The "diamond land" project and the unprecedented debt settlement
International Relations - Production Investment Joint Stock Company (CIRI Company) was formerly a state-owned enterprise under the Ministry of Transport , and was equitized in 2005. Also in 2005, the Company won the auction of Project Lot C/D13 with an area of 7,236m2, to build a high-rise residential area according to the detailed planning of Cau Giay New Urban Area (Hanoi).
In 2005, Cau Giay district was newly established, the project land was still wild, but after a while it became a prime location, with 4 sides bordering the streets.
Before winning the auction, CIRI Company signed a credit contract to borrow 500,000 USD from Bac A Bank. The mortgaged assets to secure the loan are Dai An Hotel at 38 Quang An, Tay Ho and 975 square meters of land in Soc Son, Hanoi (Map sheet number 4, plot number 229), the total value appraised by Bac A Bank is more than twice the value of the debt contract of 500,000 USD.
When liquidating, instead of selling the collateral as requested by CIRI, the leaders of Bac A Bank proposed using Van Nien Trading and Service Joint Stock Company (Van Nien Company) to buy Lot C/D13 to offset the debt between CIRI and Bac A of 12 billion VND (for the Debt Acknowledgment Agreement of 500,000 USD). On November 10, 2006, CIRI Company signed Contract No. 458/HĐCNQSDD committing to transfer the land use rights of Lot C/D13 Cau Giay Project (Contract 458) to Van Nien Company. The Contract value was 89 billion VND; In Phase 1, Van Nien paid CIRI 65 billion VND. In phase 2, after receiving the Land Use Rights Certificate (LURC) and transferring the project to Van Nien Company, Bac A Bank will pay off the loan of 500,000 USD and interest of 250,000 USD (total principal and interest equivalent to 12 billion VND) and return the 2 mortgaged assets to CIRI Company.
Land lot C/D13, High-rise residential construction project, Cau Giay New Urban Area (Hanoi) after 20 years still cannot be implemented.
According to Contract 458, within 5 days from the date CIRI Company is granted the Land Use Rights Certificate, the two parties will sign the contract to transfer the Land Use Rights of Lot C/D13.
However, on November 20, 2007, Van Nien Company filed a lawsuit at Dong Da District People's Court on the grounds that CIRI Company "broke its trust" and did not transfer the land use rights, although it was not until 3 months later, on February 18, 2008, that CIRI Company received the Land Use Rights Certificate for Lot C/D13.
Van Nien Company used litigation methods to force CIRI Company to perform Contract 458 which had signs of illegality, leading to a 15-year litigation journey with many interventions that are still quite clearly traced through 8 court sessions, 11 verdicts and decisions of legal agencies.
First instance judgment: Judgment beyond jurisdiction and request to initiate a lawsuit
In the First Instance Judgment 03/2008/KDTM-ST (First Instance Judgment 03), dated March 13 and 18, 2008, Dong Da District People's Court ruled: Compelling CIRI Company to properly perform Contract 458 of the transfer commitment; handing over to Van Nien Company the area of Lot C/D13 Cau Giay and handing over the Land Use Rights Certificate to Van Nien Company; Van Nien Company is allowed to use the area of Lot C/D13 and complete the procedures according to the provisions of law, and is responsible for paying CIRI Company the unpaid amount according to Contract 458.
The above judgment has turned the two parties' commitment to transfer land use rights into the implementation of land use rights transfer, exceeding the requirements of Van Nien Company.
Two months later, the First Instance Judgment 03 took effect because the Hanoi People's Court issued Decision No. 10/2008/QD-PT dated May 19, 2008 (Decision No. 10) suspending the appeal hearing of CIRI Company due to the "absence" of this Company.
Realizing the mistakes of the two trial levels, on November 29, 2008, the Chief Justice of the Supreme People's Court issued Protest No. 13/2008/KDTM-KN-KT (Protest No. 13) and decided: Assign the Economic Court of the Supreme People's Court to conduct the final review in the direction of annulling Decision No. 10 of the Hanoi People's Court; assign the case file to the Hanoi People's Court for appeal.
On April 22, 2009, the Economic Court of the Supreme People's Court issued the Final Decision No. 10/2009/KDTM-GDT (Central Decision No. 10) to annul the Decision to suspend the appeal trial of the Hanoi People's Court. Final Decision No. 10 stated: Contract 458 is a conditional civil transaction, not a land use rights transfer contract as stated in the First Instance Judgment 03; the content of the judgment of the First Instance Judgment 03 "is illegal, exceeds the litigant's request for a lawsuit and the Court's jurisdiction; and is not consistent with the commitment in the contract".
