State and Law Research Institute
The House of Le (1428-1789) and the House of Nguyen (1802-1945) were two dynasties having lasted longest in Vietnam’s feudal history. Consequently, their court systems were large and well organized, having typified the feudal court system of Vietnam.
I. The court system under the Le dynasty
The House of Le witnessed many social changes with the strong development of the private ownership of land that gave rise to more and more land disputes, with village tyrany rampant everywhere that led to more and more complaints and denunciations. In face of such situation, the royal court paid due attention to consolidating and perfecting the court organization.
The court system during this feudal period was specified in two separate chapters called “Bo Vong” (Arrest Procedures) and “Doan Nguc” (Trial Procedures and Prison Rules) of “Quoc Trieu Hinh Luat” (The Royal Court’s Penal Code, widely known as “Hong Duc Code”), as well as in “Quoc Trieu Kham Tung Dieu Le” (The Royal Court’s Procedures Code) promulgated in the 18th century, and in a number of separate legal documents.
1. Procedural competence and order for various levels
The Hong Duc Code, in its Article 672, prescribed: “Litigants with very small matters will go to village mandarins, those with small suits will go to commune mandarins and those with medium suits to the district mandarins. For big suits they must go to the capital city. Local mandarins must try cases in a fair manner and in accordance with laws. If village and commune mandarins handed down unjust verdicts, the cases shall be appealed to the district mandarins. If the district mandarins fail to make a fair trial, the involved people may go to the province; and if the provincial mandarins committed injustice in their trials, the concerned people can go and report their cases to the court of justice in the capital city.”
So, according to Article 672 of Hong Duc Code, the procedural competence and order prescribed for various levels were as follows
The village commune level would handle minor disputes within villages and communes; and involved parties were often brought to conciliation. This regulation was of great practical significance as by then the village disputes were small and numerous. So, the law-makers during the Le dynasty paid great attention to settling them right at the village commune level in order to save time and money for the State and the people as well and to ease the judicial burden for higher-level mandarins.
The district level was competent to reconsider cases already tried at the village/commune level. Yet, even at this level the district mandarins were advised to reconcile involved parties as stated in a legal document: “The district mandarins must pay attention to reconciling people, to educating people for the preservation of moral principles... Waywardness, undutifulness, adultery shall be punished with rod-beatings in order to preserve ethical values, to reduce litigations. Litigants with minor cases shall be persuaded to go home. Only big suits shall be considered and tried.”
The provincial/regional level was competent to try medium cases and review cases already but unfairly tried by district mandarins.
The court of justice at the capital city would try big cases and retry cases already tried but unfairly by the provincial/regional mandarins.
So, according to Hong Duc Code, which was promulgated during the early days of the House of Le, the village/commune level was considered only the reconciliation level while the judicial system was consisted of three levels: The district, the province/region, and the royal court. Yet, such system was more and more consolidated and improved later from King Le Thanh Tong on, particulary when the “Quoc Trieu Kham Tung Dieu Le” (The Royal Court Procedures Code) was promulgated. Under such procedures code, the three above-mentioned judicial levels were specified with more detailed competence and more detailed offences as follows:
The district level:
If Hong Duc Code generally provided that district mandarins were competent to try minor and medium cases, the “Quoc Trieu Kham Tung Dieu Le” enumerated in details matters under the district mandarin’s jurisdiction such as cases related to land, property, marriage, fighting, insulting, taxes,...
The district mandarins were competent to:
- Review cases already tried at the lower level but appealed.
- Coordinate with concerned mandarins in investigating cases of “thu sat” (murder for revenge), “dam sat” (murder after raping) “au sat” (death caused by fighting), then to bring such cases before bar.
The provincial/regional level:
For three functional agencies: “Thua ty” that managed the administrative and civil affairs (civil status, household registration, land, tax....); “Do ty” in charge of the military affairs; and “Hien ty” that supervised the contingent of local mandarins, the “Quoc Trieu Kham Tung Dieu Le” only prescribed the judicial competence of “Thua dy” and “Hien ty”, which “Do ty” was not competent to handle martial cases which would be transferred directly to the Ministry of Defense in the capital city.
