrs. Duong stand in the first line of succession of Mrs. Men. Mr. Hue claims that the house trực tiếp bóng đá việt nam hôm nay land are property left by Mrs. Men trực tiếp bóng đá việt nam hôm nay Mr. Trang, so natural children of Mrs. Duong do not stand in line of succession of Mrs. Men...”; thus, the estate left by the deceased is not entitled to become the common property; so the court decides as follows:  “…Quash the First Instance Judgment No. 09/2006/DS-ST dated August 28, 2006 of the People’s Court of Quang Nam province on division of common property trực tiếp bóng đá việt nam hôm nay suspend the lawsuit settlement…”

On July 18, 2007, Mr. Phuc continued to bring a lawsuit claiming that: Mrs. Nguyen Thi Lieu immigrated to the USA in 1997; on July 27, 2006, the Standing Committee of National Assembly promulgatedResolution No. 1037/2006/NQ-UBTVQH11dated July 27, 2006 of Standing Committee of the National Assembly on housing-related civil transactions established before July 1, 1991 with involvement of overseas Vietnamese; in comparison with Clause 2 Article 39, Chapter XI of the foregoing Resolution, the prescriptive period for filing a lawsuit associated with the estate of Mr. Trang, Mrs. Duong, Mrs. Men remains effective; thus, he petitions for division of inheritance of Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong which includes the house trực tiếp bóng đá việt nam hôm nay piece of land under management trực tiếp bóng đá việt nam hôm nay use of Mr. Hue’s family (he indicates that this estate was formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong, Mrs. Men only gave contribution in restoring the piece of land trực tiếp bóng đá việt nam hôm nay repairing the house), trực tiếp bóng đá việt nam hôm nay he claims to be handed over the house for dwelling trực tiếp bóng đá việt nam hôm nay ancestor worship.

The respondent (Mr. Nguyen Dinh Hue) refuses the distribution of inheritance as claimed by the petitioner trực tiếp bóng đá việt nam hôm nay claims that the house trực tiếp bóng đá việt nam hôm nay land jointly formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong were handed over to the married couple Mr. Nguyen Tham (the eldest son of Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong) for management trực tiếp bóng đá việt nam hôm nay use by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men; Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men built a new house on a new piece of land which have been under his family’s management trực tiếp bóng đá việt nam hôm nay use.

In the First Instance Civil Judgment No. 05/2007/DSST dated December 18, 2007, the People’s Court of Quang Nam province judged: Pursuant to guidance of Resolution No. 1037/2006/NQ-TVQH11 dated July 27, 2006 of the Standing Committee of National Assembly on housing-related civil transactions established before July 1, 1991 with involvement of an overseas Vietnamese, when the petitioner filed  the lawsuit (on July 18, 2007), the prescriptive period for filing lawsuit associated with the estate of Mr. Trang, Mrs. Duong trực tiếp bóng đá việt nam hôm nay Mrs. Men still remains effective; the house trực tiếp bóng đá việt nam hôm nay land in dispute (under management trực tiếp bóng đá việt nam hôm nay use of Mr. Hue’s family) is the common property of these 3 people (each person is entitled to own one-third of the property) for distribution of inheritance, in specific:

Accept the lawsuit petition of Mr. Nguyen Quang Phuc against Mr. Nguyen Dinh Hue concerning the distribution of inheritance left by Mr. Nguyen Trang, Mrs. Huynh Thi Duong, Mrs. Nguyen Thi Men, including the house trực tiếp bóng đá việt nam hôm nay the piece of land in Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province.

Permit Mr. Nguyen Quang Phuc to own the house trực tiếp bóng đá việt nam hôm nay perennial trees on the piece of land of 521m2 in Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province, which is worth VND 83,411,355 (with attached map).

Permit Mr. Nguyen Dinh Hue to acquire land use right of 706m2 associated with buildings under ownership right of Mr. Hue trực tiếp bóng đá việt nam hôm nay Mrs. Van in Cau Lau Dong village, Duy Phuoc commune, Duy Xuyen district, Quang Nam province (with attached map). The parties are not required to make up for each other.

