Nguyen Van Nam, LL.D.
Deputy Dean of the Law Faculty of the People’s Security Academy
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Introduction
Precedents have been officially recognized as a source of law in Vietnam’s legal system in general and in its criminal law in particular. It is obvious that within the Vietnamese legal system, there are legal bases for precedents in the civil and administrative laws. In the criminal law, the recognition and application of case law are currently based on the 2024 Law on Organization of People’s Courts[1] and the Supreme People Court’s Resolution 04/2019/NQ-HDTP[2] (Resolution 04). However, from a theoretical perspective, the Vietnamese legal system needs to be added with provisions on recognition and application of criminal precedents. This article focuses on analyzing the current legal basis for the recognition of precedents in the criminal law in Vietnam. It also summarizes achievements in the development of criminal precedents in Vietnam over the recent years. In order for criminal precedents to affirm their role in the sources of Vietnam’s criminal law, the author would make suggestions for further development of precedents in Vietnam’s criminal law in the future.
Legal grounds for the recognition of precedents in the criminal law
Article 30.2.b of the 2024 Law on Organization of People’s Courts (the Law) stipulates that the development of precedents is an activity of the Supreme People’s Court to ensure the consistent application of law in adjudication. The process of selecting, issuing and applying precedents has been affirmed in Article 32.1 of the Law: “Precedents are approved by the Judicial Council of the Supreme People’s Court. Precedents are selected by the Judicial Council and announced by the Chief Justice of the Supreme People’s Court for legal reasoning, reference and application in the adjudication and settlement of cases and matters. The Judicial Council of the Supreme People’s Court guides the selection, announcement and application of precedents.”
Currently, specific provisions on the process of selecting, announcing and applying precedents can be found in Resolution 04. The definition of precedents is provided in Article 1 of Resolution 04: “Precedents are arguments and judgments in legally effective court judgments and rulings on specific cases selected by the Judicial Council of the Supreme People’s Court and announced by the Chief Justice of the Supreme People’s Court as precedents for the courts to study and apply in adjudication.” According to statistics from the Supreme People’s Court’s Precedents Portal, by November 2024, the Judicial Council of the Supreme People’s Court has announced a total of 72 precedents, including 17 criminal precedents, four administrative precedents, 35 civil precedents, five marriage and family precedents; nine commercial business precedents; and two labor law precedents[3].
Arguments about legal grounds to clearly affirm that criminal precedents are a source of criminal law still constitute a controversial issue in Vietnam. There is an opinion that precedents in general and criminal precedents in particular only need to be selected and announced by the Judicial Council of the Supreme People’s Court to become a source of law on the basis of the provisions of the Law and relevant provisions[4].
However, there are other opinions that it is necessary to clearly stipulate that criminal precedents constitute a source of criminal law in the current Penal Code of Vietnam like those on precedents in the Civil Code, the Civil Procedure Code, and the Law on Administrative Procedures. Specifically, Article 4.2 of the 2015 Civil Procedure Code stipulates: “The court may not refuse to resolve a civil case for the reason that there is no applicable law. A civil case without an applicable law is a civil case regulated by the civil law, but at the time it arises and an agency, organization or individual requests the court to resolve it, there is no applicable law.”
Article 45.3 of the Civil Procedure Code specifies the principles for resolving civil cases when there are no applicable legal provisions, clearly stating: “Precedents may be studied and applied by the court in resolving civil cases if they have been selected by the Judicial Council and announced by the Chief Justice of the Supreme People’s Court.” Articles 264.2, 266.2.b and 313.4 of this Code also clearly stipulate that precedents serve as a legal ground for courts to issue first-instance and appellate civil judgments.
Regarding precedents as a source of the criminal law, Article 2.1 of the 2015 Penal Code (as revised in 2017) clearly provides: “Only those who commit a crime prescribed by the Penal Code shall be held criminally responsible.” At present, the 2015 Penal Code and the 2015 Criminal Procedure Code have no provisions on the source of criminal precedents and the application thereof in criminal proceedings. This is a legal limitation that needs to be supplemented for precedents in the criminal law to truly have a solid legal ground in law application[5].
For common law countries, the application of precedents in general and precedents in the criminal field in particular is based on customs in legal culture. For developed civil law systems in the world, the recognition of precedents in general and criminal precedents in particular is entirely based on the flexible concept of law sources in the legal culture of each country. Most legal systems in the world do not have legal documents regulating the determination of the legal value of precedents as a source of law in general and criminal precedents in particular. In the author’s opinion, the current provisions of the Law and Resolution 04/2019/NQ-HDTP serve as the legal ground for recognizing the validity of precedents in the criminal law in Vietnam.
It is time to take a new approach to the concept of sources of criminal law in the broader sense that embrace all types of legal documents in Vietnam’s legal system containing criminal legal norms and other contents referred to in the criminal law in determining crimes and penalties[6]. Thus, it can be said that the recognition of criminal precedents in Vietnam’s current legal system has a complete scientific ground and a basic legal foundation. However, in order for criminal precedents to be truly legally guaranteed, the current Penal Code and Criminal Procedure Code need to be supplemented with provisions specifying sources of precedents and the precedent application mechanism as in the civil law and administrative law.
