HTLaw

Booking consultation

Category: Dispute

Posted on

Land has been encroached, what is the basis to reclaim it?

I. The concept of "Encroached land"

– There is no concept regulating the concept of “encroached land”. However, the act of encroaching and appropriating land is regulated in Article 3 of Decree 102/2014/ND-CP on administrative sanctioning of violations in the field of land as follows:

“1. Land encroachment is the act of a land user moving a landmark or plot boundary to expand the land area.

2. Land appropriation is the use of land without permission from a competent state agency or the use of land allocated or leased by the State but at the end of the allocation or lease term the land is not extended by the State. use without returning the land or use land without carrying out procedures for land allocation or land lease according to the provisions of land law.”

Thus, the concept of encroached land can be understood as land that belongs to the legal use rights of an individual or organization but is illegally used by others through land encroachment or land appropriation.

II. Basis for reclaiming encroached land

– According to Clause 1, Article 170 of the 2013 Land Law: “Use land for the right purpose, within the boundaries of the land plot,…”, land users have the obligation to use land within the boundaries of the land plot. The act of encroaching and appropriating land is considered an act of violating the boundaries of a land plot, violating the legal land use rights of other individuals. Pursuant to Clause 1, Article 12 of the 2013 Land Law, regulations on prohibited acts in land use:

“1. Encroaching, occupying, and destroying land.”

– Thus, the act of encroaching on land is considered a prohibited act and must not be carried out. Committing acts of encroachment or appropriation of land may be subject to administrative sanctions with fines ranging from 1,000,000 VND to 10,000,000 VND depending on the type of land and the act of encroachment or occupation based on Article 10 of Decree 102/2014/ ND-CP.

– In addition, according to the above legal basis, the person who encroaches on land must return the encroached or occupied land and restore the land to its original condition.

Land has been encroached, what is the basis to reclaim it? - HTlaw

III. Measures to reclaim encroached land

– According to Clause 24, Article 3 of the 2013 Land Law, “Land dispute is a dispute about the rights and obligations of land users between two or more parties in land relations.” From this definition, it can be seen that reclaiming encroached or occupied land is considered as a land dispute over use rights.

– There are many measures to reclaim encroached or occupied land, however, the first measure that must be applied when resolving a land dispute is conciliation based on Article 202 of the 2013 Land Law:

“2. If the disputing parties cannot reconcile a land dispute, they should send an application to the commune-level People’s Committee where the disputed land is located for conciliation.

3. The Chairman of the Commune People’s Committee is responsible for organizing conciliation of land disputes in his/her locality; During the implementation process, it is necessary to coordinate with the commune-level Vietnam Fatherland Front Committee and member organizations of the Front and other social organizations. Procedures for conciliation of land disputes at the Commune-level People’s Committee are carried out within no more than 45 days from the date of receipt of the request to resolve the land dispute.”

– If conciliation fails (when one or both parties do not agree or do not implement the conciliation results), the party whose land is encroached or occupied can sue in court according to the provisions of Article 26 of the 2015 Code of Civil Procedure:

“Article 26. Civil disputes fall under the Court’s jurisdiction

…

2. Disputes over ownership and other rights to property.

….”

– Thus, when a land dispute occurs related to encroachment or land appropriation, the person whose legitimate rights and interests are violated can conciliate and initiate a lawsuit to court to request the invader. The offender stops the illegal act and restores the land to its original state.

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Land Law.

Contact us at:

Email: hue.truong@htlaw.vn

Phone: +84 935 439 454.

Posted on

CASES OF JUDGMENT ENFORCEMENT AND POSTPONEMENT OF JUDGMENT ENFORCEMENT

I. Judgements and rulings can be enforced

Pursuant to Article 2 Law on Enforcement of civil judgment, those judgments, and rulings of competent agencies that took legal effect can be enforced, including:

 “a) Judgments and rulings or parts of judgments and rulings of first-instance courts against which are not appealed or protested against according to appellate procedures;

b) Judgments and rulings of courts of appeal;

c) Cassation or reopening trial rulings of courts;

d) Foreign courts’ civil judgments and rulings, and foreign arbitral awards, which have been recognized and permitted for enforcement in Vietnam by Vietnamese courts;

e) Competition case settlement decisions of the Council for settlement of competition cases, which are not voluntarily executed by involved parties within 30 days after they take legal effect or against which no lawsuits are initiated at court;

f) Awards of commercial arbitrations”.