Mr. Nguyen Quang Phuc is obliged to make up for Mrs. Nguyen Thi Lieu VND 22,748,655. trực tiếp bóng đá việt nam hôm nay make up for Nguyen Quang Yen trực tiếp bóng đá việt nam hôm nay Nguyen Quang Tinh VND 1,516,577 each, trực tiếp bóng đá việt nam hôm nay Mrs. Le Thi Hong will receive it on their behalf.

In addition, the Court of First Instance decided the court fee trực tiếp bóng đá việt nam hôm nay liability due to delayed judgment enforcement trực tiếp bóng đá việt nam hôm nay announced the right to appeal of the litigants.

On December 20, 2007, Mr. Hue trực tiếp bóng đá việt nam hôm nay his wife made an appeal claiming that the house trực tiếp bóng đá việt nam hôm nay land in dispute are property formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men after Mrs. Duong died; therefore, the Court of First Instance was wrong when determining that these are common property of these 3 people for distribution of inheritance.

On January 2, 2008, Mr. Phuc filed an appeal claiming Mr. Hue to pay the difference of estate portion to other heirs. On September 22, 2009 (at the appellate court hearing), Mr. Phuc withdrew the appeal.

In the Judgment No. 95/2008/DSPT-QD dated August 22, 2008, the Appellate Court of the Supreme People’s Court in Da Nang judged:

The petitioner withdrew the appeal at the appellate court hearing, the respondent filed an appeal, but “in 5 court hearings (on April 23, 2008, May 15, 2008, June 18, 2008, August 19, 2008, August 22, 2008), Mr. Nguyen Dinh Hue trực tiếp bóng đá việt nam hôm nay Mrs. Tram Thi Minh Van were absent in 4 court hearings (on on April 23, 2008, May 15, 2008, August 19, 2008, August 22, 2008). Considering that Mr. Hue trực tiếp bóng đá việt nam hôm nay Mrs. Van were knowingly absent despite being duly served multiple times causing prejudice to the appellate trial, they are considered as renouncing their appeal”;

Thereby decides as follows:

1. Suspend appellate trial of the appeal of Mr. Nguyen Dinh Hue trực tiếp bóng đá việt nam hôm nay Mrs. Tran Thi Minh Van trực tiếp bóng đá việt nam hôm nay appeal of Mr. Nguyen Quang Phuc.

2. The First Instance Civil Judgment No. 05/2007/DSST dated December 18, 2007 of the People’s Court of Quang Nam province become legally effective as of August 22, 2008.

In addition, the Court of Appeal decided the court fee.

After the Appellate Decision was rendered, Mr. Hue filed a claim.

In the Decision No. 208/2009/KN-DS dated May 20, 2009, the Chief Justice of the Supreme People’s Court appealed the above Appellate Civil Judgment trực tiếp bóng đá việt nam hôm nay requested the Council of Judges of the Supreme People’s Court to hear the case under cassation review, quash the above First Instance Judgment No. 05/2075/DSST dated December 18, 2007 of People’s Court of Quang Nam Province; refer the case file to the People’s Court of Quang Nam Province for first instance re-trial as per the law, with the following judgment:

In terms of court procedures:

Pursuant to Clause 2 Article 39 of Resolution No. 1037/2006/UBTVQH11 dated July 27, 2006 of Standing Committee of the National Assembly: The period from July 1, 1996 to the effective date of this Resolution shall not be included in the prescriptive period for resolution of housing-related civil transactions established before July 1, 1991 with involvement of overseas Vietnamese”. Accordingly, the condition for applying this Resolution is that the housing-related civil transactions must be established before July 1, 1991 with involvement of overseas Vietnamese. In this case, the civil transaction related to house inheritance was established before July 1, 1991 (Mrs. Duong, Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men all died before July 1, 1991) trực tiếp bóng đá việt nam hôm nay Mrs. Nguyen Thi Lieu has been resided abroad; however, while the Court of First Instance failed to clarify the time when Mrs. Nguyen Thi Lieu started immigrating aboard, it accepted the lawsuit petition dated July 18, 2007 of Mr. Nguyen Quang Phuc to resolve the case of distribution of inheritance. This was an ungrounded decision.

According to the report of appellate court hearing (first opening) on April 23, 2008, the Court of Appeal adjourned such hearing because the respondent was absent without known reasons”.

