Master of Law Ms. NGUYEN VIET HUONG
State and Law Research Institute
Quoc Trieu Hinh Luat, a general code promulgated during king Le Thanh Tong’s tenure named Hong Duc (1471-1497), contained legal provisions regulating various aspects of the social life, of which the procedural law provisions occupied an important position. They were presented in two chapters in Volume VI: “Bo Vong” chapter (13 Articles) prescribing procedures for the hunt and arrest of convicts; and “Doan Nguc” (65 Articles) prescribing procedures for trial and the prison regulations.
These two chapters were collected and recorded by historian Phan Huy Chu in a book called “Lich trieu hien chuong loai chi” (Bibliology of Monarchical Publications) under the title “The Law on Arrest and Trial” with the same amount of words, the same writing style and the same detailed contents as that of “Quoc Trieu Hinh Luat”. Therefore, the provisions of “Quoc Trieu Hinh Luat”, which have been still kept and preserved, can be considered main and reliable foundations for the inquiry into the procedural laws of the early Le dynasty in particular and Vietnam’s feudal time in general.
Generally speaking, the feudal legislation made no distinction between the civil and criminal laws. With the concept of identifying laws with punishment and coercion, the provisions of civil laws were also presented in the form of criminal law provisions, with the application of penal measures. As a result, Quoc Trieu Hinh Luat only contained the procedural laws in general without distinguishing the civil procedures from the criminal procedures.
Regarding the procedural laws, “Quoc Trieu Hinh Luat” defined two issues:
1. The competence and procedures for conducting legal proceedings at various levels.
Under the provisions of “Quoc Trieu Hinh Luat” and the legal documents promulgated during the same period, lawsuits in the society were categorized into 4:
- Micro lawsuits (toi tieu su)
- Minor lawsuits (tieu su)
- Medium lawsuits. (trung su)
- Major lawsuits. (dai su)
The competence to settle these lawsuits were prescribed in details by law for various levels: commune, district, region, province and the capital city. The feudal ruler at each level also took charge of the trial activities at such level.
At the communal level, the chief of the commune was responsible for the trial of micro cases, usually small quarrels, small stealings or burglaries in the village and commune. When trying these cases, the chief of the commune often tended to reconcile the parties. If the commune chief was unable to settle the case, he “would transfer it to the district chief for the settlement” (Article 672 of Quoc Trieu Hinh Luat).
At the district level, the local ruler had the responsibility to settle minor cases and at the same time to settle the appeals and review cases which were already tried by the commune chief but appealed or protested by people or which were unable to try by the commune chief. Here, the spirit of conciliation still prevailed the trial, especially regarding cases where the parties were member of a family or a line of descent and the cause leading to the lawsuits was very minor, which could be settled through customs and practices.
At the regional level, cases of medium significance and cases which could not be solved at the district level would be settled by the regional ruler.
In cases where the lawsuits on land, marriage and family, property, free fighting, debts, tax, graves, rivers and streams, misappropriation. could not be settled by the regional ruler, they would be appealed or transferred to “Thua ty” - the administrative agency of “dao” (province) (during king Le Thanh Tong’s reign, there were 13 “dao” throughout the country). “Thua ty” was also entitled to the first instance trial of cases concerning the delineation of the boundaries between villages, the election of the commune chief. For cases on the ruthless oppression against people by local nobles, the harassment for bribes by tax officials, the unfair trading by local authorities..., they would be handled by “hien ty” (the provincial Procuracy). Besides, people who had been tried in absentia at the district or regional level could appeal to “hien ty” which would request the regional ruler to open a retrial if it found true injustice in the previous trial.
If the parties felt unhappy with the judgements or rulings on the cases handled by “thua ty” and “hien ty”, they could appeal to the “Ngu su dai” (the royal advisory council) in the capital city, which would review the cases and make decisions. If the parties still felt unsatisfactory with the judgements or rulings made by “Ngu su dai”, they could again appeal to the royal court and the cases would be finally decided by the king.
However, to avoid the prolonged suing that obstructed the people’s productive labor and affected the social order as well as the management by the administration at various levels, the laws prescribed some restrictions. For instance, if a case had been tried by three levels but the plaintiff or the defendant still continued to appeal or protest, he/she would be punished by law. Particularly if the higher level accepted the appeal and found out that the case had been properly tried by the lower level, the appellant would be fined and the mandarin who had handled the case for the first-instance trial would be eligible for such fine.
Meanwhile, the laws also prescribed procedures for supervising the trial activities at all levels so as to ensure the fairness and legality in the trial. They include two types of supervision:
- The case-by-case supervision: If a level, while reviewing a case handled by the lower level for the appellate trial, found out that the lower level had been at fault in the trying process, it had the duty to report to its immediate high level which would impose punitive measures against the lower-level mandarin for the unjust trial. Depending on the seriousness of the fault, the measure could be a fine, demotion or dismissal. In cases where the mandarin of a higher level failed to report his subordinate’s fault, if any, he would be subject to the same punishment as that for his subordinate.
- The annual supervision: All levels of trying had to make their respective annual reports on the total number of cases registered within their respective jurisdiction, the number of cases already settled and the number of cases remained unsettled as well as their rights or wrongs in the trials and the causes thereof, then submitted such reports to their respective immediate higher levels. Based themselves on those reports, the mandarins of “thua ty” and “hien ty” would make report, then submit them to the “ngu su dai” which would report to the king for consideration and decision to reward or sanction the trying levels.