Nonetheless, it should be noted that there are two cases where judgment enforcement needs to be enforced immediately and this exception applies only to the judgment or decision of the First-instance Court. First, the judgment or decision related to the request for alimony, payment of salary and bonus, severance or redundancy allowance, compensation for loss of working capacity or compensation for loss of life, health or injury mentally lost, acceptance of worker returning to work. Second, the decision to apply provisional urgent measures.

To sum up, when listed judgment, and decision take legal effect, they can be enforced in accordance with the requirement of the judgement creditor.

Cases of judgement enforcement and postponement of judgement enforcement - htlaw.vn

II. Case of postponement of judgment enforcement

Source of provisions: Article 48 Law on Enforcement of civil judgment (Consolidated document in 2020 issued by Congress Office)

* Case of postponement:

(1) The judgment debtor falls seriously ill as certified by the health establishment of the district or higher level; people lacking legal capacity or having limited legal capacity.

(2) Judgement has an unidentified address or cannot fulfill by obligation under the judgment or ruling for other plausible reasons.

(3) The involved parties can agree to postpone the judgment enforcement. Besides, parties may agree in writing that the judgment debtor shall bear interest on the property obligations during the suspension period. The agreement shall specify the period of suspension as well as enclose signatures of parties.

(4) Property accepted by the court or distrained by competent agencies, but has subsequently decreased in value to or below the sum of the amount of the obligation and the costs of enforcement.

(5) The judgment enforcement agency had a requirement and is waiting for the competent agency to interpret the judgment or decision or respond to the petition.

(6) The person receiving the property, the person assigned to take care of somebody was legally required for the second time to come and receive the property or adopt the person but does not perform.

(7) There is a force majeure event or an objective hindrance that the transfer of judgment enforcement rights and obligations cannot be carried out.

(8) Judgement creditor does not receive the property or the property cannot be auctioned.

* Attentions:

Firstly, during the temporary suspension of enforcement of the judgment, the judgement debtor shall not bear interest in the obligation to transfer assets.

Secondly, the deadline for the competent authority to decide on the suspension of enforcement of the judgment is five working days and there are conditions for temporary suspension. Additionally, the maximum period for the temporary suspension of enforcement of the judgment is three months from the date of the written request for suspension of enforcement. Furthermore, if there is no basis for the suspension of enforcement of the judgment, or if there is a written document from the competent authority rejecting the request for enforcement activities must be performed within a five-day working period.

Thirdly, in cases where the obligation to enforce the judgment can be transferred to another entity or the enforcement debtor has other assets to enforce the judgment, the enforcement of the judgment may not be suspended (as stipulated in Article 14 of Decree No. 62/2015/NĐ-CP).

       To save time learning about the law, filling out forms, and submitting documents, you can contact HTLaw for consultation and legal services related to Law on Enforcement of judgement. 

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone number: +84 935 439 454. 
Posted on

LEGAL PROVISIONS ON THE RIGHT TO TERMINATE INSURANCE CONTRACT OF POLICYHOLDERS AND LEGAL CONSEQUENCES

I. General rules refer to Life Insurance

Accordingly, the Law Insurance Business, Article 4, Clause 13: “Life insurance refers to a type of insurance designed to offer protection for an insured person who is alive or dead”.

Article 4, Clause 16: “Insurance contract refers to an arrangement between a policyholder and an insurer or a foreign non-life insurer’s branch or a mutual providing microinsurance product whereunder the policyholder is bound to pay insurance premiums; the insurer, the foreign non-life insurer’s branch or the mutual providing microinsurance service is bound to pay indemnity or insurance benefits or coverage under contractual terms and conditions”.

Specific concepts in a life insurance contract are detailed as follows in Article 4, Clause 24, 25, 26, Law Insurance Business 2022:

“Policyholder (also the assured) refers to an entity or person entering into an insurance contract with an insurer, foreign non-life insurer’s branch or mutual providing microinsurance product and paying insurance premiums.”

“Insured person (also the insured) refers to an entity and person whose property, civil liability, health, life, obligations or economic benefit is insured under an insurance contract.”

“Beneficiary refers to an entity or person that is designated to receive insurance payout as agreed upon in an insurance contract.”

The compulsory content of an insurance contract:

“a) The policyholder, the insured, the beneficiary (if any), the insurer or the foreign non-life insurer’s branch;

b) Subject matter insured;

c) Amount insured or property value insured or limit of liability insured;

d) Scope of insurance coverage and insurance benefits; insurance rules, terms and conditions;

đ) Rights and obligations of the insurer, the foreign non-life insurer’s branch and the policyholder;

e) Insurance policy period, date of entry into force of the insurance contract;

g) Insurance premium, premium payment option;

h) Insurance coverage and payment option;

i) Dispute resolution method.”

