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Official Gazette

Wednesday, September 18, 2019

Court precedents in Vietnam: a view from the building of the 2015 Civil Code

Updated: 15:34’ - 31/07/2017
Nguyen Hong Hai
Deputy General-Director
Department of Civil-Economic Laws, Ministry of Justice

Background of the 2015 Civil Code’s provisions on court precedents

Politico-legal context

The revision of the 2005 Civil Code[1] as well as and the research into the inclusion of provisions on court precedents in the civil legislation basically were carried out in a favorable politico-legal context. Vietnam’s legislative work has entered a new development period with a focus on recognizing, respecting, protecting and guaranteeing human rights and citizens’ rights and implementing the judicial reform strategy, especially upholding the role of people’s courts in safeguarding justice and exercising the judicial power.[2]

In the nation’s politico-legal life, the development and application of court precedents are not a novel issue. Before 1945 (in the north) or before 1975 (in the south), court precedents were widely studied and applied. During 1950-60, the State of the Democratic Republic of Vietnam already recognized the application of court precedents in a way that in hearing criminal and civil cases, it is necessary to apply the laws of the Democratic Republic of Vietnam, guidelines and policies of the Party and the Government, and precedents of the Supreme Court and other courts. The appellate people’s courts will direct the trial work of lower-level courts based on its precedents.[3] In the subsequent period, the application of precedents in the court system, albeit not officially spelled out, was implicitly mentioned in the Supreme People’s Court’s guidelines on trial work.

By the time of building the 2015 Civil Code (the 2015 Code), court precedents had been mentioned rather specifically in the Party’s documents as well as in various laws. Politburo Resolution 49-NQ/TW of 2005 on the judicial reform strategy clearly states: “The Supreme People’s Court is tasked to summarize trial experiences, guide the consistent application of laws, develop precedents and conduct cassation and re-opening trials.” The 2014 Law on Organization of People’s Courts stipulates that the Justice Council of the Supreme People’s Court has to choose its cassation decisions and standard judgments and rulings of other courts which have become legally effective and develop them into court precedents for the courts to study and apply (Article 22.2 c). The 2014 Law on Bankruptcy also stipulates that the judges carrying out bankruptcy procedures have to refer to previous settlement decisions in similar bankruptcy cases or matters under the guidance of the Supreme People’s Court (Article 9.14).

Requirements on development of a market economy and guarantee of civil rights

Civil relations are so broad, diverse and complicated that the Civil Code and private law system cannot cover all. Particularly for Vietnam, after three decades of transition from a centrally planned economy to a multi-sector commodity one, the country has now to meet new requirements for building a full-fledged market economy. These requirements include diversifying ownership and other property rights, transparentizing the property regime, recognizing private ownership, guaranteeing the rights related to employment, investment and freedom of enterprise, building a stable legal corridor for the formation and development of different types of markets; addressing emerging social issues related to human rights and civil rights, etc.

The above reality has seen the emergence or existence of a myriad of relations, old and new and interwoven, which the legal system can neither foresee nor regulate all, leaving a legal vacuum in the settlement of relevant relations and guarantee of personal and property rights of the people.[4] International and local experiences show that if dealing with this issue merely through promulgating or revising legal provisions, the legal system in general and the Civil Code in particular will always be instable,[5] the legal environment will either be changing all the time or lack transparency, failing to timely guarantee and protect the rights and interests of individuals and legal persons in civil transactions. Therefore, it is an objective requirement for the State to come up with breakthrough solutions related to the courts and sources of applicable law. More specifically, the courts and judges should be allowed to apply, in addition to customary practices and analogous law, court precedents, fundamental principles of civil law and justice to settling cases and matters when there are no applicable legal provisions or there are applicable legal provisions but they are unclear.

Interface of the Supreme People’s Court website on court precedents__Photo: Internet

Over the past time, due to the lack of legal provisions on this issue, the courts have faced difficulties in performing their constitutional functions and tasks, even having to refuse to settle some cases and matters or to prolong the settlement on the grounds of lack of legal grounds.[6]

Requirement on consistency, uniformity and stability of the legal system

Vietnam’s private law system consists of multiple “layers” and “levels” of legal documents. To be enforced, promulgated laws have to wait for guiding documents. This has affected the enforceability of laws. In some fields, legal provisions remain unclear or contradictory or overlapping. To deal with this, the State should, in addition to revising or cancelling problematic legal documents, provide the courts with more legal tools, including application of court precedents.
Requirement of international integration

The country has unceasingly expanded its ties with other countries in the world and recorded a lot of achievements in international integration. The country became a member of the World Trade Organization in 2007 and has participated more and more deeply and widely in the Asia-Pacific Economic Cooperation (APEC) Forum and regional organizations. It has also entered into numerous bilateral and multilateral trade agreements. In this process, Vietnam has committed to ensuring the conformity of domestic laws with treaties to which it is a member state, especially in the spheres of trade, services and intellectual property. Moreover, Vietnamese and foreign individuals and legal persons have entered into more and more civil transactions with one another. So, to harmonize the application of legal tools, including court precedents, to the settlement of civil cases and matters is also a requirement of the integration process.