2. The procedures for conducting legal proceedings
According to the provisions of “Quoc Trieu Hinh Luat” and other legal documents promulgated during the same period, the procedures for legal proceedings included three following main stages:
a) Accepting the lawsuit
The lawsuit for whatever matter, big or small, had to be made by the plaintiff him/herself. If the plaintiff was an illiterate, he/she could ask another person to write for him/her, but the latter’s address and full name had to be written at the end of the lawsuit and the plaintiff had to have his/her signature or fingerprint affixed thereto. If the plaintiff made untruthful lawsuit or denunciation, he/she would be punished in accordance with the provisions of law (80 stick-beatings as prescribed in Article 508 of “Quoc Trieu Hinh Luat”). Those people who incited others to institute untruthful lawsuits or denunciations or wrote untruthful lawsuits or denunciations for others would be subject to the punishment one degree less severe than that for the plaintiff (Article 513 of “Quoc Trieu Hinh Luat”).
The lawsuit for whatever matter, big or small, had to be submitted to the commune mandarin first, then the higher levels later. When submitting the lawsuit, the plaintiff had to pay a court fee which varied from case to case (and was often very high especially for the second and third appeals).
Upon the receipt of the case, the trying mandarin at all levels had to immediately look into the case, evidences, material evidences to see if the lawsuit had been made properly or worth receiving or not. In cases where a lawsuit was not written and submitted in accordance with the provisions of law but the mandarin still accepted it for the trial, he would be blamed and subject to a fine of 30 “quan” (a feudal currency unit equivalent to 100 coins). The mandarin would also be punished if he accepted the lawsuit without any important papers attached thereto (such as deed which had to be attached to the lawsuit on land; the testament which had to be attached to the lawsuit on inheritance of estate; the report on medical examination had to be attached to the lawsuit on free fighting; the report on autopsy had to be attached to the lawsuit on man murder...)
For the questioning, the parties and witness(es) had to be present. The parties and witness(es) had to appear at the court under the arrest warrant or the summon, which were signed by the trying mandarin and the gaoler (Article 699 of “Quoc Trieu Hinh Luat”). In order to avoid any distortion of the content of the case, the trying mandarin was not allowed to summon an witness who was a relative or felt enmity and hatred for either party (Article 714 of “Quoc Trieu Hinh Luat”).
The questioning had to be conducted publicly. It could be carried out either simultaneously or separately with both parties and the witness(es). When conducting the questioning, the clerk had to record all questions and answers.
In the course of questioning, the trying mandarin at all levels could apply torture to get affidavit. The torturing methods were prescribed in details by law (Article 699 of “Quoc Trieu Hinh Luat”). However, the tortures were also prescribed in details for each case so as to avoid the forced affidavit. People of “bat nghi” (8 cases eligible for commuting under Quoc Trieu Hinh Luat), aged people (over 70 years of age), children (of under 15 years of age) were not subject to torture while being interrogated (Article 655 of “Quoc Trieu Hinh Luat”).
c) The trial
The law prescribed in details the time limit for a trial and the punitive measures against the violations thereof. According to Article 671 of “Quoc Trieu Hinh Luat”, the lawsuits concerning the marriage and miscellaneous matters had to be brought to trial within two months; the robbery and burglary had to be brought to trial within three months; the humiliation had to be brought to trial within four months, all from the date the parties were summoned to the court for the first questioning.
The trial had to be conducted publicly at the court house and in accordance with the prescribed procedures such as the seats of the trying mandarin, the court’s clerk, the parties as well as witness(es); the ways to question and answer properly in accordance with the rule of behavior. If the trying mandarin conducted a trial in a place other than the court room, or if the parties and witness(es) sit or stood improperly, not in accordance with the provisions for the court room, they would be subject to sanctions (Article 709 of “Quoc Trieu Hinh Luat”).
In the course of trial, the trying mandarin had to personally conduct thorough and careful interrogation. If anything still unclear, re-interrogation should be made. On the basis of the interrogation results and the public questioning at the courtroom, the trying mandarin would make the conclusion. Evidences and provisions of laws had to be cited by the trying mandarin as legal grounds for deciding whether the defendant was guilty or not... If a conclusion was made without any legal foundations or with untruthful quotations of provisions of law he would be subject to sanctions, depending on the seriousness of his fault (Articles 683, 685 and 722 of “Quoc Trieu Hinh Luat”). In case of the absence of provisions of law for quotation to illustrate the offenses committed by the defendant, the trying mandarin (judge) would base himself on a similar offense for trial which usually ended with a commuting. In cases where a judgement or ruling was made but there was still doubt about the wrong crime, the judge would base himself on the name of the offense and the corresponding punishment so as to commute for the offender. During the process of trial, there had to be a clear distinction between unintentional and intentional offenses in order to impose less severe measures against unintentional offenses...
Generally speaking, the procedural laws constituted an important part of “Quoc Trieu Hinh Luat” on which the Le dynasty compiled and promulgated the “Quoc Trieu kham tung dieu le” (The Royal Regulation on Procedural Law”) comprising main provisions on legal proceedings. This has shown that there had been a clear distinction between the substantive law and the procedural law in the feudal legislation of the Le dynasty, and at the same time revealed the then true feudal relationships between the central and local administration. A centralized monarchical State, the central feudal government deeply intervened in the activities of communes and villages, firmly controlling communes and villages so as to consolidate its centralized power. Hence, it attached importance to the building of the procedural law as a necessary means to actively and effectively support the State’s policies. Moreover, that was also a period in which the class contradictions became increasingly acute due to the oppression, corruption, power abuse committed against the people by local mandarins, thus resulting in more and more lawsuits. All this required the development of the procedural laws with more detailed provisions, which reflected a high legislative skills of the then feudal legislators.-