So, in this summons, there are unjustifiable grounds to determine that Mr. Hue was absent without justifiable reasons despite being duly served.

At the appellate court hearing (second opening) on May 15, 2008, the Court of Appeal adjourned such hearing because it accepted the petition of Mr. Hue sent on May 6, 2008, which he explained that he could not receive the subpoena dated April 23, 2008 trực tiếp bóng đá việt nam hôm nay requested appellate trial in June 2008 since he had received medical treatment in Ho Chi Minh City.

At the appellate court hearing (third opening) on June 18, 2008, Mr. Hue was present, but the Court of Appeal adjourned such hearing because the petitioner (Mr. Phuc) was absent.

At the appellate court hearing (fourth opening) on August 19, 2008, Mr. Hue was present trực tiếp bóng đá việt nam hôm nay submitted the notice to the court reporter at 8:00 (the court reporter received the notice trực tiếp bóng đá việt nam hôm nay made a record), but the court hearing minutes stated that he trực tiếp bóng đá việt nam hôm nay his wife were absent. It was untrue.

At the appellate court hearing (fifth opening) on August 22, 2008, according to the minutes made at 5:00 on August 21, 2008 (case file p. 260), Mr. Nguyen Van Tien (court reporter of the People’s Court of Duy Xuyen district, Quang Nam province) trực tiếp bóng đá việt nam hôm nay Mr. Huynh Menh (judicial officer of Duy Phuoc commune), Mr. Dang Ngoc Hung (village deputy head) came to Mr. Hue’s family to serve the subpoena trực tiếp bóng đá việt nam hôm nay notice of appellate trial on the following date (August 22, 2008) but they failed to do so because Mr. Hue was not at home. According to the confirmation of Mr. Hung “…as the neighbors said, Mr. Hue trực tiếp bóng đá việt nam hôm nay Mrs. Van were at home, but they knowingly closed the door not to receive the subpoena trực tiếp bóng đá việt nam hôm nay notice”. However, according to the claim (with attached documents) of Mr. Hue trực tiếp bóng đá việt nam hôm nay his wife, after the Court of Appeal adjourned the court hearing on August 19, 2008, Mr. Hue came to the polyclinic hospital of Quang Nam province to receive medical treatment because the doctor diagnosed him with “spots …in right lung”; according to the confirmation of Mr. Tran Thanh Tam trực tiếp bóng đá việt nam hôm nay Mr. Le Chau Phu, after the examination, Mr. Hue stayed at the house of Mr. Tam in Tam Ky (not Duy Xuyen) to receive outpatient treatment daily at the polyclinic hospital of Quang Nam province until August 23, 2008. Accordingly, in this summons, there were no substantial ground to confirm that Mr. Hue trực tiếp bóng đá việt nam hôm nay his wife stayed at home but they avoided receiving the subpoena. So, in this court hearing, it is ungrounded to determine that Mr. Hue is absent despite being duly served.

Thus, the Court of Appeal was wrong when determining that the intentional absence of Mr. Hue trực tiếp bóng đá việt nam hôm nay Mrs. Van could be considered as denouncing the their appeal trực tiếp bóng đá việt nam hôm nay suspended the appellate trial.

In terms of the content:

The Court of First Instance had insufficient grounds to determine that the piece of land in dispute is the common property of Mrs. Huynh Thi Duong, Mr. Nguyen Trang trực tiếp bóng đá việt nam hôm nay Mrs. Nguyen Thi Men only based on the depositions from some witnesses that this piece of land was formed by Mr. Nguyen Trang trực tiếp bóng đá việt nam hôm nay Mrs. Huynh Thi Duong trực tiếp bóng đá việt nam hôm nay Mr. Trang got married to Mrs. Men trực tiếp bóng đá việt nam hôm nay stayed on this piece of land after Mrs. Duong died. Because:  there are depositions of other witnesses in the case file (those in the families of Mr. Nguyen Trang, Mr. Nguyen Tran, Mr. Nguyen Van Tien, Mrs. Nguyen Thi Nhieu, Mr. Nguyen Bon, etc.) which confirm that the piece of land in dispute were formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong; after Mrs. Duong died, Mr. Trang handed it over to his eldest son, Mr. Nguyen Tham, for management trực tiếp bóng đá việt nam hôm nay use; Mr. Trang got married to Mrs. Men trực tiếp bóng đá việt nam hôm nay built another house on another piece of land (current house trực tiếp bóng đá việt nam hôm nay land in dispute).  Accordingly, the Court of First Instance has not considered all depositions of the witnesses trực tiếp bóng đá việt nam hôm nay has not verified the origin of the estate but resolved the distribution of inheritance. This was an ungrounded decision. Alternatively, Mr. Nguyen Dinh Hue has being managed trực tiếp bóng đá việt nam hôm nay used this house stably, but the Court of First Instance compelled Mr. Hue to hand it over to Mr. Nguyen Quang Phuc. This was not a decision in conformity with actual circumstance.