Viewpoints on the design of the 2015 Code’s provisions on court precedents

The first is to concretize the contents and spirit of the Party’s Resolutions 48 and 49 on improvement of the legal system and judicial reform and the 2013 Constitution’s provisions on respect for, protection and guarantee of human and civil rights and assurance of the position and function of people’s courts as well as responsibilities of the Government and people’s courts for protecting these rights.

The second is to concretize the State’s responsibility for ensuring people’s equal access to justice when there are insufficient legal provisions regulating civil relations. Specifically, the courts must be provided with necessary legal tools (customary practices, analogous law, fundamental principles of civil law, court precedents, and justice) to timely settle civil cases and matters.[7]

The third is to distinguish the National Assembly Standing Committee’s constitutional function to interpret laws and the courts’ function to interpret laws in settling civil cases and matters. Accordingly, the courts or judges only interpret laws within the scope of settlement of specific civil cases or matters and, if the interpreted contents in the court’s judgments or rulings become a precedent, this precedent will only apply to similar cases or matters in the future. Meanwhile, the National Assembly Standing Committee’s interpretation of the Constitution, laws and ordinances is general interpretation effective for all entities in the society.

The fourth is that court precedents constitute a secondary source of applicable laws and should be applied in a flexible and non-compulsory manner.

The fifth is to clarify the purpose and scope of provisions on court precedents in the Civil Code and civil procedure law. The Civil Code provides court precedents as an additional source of applicable law, while the civil procedure law regulates the process of selection, publicization and application of court precedents.[8]

The last is to inherit experiences and traditions in Vietnam and learn appropriate experiences of foreign countries[9] on application of precedents to meet practical requirements of the socio-economic development, judicial reform and international integration.

The 2015 Code’s specific provisions on court precedents

Article 6.2 and Article 14.2 and other relevant provisions of the 2015 Code stipulate conditions on court precedents and their application in the exercise and protection of civil rights, basically as follows:

Court precedents may be formed on one of the three following grounds: (i) There is no law, customary practice or analogous law for application; (ii) Existing legal provisions are unclear[10] and there is no customary practice and analogous law for application; and (iii) The court applies customary practices, analogous law, justice or fundamental principles of civil law to the settlement of civil cases and matters.

Court precedents do not restrict civil rights. The Civil Code clearly states: “Civil rights may not be restricted unless it is prescribed by a law in case of necessity for reasons of national defense, national security, social order and safety, social morality and community well-being” (Article 2.2); and “No one may be illegally restricted in or deprived of his/her ownership rights and other rights over property” (Article 163.1).

The contents and application of court precedents must not breach the fundamental principles of civil law (Article 3), i.e., such precedents must not create discrimination among entities for any reason; must not deprive entities of their freedom and voluntariness to make commitments and agreements in the establishment, exercise and termination of civil rights or obligations. They must neither encourage nor recognize dishonesty or non-cooperation in the establishment, exercise and termination of civil rights or obligations; nor infringe upon national interests, public interests or lawful rights and interests of other persons; nor go against the principle that entities must take responsibility for their failure to perform or improper performance of civil obligations.

As mentioned above, court precedents only constitute a secondary source of law, so they would be applied in the following order: Customary practices will apply if the parties have no agreement or there is no applicable or existing legal provisions are unclear[11]; if no customary practices can be applied, the legal provisions regulating similar civil relations will apply; or if there are no such legal provisions, the court or judge may choose fundamental principles of civil law, court precedents or justice to settle civil cases and matters as appropriate so as to best protect the rights and interests of related parties.-


