Regarding the case of a commune chairman in Binh Dinh certifying a land sale contract via Zalo as reported by Nguoi Lao Dong Newspaper , on January 7, lawyer Duyen Tran - MZI Law Firm - Da Nang City Bar Association gave his opinion on this case.
Lawyer Duyen Tran – MZI Law Firm – Da Nang City Bar Association
Accordingly, lawyer Duyen Tran determined that the land use rights transfer contract dated October 5, 2020 for land plot No. 875, map sheet No. 16, area 539.9 m2 in Trung Thuan village, My Chanh Tay commune, Phu My district, Binh Dinh province between Ms. Tran Thi Cuoc (born in 1934; passed away in 2021) and Mr. Pham Van Tri (53 years old; residing in An Luong village, My Chanh commune, Phu My district) is illegal.
Specifically, in terms of the subjects signing the contract: According to Clause 29, Article 3, Land Law 2013, households using land are those who have marital, blood, or foster relationships according to the provisions of the law on marriage and family, are living together and have the right to use common land at the time the State allocates land, leases land, recognizes land use rights; or receives transfer of land use rights.
According to Official Dispatch No. 42/CV-UBND dated April 25, 2024 of the People's Committee of My Chanh Commune, at the time of land allocation by the State under Decree 64/CP, Ms. Tran Thi Cuoc's household had 11 people assigned land use rights. Thus, the 11 people mentioned above are land users and the decision to dispose of the land plot must have the consent of all 11 people.
The illegal certification of the transfer contract for land plot 875 by the People's Committee of My Chanh Tay commune caused Mr. Nguyen Dinh Nguyen's wife's family to lose billions of dong.
Therefore, the land use rights transfer contract dated October 5, 2020 with only the signature of Ms. Tran Thi Cuoc (suspected to have been forged) is invalid in terms of subject.
Regarding contract certification procedures: According to Decree 23/2015/ND-CP and Circular 01/2020/TT-BTP, parties to contracts and transactions must sign in front of the person performing the certification (except for credit institutions and enterprises that have registered their sample signatures at the certification agency).
In case the person requesting the notarization of a contract or transaction submits the application directly to the receiving and returning results department under the one-stop, one-stop mechanism, the parties must sign in front of the person receiving the application. The person receiving the application is responsible for the parties signing in front of him/her. The person performing the notarization checks the documents in the application requesting notarization. If the application is complete and at the time of notarization, the parties participating in the contract or transaction are voluntary, clear-minded, aware, and in control of their actions, then the notarization shall be performed.
According to the article, at the time of signing the contract, Ms. Tran Thi Cuoc was not present at the headquarters of the People's Committee of My Chanh Tay commune. The forgery of Ms. Cuoc's signature is suspected to have been done by her son, Mr. Nguyen Van Thinh. The person who performed the certification, Mr. Nguyen Van My (at that time, he was the Chairman of the People's Committee of My Chanh Tay commune, currently the Deputy Secretary of the Party Committee of My Chanh Tay commune) also admitted that Ms. Cuoc did not go to the headquarters of the People's Committee of My Chanh commune, the certification was done via video call via the Zalo application.
Thus, the procedure for certifying the land use rights transfer contract on October 5, 2020 is illegal. The person receiving the documents (usually the commune justice department) and the person performing the certification, Mr. Nguyen Van My, must be responsible for these violations.
The old red book of land plot number 875 is still being kept by Mr. Nguyen Dinh Nguyen's family.
From the above violations, lawyer Duyen Tran suggested that the responsibilities of those involved should be handled. Specifically, for Mr. Nguyen Van Thinh, if it is proven that Mr. Thinh clearly knew that the land plot was the common property of 11 family members but deliberately concealed and forged Ms. Tran Thi Cuoc's handwriting to sign the transfer contract to appropriate the transferee's money, he could be prosecuted for the crime of Fraudulent appropriation of property under Article 174 of the Penal Code.
As for the person receiving the certification documents (judicial officer) and the person performing the certification (Mr. Nguyen Van My, former commune chairman), these people intentionally violated their official duties, causing damage to Ms. Tran Thi Cuoc's family.
If it is proven that there was personal gain, the person may be prosecuted for the crime of Abusing position and power while performing official duties under Article 356 of the Penal Code. If it is not proven that there was personal gain or other personal motive, the person may be prosecuted for the crime of Lack of responsibility causing serious consequences under Article 360 of the Penal Code.
As reported by Nguoi Lao Dong Newspaper , Mr. Nguyen Dinh Nguyen (55 years old; residing in My Chanh Commune, Phu My District) has just sent a complaint to the authorities about the local government certifying a land use rights transfer contract in violation of regulations, causing his family to lose the entire plot of land, causing losses of billions of dong.
Specifically, in 1998, his wife's family of 11 people was granted a land use right certificate (red book) for plot 875 by the People's Committee of Phu My district. At this time, the red book was issued under the name of his wife's mother, Mrs. Tran Thi Cuoc - representative of the family of 11 people.
Because he wanted to take over plot 875, in mid-2020, his wife's brother, Mr. Nguyen Van Thinh (57 years old; currently residing in Lam Dong province), returned to My Chanh Tay commune to report the loss of the red book to the local authorities and carried out procedures to have it reissued. Meanwhile, this red book is still being kept by Ms. Nguyen Thi Cuc, Mr. Thinh's younger sister, to this day. The whole family has no idea that Mr. Thinh reported the loss of the red book to the authorities.
On that basis, on October 1, 2020, the Department of Natural Resources and Environment of Binh Dinh province issued a new red book for plot 875. On this red book, the person who was granted the land still wrote the name "Mrs. Tran Thi Cuoc's household" - that is, it was issued to a household of 11 people on Mr. Nguyen's wife's side.
After having a new red book, with the help of the representative of the People's Committee of My Chanh Tay commune, Mr. Nguyen Van Thinh successfully sold his family's land plot 875 to Mr. Pham Van Tri according to the land use rights transfer contract dated October 5, 2020.
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