Practical development of criminal precedents in Vietnam over the recent years
It can be affirmed that the room for the development of precedents in Vietnam’s criminal law is very large since practices of the criminal law application always arise in a very diverse and complicated manner beyond the legislators’ expectations. In order to apply the 2015 Penal Code in a unified manner, the Judicial Council of the Supreme People’s Court has so far adopted 16 resolutions providing precedent application guidance[7] as the development of criminal precedents is always an actual need of trial activities.
According to statistics of the Supreme People’s Court, its Judicial Council has announced 17 criminal precedents out of the total of 72 announced precedents[8]. Although the number of announced criminal precedents remains modest compared to civil precedents, this shows that the recognition and development of criminal precedents in Vietnam see very positive prospects due to the actual needs of criminal justice. The current status of criminal precedents in the country is characterized by the following:
First, published criminal precedents have helped clarify legal provisions that can be construed differently, analyze and explain legal issues and events, point out handling principles and guidelines, and identify legal norms that need to be applied on a case-by-case basis or help demonstrate fairness with regard to issues not yet governed by specific provisions.
Second, criminal precedents are bringing into full play their role and value in guiding the unified application of law in criminal adjudication. The requirement on unified application of law is imposed on all legal areas. In particular, for criminal cases, the unified application of the criminal law through precedents is very important in trials. This helps ensure that similar criminal acts would be charged with the same crime and punished with the same penalty. Examples include criminal precedent 64/2023/AL on the aggravating circumstance of “in an organized manner” in the crime of kidnapping for the purpose of appropriating property; or criminal precedent 48/2021/AL on the extenuating circumstance of “Returning illegally acquired property” for the crime of organizing gambling[9].
Recommendations for the development of criminal precedents in Vietnam
As analyzed above, criminal precedents in Vietnam have a lot of rooms for development since the practice of criminal justice in Vietnam always has to solve numerous emerging criminal legal problems, ambiguities in the provisions of criminal law, and the requirements on consistency and uniformity in the criminal law application. The number of 2,279 court judgments so far published by the entire court system constitutes the potential source of precedents, with criminal precedents accounting for more than 40 percent of the total[10]. In order for criminal precedents to develop more rapidly, greater attention should be paid to the following activities:
Firstly, it is necessary to improve the awareness about the source of criminal law in Vietnam’s legal system toward recognizing more and more precedents as a potential source of criminal justice. It is also a need to increase the reference to criminal precedents in criminal adjudication activities by different criminal courts, lawyers and legal aid providers throughout the country.
Secondly, the current Penal Code and Criminal Procedure Code should be revised toward more clearly affirming the legal ground for selection, announcement and application of criminal precedents as in the civil and administrative laws.
Thirdly, the review of criminal trial practices should be intensified to further enhance the selection and development of criminal precedents to be published by the Judicial Council of the Supreme People’s Court. Currently, the mechanism for proposing precedents to be selected is clearly provided in Resolution 04/2019/NQ-HDTP. Accordingly, the proposal for selecting precedents is open to researchers, lawyers and judges. Hopefully, in the coming time, more criminal precedents will be selected and published by the Judicial Council of the Supreme People’s Court, thus contributing to improving the effectiveness of the courts’ criminal trial activities through citing precedents.-
[1] Law 34/2024/QH15 on Organization of People’s Courts. This Law takes effect on January 1, 2025, and replaces Law 62/2014/QH13 on Organization of People’s Courts.
[2] Resolution 04/2019/NQ-HDTP dated June 18, 2019, of the Judicial Council of the Supreme People’s Court, on the selection, announcement and application of precedents. This Resolution was adopted to replace Resolution 03/2015/NQ-HDTP dated October 28, 2015, on the selection, announcement and application of precedents. Resolution 03/2015/NQ-HDTP was the first legal document of Vietnam’s people’s court system on precedents.
[3] https://anle.toaan.gov.vn/webcenter/portal/anle/anle November 26, 2024.
[4] Nguyen Van Nam, Legal grounds for referring to precedents by lawyers in their litigation argument, https://vietnamlawmagazine.vn/legal-grounds-for-referring-to-precedents-by-lawyers-in-their-litigation-arguments-71951.html.
[5] Nguyen Thanh Man, Concept of criminal precedent and its relation to other precedents in law. The Vietnam Court Academy, http://hvta.toaan.gov.vn/portal/page/portal/hvta/27676686/27677461?p_page_id=27677461&pers_id=28346379&folder_id=&item_id=265021184&p_details=1.
[6] The Training Department of the Ministry of Public Security, Textbook on Criminal Law (General Part), the Labor Publishing House, 2021, p.34.
[7] https://thuvienphapluat.vn/chinh-sach-phap-luat-moi/vn/ho-tro-phap-luat/tu-van-phap-luat/64637/tong-hop-nghi-quyet-huong-dan-bo-luat-hinh-su-moi-nhat.
[8] https://anle.toaan.gov.vn/webcenter/portal/anle/anle.
[9] These criminal precedents are published online: https://anle.toaan.gov.vn/webcenter/portal/anle/chitietanle?dDocName=TAND199118.
[10] https://anle.toaan.gov.vn/webcenter/portal/anle/nguonanle.