The current provisions also detailed that the subject matter of a life insurance contract is lifespan and/or human life. It should be noted that in the case where the policyholders enter into a contract in light of the death of another person, the written consent of that person as well as the specific amount of the beneficiary and the amount of insurance is requested.

Rules on how rights to unilaterally terminnate are used and related legal consequences - htlaw.vn

II. The right to unilaterally terminate the life insurance policy of the policyholder

The policyholders have the right to unilaterally terminate the insurance contract in the following cases:

To begin with, insurers and branches of foreign insurance companies do not accept the requirement for changes in risk level when there is a change in the factors serving as the basis for premium calculation, leading to a reduction in risks insured.

Moreover, when there is a transfer of the portfolio of insurance contracts, the policyholders have the right to unilaterally terminate the insurance contract if the transfer is not accepted.

Finally, for insurance contracts with a term of more than 1 year, within 21 days from the date of receipt of the insurance contract, the policyholders have the right to refuse to continue participating in insurance relationship.

III. Legal consequences

In case that the insurance contract is unilaterally terminated for the reason of not accepting the request for a change in the level of risk according to the demand of policyholders, “the insurer or the foreign non-life insurer’s branch shall be responsible for refunding insurance premiums paid in advance for days left to the expiry date of the insurance contract as agreed upon in the insurance contract. The insurer or the foreign non-life insurer’s branch shall be responsible for paying insurance indemnity or coverage as agreed upon in the insurance contract if the policy event occurs before the time of unilateral termination of the insurance contract”.

Regarding the situation where the insurance contract is unilaterally terminated due to the transfer of the insurance contract portfolio, the policyholders may be “refunded the cash surrender value or insurance premiums that he/she already pays in advance in proportion to the days left to the expiry date of the policy term, depending on specific types of insurance products. Where the property value is less than technical provisions in the transferred portfolio of insurance contracts, the refund that the policyholder receives shall be calculated according to the proportion of property value to technical provisions in the transferred portfolio of insurance contracts”.

Note: The cash surrender value of the insurance contract must be agreed upon by the parties and only applied when the parties consent.

In the situation that policyholders do not want to stick with the insurance contract within 21 days from the time of receiving the contract, they shall be “the policyholder may refuse to continue to participate in insurance. Where the policyholder refuses to continue to participate in insurance, the insurance contract shall be terminated and the policyholder shall be refunded insurance premiums that they have paid after deducting reasonable costs and expenses (if any) as agreed upon in the insurance contract; the insurer shall not be obliged to pay insurance indemnity or coverage in case of occurrence of a policy event.”. Nonetheless, it is considered the right to revoke the contract rather than the right to unilaterally terminate the contract and just valid only for contracts with a term of more than 1 year.

       To save time learning about the law, filling out forms, and submitting documents, you can contact HTLaw for consultation and legal services related to Insurance Law.

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone number: +84 935 439 454. 
Posted on

LABOR DISPUTE SETTLEMENT PROCEDURES

1. What is a labor dispute?

A labor dispute means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation.

2. Competence to settle

    • Labor Mediators
    • Labor Arbitration Council
    • District People’s Court
    • Provincial People’s Courts to settle labor disputes involving foreign elements.

3. Statute of limitations for lawsuits

The time limit to bring an individual labor dispute to the Court is 01 year from the day on which a party discovers the act of infringement of their lawful rights and interests.

4. Order and procedures for implementation

Step 1: Submit application for divorce at the competent People’s Court;

Step 2: Within 7-15 days, the Court will check the application, if the application is complete and valid, the Court will send a notice of advance payment.

Step 3: Within 07 days from the date of receiving the Court’s notice of payment of the court cost advance, the plaintiff must pay the court cost advance and submit to the Court a receipt for the collection of the court fee advance.

Step 4: The judge accepts the case

Step 5: The court conducts conciliation so that the involved parties can reach agreement on the settlement of the case. If conciliation fails, the case will be brought to first instance trial.

5. Dossier composition

    • Lawsuit petition
    • Copy of ID card/Passport;
    • Copy of Household book;
    • Documents related to labor relations such as: Labor contract, decisions to terminate labor contract, …
    • If the employer initiates a lawsuit, it must submit additional documents on the legal status of the enterprise such as investment registration certificate, enterprise registration certificate, charter, labor regulations, etc.
    • Other documents and evidences evidencing the lawsuit claim (if applicable)
    • A list of documents to be submitted together with the lawsuit petition.

