What we Offer?
24/07/2017, 22:29 PM

Practices of case law in Vietnam

The 2013 Constitution stipulates: "The Supreme People’s Court shall make an overall assessment of adjudicating practices, ensuring the uniform application of the law in the trial." The Resolution No. 49/NQ-TW of the Politburo on The Judicial Reform Strategy until 2020 states: "The Supreme People's Court has the task of summing up the trial experience, guiding the unified application of the law, the development of the case law and the trial of cassation, retrial."

This spiritual institution, the 2014 Law on Organization of the People's Courts, states: "To select its cassation trial decisions and judgments and decisions of courts which have taken legal effect and are of standard nature, summarize and develop them into court precedents and publicize court precedents for courts to study and apply in trial".

At present, in the context of globalization, there is an intersection between the legal systems in the world. Some countries which have the Civil Law system as Vietnam, have increasingly taken into account the role of the case in ensuring the uniform application of the law. Accordingly, court decisions and judgments have taken legal effect on a particular case containing arguments to explain legal issues and facts and to indicate the applicable principles and legal provisions to the settlement of the case shall be applied to ensure that the same cases are adjudicated. This is an effective way to overcome the drawbacks of the law and ensure the uniform application of the law in the trial, creating stability, transparency, and predictability in court decisions, which helps to guide behavior not only for the parties to the case but also for the whole society.

At the workshop, the Representatives of the Legal and Scientific Management Department of the Supreme People’s Court also mentioned the process of selection and publication of application and development of the case law in Vietnam. Accordingly, the selected case must meet these criteria: containing arguments to clarify the provisions of the law have different understandings; analyzing, explaining legal issues and facts and show the principles, guidelines and legal provisions to be applied in a particular case; being normative; containing great value to guide the uniform application of law in the trial, ensuring that the cases involving the same circumstances and legal events must be resolved equally.

The judgments and decisions considered as case law must fully and completely satisfy the three criteria specified in Article 2 of the Resolution No. 03/2015/NQ-HDTP. In particular, the first criterion is the most important, which is the judgments, decisions containing the arguments and judgments of the Court on a specific issue and the issue is not regulated by law, or there is applicable law but without specific or unclear guidelines, which leads to the misunderstanding of majority of people who apply the law and amounts to judgments and decisions by the court Superior canceled or corrected.

The new law has been enacted

The procedure for selection and publication of the case law is in accordance with the order stipulated in the Resolution No. 03/2015/NQ-HDTP. It is to review, discover the judgments, decisions to develop as the case law.

Accordingly, once every six months, the Chief Judge of the Central Military Court and the Chief Judges of the High Courts shall review and find out the legally enforceable judgments to recommend to The Judges' Committee at their Court for review and evaluation. The Chief Judge of the People's Courts of the provinces and cities directly under the Central Government, the Chief Judges of the Military Courts of the Military Region and the equivalent shall organize a review of the trial practice in order to propose matters to be guided;

Heads of Directorates check the Supreme People’s Court based on the criteria stipulated in Article 2 of this Resolution to review and detect the cassation decisions of the Judicial Council of the Supreme People’s Court and the judgments and decisions which had the legal effect of other courts, submit a report to the Legal and Scientific Management Department of the Supreme People’s Court. The report should review the judicial practice and the law relating to the proposed case selection; specify the judgment, the decision contains the content suggested to develop the case law.

Next is the consultation of the proposed judgments or decisions, the development of the case law, then the establishment and establishment of the Advisory Council.

The application of the case is based on the following principle: the case law is investigated, applied in trial 45 days after the date of publication or stated in the decision of the SPC Chief Justice. When conducting the trial, judges and jurors must study and apply the case law to settle similar cases, ensuring that the same cases with similar circumstances and legal events must be resolved equally. In the event of application of the case law, the number of the court's judgments or decisions contains the case law, nature and circumstances of the case as set out in the case law and the nature and seriousness of the case resolved. Legal issues in the case must be invoked, analyzed and clarified in court judgments or decisions; In case of failure to apply the case law, the reasons therefore must be examined and made, clearly stating the reasons in the court's judgments or decisions.

However, judges and jurors are not required to recuse the case rigidly. They have the right not to refer the case before the case is no longer appropriate due to changes in law, resolution of the Standing Committee of the National Assembly, decrees of the Government. Also, they also have the right not to refer the case when changes in the situation lead to the case is no longer appropriate.

At the seminar, the Supreme Court of Korea also made a statement from the experience of the country, which is how to choose the best case to choose the case law. Often, the selected verdicts are made public under no circumstances at all. In Korea, case law is considered as a reference source for future cases. Also, every year publishes a series of case law and also comments on the case law. The views of the Supreme Court are very strict in these cases. Judges in Korea recognize cases that are published and adjudicated in accordance with the trend that the case has made.

On the application of 10 cases have been issued, representatives of the SPC Legal and Scientific Management Department also said that, pursuant to the Resolution 03 of the SPCJC, after releasing 10 cases, The situation applied in the courts has been initiated. So far, there has been a court in Quang Ngai has used case 04 in the trial. Many local jurisdictions also believe that this case-law is an essential basis for referencing in many similar cases. However, the initial application also shows that the judges are still rather confused in the allegations, arguments into their judgments. Currently, the SPC is also working on this issue.

At the workshop, the participants also considered that the case was critical in the proceedings, and the initial issuance of legal cases of the SPC was necessary. In the coming time, there should be a review, selection, and publication of more cases to have the basis for application in legal proceedings.

According to Justice Newspaper