At the cassation court hearing, representative of the Supreme People’s Procuracy requests the Council of Judges of the Supreme People’s Court to accept the Appeal of the Chief Justice of the Supreme People’s Court.

According to available documents in the case file, Mr. Trang had two wives, Mrs. Huynh Thi Duong trực tiếp bóng đá việt nam hôm nay Mrs. Nguyen Thi Men. Mr. Nguyen Trang trực tiếp bóng đá việt nam hôm nay Mrs. Huynh Thi Duong had 6 common children: 1. Mr. Nguyen Tham (died in 1975) had 9 children: Mrs. Nguyen Thi A, Mrs. Nguyen Thi Be, Mrs. Nguyen Thi Xe, Mr. Nguyen Quang Phuc, Mrs. Nguyen Thi Chuc, Mr. Nguyen Quang Phuc, Mr. Nguyen Quang Phuoc, Mrs. Nguyen Thi Bich Lien, Mr. Nguyen Quang Phu; 2. Mr. Nguyen Nhu (died in 1972) had 5 children: Mr. Nguyen Quang Thang, Mr. Nguyen Quang Vinh, Mrs. Nguyen Thi Hien, Mrs. Nguyen Thi Sau, Mr. Nguyen Quang Tam; 3. Mrs. Nguyen Thi Hoe; 2. Mrs. Nguyen Thi Muon; 5. Mr. Nguyen Nghe; 6. Mrs. Nguyen Thi Lieu (currently residing in the USA). In 1949, Mrs. Duong died without a will; in 1950, Mr. Trang got married to Mrs. Nguyen Thi Men. Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men had two common children: Mr. Nguyen Dinh Hue trực tiếp bóng đá việt nam hôm nay Mr. Nguyen Muoi. Mr. Trang died in 1982 trực tiếp bóng đá việt nam hôm nay Mrs. Men died in 1983 leaving no will. On July 18, 2007, Mr. Phuc continued to bring a lawsuit claiming that: Mrs. Lieu has resided abroad since 1997, pursuant to Resolution No. 1037/2006/NQ-UBTVQH11 dated July 27, 2006 of Standing Committee of the National Assembly, the prescriptive period for filing a lawsuit associated with the estate of Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong remains effective; accordingly, Mr. Phuc requests the court to accept the case trực tiếp bóng đá việt nam hôm nay resolve the distribution of inheritance of Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong as the house trực tiếp bóng đá việt nam hôm nay land under management trực tiếp bóng đá việt nam hôm nay use of Mr. Hue’s family were formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong, Mrs. Men only gave contribution in land improvement trực tiếp bóng đá việt nam hôm nay house repair, trực tiếp bóng đá việt nam hôm nay Mr. Phuc claims handover of the house for dwelling trực tiếp bóng đá việt nam hôm nay ancestor worship. While Mr. Hue trực tiếp bóng đá việt nam hôm nay Mr. Muoi are no co-heirs trực tiếp bóng đá việt nam hôm nay the house trực tiếp bóng đá việt nam hôm nay land were jointly formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong, Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men handed it over to Mr. Nguyen Tham (the eldest son of Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong) for management trực tiếp bóng đá việt nam hôm nay use; trực tiếp bóng đá việt nam hôm nay Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men built a house on another piece of land (in dispute). The Court of First Instance determined the prescriptive period for filing a lawsuit associated with the estate of Mr. Trang, Mrs. Duong trực tiếp bóng đá việt nam hôm nay Mrs. Men remains effective trực tiếp bóng đá việt nam hôm nay decided the distribution of inheritance, the Court of Appeal determined that the appellant denouncing the appeal as they were absent despite being duly served trực tiếp bóng đá việt nam hôm nay suspended the appellate trial, First Instance Judgment became legally effective.

