25/07/2017, 15:57 PM

As already reported, the Supreme People's Court issued a draft of 18 judgments, which are expected to develop as jurisprudences. At a recent workshop taking comments in Ho Chi Minh City, some experts analyzed that some of the judgments were not convincing enough to be jurisprudences. These observations are an essential reference for the Supreme People's Court to select quality cases.


Controversy over foreign currency transactions

A controversial draft of jurisprudence is the Cassation Decision No. 03/2012 of the Supreme People's Court on the dispute over the contract of transferring the land use right in Thua Thien Hue. This case, when dealing with each other, the parties agreed to pay in Vietnam dong, but actual the payment is in foreign currency. The proposed approach determines that the transaction is not totally invalid.

According to Judge Phan Thanh Tung (Deputy Chief of the Civil Court of the High Courts in Ho Chi Minh City), this solution is not typical, should not develop as the jurisprudence. Because the contents of the draft do not contain arguments to explain the law have different understandings. While the first criterion of the case law is that it contains arguments to clarify the provisions of the law which have different opinions, analyses, explanations of legal issues, and point out which principles or law should apply.

"Previously, in a summary report of the court, they found that the transaction of foreign currencies, gold only determines the transaction to be invalid, but there are no written documents. Because the property is legally owned by the litigants finally but in the form of gold or foreign currency. It only violated of the administrative license, "he added.

The Associate Professor, Mr. Do Van Dai (Head of Civil Law Faculty, the University of Law of HCMC) agrees with this case. Dr. Dai said that the current transactions in foreign currency are very popular, especially in the USD. In fact, many of the courts also declare the transaction to be totally invalid. The court at all levels cited violations of regulations on foreign exchange management in payment to disable the entire contract is not convincing. It is necessary to have a jurisprudence to change this bad habit, and the draft of jurisprudence is convincing.

Dr. Dai said: "Here, only payment in foreign currency is a violation. So if the contract is invalid, the invalid part is only the payment in foreign currency. The remainder of the contract is still valid owing to Article 130 Civil Code 2015: "CA civil transaction shall be partially invalid when one part of the transaction is invalid but such invalidity does not affect the validity of the remaining parts." Therefore, if this case is approved, the scope of application for share transfer, car sale, etc. should be extended, not just limited to transfer of land use rights.

Land encroachment, forced to pay or not?

A draft jurisprudence receiving confused reviews is the Cassation Decision No. 363/2014 Sof the Supreme People's Court on land encroachment.

The draft mentioned: "That the invasion of other people's land needs forcing the return is correct. But it is necessary to specify which land can be returned to A and C, then B must return. And the land that has substantial houses built, which can not be dismantled, can be replaced by value ... ".

According to Dr. Dai, the construction of land encroachment is quite common. The Civil Code regulates to protect the rights of encroached landowners such as claiming property, stopping acts of illegal prevention... However, for the type of land encroachment dispute, there are no specific guidelines. Proposing jurisprudence for this case is necessary. However, the solution as the draft is not convincing. If developing this case, it will easily lead to abuse.

Mr. Dai analyzed that, the horizontal encroachment of 1.3 m is quite significant. If conceived as the jurisprudence, this case may amount to misunderstand that how much encroachment is still retained and does not need to be dismantled. They just have to pay the value of the land encroached for the landowner. Such thinking is not good at all, the person who wants to encroach will not hesitate to trespass on neighbor's property. Also, the draft law does not mention whether the encroachers are right or not.

Having the same view, Judge Tran Thi Cam Hong (Binh Chanh District People's Court, Ho Chi Minh City) also said that it is necessary to consider whether the factor is right or not. "Binh Chanh district is a hot spot for construction, the speed of urbanization is very high, maybe after one night, people have built a house. It will be dangerous if this draft is developed as the case law"- Hong worried.