6. Settlement time

    • Preparation for trial: up to 04 months. In case the case is a complicated nature or there are objective obstacles, the extension may be extended for no more than 2 months.
    • Opening the court session: 01 month from the date of issuing the decision to bring the case to trial. If there is legitimate reasons, this time limit is 02 months.

In fact, the time to resolve divorce cases may be shorter or longer than the time prescribed by law depending on the nature of each case.

7. Court fee

Pursuant to the list of court fees and charges, promulgated together with Resolution 326/2016/UBNDVQH14, stipulating the level of advance payment of court fees for labor cases as follows:

Labor case has no value300.000 VND
Labor case has value
From 6.000.000 VND or less300.000 VND
From over 6.000.000 VND to under 400.000.000 VND5% disputed property value
From over 400.000.000 VND to 800.000.000 VND20.000.000 VND + 4% of the part of the disputed property value exceeding 400.000.000 VND
From over 800.000.000 VND to 2.000.000.000 VND36.000.000 VND + 3% of the part of the disputed property value exceeding 800.000.000 VND
From over 2.000.000.000 VND to 4.000.000.000 VND 72.000.000 VND + 2% of the part of the disputed property value exceeding 2.000.000.000 VND

In there:

    • A labor case that has no value is a case in which the claim of the parties is not an amount or the value cannot be determined in a specific amount.
    • A labor case has value is a case in which the claim of the involved parties is an amount of money or property that can be determined in a specific amount.

Labor disputes are always an exhausting and costly process. The most important thing when participating in a labor dispute is to have a reputable, experienced, and enthusiastic lawyer to support. HT’s team of lawyers is always ready to support customers with the highest sense of responsibility!

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone no.: +84 935 439 454. 
Posted on

CIVIL DISPUTE SETTLEMENT PROCEDURES

I. METHODS OF CIVIL DISPUTES

Civil dispute resolution methods:
– Self-agreement with each other;
– Reconcile;
– Ask the Court to settle. 

II. CIVIL DISPUTE SETTLEMENT AUTHORITY

    1. Court jurisdiction by level
      The determination of the Court’s competence by level is regulated based on the complexity of each type of case, the infrastructure conditions, and the actual professional qualifications of the court staff.
      – District People’s Court
      – Provincial People’s Court
      – High People’s Court
      – Supreme People’s Court
    1. Jurisdiction of the Court by territory
      – The court where the defendant resides or works, if the defendant is an individual, or where the defendant is headquartered, if the defendant is an agency or organization as prescribed by law
      – The court where the plaintiff resides or works, if the plaintiff is an individual, or where the plaintiff’s office is located, if the plaintiff is an agency as prescribed by law
      – The court where the real estate is located when the subject of the dispute is real estate
    1. Jurisdiction at the choice of the plaintiff
      Plaintiffs have the right to choose a Court to settle civil disputes. However, the selection must still ensure compliance with the provisions of the law on civil procedure

III. DISPUTE SETTLEMENT PROCESS IN COURT

Step 1: After determining the settlement competence, the agency, individual or organization shall take a lawsuit according to the provisions of Article 189 of the Civil Procedure Code 2015, along with evidence and attached documents.

Step 2: The petitioner can apply directly to the court; Send it to the Court by post or Submit it online electronically via the Court’s Portal (if applicable).

Step 3. The court receives the lawsuit petition and issues a certificate of receipt of the lawsuit petition. The next time, the Court will assign a Judge to consider the petition. Within 05 working days, the Court will make a decision to amend or supplement the petition, transfer the petition to another Court, return the petition in case of improper competence; If the petition is suitable and satisfactory, the court will issue a decision to accept the case (Article 196, Article 197 of the Civil Procedure Code 2015).

Step 4. The petitioner must pay the court fee in advance and submit the receipt to the Court to avoid the Court suspending the settlement of the case.

Step 5. The process of settling the case is conducted according to first-instance procedures and other procedures according to general regulations on civil procedures.

IV. TRIAL PREPARATION TIME

According to Article 203 of the Civil Procedure Code 2015, the time limit for preparation for trial of all types of cases, except for cases being tried according to summary procedures or cases involving foreign elements, is prescribed as follows:

a) For the cases specified in Articles 26 and 28 of the Civil Procedure Code 2015, the time limit is 04 months from the date of acceptance of the case;

b) For the cases specified in Articles 30 and 32 of the Civil Procedure Code, the time limit is 02 months from the date of acceptance of the case.

