The role and principles of application of case law in a trial in Vietnam

Case law is one of the important sources for Judges to be able to resolve disputes quickly and convincingly. So what is the role of case law? What is the principle of application of precedent in the trial? To better understand this, today, LSX Lawfirm will give you an article about “The role and principles of application of case law in a trial in Vietnam“, as follows:

What is the case law?

Accordingly, to current law, the concept of case law is defined in Article 1 of Resolution No. 04/2019/NQ-HDTP as follows:

“Case law is the arguments and rulings in the legally effective judgment or decision of the Court on a specific case selected by the Council of Judges of the Supreme People’s Court and selected by the Chief Justice of the People’s Court. Publication by the Supreme People is a precedent for the Courts to study and apply in a trial.”

Thus, the current Vietnamese law has built a full concept of the term case law. In particular, case precedent is determined not to be the entire judgment or decision of the Court but only the contents containing arguments to explain legal issues and facts, and point out principles or regulations. applicable law or the reason for the Court’s decision.

Not any legally enforceable judgment of the Court can become precedent. In order to be considered a precedent, a court judgment or decision must satisfy certain conditions.

The role of case law in the adjudication

Case law has officially applied in Vietnam because of the legal values ​​that precedent brings such as enhancing the adjudicating role of the Court, contributing to perfecting the law, ensuring fairness, ensuring the up-to-date efficiency of the legal system, minimizing injustice in adjudication activities. Up to now, there have 43 published case precedents in the fields of civil contracts, inheritance, land use rights, business-commercial, marriage and family, labor, and criminal matters.

The application of precedent not only means solving a specific case but also sets a precedent to apply to adjudicate similar cases in the future, creating equality in the adjudication of cases with similar properties.

Case precedent helps to predict the outcome of disputes, saves the effort of judges, procedure-conducting agencies, and participants in proceedings, and creates justice in society. Moreover, the application of case law also helps units when drafting, negotiating, and signing commercial contracts and civil transactions to avoid risks.

Principles of application of case law

Cases with similar legal situations may apply case law and must handle equally:

• Firstly, The number, name of the precedent, the legal situation, the legal solution contained in the precedent, and the legal situation of the case that resolved must analyze and cited in the “Court judgment” section.
• Secondly, Depending on each specific case, part or all of the content of the case law may cite to clarify the Court’s point of view in handling and adjudicating similar cases.

Studying and invoking case precedents when adjudicating is a requirement for jurors and judges. In case jurors or judges do not apply case precedents when adjudicating cases with similar legal situations to case precedents, they are responsible for reasoning and clearly explaining the reasons for the decisions or judgments.

The process of selecting case precedents according to current regulations

Accordingly, to the provisions of Article 3, Article 4, Article 5, Article 6, and Article 7 of Resolution No. 04/2019/NQ-HDTP of the Judicial Council of the Supreme People’s Court, case precedents are formed according to the following process:

Step 1: Propose decisions and judgments to develop into case precedents (Article 3)

1. Individuals, agencies, and organizations may submit proposals for legally effective judgments or decisions of the Court containing arguments or rulings that satisfy the criteria guided in Article 2 of this Resolution. for the Supreme People’s Court to consider and develop into case law.

2. Courts are responsible for organizing the review and detection of legally effective judgments or decisions of their courts containing arguments and rulings that satisfy the guiding criteria in Article 2 of the Resolution. this and send it to the Supreme People’s Court for consideration and development into case law.

Step 2: Collect opinions on the proposed decision and judgment to develop into a case precedent (Article 4)

1. Judgments and decisions proposed to select and developed into case precedents, the proposed content is precedent, and the draft precedent must poste on the website of the Supreme People’s Court so that the Courts, experts, scientists, practical activists, interested individuals, agencies and organizations, except for the case guided at Points b, c, and d, Clause 2, Article 6 of this Decree this decision.

Comments sent to the Supreme People’s Court. The comment period is 30 days from the date of publication.

2. Based on the results of public consultation on the proposed judgments and decisions to selected and developed into case precedents, the proposed contents are case precedents, draft case precedents, the Chief Justice of the People’s Court The Supreme People’s Court considers and decides to collect opinions from the case law advisory council. The consultation of the precedent advisory council shall comply with the guidance in Clauses 2 and 3, Article 5 of this Resolution.

Step 3: Establishing and collecting opinions of the case law advisory council (Article 5)

1. The precedent advisory council established by the Chief Justice of the Supreme People’s Court consists of at least 9 members. The Chairman of the Council is the Chairman of the Scientific Council of the Supreme People’s Court, the Vice Chairman of the Council is the Vice Chairman of the Scientific Council of the Supreme People’s Court, the other members are representatives of the Ministry of Justice. The Supreme People’s Procuracy, the Vietnam Bar Federation, representatives of relevant agencies and organizations, legal experts, and 01 leading representatives of the Legal and Scientific Management Department of the People’s Court Supreme Court (also the Secretary of the Council).

In the case of criminal case law consulting, the composition of the case law advisory council must include a representative of the investigating agency of the Ministry of Public Security, the Ministry of National Defense, or the Supreme People’s Procuracy.

2. The precedent advisory council is responsible for discussing and giving opinions; on the proposed judgments and decisions to select and developed; into case precedents, the proposed contents being precedents and draft case precedents.

3. The collection of opinions of the precedent advisory council done; through a meeting to discuss in person or in writing. The Chairman of the Case Law Advisory Council shall decide on the method of collecting opinions of the Council members; and report the consulting results to the Chief Justice of the Supreme People’s Court.

Step 4: Approve case precedent (Article 6)

1. Firstly, The Chief Justice of the Supreme People’s Court shall hold a plenary meeting of the Council of Judges of the Supreme People’s Court to discuss and vote on the adoption of case precedents.

2. Secondly, Case precedents shall consider for approval in one of the following cases:

a) Developed from a legally effective judgment or decision of the Court; and consulted under the guidance in Articles 4 and 5 of this Resolution;

b) Recommended by a judge of the Supreme People’s Court;

c) It proposed by the Judicial Committee of the High People’s Court;

d) To select by the Council of Judges of the Supreme People’s Court when conducting cassation or reopening trials.

3. Thirdly, The meeting of the Council of Judges of the Supreme People’s Court must attend by at least two-thirds of the total number of members; Decisions of the Council of Judges of the Supreme People’s Court must approve by more than half of the total number of members of the Council of Judges.

4. Finally, Voting results must record in the minutes of the meeting to select and approve the precedents of the Council of Judges and serve as a basis for the Chief Justice of the Supreme People’s Court to announce the case precedents.

Step 5: Publication of case law (Article 7)

1. Firstly, The Chief Justice of the Supreme People’s Court shall issue a decision to announce the precedent; that has approved by the Council of Judges of the Supreme People’s Court.

2. Secondly, Announced contents include:

a) Case number and name of the precedent;

b) The number and name of the court judgment or decision whose contents developed into case precedents;

c) Legal situations and legal solutions of case precedents;

d) Laws related to case law; dd) Keywords about legal situations and legal solutions in case law;

e) The circumstances in the case and the court’s ruling are related to the case precedent;

g) Contents of the precedent.

3. Thirdly, Case precedents posts on the Website of the Supreme People’s Court; sent to the Courts, units of the Supreme People’s Court, and included in the Collection of Case Laws for publication.

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