According to the available documents in the case file:

In terms of court procedures:

On October 28, 1995, The National Assembly promulgated Resolution on implementation of theCivil Code 1995. The Article 4 of this Resolution stipulates: “Resolution of housing-related civil transactions established before July 1, 1991 shall be temporarily suspended pending guidelines of the National Assembly. Then, on August 20, 1998, the Standing Committee of National Assembly promulgatedResolution No. 58/1998/NQ-UBTVQH10in which Article 2 stipulate the scope of Resolution is guidelines for resolution of housing-related civil transactions under private ownership established before July 1, 1991”; except for “housing-related civil transactions under private ownership established before July 1, 1991 with involvement of an overseas Vietnamese, foreign entities”. So, all housing-related civil transactions under private ownership established before July 1, 1991 in dispute must apply Resolution No. 58/1998/NQ-UBTVQH10 to resolve (except for transactions with involvement of an overseas Vietnamese before July 1, 1991 pending guidelines in Resolution No. 1037/2006/NQ-TVQH11 dated July 27, 2006).

In this case, Mr. Trang, Mrs. Duong, Mrs. Men died before July 1, 1991 without a will, on July 18, 2007, the petitioner filed a lawsuit petitioning for division of inheritance of the house associated with land use right; hence, it would have been necessary to clarify if Mrs. Nguyen Thi Lieu immigrated abroad before or after July 1, 1991, to determine whether the dispute falls under scope of Resolution No. 1037 or No. 58, trực tiếp bóng đá việt nam hôm nay the prescriptive period for filing a lawsuit associated with the estate of Mr. Trang, Mrs. Duong trực tiếp bóng đá việt nam hôm nay Mrs. Men remains effective to accept or reject the lawsuit petition of the litigants as prescribed in Article 168, Article 171 of the Civil Procedure Code. The Court of First Instance has not verified the above matter but determined that the lawsuit petition dated July 18, 2007 of the petitioner was still in prescriptive period for filing a lawsuit associated with the estate of Mr. Trang, Mrs. Duong trực tiếp bóng đá việt nam hôm nay Mrs. Men. It was an ungrounded decision. The Court of Appeal did not discover this error of the Court of First Instance, so it still accepted trực tiếp bóng đá việt nam hôm nay resolved the case trực tiếp bóng đá việt nam hôm nay determined that after the first instance trial, the petitioner (Mr. Phuc) trực tiếp bóng đá việt nam hôm nay the respondent (Mr. Hue) made an appeal, at the appellate court hearing, the petitioner withdrew the appeal trực tiếp bóng đá việt nam hôm nay the respondent was considered denouncing the appeal as they were absent despite being duly served twice; thereby suspended the appellate trial trực tiếp bóng đá việt nam hôm nay First Instance Judgment became legally effective. This was an ungrounded decision which committed procedural error, because: At the first appellate court hearing on April 23, 2008: Mr. Hue was absent but there is no justifiable grounds to determine that he was absent despite being duly served; at the second appellate court hearing on May 15, 2008; the Court of Appeal accepted the petition of Mr. Hue sent on May 6, 2008, but Mr. Hue claims that he did not receive any subpoena on April 23, 2008, trực tiếp bóng đá việt nam hôm nay requested appellate trial in June 2008 since he had received medical treatment in a hospital in Ho Chi Minh City; at the third appellate court hearing on June 18, 2008: Mr. Hue was present; at the fourth appellate court hearing on August 19, 2008: Mr. Hue was present at the court hearing trực tiếp bóng đá việt nam hôm nay submitted the notice to the court reporter at 8:00, the court reporter made a record but the court hearing minutes states that Mr. Hue trực tiếp bóng đá việt nam hôm nay his wife were absent, it was untrue; at the fifth appellate court hearing on August 22, 2008: the Court of Appeal, according to the minutes made by the court reporter  of the People’s Court of Duy Xuyen district, judicial officer of Duy Xuyen commune trực tiếp bóng đá việt nam hôm nay village officer at 15:00 on August 21, 2008, determined that Mr. Hue trực tiếp bóng đá việt nam hôm nay his wife avoided receiving the subpoena although they were at home. This was an ungrounded decision (it was supposed to collaborate with the regional police to inspect temporary residence trực tiếp bóng đá việt nam hôm nay temporary absence to determine exactly if they were at home); meanwhile, according to the evidence provided by Mr. Hue trực tiếp bóng đá việt nam hôm nay medical record, on August 19, 2008, he was not in Duy Xuyen but stayed at the polyclinic hospital in Quang Nam province to receive medical treatment until August 23, 2008.

