>>Feudal court systems under the “Le” and “Nguyen” dynasties (15th - 19th centuries)
>>Court organization in feudal Vietnam during the 10th-15th century period
Pham Diem
The State and Law Research Institute
In 1858, the French opened fire to officially conquer Vietnam and after having basically gained victory on the battle fields, in 1883, they forced the Nguyen royal court of Vietnam to sign a peace treaty thereby to establish the French colonial regime in the country.
The French did not abolish the local feudal regime; hence the coexistence of two administrative systems: one of the French and one of the puppet Nguyen court (known as Nam Trieu - the administration of Vietnam). This gave rise to two different court systems: one of the French and one of Nam Trieu.
Under the 1883 peace treaty and a number of other agreements signed subsequently between the French invaders and the Nguyen feudalists, Vietnam was divided into three regions with three different political statuses:
- Nam Ky (Cochinchina or Cochinchine in French) covering entire southern Vietnam, which enjoyed the colonial status and was placed under the direct rule of the French.
- Trung Ky convering Central Vietnam (except for Da Nang City which enjoyed the colonial status), became the French’s protectorate.
- Bac Ky (known as Tonkin) covering northern Vietnam (except for Hanoi and Haiphong cities which also enjoyed the colonial status), with the semi-protectorate and semi colonial status.
These three regions had three different political regimes; hence three different forms of administration and three different legal regimes with the courts organized differently in three regions.
I. The court system of the French in Vietnam
The structure of the French court system in Vietnam was specified in an order of the then French President and a decree of the Indochina Governor General.
The French courts were set up not only in the colonial territories (Cochichnia and the cities of Da Nang, Hanoi and Haiphong) but also in the protectorate and semi-protectorate where lived persons falling under the jurisdiction of the French courts, which were competent to try cases involving persons of the following categories:
- The French living in Vietnam, including naturalized Vietnamese.
- Foreign residents who enjoyed special privileges like the French (such as Europeans, Americans, Japanese and Chinese, living in Vietnam).
- Vietnamese born in areas under the colonial status.
The French courts here were entitled to apply some judicial principles of the metropolis:
- The judiciary power was separated from the administrative power; hence the existence of the separate judiciary system.
- A court was composed of three distinctive sections: the prosecution, the investigation and the adjudication.
- The involved parties’ right to defense was ensured, who might, therefore, hire lawyers to defend them at courts.
Regarding laws applicable, the French courts could apply the French laws, including:
- Codes and laws of the metropolis if the involved parties were French or foreign residents enjoying special privileges like the French nationals.
- Codes and laws elaborated and promulgated in the colonial territories (such as the summarized civil code, the amended penal code…) applicable to Vietnamese mentioned above.
The French court system was composed of the following levels and types:
The common conciliation courts:
These were the lowest-level courts, with two types:
- The French-chaired common conciliation court: with 3, respectively in Saigon (now Ho Chi Minh City), Hanoi and Haiphong. The courts of this type would try cases involving French persons or foreigners enjoying special privileges like the French.
- The Vietnamese-chaired common conciliation courts which were established in every Cochinchina provinces with function to try cases involving Vietnamese of the above-mentioned categories.
The common conciliation courts had the competence:
- To try civil and commercial cases involving movable assets valued at 300 francs or less as the last resort.
- To try cases of common nuisance. If a pecuniary fine of not more than 5 francs was imposed as the judgement, it was the final jurisdiction.
The enlarged-competence conciliation courts
There were 3 such courts in Cochinchina (respectively in Ba Ria, Bien Hoa and Tay Ninh) placed under the Saigon supreme court; one in Central Vietnam (located in Vinh) and one in the Tonkin (located in Nam Dinh), both of which were placed under the Hanoi supreme court.
Each of these courts had only one judge and a clerk.
The enlarged-competence conciliation courts were competence:
- To try civil and commercial cases involving movables or immovables. If a case involving immovables valued at 3000 francs or less or immovables at 300 francs or less, the judgement would be the final one.
- To review with final jurisdiction cases of common nuisance and first-instance trial of minor criminal cases.
The first-instance courts
The first-instance courts ranked equal to the enlarged-competence conciliation courts but had all three sections:
- The prosecution managed by a public prosecutor.
- The investigation managed by an inquirer.
- The adjudication managed by the chief judge and composed of other judges.
There were three grades of first-instance courts:
- The grade-I first-instance courts: with 3 located respectively in Hanoi, Haiphong and Saigon.
- The grade-II first-instance courts: with 4 located in Da Nang, My Tho, Vinh Long and Can Tho.