The first appeal of the Supreme People's Procuracy: There is no basis to accept
On June 16, 2009, the Chief Justice of the Supreme People's Procuracy issued Protest No. 18/QD-KNGDT-V12 (Protest No. 18) requesting the Council of Judges (Council of Judges) of the Supreme People's Court to review the case in the direction of annulling the Final Appeal Decision No. 10.
In September 2021, the Appeal for Retrial No. 09/QDKNTT-KDTM of the Chief Justice of the Supreme People's Procuracy attracted the attention of the press before the Supreme People's Court's Judicial Council resolved it according to the retrial procedure.
On December 18, 2009, in the Final Appeal Decision No. 14/2009/KDTM-GDT (Central Appeal Decision No. 14), the Supreme People's Court did not accept the grounds of Appeal No. 18 with the argument: "The appellate court did not verify to consider the conditions for the postponement of CIRI Company, nor did it have a document stating that it did not accept CIRI Company's request to change the trial date, but still brought the case to trial, which was illegal, and from there, issued a decision to suspend the appellate trial, depriving CIRI Company of its right to appeal. On the other hand, in Decision No. 10, the Hanoi People's Court decided to suspend the appellate trial of the dispute over the land use rights transfer contract between Van Nien Company and CIRI Company, which was incorrect. Because the "Land Use Rights Transfer Commitment Contract" No. 458 is not a land use rights transfer contract, but only a civil transaction. with conditions, but with illegal content because it violated Article 62 of the Land Law regulating the conditions for land to participate in the real estate market, Point e, Clause 2, Article 7 of the Law on Real Estate Business regulating the conditions for real estate put into business, Point a, Clause 8, Article 2 of Decree No. 17/2006/ND-CP dated January 27, 2006 regulating the transfer of land use rights of investment projects in construction and trading of housing for sale or lease and Article 5 of Decision No. 3206/QD-UBND dated August 15, 2007 of the People's Committee of Hanoi on the recovery of 7,220.9m2 of land at Lot C/D13 of Cau Giay New Urban Area, assigned to CIRI Company to build apartment buildings (based on the above regulations, CIRI Company is not allowed to transfer the land lot assigned by the People's Committee of Hanoi to implement the investment project of building apartment buildings when it has not been completed). "The investment in synchronous construction of infrastructure according to the approved project or according to the component project of the approved investment project) infringes upon the interests of the State and is therefore invalid from the time of conclusion. Courts at all levels must consider and resolve invalid contracts and resolve the consequences of invalid contracts according to the provisions of the Civil Code to ensure compliance with the provisions of the law."
On March 11, 2010, the Appeal Judgment No. 04/2010/KDTM-PT (Appeal Judgment 04) of the Hanoi City People's Court ruled: To annul the first instance judgment 03 of the Dong Da District People's Court; to keep the case file for the Economic Court of the Hanoi City People's Court to resolve. The appeal court determined: The first instance court had tried the case illegally, exceeding the litigant's request for a lawsuit and exceeding the Court's jurisdiction, violating the provisions of Clause 1, Article 5 of the Civil Procedure Code.
Thus, after 3 years, the case returned to the starting point and it took another 2 years for the appeal judgment to take effect. The first instance judgment No. 12/2011/KDTM-ST dated January 28, 2011 of the Hanoi People's Court and the appeal judgment No. 253/2011/KDTM-PT (Judgment 253) of the Hanoi Supreme People's Court of Appeal both declared: Contract 458 is completely invalid.
It should be added that Contract 458 was invalid from the moment of signing because it violated the prohibition of the law, as determined and concluded by the Supreme People's Court in the Final Appeal Decision No. 14 dated December 18, 2009, which is currently in legal effect, so it falls under the "circumstances that do not require proof" as prescribed in Article 92 of the Civil Procedure Code.
“Bottleneck” from the 2nd Protest of the Supreme People's Procuracy
Judgment No. 253 came into effect, but Van Nien Company did not execute the judgment, still occupied land lot C/D13 and did not provide an account for CIRI Company to transfer the money, and at the same time filed a request for a final judgment. The Supreme People's Court issued a Notice on December 21, 2014, replying to Van Nien Company that there was no basis to appeal for a final judgment. However, it was not until 8 years after Judgment No. 253 came into effect, on November 27, 2019, that the Enforcement Agency was able to organize enforcement. At this time, according to the instructions of the Enforcement Agency, CIRI was able to transfer more than 89 VND to Van Nien, but into the account of the Enforcement Agency.
On July 9, 15 and 22, 2024, CIRI Company sent 3 official dispatches to Bac A Bank requesting confirmation of the outstanding loan balance of 500,000 USD; the current status and valuation of 2 assets securing the loan but received no response.
Van Nien Company did not receive the money and continued to file a request for a retrial to the Supreme People's Procuracy, the Supreme People's Court and the Central Internal Affairs Committee. On September 22, 2020, the Supreme People's Court issued a second Notice in response to Van Nien stating that there was no basis for a retrial.
