CASE LAW NO. 10/2016/AL on eminent domain

CASE LAW NO. 10/2016/AL

Cassation Decision No. 08/2014/HC-GĐT dated August 19^th, 2014, of the Judicial Council of the Supreme People’s Court regarding the administrative case “Appeal against the Decision on compensation, support, and resettlement when the State exercises eminent domain“

Approved by the Judicial Council of the Supreme People’s Court on  October 17^th, 2016, and published under Decision No. 698/QĐ-CA on October 17^th, 2016, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

Cassation Decision No. 08/2014/HC-GĐT dated August 19^th, 2014, of the Judicial Council of the Supreme People’s Court regarding the administrative case “Appeal against the Decision on compensation, support, and resettlement when the State exercises eminent domain” in Vĩnh Long province, between the plaintiff Mrs. Võ Thị Lựu and the defendant Vĩnh Long Provincial People’s Committee.

Summary of the Case Law:

– Case Background:

The decision approving the compensation and resettlement plan of the Provincial People’s Committee references another document that directly affects the rights and interests of the plaintiff.

– Legal Resolution:

In this case, the referenced document falls under an administrative decision, and that administrative decision is the subject of the administrative case brought by the plaintiff.

Relevant Legal Provisions:

– Clause 1, Article 3 and Clause 1, Article 28 of the Law on Administrative Procedure 2010 (corresponding to Clause 1, Article 3 and Clause 1, Article 30 of the Law on Administrative Procedure 2015);

– Articles 41, 42 of the 2003 Law on Land;

– Decree No. 197/NĐ-CP dated December 3^rd, 2004, of the Government on compensation, support, and resettlement when the State exercises eminent domain;

– Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government on supplementary regulations on land use planning, land prices, eminent domain, compensation, support, and resettlement.

Keywords:

“Administrative decision”; “Subject of administrative case”; “Eminent Domain”; “Compensation and resettlement for eminent domain”.

CASE DETAILS

On April 7^th, 2008, the Vĩnh Long Provincial People’s Committee issued Decision No. 567/QĐ-UBND approving the comprehensive compensation, support, and resettlement plan for the construction project of the Provincial Livestock Breeding Center in Tân An Luông Commune, Vũng Liêm District, with the following content:

“Approval of the comprehensive compensation, support, and resettlement plan for the construction project of the Provincial Livestock Breeding Center in Vĩnh Long province:

Total land area planned for eminent domain: 122,909m²

Total estimated compensation value: VND 7,342,730,000.”

On September 17^th, 2008, the Vĩnh Long Provincial People’s Committee issued Decision No. 1768/QĐ-UBND, which included the recovery of 117,863.1m² of land in Tân An Luông Commune, Vũng Liêm District, for the construction of the Provincial Livestock Breeding Center and entrusted the District People’s Committee of Vũng Liêm to make decisions on eminent domain actions.

On October 2^nd, 2008, the Vũng Liêm District People’s Committee issued Decision No. 2592/QĐ-UBND to recover 2,353.1m² of land belonging to Mrs. Võ Thị Lựu, situated in Hamlet Rạch Cốc, Tân An Luông Commune, Vũng Liêm District, for the construction of the Provincial Livestock Breeding Center.

On December 1, 2008, the Compensation, Support, and Resettlement Board of Vũng Liêm District conducted an inventory and assessment of houses, land, crops, and architectural items affected by the construction project.

On May 15^th, 2009, the Finance Department of Vĩnh Long Province submitted Proposal No. 177/TTr.STC to the Vĩnh Long Provincial People’s Committee requesting approval of the compensation plan for the resettlement of the Provincial Livestock Breeding Center project in Tân An Luông Commune, Vũng Liêm District. Mrs. Lựu was compensated VND 155,155,000  for land (based on a compensation rate of VND 50,000/m²); VND 19,286,200 for property and livelihood stabilization and vocational training, totaling VND 174,441,200.

On June 4^th, 2009, the Chairman of the Vĩnh Long Provincial People’s Committee issued Decision No. 1216/QĐ-UBND approving the compensation, support, and resettlement plan for the Provincial Livestock Breeding Center project in Tân An Luông Commune, Vũng Liêm District, with the following content:

“Article 1. Approval of the compensation, support, and resettlement plan for the Provincial Livestock Breeding Center project in Tân An Luông Commune, Vũng Liêm District.

1. Total compensation, support, and resettlement value: VND 9,467,085,000, including:

– Compensation and support for land: VND 8,071,914,000

– Compensation for houses and architectural items: VND 161,560,000

– Compensation for crops: VND 273,152,000

– Other support expenses (2% council fees, survey costs): VND 305,859,000

2. Funding: From the overall project budget borne by the investor;

Article 2. Based on Article 1 of this Decision, the Director of the Provincial Finance Department, the Chairman of the District People’s Committee of Vũng Liêm, and the Compensation, Support, and Resettlement Council of Vũng Liêm District are responsible for:

– The Chairman of the District People’s Committee of Vũng Liêm directs the Compensation, Support, and Resettlement Council of Vũng Liêm District to organize accurate compensation payments according to current state regulations and to clear the construction site for the contractors.

– The Director of the Provincial Finance Department is accountable to the Provincial People’s Committee for the results of the figures, quantities, and unit prices stated in Document No. 177/TTr.STC dated May 15^th, 2009.”

Disagreeing with the aforementioned decision, Mrs. Lựu filed a complaint requesting an increase in the compensation amount.

On October 28^th, 2009, the Chairman of the People’s Committee of Vũng Liêm District issued Decision No. 2023/QD-UBND rejecting Ms. Võ Thị Lựu’s complaint.