[1] The 2015 Civil Code was drafted in two phases: studying and formulating policies (2008-11) and preparing the draft (2011-15).
[2] These objectives and viewpoints were reflected throughout the course of revision of the 1992 Constitution and in the 2013 Constitution (Articles 14, 16, 33, 51 and 52, Article 102.3, Article 104.2, etc.); Resolution 21-NQ/TW of 2008 of the Party Central Committee, on further improving socialist-oriented market economic institutions; Resolution 48-NQ/TW of 2005, on the strategy to build and improve the legal system of Vietnam through 2010 and orientations toward 2020; Resolution 49-NQ/TW of 2005, on the judicial reform strategy through 2020; the socio-economic development strategy during 2011-20 and the national construction platform in the period of transition to socialism (supplemented and developed in 2011) passed at the 11th National Party Congress.
[3] Circular 19-VHH of 1955 of the Ministry of Justice, Directive 772-TATC of 1959 of the Supreme People’s Court (SPC), Circular 92-TC of 1959 of the Ministry of Justice and SPC, and Justice Journal of the SPC during the 1960s also had a section on court precedents.
[4] For instance, the determination of customary practices and habits in civil relations; settlement of a spouse’s request for legal separation; naming of a child whose parent is a foreigner; identification of property being land for worship, virtual property, virtual money or video game accounts; determination of spiritual loss due to breaches of contract; or determination of prices of similar assets, market prices or average market prices, etc.
[5] The Civil Code itself has been revised once every 10 years (in 1995, 2005 and 2015).
[6] At the conference reviewing activities of the people’s court sector in 1995, the Supreme People’s Court instructed lower-level courts not to accept a request for legal separation for settlement. Official Letter 141 of 2011 guiding valuable papers and settlement of requests for return of property ownership certificates held by other persons states that the court will not accept a request compelling the person holding property ownership certificates (other than valuable papers referred to in Article 163 of the 2005 Civil Code) to return them.
[7] Inheriting the outcomes of researches in the process of drafting the Civil Codes of 1995 and 2005, the Ministry of Justice conducted domestic and overseas researches into sources of law and legal mechanisms in the exercise and protection of civil rights when there are no legal provisions and legal tools for the courts to apply, such as customary practices and analogous law (in a narrow sense, to apply legal norms to settle similar civil relations, and in a broad sense, to apply fundamental principles of law), court precedents, equality and doctrines. After the research, the revised Civil Code was set to include provisions requiring the courts and judges to settle civil cases or matters even when there is no applicable law. The Code continues to acknowledge customary practices and expands the connotation of analogous law (in a broad sense), and adds court precedents and justice for application when there is an absence of applicable law. The ministry specifically proposes that judges may not decline to settle civil cases or matters for the reason that there is no law to apply. When there is no law to apply, judges may interpret the general principles and provisions based on their faith and professional title, apply appropriate customary practices, or apply legally effective appellate or cassation judgments already chosen or guided by the Supreme People’s Court for settling the cases or matters.
The Ministry of Justice stuck to this view throughout the process of drafting the Civil Code in order to design the most appropriate provisions on application of court precedents in the settlement of civil cases and matters.
[8] The 2015 Civil Code and Resolution 03 of 2015 of the SPC’s Justice Council contains specific provisions on this issue.
[9] According to the Ministry of Justice’s studies, not only countries applying the system of court precedents but also countries following the system of statutory law like Vietnam have, in various aspects, recognized the application of court precedents in the settlement of civil cases and matters when there is no applicable law. For instance, in Japan, court precedents are not regarded as a source of law and the judge is not compelled to apply court precedents in settling civil cases and matters. However, Article 4 of the Court Act of Japan states: “A verdict in trial by the appellate court is binding on the court of first instance regarding the case”; Article 10 of this Act stipulates that when there are contradictory opinions on trial at the Supreme Court on the application and interpretation of the Constitution and laws, the supreme court hearing should be formed, composed of all 15 judges of the Supreme Court; in practical procedural activities in Japan, in a specific case or matter, the judge may interpret laws and he is often interested in the judgment about a similar case or matter decided by the judge of the superior court. When the parties file a protest, the superior court’s judgment is often binding on the subordinate court, so in reality, court precedents are identified as a source of law.
[10] The Civil Code and relevant laws still contain many unclear and unspecific provisions leaving “space” for application of court precedents, like such phrases as “reasonable expenses”, “reasonable time limit”, “at market prices”, “in another written form of acceptance”, “according to normal standards or separate standards suitable to the purpose of contract signing”, or “not attaining the purpose of contract signing”, or provisions on interpretation of contracts, interpretation of testaments, or modification of contracts upon change of circumstances, etc.
[11] Article 6.2 merely states: “In case there is no applicable law…”, but under other specific provisions of the Civil Code, in case the legal provisions are unclear, the court may still apply legal tools to settle civil cases and matters. See also footnote 10.

 

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