However, on May 5, 2021, the Central Internal Affairs Committee (Internal Affairs Committee) issued Official Dispatch No. 278-CV/BNCTU requesting the Supreme People's Procuracy to appeal the retrial of Verdict 253 on the grounds of "illegibility" and "new circumstances" as follows:
1. The declaration of Contract 458 invalid is illegal, and is a mistake between a conditional civil contract and a land use rights transfer contract. If Contract 458 is recognized as invalid, the Panel of Judges should recommend that the Hanoi People's Committee consider the status of CIRI Company when participating in the auction because it does not have sufficient financial capacity, so the auction result must be canceled to recover the property for the state;
2. “Currently, Van Nien Company has collected many new documents that can fundamentally change the content of the judgment, especially related to the transfer of Land Lot A/D18 between CIRI Company and the Development Support Fund with the same nature and characteristics as Land Lot C/D13 that CIRI Company committed to transfer to Van Nien Company, but one party was legally transferred, the other party was declared invalid, causing great damage to Van Nien Company”. The above quoted content is printed in bold in the official dispatch of the Internal Affairs Committee.
Three months later, on August 12, 2021, the Supreme People's Procuracy issued Protest No. 09/QDKNTT-VKS-KDTM (Retrial Protest 09), the content of which was basically consistent with the Official Dispatch of the Internal Affairs Committee, stating that there were two grounds for a retrial protest: the emergence of "new circumstances" and "the judgment's findings and conclusions were illegal".
The "bottleneck" is called "new details" and "unproven details"
On July 6, 2022, the Supreme People's Court issued Retrial Decision No. 08/2022/KDTM-TT (Retrial Decision 08) rejecting the entire Retrial Appeal 09.
Regarding the “illegal” basis, the Judicial Council determined: “Contract 458 was invalid from the time of signing because it violated the prohibition of the law, which was determined and concluded by the Judicial Council of the Supreme People’s Court in the final judgment, which is in legal effect, so it is a circumstance that does not need to be proven according to the provisions of Article 92 of the Civil Procedure Code. The first instance and appellate judgments declaring Contract 458 invalid are well-founded. Therefore, the basis for protesting Judgment 253, which determined and concluded that it was illegal, is unfounded.”
Regarding the content: If Contract 458 is invalid, CIRI Company cannot be recognized as the auction winner, but must cancel the auction result, cancel the Land Use Rights Certificate, and reclaim the land lot for re-auction. The retrial decision stated: “The relationship between the Hanoi People's Committee allocating land to CIRI Company with land use fees collected through auction is the relationship between the State and the Investor, and the relationship between CIRI Company and Van Nien Company under Contract 458 is a relationship in the field of real estate business. These are two different relationships, independent of each other; the invalidity of Contract 458 does not affect the auction sale of Land Lot C/D13 between the Hanoi People's Committee and CIRI Company”. Therefore, the content of the appeal is unfounded.
Regarding the basis of “new circumstances”, Decision 08 of the retrial stated: “It is found that this is not a newly discovered circumstance because it has been considered and determined by the Court of Appeal. On the other hand, the transfer of Land Lot A/D18 is not related to and does not affect the contract committing to transfer Land Lot C/D13 because these are two independent transactions, Land Lot A/D18 is not disputed. Therefore, the content of this protest by the Chief Justice of the Supreme People’s Procuracy is groundless. The decision of the Chief Justice of the Supreme People’s Procuracy to protest for retrial did not provide the newly discovered circumstances as a basis for protest under the retrial procedure as prescribed in Article 352 of the 2015 Civil Procedure Code”.
Surprisingly, 10 years ago, the “new details” about Land Lot A/D18 were brought to court by Van Nien Company and were considered. Specifically, Judgment 253 dated December 21, 2011 stated: “The fact that Van Nien Company raised the issue of why Land Lot A/D18 in Cau Giay New Urban Area also has similar legal characteristics to Land Lot C/D13, but CIRI Company signed a contract to transfer land use rights to another economic organization without being considered invalid. This is an independent legal relationship, the consideration of the legality of the above legal relationship will be resolved by the competent state agency when there is a dispute or request”.
From the above assessment, the Supreme People's Court decided: Not to accept the appeal for retrial of the Chief Justice of the Supreme People's Procuracy; Upholding the original Judgment 253.
With the retrial decision 08, the 15-year litigation journey before the court has ended. However, another journey has appeared and hindered the implementation of CIRI Company's project. That is the journey of inspecting the law enforcement of the auction of Land Lot C/D13 20 years ago.
PV
Source: https://lsvn.vn/bai-1-15-nam-dao-tung-dinh-vi-nhung-diem-nghen-a165703.html
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