In terms of the content:

During the lawsuit settlement, many witnesses gave conflict depositions. Certain witnesses claim that the house trực tiếp bóng đá việt nam hôm nay land in dispute were formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong, Mrs. Men got married to Mr. Trang trực tiếp bóng đá việt nam hôm nay lived on the piece of land in dispute. Other witnesses, Mr. Nguyen Tran, Mr. Nguyen Van Tien, Mrs. Nguyen Thi Nhieu, Mr. Nguyen Bon, …, in Nguyen family, confirmed that the house trực tiếp bóng đá việt nam hôm nay land in dispute were formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men after Mrs. Duong died; the house trực tiếp bóng đá việt nam hôm nay land jointly formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong were handed over to Mr. Nguyen Tham (the eldest son of Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong) by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men for management trực tiếp bóng đá việt nam hôm nay use (these depositions are consistent with those made by Mr. Hue trực tiếp bóng đá việt nam hôm nay his wife). In this case, it would have been necessary to evaluate comprehensively the depositions of the witnesses trực tiếp bóng đá việt nam hôm nay clarify the origin of the property in dispute to resolve the case. The Court of First Instance has not clarified this matter trực tiếp bóng đá việt nam hôm nay only based on depositions of some witnesses to determine that the house trực tiếp bóng đá việt nam hôm nay land in dispute formed by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Duong trực tiếp bóng đá việt nam hôm nay Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men stayed on this piece of land after marriage to determine that this is common property of these 3 people for distribution of inheritance. This was an ungrounded decision.

Alternatively, while Mr. Hue has managed trực tiếp bóng đá việt nam hôm nay used the 3-compartment house left by Mr. Trang trực tiếp bóng đá việt nam hôm nay Mrs. Men stably, the Court of First Instance compelled Mr. Hue to hand it over to Mr. Phuc for management trực tiếp bóng đá việt nam hôm nay use. This was not a reasonable trực tiếp bóng đá việt nam hôm nay lawful decision in conformity with real circumstance.

According to facts trực tiếp bóng đá việt nam hôm nay matters, pursuant to Clause 3 Article 291, Clause 3 Article 297 trực tiếp bóng đá việt nam hôm nay Article 299 of the Civil Procedure Code.

HEREBY DECIDES

1. Quash Decision on Suspension of Appellate Trial No. 95/2008/RDSPT-QD dated August 22, 2008 of the Court of Appeal of the Supreme People’s Court in Da Nang trực tiếp bóng đá việt nam hôm nay quash First Instance Judgment No. 05/2007/DSST dated December 18, 2007 of the People’s Court of Quang Nam province on the case of “dispute over inheritance between the petitioner, Mr. Nguyen Quang Phuc, trực tiếp bóng đá việt nam hôm nay the respondent, Mr. Nguyen Dinh Hue; persons with relevant rights trực tiếp bóng đá việt nam hôm nay obligations, Mr. Nguyen Nghe, Mrs. Nguyen Thi Hoe, Mrs. Nguyen Thi Muon, Mrs. Nguyen Thi Lieu, Mrs. Nguyen Thi A, Mrs. Nguyen Thi Be, Mrs. Nguyen Thi Cuc, Mrs. Nguyen Thi Xe, Mr. Nguyen Quang Thang, Mrs. Nguyen Thi Hien, Mrs. Nguyen Thi Sau, Mrs. Le Thi Hong, Mr. Nguyen Quang Vinh, Mr. Nguyen Muoi, Mrs. Tran Thi Minh Van.

2. Remand the case file to the People's Court of Quang Nam province for the re-trial in accordance with the provisions of law.