Comparison between Vietnam's precedents and those of countries belonging to the Common law system

Vietnam

Countries under the common law system

Main legal source

Statutes.

(Laws formed from specific provisions)

Precedents.

(Laws formed from cases)

Role of precedent

Precedent is not considered a fundamental legal source, as precedents are issued to clarify legal provisions with different interpretations.

=> The court is responsible for selecting, publishing, and applying precedent, while lawmaking is the responsibility of the National Assembly.

Precedent is considered a fundamental legal source and must be applied in trials.

=> The court, especially the Judge, plays an important role in lawmaking and policy planning.

Compulsory application

Not compulsory in all trial cases.

Only in cases where specific circumstances are not defined in legal documents or where existing provisions are interpreted differently should precedent be applied.

Compulsory in all trial cases.

Criteria for selecting precedent

To be selected as a precedent, the court must consider the following criteria from cases that have been tried:

- Containing arguments clarifying legal provisions with different interpretations, analyze, explain legal issues and events, and indicate the principles, methods of handling, and legal norms to be applied in specific cases.

- Having a standard.

- Having guiding value for the uniform application of the law in trials, ensuring that cases with similar legal circumstances and events are resolved in the same manner.

Not every trial by the court results in a precedent.

A trial is considered a precedent when it meets the following criteria:

- Novelty. Meaning that there has been no precedent established on the issue before.

Typically, a trial involves two issues: the factual issue and the legal issue. If the legal issue has not been previously addressed, a trial is conducted and later recognized as a precedent.

- Containing details of the case, reasoning, and arguments and complies with the principle of precedent.

The mandatory contents of a precedent include

- The name of the case resolved by the Court.

- The number of the judgment, decision of the Court containing the precedent.

- Keywords on the legal issues resolved in the precedent.

- The circumstances of the case and the Court's ruling related to the precedent.

- The legal issue with guiding value for trial is resolved in the precedent.

- The name of the case.

- The year the Court issued the judgment for the case.

- The number of volumes of the document recording the precedent.

- The abbreviation of the recording document.

- The page number of the first page of the recording document.

- The circumstances of the case.

- The reasoning or arguments.

- The Court's decision.

Example: Precedent Sharif v Azad [1967] 1QB. 605 (CA)

In the case of Sharif suing Azad for murder, the decision was made and published in 1967, volume 1 by the Court of Appeal after considering the appeal from the lower court - Queen's Bench (QB) and recorded in the document, starting from page 605.

Selection and publication process

Step 1: Review, determine the judgment, decision to propose development into a precedent.

Step 2: Consultation on the proposed selected judgment, decision for development into a precedent.

Consultation period: 02 months.

Within 01 month from the deadline for consultation, the Department of Legal Affairs and Scientific Management of the Supreme People's Court shall coordinate with functional units to gather opinions, study, evaluate, and report to the Chief Justice for consideration of the decision to consult the Advisory Council on precedents.

Step 3: Within 15 days from the date of receiving the proposal for consultation, the Chairman of the Council must provide an opinion on the proposed decision to select the precedent to be sent to the Chief Justice of the People's Court.

Step 4: Approval of the precedent.

Step 1: The court with jurisdiction issues a judgment to review the judgments of lower courts, meeting the criteria for selection as a judgment.

Step 2: Widely publicize the judgment in the mass media.

Step 3: Record the judgment in the document file.

Publicize the judgment.

The judgment is published in the Journal of the People's Court, the website of the Supreme People's Court; sent to the courts and included in the collection of judgments published every 12 months.

Apply regularly, continuously, and widely through various mass media.

Effective application.

After 45 days from the date of publication or as recorded in the decision to publish the judgment by the Chief Justice of the Supreme People's Court.

Effective immediately upon publication.

Principles of applying judgments in trials.

- Resolve cases with similar legal circumstances and events, ensuring that cases with similar legal circumstances and events are resolved equally.

- In cases of applying judgments, reference must be made to the number of judgments, decisions recognized as judgments.

- If there are changes in the Law, Resolutions of the National Assembly, Ordinances, Resolutions of the National Assembly Standing Committee, Government Decrees that make the judgment no longer appropriate, the Judges, the Council of Judges do not apply the judgment.

- If the judgment is no longer appropriate due to changes in the situation, it is not applied and must be proposed to the Council of Judges of the Supreme People's Court for consideration and cancellation.

=> The newer the judgment, the higher the value of the application.

- Respect the supreme principles of the Court.

- The judgment must be flexible, adaptable...

=> The longer the judgment is issued, the higher the value of the application.

Abolishing, replacing judgments.

There are 02 cases of abolishing, replacing judgments:

- When there are changes in the Law, Resolutions, Ordinances, Decrees.

- Due to changes in the situation that make the judgment no longer appropriate.

Cases of abolishing, replacing judgments:

- Protecting justice or making wrong judgments.

- In some special cases...