- The grade-III first-instance court set up in the remaining provinces of southern Vietnam.
The first-instance courts had competence similar to that of the enlarged-competence conciliation courts.
The supreme courts
There were two supreme courts: one in Hanoi and one in Saigon. Each of these courts was composed of three sections with clear division of responsibilities:
- The prosecution (or Attorney General) section consisting of the Attorney General, his deputy and assistants.
- The adjudicating board consisting of chief judge, section judges and several jurors. The adjudicating board was composed of two sections: one for civil cases and one for criminal cases; and each was headed by a judge. When a civil case was brought to trial, the chief judge of the civil section was in the chair and assisted by two jurors; and similarly, when a criminal case was tried, the chief judge of the criminal section was in the chair and assisted also by two jurors.
- The examination section or accusing section, which was composed of three judges.
Regarding their jurisdiction, the supreme courts would review cases already tried by first-instance courts or enlarged-competence conciliation courts, but appealed.
High criminal courts
Courts of this kind were established only when there were serious criminal cases. Each high criminal court was composed of judges from supreme courts and a number of jurors. The jurors were selected through lot drawing from lists of notables, made annually by local mandarins. The accused might deny any juror who they believed with grounds was not impartial. The jurors were allowed to take part in making the accusation but not in ruling the compensation in civil cases.
The high criminal courts tried criminal but serious cases only, not civil cases, whose judgements were the final ones which could not be reviewed by any courts but could only be cancelled for reinvestigation and re-trial.
So, the French courts had only two adjudicating levels: the first-instance and appellate trial or only one final trial (for minor civil cases, small nuisance cases, high criminal cases).
II. The court system of feudal Nam Trieu
The feudal courts were established only in the protectorate and semi-protectorate, namely Trung Ky (Central Vietnam) and Bac Ky (Tonkin), not in Nam Ky (Cochinchina) which was a colonial territory directly ruled by the French.
They were competent to try only cases involving Vietnamese born in the protectorate and semi-protectorate (namely the king’s subjects). Foreign nationals living in Bac Ky and Trung Ky were categorized as Vietnamese. Yet, even for those foreigners, the feudal courts were not allowed to try them if they had agreed in any contracts that their disputes, if any, would be brought before French courts.
Unlike the French courts, many French judicial principles were not applied at the feudal courts of Nam Trieu:
- The feudal courts were not distinguished themselves from the administrative bodies. The local chiefs acted as the chief judges.
- Each feudal court of Nam Trieu was not structured in three different section: prosecution, adjudication and accusation (with three different kinds of judges) like of French court. All these tasks were often undertaken by the chief judge.
- At almost all feudal courts of Nam Trieu (except for the grade-III first-instance court in Bac Ky), the involved parties were not allowed of hire lawyers to defend them.
The laws applicable at all these courts were feudal laws of the feudal Nguyen regime.
Due to the difference in the political status with Central Vietnam being the protectorate and northern Vietnam being the semi-protectorate and semi-colony, the feudal courts in these two regions were organized differently:
1) The feudal courts in Bac Ky (northern Vietnam or Tonkin)
The organization of the feudal courts system of Nam Trieu in Bac Ky was specified in a law entitled “Bac Ky Phap Vien Bien Che” (The structure of Bac Ky Court System), under which the courts were graded into three:
+ The grade-I courts
Called as grade-I or primary courts, they were set up at the district level with the local chief mandarin acting as the chief judge assisted by a clerk. Such courts were competent:
- For civil and commercial cases, to reconcile and try cases involving movables valued at 300 dong (then Indochines currency) or less, or immovables at 100 dong or less. Reconciliation was the main task of these courts. Whenever appeared cases under their jurisdiction, such courts had to reconcile the involved parties first, then adjudicate their cases if reconciliation failed. If a case involved movables of less than 100 dong in value, the judgement was final.
- For criminal cases, these courts were entitled to try minor cases of common nuisance. For other criminal cases, particularly serious ones, which were beyond their adjudicating jurisdiction, they were tasked to conduct investigation and compile the dossiers thereon for submission to the higher-level courts.
+ The grade-II courts
Courts of this type were set up in provinces; hence, they were also called provincial courts.
A provincial court was staffed with an official judge, who was the French Resident Chief of the province, and a substitute judge being a provincial mandarin called “Bo Chanh” (a mandarin in charge of tax and financial affairs) or “An Sat” (a mandarin in charge of criminal cases). The official judge, namely the French Resident Chief of the province, controlled the court’s activities and sat in the chair for the trial of important or political cases. All other cases would be adjudicated by the substitute judge (Bo Chanh or An Sat). The official and substitute judges were assisted by jurors and clerks.