Under this code, “Thua ty” had the following competence:
- To reconsider cases already tried by district level but appealed by involved persons;
- To conduct first-instance trial of cases related to village boundary disputes, the election of village chiefs, robberies, burglaries, murders, gamblings...
“Hien ty” had the following competence:
- To conduct first-instance trial of cases against notables or authorities who oppressed and treaded upon the neck of commoners, corrupted mandarins.
- To reconsider appeals made by people who were tried in absentia and found unfair judgements. If injustice was found after investigation, “Hien ty” would return the cases to the district level for retrials.
The central level in the capital city
The “Quoc Trieu Kham Tung Dieu Le” (Royal Court Procedures Code) prescribed in details central organs endowed with judicial powers, which had been generally mentioned in “Hong Duc” Penal Code. Yet, such powers were concentrated in the following bodies of the royal court:
- “Ngu su dai” was competent to reconsider cases already tried by the provincial/regional bodies of “Thua ty” and “Hien ty”, and appealed by people.
- Six ministries were tasked to try big cases related to their respective fields of management. For instance,
+ “Bo Ho” (The Civil Affairs Ministry) would try cases of harassment for bribes by tax officials, corruption committed by mandarins in allocation of land, lawsuits against village mandarins for heavy taxes...
+ “Bo Le” (The Ministry of Rituals) would try cases of disputes among Buddhist monks over the management of pagodas, worship land, etc.
+ “Bo Binh” (The Ministry of Defense) would bring before bar cases of draft dodgings, appropriation of land or food rations of soldiers, fighting between armymen, treading upon soldiers’ neck by commanding officers...
+ “Bo Hinh” (The Ministry of Justice) functioned to supervise the legal matters, with more judicial powers than other ministries. Concretely, it was competent to propose to the king amendments to punitive provisions, to try particularly serious cases, to inspect, together with “ngu su dai” (royal advisory body), the judicial work nationwide, to manage and examine prisons...
- “Ton nhan phu” (The royal family palace) was competent to try cases of disputes over property, fighting or quarrellings among royal family members.
It can be realized through these judicial competence and procedures prescribed for various levels that a case could be tried at three levels only. If the judgement was the same after three trials, the involved person was not allowed to continue taking legal actions. Besides, a heavy fine would be imposed on the appellant if the trial by the lower level was concluded fair and lawful by the higher court. This regulation aimed to prevent and reduce prolonged trifling suits.
2. Legal proceedings
- Taking cases for settlement
The verification and investigation of a case would commence when a lawsuit was initiated or when an offence was detected.
The feudal law-makers of the Le dynasty specified the written lawsuits, denunciations made by involved parties, the mandarins’ liability in receiving such applications. Mandarins were entitled to receive proper applications and according to their respective competence; if not they would be heavily fined (Article 508 of the Hong Duc Penal Code). The trying mandarins were entitled to take cases with evidences. Article 18 of the “Quoc Trieu Kham Tung Dieu Le” provided: “The mandarins are not allowed to take cases of disputes over land without deeds, over property without testament, murder without report on autopsy; robbery without material exhibits, gamblings without material evidences...”
- Arrest procedures
The laws did not distinguish between the procedures for arresting the offenders and the procedures for arresting the criminals who absconded from serving their sentences. According to Article 704, of the “Hong Duc” Code, arrests had to be made with warrants. If they were arbitrarily made, the concerned mandarins would be sanctioned.
- Procedures for interrogation
Interrogation included questioning and possible torture. According to Article 667 of the Hong Duc Code, when taking oral depositions from the offenders and witnesses, mandarins had to scrutinize them in order to find out the truths and make the offenders to confess. They were not allowed to choose either the relatives or adversaries of the involved persons as witnesses.