For cases of a complicated nature or due to force majeure events or objective obstacles, the chief justices of the courts may decide to extend the time limit for trial preparation, but not exceeding 02 months, for cases falling under the following circumstances which specified at Point a of this Clause and within 01 month for the case specified at Point b of this Clause.

If there is a decision to temporarily suspend the settlement of the case, the time limit for trial preparation shall be recalculated from the date on which the Court’s decision to continue the settlement of the case takes legal effect.

After finishing the trial preparation process, the civil case will be conducted for first-instance, appellate, cassation (if applicable), and reopening (if applicable). The processing time will depend on the contents of the case.

Civil disputes are always an exhausting and costly process. The most important thing when participating in a civil dispute is to have a reputable, experienced and enthusiastic lawyer to support. HT’s team of lawyers is always ready to support customers with the highest sense of responsibility!

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone no.: +84 935 439 454. 
Posted on

PROCEDURES FOR SETTLEMENT OF COMMERCIAL DISPUTES

htlaw.vn

1. Common commercial disputes

Commercial disputes are conflicts over rights and obligations between parties in the process of conducting commercial activities.

Common commercial disputes

    • Purchasing and selling goods, providing services; lease, hire purchase; construction; freight; purchasing and selling bonds and stocks; financial investment, banking.
    • Disputes over intellectual property rights, technology transfer between individuals and organizations, and all have profit purposes.
    • Other business and commercial disputes as provided by law.

2. Methods of settling commercial disputes

Commercial disputes can be resolved through the following forms: Negotiation, Conciliation, Arbitration, Court. In particular, the Arbitration and the Court are considered to be highly effective, meeting the needs and desires of the disputing parties.

CourtArbitration
Advantages- Judgment of the Court is coercive.
- Expenses when participating in legal proceedings (court fees, charges) are reasonable.
- Respect the agreement of the disputing parties
- Quick and flexible procedure
- Information security
- The Arbitrator's decision is final, legally binding on the parties, the parties have no right to appeal
Disadvantages- Dispute resolution often takes a long time
- Rigid and complicated procedures
- Public trial, which is difficult to ensure the confidentiality of information for the parties
- High cost
- The Arbitrator's decision may be requested by the parties to be reviewed by the Court or may be annulled by the competent Court.

3. Jurisdiction and order to settle commercial disputes through Arbitration and Court

 CourtArbitration
Authorization
to handle
Competent People's Courts (district or provincial level) can resolve most commercial disputes, unless the parties have agreed to arbitration.Disputes shall be resolved by arbitration if the parties have an arbitration agreement. The arbitration agreement can be made before or after a dispute occurs.
Sequence of settlementStep 1: Submit the lawsuit petition and evidence documents at the competent People's Court
Step 2: Within 07-15 days, the Court will check the dossier and send a notice of advance payment (if the dossier is valid)
Step 3: Within 07 days, the litigators must advance court fees and submit the receipts for payment of Court fee advances to the Court
Step 4: The judge accepts the case
Step 5: The court conducts conciliation so that the involved parties can reach agreement on the settlement of the case. If conciliation fails, the case will be brought to the first-instance trial.

Step 1: The plaintiff submits the lawsuit petition, documents and evidence attached to the petition
Step 2: Defendant submits a self-defense or re-initiate lawsuits to the Commercial Arbitration Center
Step 3: The commercial arbitration center establishes an arbitration council to open a dispute settlement session
Step 4: After the end of the dispute resolution session, the Arbitral Council will issue an arbitral decision by voting on the principle of majority.
Settlement time- Preparation for trial: up to 04 months. In case the case is complicated or there are objective obstacles, the extension may be extended for no more than 2 months.
- Opening the court session: 01 month from the date of issuing the decision to bring the case to trial. If there is a legitimate reason, this time limit is 02 months.
In fact, the time to settle commercial disputes may be shorter or longer than the time prescribed by law depending on the nature of each case.
Depending on the nature of each case, the arbitration time will be different. However, in general, the majority of disputes resolved by Arbitration will take a shorter time than the Court.

Commercial disputes are always an exhausting and costly process. The most important thing when participating in a commercial dispute is to have a reputable, experienced, and enthusiastic lawyer to support. HTLaw’s team of lawyers is always ready to support customers with the highest sense of responsibility!

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone no.: +84 935 439 454.