The provincial courts had the following competence:
- For civil and commercial cases, to review first-instance cases but appealed by involved parties and to conduct the first-instance trial of cases involving movables valued at more than 300 dong or immovables at over 100 dong.
- Criminally, to review as the final resort the appealed cases already tried by grade-I courts, and to conduct the first-instance trial of minor or serious criminal cases.
+ The grade-III court
This court was also called the supreme court of Nam Trieu. For the entire Bac Ky, there was only one grade-III court headquartered in Hanoi beside the French supreme court.
It was composed of the chief judge being the chief judge or a chief section judge of the French supreme court, a Vietnamese mandarin acting as the substitute judge. So, the grade-III court was, in essence, a section of the French supreme court in Hanoi.
The grade-III court had the following competence:
- To review first-instance cases (civil, commercial and criminal as well) already adjudicated by grade-II courts but appealed by involved parties.
- To review for cancellation as the final resort cases which the involved parties had protested against and applied for cancellation and which the grade-III court deemed wrongly adjudicated by lower courts.
All feudal courts in northern Vietnam was managed by a French judge under the French Resident Superior, not the local royal court. Annually, such French judge sent a report on adjudicating activities of the Vietnamese courts in northern Vietnam to the Indochina Governor General, and its copy to the feudal administration whose jurisdiction over its own courts was nominal.
2) The feudal courts in Trung Ky (Central Vietnam)
The organization of Vietnamese feudal courts in Trung Ky was specified in a law entitled “Trung Ky Phap Vien Bien Che” (The Trung Ky Court System Structure), under which the courts were also graded into three:
- The grade-I courts: Like in Bac Ky, the grade-I courts in Trung Ky were established at the district level with the district mandarin being the chief judge assisted by a clerk.
However, grade-I courts in Trung Ky had a broader jurisdiction than those in Bac Ky. Concretely, they were entitled to adjudicate civil or commercial cases involving property of less than 30 dong in value and conduct the first-instance public hearings of cases involving property of from 30 to under 150 dong. Penally, it could exercise final jurisdiction over cases with a fine of 30 dong or less, and conduct first-instance trial of minor criminal cases.
- The grade-II courts
Like in Bac Ky, the grade-II courts in Trung Ky were of the provincial level. What was different was that they were headed by a Vietnamese, not French, mandarin who was the provincial chief, and assisted by two other Vietnamese mandarins called Bo Chanh (mandarin in charge of tax and financial matters) and An Sat (a mandarin in charge of criminal affairs).
These courts were competent:
- For civil and commercial cases:
+ To exercise final jurisdiction over first-instance cases already adjudicated by grade-I courts but appealed by involved parties.
+ To conduct first-instance trial of cases involving property valued at 150 dong or more.
+ To review cases which were already adjudicated by grade-I courts, not appealed, but disapproved by the French representative.
- For penal cases:
+ To conduct first-instance trial of serious cases whose judgements, appealed or not, had to be submitted to concerned grade-III courts.
+ To reconsider appealed first-instance minor cases already adjudicated by grade-I courts.
+ To exercise final jurisdiction on cases of common nuisance already adjudicated by grade-I courts but appealed.
+ To reconsider and exercise final jurisdiction on cases of common nuisance which were adjudicated by grade-I courts but disapproved by the French representatives.
- The grade-III court
There was only one grade-III court for Trung Ky, which was based in Hue.
Prior to 1942, such court was headed by the Minister of Justice who was assisted by 3 judges also from the Ministry of Justice. Hence, this court was also known as the Ministry of Justice’s court.
From 1942 on, the chief judge and other judges of the grade-III court were not necessarily mandarins from the Ministry of Justice though they remained to be mandarins of the royal court. Since then, it was called the court of appeal.
The grade-III court had the following competence:
+ To exercise final jurisdiction on all serious criminal cases already through the first-instance public hearings by grade-II courts.
+ To exercise final jurisdiction on first-instance minor criminal cases already adjudicated by grade-II courts but appealed. For judgements of minor criminal cases which were, even not appealed, protested against by the French representatives, they had to be reviewed by the grade-III court.
+ To exercise final jurisdiction on civil and commercial cases already adjudicated by grade-II courts but appealed or protested against by French representatives.
So, despite the absence of French judges, the Vietnamese feudal courts of the Nguyen regime in Central Vietnam were still dependent on the French though to a smaller extent.-