On August 8^th, 2011, Ms. Lựu filed a lawsuit at the Vĩnh Long Provincial People’s Court requesting the vacatur of Decision No. 1216/QD-UBND dated June 4^th, 2009 of the Vĩnh Long Provincial People’s Committee regarding the valuation and compensation; she requested a reassessment to increase the compensation for land to market value in the area where the expropriated land is located.

In the Administrative Judgment of First-instance No. 12/2012/HC-ST dated December 18^th, 2012, the Vĩnh Long Provincial People’s Court dismissed Ms. Võ Thị Lựu’s lawsuit.

On December 29^th, 2012, Ms. Lựu filed an appeal.

In the Appellate Administrative Judgment No. 96/2013/HCPT dated April 25^th, 2013, the Appellate Court of the Supreme People’s Court in Ho Chi Minh City vacated the Administrative Judgment of First-instance No. 12/2012/HC-ST dated December 18^th, 2012 of the Vĩnh Long Provincial People’s Court and suspended the case.

On June 28^th, 2013, the Vĩnh Long Provincial People’s Committee issued Official Letter No. 1816/UBND-NC and on August 2^nd, 2013, the Judicial Council of the Vĩnh Long Provincial People’s Court issued Official Letter No. 547/TAT-HC requesting the cassation review the aforementioned Administrative Appeal Judgment.

In Decision No. 05/2014/KN-HC dated March 5^th, 2014, the Chief Justice of the Supreme People’s Court appealed against the Appellate Administrative Judgment No. 96/2013/HC-PT dated April 25^th, 2013 of the Appellate Court of the Supreme People’s Court, requesting the Judicial Council of the Supreme People’s Court to conduct a cassation trial in order to vacate the aforementioned Administrative Appeal Judgment and to remand the case file to the Appellate Court of the Supreme People’s Court in Ho Chi Minh City for appellate re-trial.

During the cassation court hearing, the representative of the Supreme People’s Procuracy agreed with the Chief Justice’s appeal.

COURT’S OPINION:

In accordance with Article 2 of Decision No. 1216/QD-UBND dated June 4^th, 2009, issued by the Vĩnh Long Provincial People’s Committee, which approved the compensation, support, and resettlement plan for the Provincial Livestock Breeding Center construction project, it is stipulated that ‘The Director of the Department of Finance is held accountable to the Provincial People’s Committee for the accuracy of the figures, quantities, and unit prices, as stated in Proposal No. 177/TTr.STC dated May 15^th, 2009.’

According to Proposal No. 177/TTr.STC dated May 15^th, 2009, issued by the Department of Finance, specific compensation was stipulated for Ms. Lựu’s household. Therefore, that approval directly and specifically impacted the rights and interests of Ms. Lựu’s household, making the Proposal the subject of the administrative lawsuit.

Therefore, the Vĩnh Long Provincial People’s Court correctly accepted Ms. Lựu’s lawsuit regarding compensation and support for her family in Decision No. 1216/QD-UBND dated June 4^th, 2009, in accordance with Article 3 and Article 28, Paragraph 1 of the Administrative Procedure Law. However, the first-instance court did not clarify whether the purpose of the land expropriation for the Provincial Livestock Breeding Center construction project in Vĩnh Long Province was for state economic purposes or for private sector development to serve as a basis for compensation and support when expropriating Ms. Lựu’s land in accordance with legal regulations.

Ms. Lựu appealed and requested compensation based on market value. In this case, the appellate court must consider Ms. Lựu’s appeal regarding compensation and support when expropriating land for her family in accordance with legal regulations. However, it deemed that Decision No. 1216/QD-UBND dated June 4^th, 2009 of the Vĩnh Long Provincial People’s Committee was a comprehensive decision and not the subject of the administrative lawsuit, thus, the vacatur of the First-instance Administrative Judgment No. 12/2012/HC-ST dated December 18^th, 2012 of the Vĩnh Long Provincial People’s Court and the suspension of the case were serious errors in the application of the administrative procedural law.

In light of the foregoing and pursuant to Clause 3, Article 219, Clause 3, Article 225, and Clause 1 and 2, Article 227 of the Administrative Procedure Law,

DECISION:

1. Accept Appeal No. 05/2014/KN-HC dated March 5^th, 2014 of the Chief Justice of the Supreme People’s Court.
2. Vacate Appellate Administrative Judgment No. 96/2013/HC-PT dated April 25,th2013 of the Appellate Court of the Supreme People’s Courtin Hồ Chí Minh City and First-instance Administrative Judgment No. 12/2012/HC-ST dated December 18^th, 2012 of the Vĩnh Long Provincial People’s Court; remand the case file to the Vĩnh Long Provincial People’s Court for retrial in accordance with legal regulations.

CONTENT OF THE CASE LAW:

“In accordance with Article 2 of Decision No. 1216/QD-UBND dated June 4^th, 2009, issued by the Vĩnh Long Provincial People’s Committee, which approved the compensation, support, and resettlement plan for the Provincial Livestock Breeding Center construction project, it is stipulated that ‘The Director of the Department of Finance is held accountable to the Provincial People’s Committee for the accuracy of the figures, quantities, and unit prices, as stated in Proposal No. 177/TTr.STC dated May 15^th, 2009.’

According to Proposal No. 177/TTr.STC dated May 15^th, 2009, issued by the Department of Finance, specific compensation was stipulated for Ms. Lựu’s household. Therefore, that approval directly and specifically impacted the rights and interests of Ms. Lựu’s household, making the Proposal the subject of the administrative lawsuit.”

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