Regarding tortures, the law prescribed in details the application, form, extent and objects of tortures, people exempt from torture. Article 668 of the Hong Duc Code stipulated: “If a mandarin still fails to determine the crime after intensive interrogations of offenders, torture might apply. The torture of an offender must not exceed three times, and with not more than 100 stick-beatings each time. Exempt from torture were aged persons, children, disabled persons, relatives of kings, persons with meritorious services to the country and the kings, with great talents or great virtues.”
- Trial procedures
The laws prescribed timlimits for trials. Under Article 671 of the Hong Duc Code and Article 21 of the “Quoc Trieu Kham Tung Dieu Le”, the timlimits were 3 months for a land-related or robbery case, 4 months for a murder case, 2 months for a case related to civil status, marriage, fighting..., after the arrest of involved persons or offenders.
Article 709 of the Hong Duc Code stipulated that all cases had to be tried publicly at mandarins’ public offices. Regarding the trial methods, Articles 670 and 720 of the Hong Duc Code, Chapter I of Quoc Trieu Kham Tung Dieu Le stipulated:
- Mandarins had to post up the date of trial for each case
- The judges had to rely not only on interrogation results but also on specific exhibits such as deeds, testaments, material evidences to make charges, etc.
Panoramically, the House of Le built a systematic, coherent and tightly-knit judicial system with all processes of investigation, interrogation, arrest and trial being specifically and comprehensively codified. Such a court system could not be achieved by any preceding or succeding feudal regime.
II. The court system under the Nguyen dynasty
Basically, the court system of the Nguyen dynasty was modelled after the House of Le’s, as seen in “Hoang Viet Luat Le” (also known as Gia Long Code) and a number of legal documents promulgated by Nguyen kings. With the village/commune level as that for reconciliation, the judicial system then was consisted of three main levels:
The district level:
For minor cases that could not be conciled by village/commune mandarins, the district chiefs still had to continue the conciliation. Trials were conducted only when such attempt failed. In addition, the district chiefs were competent to conduct the first-instance trials of medium cases, while serious cases had to be transferred to the higher level for reconsideration.
The provincial level
This level was competent to reconsider first-instance cases opened by the district level. A provincial mandarin titled “Bo Chanh” took charge of all civil cases while another mandarin called “An sat” handled all criminal cases. Sentences with punitive forms of from hard labor to exile or death would be transferred to the Ministry of Justice in the royal court for review before they were executed.
The central level at the capital city
Most of the agencies in the royal court were possessed of procedural powers according their respective functions. The ministries all had the function of reviewing cases within their respective fields of management. For example, the Ministry of Civil Affairs (in charge of management of the contingent of mandarins throughout the country) had the power to reconsider law offences by mandarins. Meanwhile the Ministry of Justice had more judicial powers, being able to reconsider different cases such as murders, robberies, burglaries, etc.
Particularly there existed under the Nguyen dynasty a body called “Tam Phap Ty” embracing high-ranking mandarins from three agencies in the royal court: Dai Ly Tu, Do Sat Vien and the Ministry of Justice. “Tam Phap Ty” had the following functions:
- Meeting monthly on the 6th, the 16th and the 26th at the building in the capital city to receive complaints from people throughout the country. Besides such dates, people could come to such building to protest their innocence.
- Reviewing death sentences and complicated cases. For death sentences, if it maintained the first-instance judgements after reconsidering them, “Tam Phap Ty” had to report such cases to the king for approval before their execution.
In brief, the feudal court system in Vietnam was constantly strengthened and improved with different judicial levels. The rulers paid attention to reconciliation right from the grassroots levels in order to reduce litigation, thus saving time and money for the State and people as well. In order to consolidate the feudal court system, the law-makers attached importance to elaborating legal documents with procedural provisions, particularly the “Quoc Trieu Kham Tung Dieu Le”, which was considered a particular legal phenomenon never seen in the feudal jurisprudence of other countries. This showed that the feudal law-makers in Vietnam were aware of the distinction between the substantive law and the procedural law, a legal concept which is very close to the modern contemporary one.-